<PAGE> 1
As filed with the Securities and Exchange Commission on November 23, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ALLIED WASTE INDUSTRIES, INC.
ALLIED WASTE NORTH AMERICA, INC.
SUBSIDIARY GUARANTORS LISTED ON SCHEDULES A THROUGH DD HERETO
(Exact name of registrant as specified in its charter)
ALLIED WASTE INDUSTRIES, INC. ALLIED WASTE NORTH AMERICA, INC.
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION (STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION) OF INCORPORATION OR ORGANIZATION)
88-0228636 86-0843596
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
4953
(Primary Standard Industrial
Classification Code Number)
15880 NORTH GREENWAY-HAYDEN LOOP, SUITE 100
SCOTTSDALE, ARIZONA 85260
(480) 627-2700
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
HENRY L. HIRVELA
CHIEF FINANCIAL OFFICER
ALLIED WASTE INDUSTRIES, INC.
15880 NORTH GREENWAY-HAYDEN LOOP, SUITE 100
SCOTTSDALE, ARIZONA 85260
(480) 627-2700
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
PETER GOLDEN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED EXCHANGE OFFER: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM PROPOSED MAXIMUM
TO BE REGISTERED AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF REGISTRATION
REGISTERED PER NOTE(1) PRICE(1) FEE(1)(2)
- ----------------------------------------- ---------------- --------------- ------------------ -----------------------
<S> <C> <C> <C> <C>
10% Series B Senior Subordinated Notes
due 2009 ............................. $2,000,000,000 100% $2,000,000,000 $ 556,000
Guarantees ........................... -- -- -- None(2)
Total ......................... $2,000,000,000 100% $2,000,000,000 $ 556,000(1)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f) under the Securities Act of 1933, as amended
(the "Securities Act").
(2) Pursuant to Rule 457(n) under the Securities Act.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 2
SCHEDULE A
SUBSIDIARY GUARANTORS
A-1 Service, Inc.
Aaro Waste Paper Company
Able Sanitation, Inc.
Adrian Landfill, Inc.
ADS of Illinois, Inc.
Affordable Dumpsters, Inc.
Alabama Recycling Services, Inc.
Alaska Street Associates, Inc.
Allied Cartage, Inc.
Allied Waste Industries (Arizona), Inc.
Allied Waste Industries (Southwest), Inc.
Allied Waste Industries of Illinois, Inc.
Allied Waste of California, Inc.
Allied Waste of New Jersey, Inc.
Allied Waste Rural Sanitation, Inc.
Allied Waste Systems, Inc. (Ohio)
Allied Waste Systems (Texas) Inc.
American Disposal Services of Illinois, Inc.
American Disposal Services of Kansas, Inc.
American Disposal Services of New Jersey, Inc.
American Disposal Services of West Virginia, Inc.
American Disposal Transfer Services of Illinois, Inc.
American Materials Recycling Corp.
American Transfer Company, Inc.
Apache Junction Landfill Corporation
Automated Modular Systems, Inc.
B & L Waste Handling, Inc.
Beattie's Rubbish Disposal, Inc.
Belleville Landfill, Inc.
BFI Medical Waste Systems of Washington, Inc.
BFI Transfer Systems of New Jersey, Inc.
BFI Waste Systems of New Jersey, Inc.
Borrego Landfill, Inc.
Bowers Phase II, Inc.
Brickyard Disposal & Recycling, Inc.
Browning-Ferris Industries of California, Inc.
Browning-Ferris Industries of Connecticut, Inc.
Browning-Ferris Industries of Florida, Inc.
Browning-Ferris Industries of Hawaii, Inc.
Browning-Ferris Industries of New Jersey, Inc.
Browning-Ferris Industries of New York, Inc.
Browning-Ferris Industries of Ohio, Inc.
Browning-Ferris Industries of Tennessee, Inc.
Browning-Ferris Industries, Inc. (MA corp.)
CC Landfill, Inc.
CCAI, Inc.
CDF Consolidated Corporation
Celina Landfill, Inc.
Central Sanitary Landfill, Inc.
Chambers Development of North Carolina, Inc.
Champion Recycling, Inc.
Charter Evaporation Resource Recovery Systems
Cherokee Run Landfill, Inc.
Chicago Disposal, Inc.
Citizens Disposal, Inc.
City-Star Services, Inc.
Clarkston Disposal, Inc.
Clinton Disposal Co.
Cocopah Landfill, Inc.
Copper Mountain Landfill, Inc.
County Disposal (Ohio), Inc.
County Landfill, Inc.
D & D Garage Services, Inc.
DeFeo Enterprises, Inc.
Delta Container Corporation
Delta Paper Stock, Co.
Denver Regional Landfill, Inc.
Dinverno Recycling, Inc.
Dinverno, Inc.
Douglas County Disposal, Inc.
Draw Enterprises II, Inc.
Draw Enterprises Real Estate, Inc.
Duncan Disposal Service, Inc.
Eagle Industries Leasing, Inc.
East Coast Waste Systems, Inc.
ECDC Environmental of Humbolt County, Inc.
ECDC Holdings, Inc.
Elmhurst Disposal Company
Enviro Carting Inc.
Enviro Recycling Corp.
Environmental Development Corp. (DE)
Environmental Reclamation Company
Environtech, Inc.
Evergreen Scavenger Service, Inc.
F.P. McNamara Rubbish Removal, Inc.
Forward, Inc.
Fred Barbara Trucking Co., Inc.
G. Van Dyken Disposal Inc.
Garofalo Brothers, Inc.
Garofalo Recycling and Transfer Station Co., Inc.
Gary Recycling Services, Inc.
General Refuse Rolloff Corp.
Georgia Recycling Services, Inc.
Giordano Recycling Corp.
Golden Eagle Disposals, Inc.
Golden Waste Disposal, Inc.
Great Lakes Disposal Service, Inc.
Great Midwestern Recovery Systems, Inc.
Harland's Sanitary Landfill, Inc.
Hawkeye Disposal Services, Inc.
Illinois Bulk Handlers, Inc.
Illinois Landfill, Inc.
Illinois Recycling Services, Inc.
Imperial Landfill, Inc.
Independent Trucking Company
Indiana Recycling Services, Incorporated
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<PAGE> 3
SCHEDULE A (continued)
Industrial Services of Illinois, Inc.
Ingrum Waste Disposal, Inc.
International Disposal Corp. of California
Joe Di Rese & Sons, Inc.
Keller Canyon Landfill Company
Lake Norman Landfill, Inc.
Lake Shore Distributions, Inc.
Lathrop Sunrise Sanitation Corporation
Lee County Landfill, Inc.
Loop Express, Inc.
Loop Recycling, Inc.
Loop Transfer, Incorporated
Louis Pinto & Son, Inc., Sanitation Contractors
Maui Disposal Co., Inc.
MCM Sanitation, Inc.
Medical Disposal Services, Inc.
Mesa Disposal, Inc.
Metropolitan Disposal, Inc.
Mississippi Waste Paper Company
MJS Associates, Inc.
Monarch Disposal, Inc.
NationsWaste Catawba Regional Landfill, Inc.
NationsWaste, Inc.
New Morgan Landfill Company, Inc.
Newco Waste Systems of New Jersey, Inc.
Nimishillen Industrial Park, Inc.
Northeast Sanitary Landfill, Inc.
Northwest Recycling, Inc.
Northwest Waste Industries, Inc.
Oakland Heights Development, Inc.
Oklahoma Refuse, Inc.
Otay Landfill, Inc.
Ottawa County Landfill, Inc.
Packman, Inc.
Palomar Transfer Station, Inc.
Paper Fibers, Inc.
Pima Environmental Services, Inc.
Pittsburg County Landfill, Inc.
PM Recycling, Inc.
Price & Sons Recycling Company
R. 18, Inc.
R.C. Miller Enterprises, Inc.
R.C. Miller Refuse Service, Inc.
Rabanco Connections International, Inc.
Rabanco Intermodal/B.C., Inc.
Rabanco Recycling, Inc.
Rabanco Regional Landfill Company
Rabanco, Ltd.
Ramona Landfill, Inc.
RCS, Inc.
Recycling Associates Inc.
Refuse Service, Inc.
Reliable Rubbish Disposal, Inc.
Resource Recovery, Inc.
Ridgeline Trucking, Inc.
Ross Bros. Waste & Recycling Co.
Roxana Landfill, Inc.
Royal Holdings, Inc.
Rural Sanitation Service, Inc. of North Carolina
S & L, Inc.
S & S Environmental, Inc.
Saline County Landfill, Inc.
San Marcos NCRRF, Inc.
Sangamon Valley Landfill, Inc.
Sanitary Disposal Service, Inc.
Sanitran Inc.
Saugus Disposal, Inc.
Sauk Trail Development, Inc.
Seattle Disposal Company, Inc.
Selas Enterprises Ltd.
Shred-All Recycling Systems, Inc.
South Chicago Disposal, Inc. of Indiana
SSWI, Inc.
Standard Disposal Services, Inc.
Standard Environmental Services, Inc.
Standard Waste, Inc.
Stark Recycling Center, Inc.
Streator Area Landfill, Inc.
Suburban Transfer, Inc.
Suburban Warehouse, Inc.
Sun Valley Environmental Services, Inc.
Sunrise Sanitation Service, Inc.
Sunset Disposal, Inc.
Sunset Disposal Service, Inc.
Sycamore Landfill, Inc.
T & G Container, Inc.
Tates Transfer Systems, Inc.
Taylor Ridge Landfill, Inc.
Tennessee Union county Landfill, Inc.
Tom Luciano's Disposal Service, Inc.
Top Disposal Service, Inc.
Tri-State Recycling Services, Inc.
Tri-State Refuse Corporation
Tri-State Refuse Equipment Sales & Service, Inc.
Turnpike Leasing, Inc.
United Waste Control Corp.
United Waste Systems of Central Michigan, Inc.
Upper Rock Island County Landfill, Inc.
USA Waste of Illinois, Inc.
Vining Disposal Service, Inc.
Vinnie Monte's Waste Systems, Inc.
Waste Associates, Inc.
Waste Reclaiming Service, Inc.
Wayne County Landfill IL, Inc.
Williams County Landfill, Inc.
WJR Environmental, Inc.
World Sanitation Corporation
Yavapai Environmental Services, Inc.
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<PAGE> 4
SCHEDULE B
SUBSIDIARY GUARANTORS
AAWI, Inc.
ADS, Inc.
Allied Acquisition Pennsylvania, Inc.
Allied Acquisition Two, Inc.
Allied Enviro Engineering, Inc. (TX corp.)
Allied Enviroengineering, Inc. (DE corp.)
Allied Waste Alabama, Inc.
Allied Waste Company, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Industries (New Mexico), Inc.
Allied Waste Industries of Georgia, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries of Tennessee, Inc.
Allied Waste Landfill Holdings, Inc.
Allied Waste of Long Island, Inc.
Allied Waste Services, Inc. (MA corp.)
Allied Waste Services, Inc. (TX corp.)
Allied Waste Systems, Inc. (DE corp.)
Allied Waste Transportation, Inc.
Americal Co.
American Disposal Services, Inc.
American Disposal Services of Missouri, Inc.
Area Disposal Inc.
Attwoods of North America, Inc.
Autoshred, Inc.
AWIN Management, Inc.
BFI Atlantic, Inc.
BFI Energy Systems of Albany, Inc.
BFI Energy Systems of Delaware County, Inc.
BFI Energy Systems of Essex County, Inc.
BFI Energy Systems of Hempstead, Inc.
BFI Energy Systems of Niagra, Inc.
BFI Energy Systems of Niagra II, Inc.
BFI Energy Systems of SEMASS, Inc.
BFI Energy Systems of Southeastern Connecticut, Inc.
BFI International, Inc.
BFI Medical Waste, Inc. (Delaware)
BFI Medical Waste Systems of Washington, Inc.
BFI Properties, Inc.
BFI Ref-Fuel, Inc.
BFI Trans River (GP), Inc.
BFI Waste Systems of North America, Inc.
Browning-Ferris Financial Services, Inc.
Browning-Ferris Gas Services, Inc.
Browning-Ferris, Inc.
Browning-Ferris Industries, Inc. (DE corp.)
Browning-Ferris Industries Chemical Services, Inc.
Browning-Ferris Industries of Illinois, Inc.
Browning-Ferris Industries of Milwaukee, Inc.
Browning-Ferris Services, Inc.
CECOS International, Inc.
City Garbage, Inc.
Community Refuse Disposal, Inc.
Containerized, Inc. of Texas
County Disposal, Inc.
Cousins Carting Corp.
EOS Environmental, Inc.
Liberty Waste Holdings, Inc.
New York Waste Services, Inc.
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection Systems of Fremont, Inc.
Pinal County Landfill Corp.
Queen City Transfer, Inc.
Risk Services, Inc.
S & S Recycling, Inc.
Southwest Waste, Inc.
Super Services Waste Management, Inc.
Tricil (N.Y.), Inc.
Wastehaul, Inc.
Woodlake Sanitary Service, Inc.
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<PAGE> 5
SCHEDULE C
SUBSIDIARY GUARANTORS
Allied Waste Systems Holdings, Inc.
SCHEDULE D
SUBSIDIARY GUARANTORS
Draw Acquisition Company Twenty Three
SCHEDULE E
SUBSIDIARY GUARANTORS
Allied Nova Scotia, Inc.
SCHEDULE F
SUBSIDIARY GUARANTORS
AWIN Leasing Company, Inc.
SCHEDULE G
SUBSIDIARY GUARANTORS
Allied Waste of New Jersey, LLC
Allied Waste Sycamore Landfill, LLC
Anderson Regional Landfill, LLC
Anson County Landfill NC, LLC
Bridgeton Landfill, LLC
Brundidge Landfill, LLC
Brunswick Waste Management Facility, LLC
Butler County Landfill, LLC
Chilton Landfill, LLC
Courtney Ridge Landfill, LLC
Ellis Scott Landfill MO, LLC
Forest View Landfill, LLC
Great Plains Landfill OK, LLC
Jefferson City Landfill, LLC
Lee County Landfill SC, LLC
Lemons Landfill, LLC
Northeast Landfill, LLC
Pinecrest Landfill OK, LLC
Show-Me Landfill, LLC
Southeast Landfill, LLC
SCHEDULE H
SUBSIDIARY GUARANTORS
Consolidated Processing, Inc.
SCHEDULE I
SUBSIDIARY GUARANTORS
Camelot Landfill TX, LP
Crow Landfill TX, L.P.
Ellis County Landfill TX, L.P.
Fort Worth Landfill TX, LP
Houston Towers TX, LP
Mars Road TX, LP
Mesquite Landfill TX, LP
Pleasant Oaks Landfill TX, LP
Pine Hill Farms Landfill TX, LP
Turkey Creek Landfill TX, LP
SCHEDULE J
SUBSIDIARY GUARANTORS
Allied Gas Recovery Systems, L.L.C.
SCHEDULE K
SUBSIDIARY GUARANTORS
BFI Energy Systems of Boston, Inc.
BFI Energy Systems of Plymouth, Inc.
BFI Trans River (LP), Inc.
Browning-Ferris Industries Asia Pacific, Inc.
SCHEDULE L
SUBSIDIARY GUARANTORS
County Line Landfill Partnership
Illiana Disposal Partnership
Key Waste Indiana Partnership
Newton County Landfill Partnership
SCHEDULE M
SUBSIDIARY GUARANTORS
Allied Services, LLC
SCHEDULE N
SUBSIDIARY GUARANTORS
D & L Disposal, L.L.C.
Envotech-Illinois, L.L.C.
Liberty Waste Services of McCook, L.L.C.
SCHEDULE O
SUBSIDIARY GUARANTORS
Draw Enterprises Real Estate, L.P.
SCHEDULE P
SUBSIDIARY GUARANTORS
Evergreen Scavenger Service, L.L.C.
Liberty Waste Services of Illinois, L.L.C.
Packerton Land Company, L.L.C.
SCHEDULE Q
SUBSIDIARY GUARANTORS
Liberty Waste Services Limited, L.L.C.
SCHEDULE R
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<PAGE> 6
SUBSIDIARY GUARANTORS
Paper Fibres Company
SCHEDULE S
SUBSIDIARY GUARANTORS
BFI Services Group, Inc.
SCHEDULE T
SUBSIDIARY GUARANTORS
ECDC Environmental, L.C.
SCHEDULE U
SUBSIDIARY GUARANTORS
Oklahoma City Landfill, L.L.C.
SCHEDULE V
SUBSIDIARY GUARANTORS
Rabanco Companies
SCHEDULE W
SUBSIDIARY GUARANTORS
U.S. Disposal II
SCHEDULE X
SUBSIDIARY GUARANTORS
Recycle Seattle II
SCHEDULE Y
SUBSIDIARY GUARANTORS
Regional Disposal Company
SCHEDULE Z
SUBSIDIARY GUARANTORS
Browning-Ferris Industries Europe, Inc.
SCHEDULE AA
SUBSIDIARY GUARANTORS
VHG, Inc.
SCHEDULE BB
SUBSIDIARY GUARANTORS
Warner Hill Development Company
SCHEDULE CC
SUBSIDIARY GUARANTORS
Allied Waste Holdings (Canada) Ltd.
SCHEDULE DD
SUBSIDIARY GUARANTORS
Blue Ridge Landfill General Partnership
and Moorhead Landfill General Partnership
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<PAGE> 7
PROSPECTUS
OFFER FOR
ALL OUTSTANDING 10% SERIES A SENIOR SUBORDINATED NOTES DUE 2009
IN EXCHANGE FOR
10% SERIES B SENIOR SUBORDINATED NOTES DUE 2009
OF
ALLIED WASTE NORTH AMERICA, INC.
THIS EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1999.
THE REGISTERED NOTES
- - The terms of each of the series B senior subordinated notes to be issued
are substantially identical to each of the outstanding series A senior
subordinated notes that Allied Waste North America, Inc. (the "Company")
issued on July 30, 1999, except for certain transfer restrictions,
registration rights and special interest provisions relating to the
outstanding series A senior subordinated notes. Sometimes, we will refer
to the series A senior subordinated notes and the series B senior
subordinated notes together in this Prospectus as the notes. We also refer
to the series B senior subordinated notes exchanged in the exchange offer
as the exchange notes.
- - Interest on the notes is payable semi-annually in arrears on each May 1
and November 1, commencing November 1, 1999.
- - The notes are guaranteed on a senior subordinated basis by our parent,
Allied Waste Industries, Inc. ("Allied"), a Delaware corporation of which
we are a direct wholly-owned subsidiary. In addition, so long as our
senior credit facility is similarly guaranteed, the notes will be
guaranteed on a senior subordinated basis by substantially all our
subsidiaries. If we cannot make payments on the notes when they are due,
the subsidiary guarantors or Allied must make them instead.
- - The notes and the guarantees are general unsecured obligations of the
Company and:
- are subordinate in right of payment to all of our and the
guarantors' existing and future senior debt;
- are subordinate to indebtedness under our senior credit facility to
the extent of the assets securing such indebtedness, except for the
Tranche D Subordinated Term Loan under the senior credit facility;
- are equal in right of payment to our and the guarantors' other
existing and future senior subordinated indebtedness; and
- are senior to our senior convertible preferred stock.
MATERIAL TERMS OF THE EXCHANGE OFFER
- - Expires at 5:00 p.m., New York City time, on , 1999, unless
extended.
- - Not subject to any condition other than that the Exchange Offer not
violate applicable law or any applicable interpretation of the staff of
the Securities and Exchange Commission.
- - All outstanding series A senior subordinated notes that are validly
tendered and not validly withdrawn will be exchanged for an equal
principal amount of series B senior subordinated notes which are
registered under the Securities Act of 1933, as amended.
- - The exchange of notes will not be a taxable exchange for the U.S. federal
income tax purposes.
- - We will not receive any proceeds from the Exchange Offer.
- - Tenders of outstanding series A senior subordinated notes may be withdrawn
at any time prior to the expiration of the Exchange Offer.
CONSIDER CAREFULLY THE "RISK FACTORS" BEGINNING ON PAGE 14 OF
THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED THE NOTES TO BE
DISTRIBUTED IN THE EXCHANGE OFFER, NOR HAVE ANY OF THESE
ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1999.
<PAGE> 8
TABLE OF CONTENTS
Page
Where You Can Find More Information.............................. 3
Incorporation of Certain Documents by Reference.................. 3
Forward-Looking Statements....................................... 4
Prospectus Summary............................................... 5
The Exchange Offer............................................. 5
The Company.................................................... 5
Summary of the Terms of the Exchange Offer..................... 7
Consequences of Not Exchanging Old Notes....................... 10
Summary Description of the New Notes........................... 11
Risk Factors..................................................... 14
Ratio of Earnings to Fixed Charges of Allied..................... 26
The Exchange Offer............................................... 27
Certain Indebtedness............................................. 35
Description of the New Notes..................................... 41
United States Federal Income Tax Consequences.................... 80
Plan of Distribution............................................. 85
Validity of the New Notes........................................ 85
Experts.......................................................... 85
NO DEALER, SALESPERSON, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL, OR SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY
JURISDICTION IN WHICH SUCH AN OFFER TO SELL OR SOLICITATION WOULD BE UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS PROSPECTUS.
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<PAGE> 9
WHERE YOU CAN FIND MORE INFORMATION
Allied is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, in accordance with these rules, we file
annual, quarterly and other information with the Securities and Exchange
Commission (the "SEC"). You may read and copy the reports and other information
that we file with the SEC at the SEC's public reference facilities at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549. You may also obtain information
about Allied and the Company from the following regional offices of the SEC:
Seven World Trade Center, 13th Floor, New York, New York 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60601-2511.
Copies of these materials also can be obtained from the Public Reference Section
of the SEC, Washington, D.C. 20549 at prescribed rates. Our filings with the SEC
are also available to the public on the SEC's home page on the Internet at
http://www.sec.gov.
We have filed with the SEC a Registration Statement on Form S-4 (the
"Registration Statement") with respect to our 10% series B senior subordinated
notes due 2009. This Prospectus, which is a part of the Registration Statement,
omits certain information included in the Registration Statement. Statements
made in this Prospectus as to the contents of any contract, agreement or other
document are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
we refer you to such exhibit for a more complete description of the matter
involved, and each such statement is deemed qualified in its entirety to such
reference.
The indenture governing the outstanding notes provides that we will furnish
to the holders of the notes copies of the periodic reports required to be filed
by Allied or us with the SEC under the Exchange Act. Even if neither Allied nor
us is subject to the periodic reporting and informational requirements of the
Exchange Act, Allied or we will make such filings to the extent that such
filings are accepted by the SEC. Allied or we will make these filings regardless
of whether we have a class of securities registered under the Exchange Act.
Furthermore, we will provide the Trustee for the notes within 15 days after such
filings with annual reports containing the information required to be contained
in Form 10-K, and quarterly reports containing the information required to be
contained in Form 10-Q promulgated by the Exchange Act. From time to time,
Allied or we will also provide such other information as is required to be
contained in Form 8-K promulgated by the Exchange Act. If the filing of such
information is not accepted by the SEC or is prohibited by the Exchange Act, we
will then provide promptly upon written request copies of such reports to
prospective purchasers of the notes.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We hereby incorporate by reference into this Prospectus the following
documents or information filed with the SEC:
(a) Allied's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1998 ("Allied's 1998 Form 10-K") except for Part II,
Items 6, 7, 7A and 8;
(b) Allied's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999, June 30, 1999 and September 30, 1999;
(c) Allied's Current Reports on Form 8-K filed on March 16, 1999, July
19, 1999, August 10, 1999, September 14, 1999 and November 22, 1999
respectively;
(d) Allied's Proxy Statement for its annual meeting of shareholders held
on May 26, 1999;
(e) Allied's Proxy Statement for its special meeting of shareholders to
be held on November 17, 1999 and supplements to the Proxy Statement
dated October 28, 1999 and November 2, 1999; and
(f) all documents filed by Allied pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the
Registration Statement of which this Prospectus is part and prior to
the effectiveness thereof or subsequent to the date of this
Prospectus and prior to the expiration of the Exchange Offer.
Any statement contained herein, or in any documents incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for the purpose of this Prospectus to the extent that a subsequent
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein
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<PAGE> 10
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. These documents are available without charge upon
written or oral request from Henry L. Hirvela, Chief Financial Officer of Allied
at Allied's principal executive offices located at 15880 North Greenway-Hayden
Loop, Suite 100, Scottsdale, Arizona 85260, telephone number (480) 627-2700.
Exhibits to the documents will not be sent, unless those exhibits have
specifically been incorporated by reference in the document. TO OBTAIN TIMELY
DELIVERY OF ANY COPIES OF FILINGS REQUESTED, PLEASE WRITE OR TELEPHONE NO LATER
THAN , 1999, TEN DAYS PRIOR TO THE EXPIRATION OF THE EXCHANGE OFFER.
This Exchange Offer is not being made to, nor will we accept surrenders for
exchange from, holders of outstanding notes in any jurisdiction in which this
Exchange Offer or the acceptance thereof would not be in compliance with the
Securities or Blue Sky laws of such jurisdiction.
FORWARD-LOOKING STATEMENTS
This Prospectus contains both historical and forward-looking statements.
These forward-looking statements are not historical facts, but only predictions
and generally can be identified by use of statements that include phrases such
as "believe," "expect," "anticipate," "intend," "plan," "foresee" or other words
or phrases of similar import. Similarly, statements that describe our
objectives, plans or goals also are forward-looking statements. Our operations
are subject to certain risks and uncertainties that could cause actual results
to differ materially from those contemplated by the relevant forward-looking
statement. Examples of these risks and uncertainties include:
- whether we can successfully integrate acquired companies, including
the ongoing integration of Browning-Ferris Industries, Inc. ("BFI");
- whether we can achieve anticipated cost savings;
- whether we can successfully sell non-strategic assets;
- whether the proceeds of sales from non-strategic assets will permit
us to pay down enough debt to improve our ability to service our
remaining debt;
- whether acquisitions will be accretive to our earnings and cash
flow;
- whether the combined business of Allied and BFI will generate
sufficient cash flow to service the substantial amount of debt we
incurred to pay for the BFI acquisition;
- whether we can assimilate and retain BFI employees;
- whether we can retain BFI's customers;
- whether we can successfully continue to pursue our vertical
integration business strategy; and
- whether we can successfully continue to pursue a disciplined market
development program.
Other factors that could materially affect these forward-looking statements
can be found in Allied's and BFI's periodic reports filed with the SEC.
Potential investors and other readers are urged to consider these factors
carefully in evaluating the forward-looking statements, including the factors
described below under "Risk Factors" and are cautioned not to place undue
reliance on these forward-looking statements. The forward-looking statements
included in this document are made only as of the date of this Prospectus and we
undertake no obligation to publicly update these forward-looking statements to
reflect new information, future events or otherwise. In light of these risks,
uncertainties and assumptions, the forward-looking events might or might not
occur. We cannot assure you that projected results or events will be achieved.
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PROSPECTUS SUMMARY
This summary highlights selected information from this Prospectus, but does
not contain all information that may be important to you. This Prospectus
includes or incorporates by reference specific terms of the Exchange Offer, as
well as information regarding our business and detailed financial data. We
encourage you to read the detailed information and financial statements
appearing elsewhere or incorporated by reference in this Prospectus. Unless the
context requires otherwise, reference in this Prospectus to:
- "Allied NA" refers to Allied Waste North America, Inc., the issuer
of the notes, and its direct and indirect subsidiaries;
- "BFI" refers to Browning-Ferris Industries, Inc.;
- "Allied" or "we," "us," or "our," refers to Allied Waste Industries,
Inc., the parent of Allied NA, and its direct and indirect
subsidiaries on a consolidated basis, including Allied NA and BFI;
and
- "Company" refers to Allied and BFI after the acquisition of BFI,
giving effect to the offering of the notes and pending sales
consisting of BFI's Canadian solid waste operations, substantially
all the assets of BFI Gas Services, Inc., a wholly-owned subsidiary
of BFI, and the completed sale of BFI's medical waste operations and
sale of all of the shares of SITA, S.A. previously owned by BFI
(together, the "BFI Dispositions").
Additionally, unless the context otherwise requires, the information
contained in this Prospectus gives pro forma effect to the acquisition of BFI by
Allied and the BFI Dispositions. The term "old notes" refers to the 10% series A
senior subordinated notes due 2009 that were issued on July 30, 1999 and the
term "new notes" refers to the series B senior subordinated notes due 2009
offered pursuant to this Prospectus. The term "notes" on its own refers to the
old notes and the new notes collectively.
THE EXCHANGE OFFER
We completed on July 30, 1999 the private offering of an aggregate of $2
billion of 10% senior subordinated notes due 2009. We entered into a
registration rights agreement with the initial purchasers in the private
offering in which we agreed, among other things, to deliver to you this
Prospectus and to complete the Exchange Offer within 210 days of the issuance of
the old notes. You are entitled to exchange in the Exchange Offer your
outstanding old notes for registered new notes with substantially identical
terms. If the Exchange Offer is not completed by February 25, 2000, then special
interest, in addition to the base interest that would otherwise accrue on the
notes, shall accrue at a per annum rate of 0.25% for the first 90 days after
February 25, 2000, at a per annum rate of 0.50% for the second 90 days after
February 25, 2000, at a per annum rate of 0.75% for the third 90 days after
February 25, 2000 and after that, at a per annum rate of 1.0%. You should read
the discussion under the headings "Summary -- Description of the New Notes" and
"Description of the New Notes" for further information regarding the registered
notes.
We believe that the new notes issued in the Exchange Offer may be resold by
you without compliance with the registration and prospectus delivery provisions
of the Securities Act, subject to certain conditions. You should read the
discussion under the headings "-- Summary of the Terms of Exchange Offer" and
"The Exchange Offer" for further information regarding the Exchange Offer and
resale of the notes.
THE COMPANY
Allied NA, a Delaware corporation, is a wholly-owned subsidiary of
Allied. The principal executive offices of Allied and the Company are located at
15880 North Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260, and the
telephone number is (480) 627-2700. Through its subsidiaries, the Company owns
substantially all of the assets, and engages in substantially all of the
businesses, owned or engaged in by Allied. Our common stock is traded on the New
York Stock Exchange under the symbol "AW."
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<PAGE> 12
Acquisition of BFI and Recent Developments
On July 30, 1999, Allied completed its acquisition of BFI for approximately
$7.7 billion of cash and the assumption of approximately $1.9 billion of BFI
debt. Prior to the acquisition, BFI was the second largest nonhazardous solid
waste company in North America and provided integrated solid waste management
services including residential, commercial and industrial collection, transfer,
disposal and recycling.
As a result of the acquisition of BFI, we are the second largest
non-hazardous solid waste management company in the United States and operate as
a vertically integrated company that provides collection, transfer, recycling
and disposal services for residential, commercial and industrial customers. We
serve approximately 9.9 million customers nationwide in 64 markets in 46 states,
excluding the effect of the BFI Dispositions. As of September 30, 1999, we
conducted our operations through a network of 362 collection companies, 164
transfer stations, 166 landfills and 129 recycling facilities giving effect to
the acquisition.
After the acquisition of BFI, we entered into definitive agreements to
divest certain non-core and non-integrated assets including: (1) the medical
waste operations of BFI to Stericycle, Inc. for approximately $410.5 million,
which was completed in November 1999, (2) the Canadian operations of BFI to
Waste Management, Inc. for approximately $225.0 million, (3) certain assets of
BFI Gas Services, Inc. to Gas Recovery Systems, Inc. for approximately $63.0
million and (4) certain government mandated and other identified non-core or
non-integrated operations for an aggregate of approximately $700.5 million. Each
of these transactions is subject to customary closing conditions. We cannot
assure you whether these transactions will be completed or the timing of the
closing of these transactions. Upon closing of these transactions, net proceeds
from the transactions will be used to reduce indebtedness under our senior
credit facility. See "Certain Indebtedness."
BUSINESS STRATEGY
The major components of our business strategy consist of:
- operating vertically integrated non-hazardous solid waste service
businesses with a high rate of waste internalization, by which we mean
transferring waste we collect to our own landfills;
- managing these businesses locally with a strong focus on local
operations;
- maintaining growth through internal growth and acquisitions in
existing and selected new markets; and
- maintaining the financial capacity, management capabilities and
administrative systems and controls to support on-going operations and
future growth.
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<PAGE> 13
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
The Exchange Offer relates to the exchange of up to $2 billion aggregate
principal amount of outstanding old notes for an equal aggregate principal
amount of new notes. The new notes will be obligations of the Company entitled
to the benefits of the indenture governing the outstanding notes. The form and
terms of the new notes are identical in all material respects to the form and
terms of the outstanding old notes except that the new notes have been
registered under the Securities Act, and therefore are not entitled to the
benefits of the registration rights granted under the registration rights
agreement, executed as part of the offering of the outstanding old notes, dated
July 30, 1999 among the Company and the initial purchasers in the private
offering, including Donaldson, Lufkin & Jenrette Securities Corporation, Chase
Securities Inc., Salomon Smith Barney Inc., CIBC World Markets Corp., Credit
Suisse First Boston Corporation, Deutsche Bank Securities Inc., Morgan Stanley &
Co. Incorporated, ABN AMRO Incorporated, BancBoston Robertson Stephens Inc, Banc
One Capital Markets Corp., Credit Lyonnais Securities (USA) Inc., First Union
Capital Markets Corp. and Scotia Capital Markets (USA) Inc., relating to certain
contingent increases in the interest rates provided for pursuant to the terms of
the registration rights agreement. As a result of this registration, the new
notes will not bear legends restricting their transfer.
Registration Rights Agreement.............. You are entitled to exchange your
old notes for registered new notes
with substantially identical terms.
The Exchange Offer is intended to
satisfy these rights. After the
Exchange Offer is complete, you
will no longer be entitled to any
exchange or registration rights
with respect to your notes.
The Exchange Offer ....................... We are offering to exchange $1,000
principal amount of the 10% series
A senior subordinated notes due
2009 in exchange for 10% series B
senior subordinated notes due 2009
which have been registered under
the Securities Act for each $1,000
principal amount of 10% series A
senior subordinated notes due 2009
outstanding issued in July 1999.
In order to be exchanged, an
outstanding old note must be
properly tendered and accepted. All
outstanding old notes that are
validly tendered and not validly
withdrawn will be exchanged.
We will issue registered notes on
or promptly after the expiration of
the Exchange Offer.
Resale of the New Notes.................. Based on an interpretation by the
staff of the SEC set forth in
no-action letters issued to third
parties, including "Exxon Capital
Holdings Corporation" (available
May 13, 1988), "Morgan Stanley &
Co. Incorporated" (available June
5, 1991), "Mary Kay Cosmetics,
Inc." (available June 5, 1991) and
"Warnaco, Inc." (available October
11, 1991), we believe that the new
notes issued in the exchange offer
may be offered for resale, resold
and otherwise transferred by you
without compliance with the
registration and prospectus
delivery provisions of the
Securities Act if:
- the new notes issued in the
Exchange Offer are being
acquired by you in the
ordinary course of your
business;
- you are not participating, do
not intend to participate, and
have no arrangement
understanding with any person
to participate, in the
distribution of the new notes
issued to you in the Exchange
Offer;
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<PAGE> 14
- you are not a broker-dealer
who purchased such outstanding
old notes directly from us for
resale pursuant to Rule 144A
or any other available
exemption under the Securities
Act; and
- you are not an "affiliate"
of ours or of Allied NA.
If our belief is inaccurate and you
transfer any note issued to you in
the Exchange Offer without
delivering a prospectus meeting the
requirement of the Securities Act
or without an exemption from
registration of your old notes from
such requirements, you may incur
liability under the Securities Act.
We do not assume or indemnify you
against such liability. Each
broker-dealer that is issued new
notes in the Exchange Offer for its
own account in exchange for old
notes which were acquired by such
broker-dealer as a result of
market-making or other trading
activities must acknowledge that it
will deliver a prospectus meeting
the requirements of the Securities
Act, in connection with any resale
of the new notes issued in the
Exchange Offer. The Letter of
Transmittal states that by so
acknowledging and by delivering a
prospectus, such broker-dealer will
not be deemed to admit that it is
an "underwriter" within the meaning
of the Securities Act. A
broker-dealer may use this
Prospectus for an offer to resell,
resale or other retransfer of the
new notes issued to it in the
Exchange Offer. We have agreed to
use our best efforts to make this
Prospectus and any amendment or
supplement to this Prospectus
available to any such broker-dealer
for use in connection with any such
resales. We believe that no
registered holder of the
outstanding old notes is an
affiliate (as such term is defined
in Rule 405 of the Securities Act)
of the Company. The Exchange Offer
is not being made to, nor will we
accept surrenders for exchange
from, holders of outstanding old
notes in any jurisdiction in which
this Exchange Offer or the
acceptance thereof would not be in
compliance with the securities or
blue sky laws of such jurisdiction.
Expiration Date......................... The Exchange Offer will expire at
5:00 p.m., New York City time, on
, 1999, unless we
decide to extend the Expiration
Date.
Accrued Interest on the New Notes
and the Outstanding Old Notes....... The old notes and the new notes
will bear interest from July 30,
1999. Old notes that are accepted
for exchange will cease to accrue
interest from the date of
completion of the Exchange Offer.
Consequently, holders who exchange
their outstanding old notes for new
notes will receive the same
interest payment on November 1,
1999 (the first interest payment
date with respect to the
outstanding old notes and the new
notes to be issued in the Exchange
Offer) that they would have
received had they not accepted the
Exchange Offer.
Termination of the Exchange Offer ....... We may terminate the Exchange Offer
if we determine that our ability to
proceed with the Exchange Offer
could be materially impaired due to
any legal or governmental action,
new law, statute, rule or
regulation or any interpretation of
the staff of the SEC of any
existing law, statute, rule or
regulation. We do not expect any of
the foregoing conditions to occur,
although we cannot assure you that
such conditions will not occur.
Holders of outstanding old notes
will
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<PAGE> 15
have certain rights against Allied
and us under the registration
rights agreement executed as part
of the offering of the outstanding
old notes should we fail to
consummate the Exchange Offer.
Procedures for Tendering Outstanding
old notes............................ If you are a holder of an old note
and you wish to tender your old
note for exchange pursuant to the
Exchange Offer, you must transmit
to U.S Bank Trust National
Association, as exchange agent, on
or prior to the Expiration Date:
either
- a properly completed and
duly executed Letter of
Transmittal, which accompanies
this Prospectus, or a
facsimile of the Letter of
Transmittal, including all
other documents required by
the Letter of Transmittal, to
the Exchange Agent at the
address set forth on the cover
page of the Letter of
Transmittal; or
- a computer-generated message
transmitted by means of The
Depository Trust Company's
("DTC") Automated Tender Offer
Program system and received by
the Exchange Agent and forming
a part of a confirmation of
book entry transfer in which
you acknowledge and agree to
be bound by the terms of the
Letter of Transmittal; and,
either
- a timely confirmation
of book-entry transfer of
your outstanding old
notes into the Exchange
Agent's account at DTC
pursuant to DTC's
procedure for book-entry
transfers described in
this Prospectus under the
heading "The Exchange
Offer -- Procedure for
Tendering," must be
received by the Exchange
Agent on or prior to the
Expiration Date; or
- the documents necessary
for compliance with the
guaranteed delivery
procedures described
below.
By executing the Letter of
Transmittal, each holder will
represent to us that, among other
things,
- the new notes to be issued
in the Exchange Offer are
obtained in the ordinary
course of business of the
person receiving such new
notes whether or not such
person is the holder,
- neither the holder nor any
such other person has an
arrangement or understanding
with any person to participate
in the distribution or such
new note and
- neither the holder nor any
such other person is an
"affiliate," as defined in
Rule 405 under the Securities
Act of the Company or of
Allied.
Special Procedures for Beneficial
Owners.............................. If you are the beneficial owner of
old notes and your name does not
appear on a security position
listing of DTC as the holder of
such old notes or if you are a
beneficial owner of registered old
notes that are registered in the
name of a broker, dealer,
commercial bank, trust company or
other nominee and you wish to
tender such old notes or registered
old notes in the Exchange Offer,
you should promptly
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<PAGE> 16
contact the person in whose name
your old notes are registered and
instruct such person to tender on
your behalf. If such beneficial
holder wishes to tender on his own
behalf such beneficial holder must,
prior to completing and executing
the Letter of Transmittal and
delivering its outstanding old
notes, either make appropriate
arrangements to register ownership
of the outstanding old notes in
such holder's name or obtain a
properly completed bond power from
the registered holder. The transfer
of record ownership may take
considerable time.
Guaranteed Delivery Procedures ......... If you wish to tender your old
notes and time will not permit your
required documents to reach the
Exchange Agent by the Expiration
Date, or the procedure for
book-entry transfer cannot be
completed on time or certificates
for registered old notes cannot be
delivered on time, you may tender
your old notes pursuant to the
procedures described in this
Prospectus under the heading "The
Exchange Offer -- Guaranteed
Delivery Procedure."
Withdrawal Rights ...................... You may withdraw the tender of your
old notes at any time prior to 5:00
p.m., New York City time, on
, 1999, the business
day prior to the Expiration Date,
unless your old notes were
previously accepted for exchange.
Acceptance of Outstanding Old Notes and
Delivery of Exchange Notes.......... Subject to certain conditions (as
summarized above in "Termination of
the Exchange Offer" and described
more fully under the "The Exchange
Offer -- Termination"), we will
accept for exchange any and all
outstanding old notes which are
properly tendered in the Exchange
Offer prior to 5:00 p.m., New York
City time, on the Expiration Date.
The new notes issued pursuant to
Exchange Offer will be delivered
promptly following the Expiration
Date.
Certain U.S. Federal Income Tax
Consequences ......................... An exchange of old notes for new
notes will not be taxable to
holders. See "Certain United States
Federal Tax Consequences -- Certain
Federal Income Tax Consequences of
the Exchange Offer."
Use of Proceeds ........................ We will not receive any proceeds
from the issuance of new notes
pursuant to the Exchange Offer. We
will pay all expenses incident to
the Exchange Offer.
Exchange Agent.......................... The U.S. Bank Trust National
Association is serving as exchange
agent in connection with the
Exchange Offer. The Exchange Agent
can be reached at Corporate Trust
Trustee Administration, 100 Wall
Street, New York, NY 10005. For
more information with respect to
the Exchange Offer, the telephone
number for the Exchange Agent is
(651) 244-5011 and the facsimile
number for the Exchange Agent is
(651) 244-1537.
CONSEQUENCES OF NOT EXCHANGING OLD NOTES
If you do not exchange your old notes in the Exchange Offer, your old notes
will continue to be subject to the restrictions on transfer set forth in the
legend on the certificate for your old notes. In general, you may offer or sell
your old notes only if they are registered under, offered or sold pursuant to an
exemption from, or offered or sold in a transaction not subject to, the
Securities Act and applicable state securities laws. We do not currently intend
to register the old notes under the Securities Act. See "The Exchange Offer --
Consequences of Exchanging or Failing to Exchange Old Notes."
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<PAGE> 17
SUMMARY DESCRIPTION OF THE NEW NOTES
Notes Offered........................... $2 billion in aggregate principal
amount at maturity of 10% series B
senior subordinated notes due 2009.
Maturity Date .......................... The notes will mature on August 1,
2009.
Interest Payments Dates ................ The notes will bear interest at the
rate of 10% compounded
semi-annually on May 1 and November
1 of each year, commencing November
1, 1999.
Ranking................................. The notes and the guarantees are
general unsecured obligations of
and:
- are subordinate in right of
payment to all of our and the
guarantors' existing and
future senior debt;
- are subordinate to
indebtedness under our senior
credit facility to the extent
of the assets securing such
indebtedness, except for the
Tranche D Subordinated Term
Loan under our senior credit
facility;
- are equal in right of
payment to our and the
guarantors' other existing and
future senior subordinated
indebtedness; and
- are senior to our senior
convertible preferred stock.
As of September 30, 1999, on a pro
forma basis after giving effect to
the issuance of the notes and the
application of the proceeds
therefrom, including the BFI
Dispositions, the notes and the
guarantees would have been
subordinated to $6,758.0 million of
senior debt and approximately
$1,056.9 million would have been
available for borrowing as
additional senior debt under our
revolving senior credit facility.
We will be permitted to borrow
substantial additional
indebtedness, including senior
debt, in the future under the terms
of the indenture. The terms
"indebtedness" and "subordinated
indebtedness" are defined in the
"Description of the New Notes --
Subordination" and "Description of
the New Notes -- Certain
Definitions" sections of this
Prospectus.
Optional Redemption..................... Before August 1, 2004, we may
redeem the notes at any time, at
the redemption price equal to the
greater of
- 100% of their principal
amount or
- the sum of the present
values of the remaining
scheduled payments of
principal and interest on the
notes 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).
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<PAGE> 18
On or after August 1, 2004, we may
redeem all or part of the notes, at
redemption prices that decline over
time until the maturity date.
Public Equity Offering Optional
Redemption........................... Before August 1, 2002, we may
redeem on any one or more occasions
up to 33 1/3% of the aggregate
principal amount of the notes with
the net proceeds of one or more
public equity offerings at a price
equal to 110.0% of the principal
amount of the notes, plus accrued
and unpaid interest and Special
Interest, if any. See "Description
of the New Notes -- Optional
Redemption."
Change of Control ...................... Upon certain change of control
events, each holder of notes may
require us to repurchase all or a
portion of its notes at a purchase
price equal to 101% of the
principal amount of such notes,
plus accrued interest. See
"Description of the New Notes --
Certain Definitions" for the
definition of a Change of Control.
Guarantees ............................. Our obligations under the notes are
fully guaranteed on a senior
unsecured basis by Allied and, so
long as our senior credit facility
is similarly guaranteed, all of our
existing and future restricted
subsidiaries (as defined herein).
See "Description of the New Notes
-- Guarantees."
Certain Covenants ...................... The Indenture contains certain
covenants that, among other things,
limit our ability and the ability
of our restricted subsidiaries to:
- pay certain dividends,
redeem capital stock or make
certain other restricted
payments or investments;
- incur additional
indebtedness or issue
preferred equity interests;
- merge, consolidate or sell
all or substantially all of
its assets;
- create liens on assets; and
- enter into certain
transactions with affiliates
or related persons.
These covenants are subject to
important exceptions and
qualifications, which are described
under the heading "Description of
the New Notes" in this Prospectus.
Exchange Offer; Registration Rights..... Under the registration rights
agreement executed as part of the
offering of the outstanding old
notes, we have agreed to:
- file a registration
statement within 120 days
after the issue date of the
old notes enabling holders to
exchange the privately placed
old notes for publicly
registered notes with
identical terms,
- use our best efforts to
cause the registration
statement to become effective
within 210 days after the
issue date of the old notes,
- consummate the exchange
offer within 45 days after the
effective date of our
registration date, and
- use our best efforts to file
a shelf registration statement
for the resale of the old
notes if we cannot effect an
exchange offer
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<PAGE> 19
within the time periods listed
above and in certain other
circumstances.
The interest rate on the notes will
increase if we do not comply with
our obligations under the
registration rights agreement under
certain circumstances. See "The
Exchange Offer -- Registration
Rights Agreement."
Risk Factors............................ See "Risk Factors" for a discussion
of factors you should carefully
consider before deciding to invest
in the new notes.
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<PAGE> 20
RISK FACTORS
You should consider carefully the following risks and all of the
information set forth in this Prospectus before tendering your old notes in the
Exchange Offer and making an investment in the new notes. The risk factors set
forth below (other than " -- Consequences of Not Exchanging Old Notes") are
generally applicable to the old notes as well as the new notes.
YOU MAY BE ADVERSELY AFFECTED BY THE CONSEQUENCES OF NOT EXCHANGING NOTES.
If you do not exchange your old notes for the new notes pursuant to the
Exchange Offer, you will continue to be subject to the restrictions on transfer
of your old notes described in the legend on your old notes. The restrictions on
transfer of your old notes arise because we issued the old notes pursuant to
exemptions from, or in transactions not subject to, the registration
requirements of the Securities Act and applicable state securities laws. In
general, you may only offer or sell the old notes if they are registered under
the Securities Act and applicable state securities laws, or offered and sold
pursuant to an exemption from such requirements. We do not intend to register
the old notes under the Securities Act. In addition, if you exchange your old
notes in the Exchange Offer for the purpose of participating in a distribution
of the Exchange Notes, you may be deemed to have received restricted securities
and, if so, will be required to comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction. To the extent old notes are tendered and accepted in the Exchange
Offer, the trading market, if any, for the old notes would be adversely
affected. See "The Exchange Offer -- Consequences of Exchanging or Failing to
Exchange Old Notes."
HOLDERS WILL BE RESPONSIBLE FOR COMPLIANCE WITH EXCHANGE OFFER PROCEDURES AND
THERE MAY BE CONSEQUENCES OF YOUR FAILURE TO EXCHANGE YOUR NOTES.
We will issue the new notes in exchange for the old notes pursuant to this
Exchange Offer only after we have timely received such old notes, along with a
properly completed and duly executed Letter of Transmittal and all other
required documents. Therefore, if you want to tender your old notes in exchange
for new notes, you should allow sufficient time to ensure timely delivery.
Neither the Exchange Agent nor the Company is under any duty to give
notification of defects or irregularities with respect to the tender of old
notes for exchange. The Exchange Offer will expire at 5:00 p.m., New York City
time, on , 1999, or on a later extended date and time as we may
decide (the "Expiration Date"). Old notes that are not tendered or are tendered
but not accepted for exchange will, following the Expiration Date and the
consummation of this Exchange Offer, continue to be subject to the existing
restrictions upon transfer of the old notes. In general, the old notes may not
be offered or sold, unless registered under the Securities Act or except
pursuant to an exemption from or in a transaction not subject to, the Securities
Act. In addition, if you are still holding any old notes after the Expiration
Date and the Exchange Offer has been consummated, subject to certain exceptions,
you will not be entitled to any rights to have such old notes registered under
the Securities Act or to any similar rights under the Registration Rights
Agreement (subject to limited exceptions, if applicable). We do not currently
anticipate that we will register the old notes under the Securities Act.
The new notes and any old notes having the same maturity which remain
outstanding after consummation of the Exchange Offer will vote together as a
single class for purposes of determining whether Holders of the requisite
percentage thereof have taken certain actions or exercised certain rights under
the Indenture.
YOU MUST MEET REQUIREMENTS FOR TRANSFER OF NEW NOTES.
Based on interpretations by staff of the SEC, as set forth in no-action
letters issued to third parties, we believe that you may offer for resale,
resell and otherwise transfer the new notes without compliance with the
registration and prospectus delivery provisions of the Securities Act, subject
to certain limitations. These limitations include that you are not an
"affiliate" of ours within the meaning of Rule 405 under the Securities Act,
that you acquire your new notes in the ordinary course of your business and that
you have no arrangement with any person to participate in the distribution of
such new notes. However, we have not submitted a no-action letter to the SEC
regarding this Exchange Offer and we cannot assure you that the SEC would make a
similar determination with respect to the Exchange Offer
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<PAGE> 21
as in such other circumstances. If you are an affiliate of the Company, are
engaged in or intend to engage in or have any arrangement or understanding with
respect to a distribution of the new notes to be acquired pursuant to the
Exchange Offer, you
- may not rely on the applicable interpretations of the staff of the SEC
and
- must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives new notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus meeting the
requirements under the Securities Act in connection with any resale of such new
notes. The Letter of Transmittal states that by so acknowledging and delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of new notes where the old notes exchanged for such
new notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. We have agreed to use our best efforts
to make this Prospectus available to any participating broker-dealer for use in
connection with any such resale. See "Plan of Distribution." However, to comply
with the securities laws of certain jurisdictions, if applicable, the new notes
may not be offered or sold unless they have been registered or qualified for
sale in such jurisdictions or an exemption from registration or qualification is
available.
OUR SUBSTANTIAL INDEBTEDNESS COULD RESTRICT OUR OPERATIONS, MAKE US MORE
VULNERABLE TO ADVERSE ECONOMIC CONDITIONS AND MAKE IT MORE DIFFICULT FOR US TO
MAKE PAYMENTS ON THE NOTES.
We have had and will continue to have a substantial amount of outstanding
indebtedness with significant debt service requirements. The following chart
shows specified important credit statistics and is presented giving effect to
the offering of the old notes in July 1999 and the acquisition of BFI, including
the BFI Dispositions, as of the date specified below:
<TABLE>
<CAPTION>
PRO FORMA
SEPTEMBER 30, 1999
---------------------------
(IN MILLIONS, EXCEPT RATIO)
<S> <C>
Senior Credit facility........................... $ 4,181.0
Assumed BFI debt................................. 1,218.4
1998 Senior Notes................................ 1,698.2
1999 Notes....................................... 2,008.3
Capital leases and other notes................... 136.4
Current portion of long-term debt................ 24.0
------------
Total indebtedness..................... $ 9,266.3
============
Stockholders' equity............................. $ 1,601.4
============
Debt to equity ratio............................. 5.8x
</TABLE>
On a pro forma basis, earnings were insufficient to cover fixed charges for
the year ended December 31, 1998 and for the nine months ended September 30,
1999 by $417.6 million and $473.6 million, respectively. The insufficiency for
the year ended December 31, 1998 was primarily due to non-recurring, acquisition
related and unusual costs and asset impairments included in earnings.
Our substantial indebtedness could have important consequences to you. For
example, it could:
- make it more difficult for us to satisfy our obligations with respect
to these notes;
- require us to dedicate a substantial portion of our cash flow from
operations to payments on our indebtedness, therefore reducing the
availability of our cash flow to fund working capital, capital
expenditures and for other general corporate purposes;
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- increase our vulnerability to economic downturns and competitive
pressures in the industry in which we operate;
- increase our vulnerability to interest rate increases for the portion
of unhedged debt under our senior credit facility;
- place us at a competitive disadvantage compared to our competitors
that have less debt in relation to cash flow;
- limit our flexibility in planning for, or reacting to changes in our
business and the industry in which we operate;
- limit, among other things, our ability to borrow additional funds; and
- subject us to financial and other restrictive covenants in our
indebtedness. The failure to comply with these covenants could result
in an event of default which, if not cured or waived, could have a
material negative effect on us.
See "Certain Indebtedness" and "Description of Notes -- Repurchase at the
Option of Holders."
TO SERVICE OUR INDEBTEDNESS, WE WILL REQUIRE A SIGNIFICANT AMOUNT OF CASH. OUR
ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR CONTROL.
Our ability to make payments on our indebtedness, including the notes, will
depend on our ability to generate cash flow in the future. This, to a certain
extent, is subject to general economic, financial, competitive, legislative,
regulatory and other factors that are beyond our control. Based on our current
level of operations and anticipated cost savings and operating improvements, we
believe our cash flow from operations, available cash and available borrowings
under our senior credit facility, will be adequate to meet our liquidity needs
for the foreseeable future.
We cannot assure you, however, that our business will generate sufficient
cash flow from operations, that currently anticipated cost savings and operating
improvements will be realized on schedule, or at all, or that future borrowings
will be available to us under our senior credit facility in an amount sufficient
to enable us to pay our indebtedness, including these notes, or to fund our
other liquidity needs. We may need to refinance all or a portion of our
indebtedness, including these notes on or before maturity. We cannot assure you
that we will be able to refinance any of our indebtedness, including our new
senior credit facility and these notes, on commercially reasonable terms or at
all.
DESPITE CURRENT INDEBTEDNESS LEVELS, WE AND OUR SUBSIDIARIES MAY STILL BE ABLE
TO INCUR SUBSTANTIALLY MORE DEBT. THIS COULD INCREASE THE RISKS DESCRIBED ABOVE.
We and our subsidiaries may be able to incur substantial additional
indebtedness in the future. The terms of the indenture do not fully prohibit us
or our subsidiaries from doing so. Pro forma for the acquisition, as of
September 30, 1999, our revolving senior credit facility will permit additional
borrowings of up to approximately $1,056.9 million, and all of those borrowings
would be senior to the notes and the guarantees. If new debt is added to our and
our subsidiaries' current debt levels, the related risks that we and they now
face could intensify.
See "Selected Financial Data of Allied," "Certain Indebtedness -- The
Senior Credit Facility" and "Description of Notes -- Repurchase at the Option of
Holders."
WE MAY NOT BE ABLE TO FINANCE FUTURE NEEDS OR ADAPT OUR BUSINESS PLAN TO CHANGES
BECAUSE OF RESTRICTIONS PLACED ON US BY THE OUR SENIOR CREDIT FACILITY AND THE
INDENTURE AND INSTRUMENTS GOVERNING OUR OTHER INDEBTEDNESS.
Our senior credit facility, the indenture and certain of our other
indebtedness agreements contain covenants that restrict our ability to make
distributions or other payments to our investors and creditors unless certain
financial tests or other criteria are satisfied. We must also comply with
certain specified financial ratios and tests. In some cases our
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<PAGE> 23
subsidiaries are subject to similar restrictions which may restrict their
ability to make distributions to us. If we do not comply with these or other
covenants and restrictions contained in the senior credit facility or the
indenture, we could be in default under those agreements and the debt, together
with accrued interest, could then be declared immediately due and payable. If we
default under the senior credit facility, the lenders could cause all our
outstanding debt obligations under the senior credit facility to become due and
payable, require us to apply all of our available cash to repay the indebtedness
or prevent us from making debt service payments on any other indebtedness we
owe. If we are unable to repay any borrowings when due, the lenders under the
senior credit facility could proceed against their collateral. Our ability to
comply with these provisions of the senior credit facility and the indenture may
be affected by changes in the economic or business conditions or other events
beyond our control.
Our senior credit facility, the indenture and certain other indebtedness
agreements contain additional affirmative and negative covenants, including
limitations on our ability to incur additional indebtedness and to make
acquisitions and capital expenditures which could affect our ability to operate
our business. The indenture for the notes will restrict, among other things, our
ability to incur additional debt, sell assets, create liens or other
encumbrances, make certain payments and dividends or merge or consolidate. All
of these restrictions could affect our ability to operate our business and may
limit our ability to take advantage of potential business opportunities as they
arise. A failure to comply with these covenants and restrictions could result in
an event of default under either the senior credit facility or the indenture
which could lead to an acceleration of debt under other debt instruments that
may contain cross-acceleration or cross-default provisions. If the indebtedness
under our senior credit facility, $1.7 billion of the 1998 senior notes issued
in December 1998 (the "1998 Senior Notes") or the notes is accelerated, we may
not have sufficient assets to repay amounts due under our senior credit
facility, the 1998 Senior Notes, the notes or on other debt securities then
outstanding.
HOLDERS OF SENIOR INDEBTEDNESS WILL BE PAID BEFORE HOLDERS OF THE NOTES ARE
PAID.
The notes and the guarantees rank behind all of our and the guarantors'
existing indebtedness, except the Tranche D Subordinated Term Loan under the
senior credit facility, and all of our and their future borrowings and any
future indebtedness that expressly provides that it ranks equal with, or
subordinated in right of payment to, the notes and the guarantees. As a result,
upon any distribution to our creditors or the creditors of the guarantors in a
bankruptcy, liquidation or reorganization or similar proceeding relating to us
or the guarantors or our or their property, the holders of our senior debt and
senior debt of the guarantors will be entitled to be paid in full in cash before
any payment may be made with respect to these notes or the guarantees.
In addition, all payments on the notes and the guarantees will be blocked in
the event of a payment default on senior debt and may be blocked for up to 179
of 360 consecutive days in the event of certain non-payment defaults on senior
debt.
In the event of a bankruptcy, liquidation or reorganization or similar
proceeding relating to us or the guarantors, holders of the notes and all other
holders of our and the guarantors' subordinated indebtedness will participate in
the assets remaining after we and the guarantors have paid all of the senior
debt. However, because the indenture requires that amounts otherwise payable to
holders of the notes in a bankruptcy or similar proceeding be paid to holders of
senior debt instead, holders of the notes may receive less, ratably, than
holders of senior debt in any such proceeding. In any of these cases, we and the
guarantors may not have sufficient funds to pay all of our creditors and holders
of notes may receive less, ratably, than the holders of senior debt.
As of September 30, 1999, pro forma for the BFI acquisition, including the
BFI Dispositions, the notes and the guarantees would have been subordinated to
$6,758.0 million of senior debt and approximately $1,056.9 million would have
been available for borrowing as additional senior debt under our revolving
senior credit facility. We will be permitted to borrow substantial additional
indebtedness, including senior debt, in the future under the terms of the
indenture.
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<PAGE> 24
HOLDERS OF SECURED DEBT WILL HAVE A PRIOR CLAIM TO A MAJORITY OF OUR ASSETS AND,
THEREFORE, WILL BE PAID BEFORE THE HOLDERS OF THE NOTES ARE PAID.
Our senior credit facility is secured by a substantial majority of the
assets of Allied NA and our domestic subsidiaries (including BFI and its
domestic subsidiaries). In addition, the senior credit facility is secured by a
pledge of (1) 100% of the capital stock of Allied NA and 100% of the capital
stock of a substantial majority of our other domestic subsidiaries (including
BFI and its domestic subsidiaries), and (2) 65% of the capital stock of
substantially all of our foreign subsidiaries. The assets of BFI and its
domestic subsidiaries, to the extent they are pledged to provide collateral
security to the lenders, will also be pledged to provide equal and ratable
collateral security to the holders of the 1998 Senior Notes and the holders of
specified existing debt of BFI. As a result, a substantial majority of the
assets of Allied NA and our wholly-owned domestic subsidiaries, together with
the capital stock of Allied NA and the capital stock of a substantial majority
of our other subsidiaries, will only be available for payment of obligations
with respect to the notes after the holders of debt under our senior credit
facility, and, in the case of a substantial majority of the assets and capital
stock of BFI and its subsidiaries, the holders of 1998 Senior Notes and the
holders of specified existing debt of BFI, have been paid in full. Accordingly,
there may not be sufficient funds remaining to pay amounts due on the notes.
YOUR RIGHT TO RECEIVE PAYMENTS ON THESE NOTES COULD BE ADVERSELY AFFECTED IF ANY
OF OUR NON-GUARANTOR SUBSIDIARIES DECLARE BANKRUPTCY, LIQUIDATE, OR REORGANIZE.
Most, but not all, of our subsidiaries have guaranteed the notes. In the
event of a bankruptcy, liquidation or reorganization of any of the non-guarantor
subsidiaries, holders of their indebtedness and their trade creditors will
generally be entitled to payment of their claims from the assets of those
subsidiaries before any assets are made available for distribution to us. The
non-guarantor subsidiaries represent in the aggregate approximately 1% of our
combined company revenues and assets.
WE MAY NOT BE ABLE TO COMPLETE EXPECTED ASSET SALES AND/OR MAY ALSO BE
RESTRICTED IN OUR ABILITY TO USE PROCEEDS FROM THE ASSETS SALES TO REPAY DEBT
OTHER THAN OUR SENIOR CREDIT FACILITY.
In connection with the BFI acquisition we have identified potential asset
sales which are expected to result in net proceeds of approximately $1.8 billion
within the first year after the acquisition. We have received approximately
$854.5 million from such asset sales to date which was used to reduce
indebtedness. The net proceeds of the other asset sales are required to be used
first to reduce debt under the Asset Sale Term Loan and second to reduce other
amounts outstanding under our senior credit facility. The Asset Sale Term Loan
matures two years after the date of the acquisition of BFI or initial
borrowings. We cannot assure you that the balance of these asset sales will be
completed or that the timing of a sale of assets or receipt of the proceeds from
a sale will occur in time to repay the Asset Sale Term Loan according to its
terms. See "Certain Indebtedness."
In addition, we will lose the revenues we receive from the assets we sell.
We are depending on the receipt of proceeds from selling these assets to make
principal payments on our debt. If we do not receive the price we want for these
assets, our financial condition could deteriorate.
WE CANNOT ASSURE YOU THAT ALLIED AND BFI WILL BE SUCCESSFULLY INTEGRATED OR THAT
ALLIED'S OTHER RECENT ACQUISITIONS WILL BE SUCCESSFULLY INTEGRATED INTO A SINGLE
ENTITY.
If we cannot successfully integrate BFI operations we may experience
material negative consequences to our business, financial condition or results
of operations. The integration of companies that have previously operated
separately involves a number of risks, including:
- demands on management related to the significant increase in size of
Allied after the acquisition, including the combining of operations
resulting from Allied's other recent acquisitions;
- the diversion of management's attention from the management of daily
operations to the integration of operations;
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<PAGE> 25
- difficulties in the assimilation and retention of employees;
- challenges in keeping customers; and
- potential adverse effects on operating results.
Before the acquisition, Allied and BFI operated as separate entities. We may
not be able to maintain the levels of operating efficiency that Allied or BFI
had achieved or might achieve separately. Successful integration of BFI's
operations will depend upon our ability to manage those operations and to
eliminate redundant and excess costs. Because of difficulties in combining
operations, we may not be able to achieve the cost savings and other size
related benefits that we hope to achieve after the acquisition.
WE HAVE A LIMITED OPERATING HISTORY WITH REGARD TO RECENTLY ACQUIRED BUSINESSES.
During 1997 and 1998, Allied acquired many other companies, with revenues of
approximately $1.1 billion at the time of acquisition, and sold operations with
revenues of approximately $134.9 million; therefore, we have only a limited
history of operating a significant portion of our business. We plan to continue
acquiring landfills, collection operations and transfer stations in the future.
We cannot assure you that our efforts to integrate acquired operations will be
effective, or that expected financial benefits and operational efficiencies will
be realized. Our failure to effectively integrate the acquired operations could
have a material negative effect on our future results of operations and
financial position. As we continue to grow, we cannot assure you that our
management group will be able to oversee the company, effectively implement our
operating or growth strategies. As a result, our financial position and results
of operations may fluctuate significantly from period to period. During 1998,
Allied acquired 54 businesses, which collectively had annual revenues of
approximately $741.9 million, and sold operations representing approximately
$7.0 million in annual revenues. In addition, through September 30, 1999, we
completed 44 additional acquisitions, excluding the acquisition of BFI. BFI's
operations were and are significantly larger than the operations of any previous
acquisitions and represent a substantial increase in the scope of Allied's
business.
WE MAY NOT ACHIEVE THE EXPECTED COST SAVINGS AND OTHER BENEFITS OF THE
ACQUISITION OF BFI AND WE WILL HAVE SIGNIFICANT ACQUISITION RELATED COSTS, OTHER
THAN TRANSACTION RELATED COSTS, THAT WILL HAVE A MATERIAL NEGATIVE EFFECT ON OUR
RESULTS OF OPERATIONS.
We expect to have achieved annual cost savings of approximately $360.0
million by the second year following the acquisition of BFI. The potential cost
savings are based on analyses completed by members of our management and are
based, in part, on 1999 cost estimates for BFI and us. These analyses
necessarily involve assumptions as to future events, including general business
and industry conditions, competitive factors, the availability of funds for
investment and the timing of events, local labor markets and labor productivity
as well as general economic conditions and other matters many of which are
beyond our control and may not materialize. While we believe these analyses and
their underlying assumptions to be reasonable, they are inherently estimates
which are difficult to predict and are necessarily speculative in nature. In
addition, the inability to achieve sales levels and operating results that
support the cost savings and unforeseen operational efficiencies resulting from
steps taken to implement the cost savings could adversely affect our ability to
achieve the cost savings. In addition, we cannot assure you that unforeseen
factors will not offset the estimated cost savings or other components of our
business plan. As a result, our actual cost savings, if any, could differ
considerably or be considerably delayed, compared to our estimates.
We may have substantial costs in connection with the acquisition of BFI. The
costs of combining our companies will also result in other one-time charges to
the results of operations of the combined company. The actual amount of these
charges cannot be determined until after the acquisition. We also expect to have
significant charges resulting from the acquisition in the future.
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<PAGE> 26
IN ORDER TO OBTAIN GOVERNMENTAL AND REGULATORY APPROVALS UNDER ANTITRUST LAWS,
WE HAVE AGREED TO THE SALE OR DIVESTITURE OF CERTAIN OF ALLIED'S OR BFI'S
OPERATIONS WHICH MAY RESULT IN A COMBINED COMPANY WITH FEWER ASSETS AND LOWER
REVENUES AND NET INCOME THAN WOULD BE THE CASE IF SUCH SALES OR DIVESTITURES
WERE NOT EFFECTED.
On July 20, 1999, Allied, BFI and the Antitrust Division of the Department
of Justice executed a consent order which allows the consummation of the
acquisition. The consent order requires the sale of certain assets of Allied and
BFI with combined reported revenues of approximately $197 million.
OUR BUSINESS STRATEGY MAY NOT BE SUCCESSFUL AND WE MAY HAVE POTENTIAL
DIFFICULTIES IN OBTAINING SUITABLE LANDFILLS, COLLECTION OPERATIONS, TRANSFER
STATIONS AND PERMITS.
Our ability to continue to implement our vertical integration strategy
successfully will depend on our ability to identify and acquire or develop
appropriate landfills, collection operations and transfer stations. We cannot
assure you that we will be able to find appropriate acquisition candidates,
acquire those acquisition candidates that we find, or integrate the acquisition
candidates effectively or profitably.
Acquisitions may increase our capital requirements because acquisitions
require sizable amounts of capital, and competition with other solid waste
companies that have a similar acquisition strategy may increase prices. If
acquisition candidates are unavailable or too costly, we may need to change our
business strategy. In addition, we cannot assure you that we will successfully
obtain the permits we require to operate our business because permits to operate
non-hazardous solid waste landfills have become increasingly difficult and
expensive to obtain. Permits often take years to obtain as a result of numerous
hearings and compliance with zoning, environmental and other regulatory
measures. These permits are also often subject to resistance from citizen or
other groups. Our failure to obtain the required permits to operate
non-hazardous solid waste landfills could have a material negative effect on our
future results of operations.
In connection with our acquisition of existing landfills, we may also have
to spend considerable time, effort and money to obtain permits required to
increase the capacity of existing landfills. We cannot predict if we will be
able to obtain the governmental approvals necessary to establish new or expand
existing landfills and, if we do, whether or not it will be economically
beneficial to do so. Further, we cannot assure you that we will be successful in
obtaining new landfill sites or expanding the permitted capacity of our current
landfills once our landfill capacity is full. In such event, we may have to
dispose collected waste at landfills operated by our competitors or haul the
waste long distances at a higher cost to another of our landfills, which could
have a material negative effect on our waste disposal expenses.
THE SOLID WASTE INDUSTRY IS A CAPITAL INTENSIVE INDUSTRY THAT MAY CONSUME OUR
CASH FROM OUR OPERATIONS AND BORROWINGS.
Our ability to remain competitive, sustain our growth and operations, and
expand operations largely depends on our access to capital. We intend to fund
our cash needs through cash flow from operations and borrowings under the our
senior credit facility. However, we may require additional equity and/or debt
financing to fund our growth and for debt repayment obligations. During 1999, we
expect to spend approximately $450 million for capital expenditures and closure
and post-closure and remediation expenditures related to our landfill
operations. If we acquire or expand our operations, the amount we expend on
capital, closure and post-closure and remediation expenditures will increase.
The increase in expenditures may result in low levels of working capital or
require us to finance working capital deficits.
Our cash needs will increase if the expenditures for closure and
post-closure monitoring increase above the current reserves taken for these
costs. Expenditures for these costs may increase as a result of any federal,
state or local government regulatory action taken to accelerate such
expenditures. These factors, together with those discussed above, could
substantially increase our operating costs and therefore impair our ability to
invest in our existing facilities or in new facilities.
Our ability to pay our debt obligations or to refinance our indebtedness
depends on our future performance. Our future performance may be affected by
general economic, financial, competitive, legislative, regulatory and other
factors beyond our control. We believe that our current available cash flow and
borrowings available under the senior
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<PAGE> 27
credit facility and other sources of liquidity will meet our anticipated future
requirements for working capital, letters of credit, closure, post-closure and
remediation expenditures, borrowings under our senior credit facility, the 1998
Senior Notes, the assumed BFI debt and the notes.
We may need to refinance our senior credit facility, 1998 Senior Notes, the
notes and/or other indebtedness to pay the principal amounts due at maturity. In
addition, we may need additional capital to fund future acquisitions and
integrations of solid waste businesses. We cannot assure you that our business
will generate sufficient cash flow or obtain sufficient funds to enable us to
pay our debt obligations and capital expenditures or that refinancing will be
available on commercially reasonable terms or at all.
WE COMPETE WITH LARGE COMPANIES AND MUNICIPALITIES WHICH MAY HAVE GREATER
FINANCIAL AND OPERATIONAL RESOURCES. WE ALSO COMPETE WITH THE USE OF
ALTERNATIVES TO LANDFILL DISPOSAL BECAUSE OF STATE REQUIREMENTS TO REDUCE
LANDFILL DISPOSAL AND WE CANNOT ASSURE YOU THAT WE WILL CONTINUE TO OPERATE OUR
LANDFILLS AT FULL CAPACITY.
The non-hazardous waste collection and disposal industry is highly
competitive. Our competitors include national, regional and local waste
management companies and municipalities. The non-hazardous waste collection and
disposal industry is led by three large national waste management companies:
Waste Management, Inc., our company, and Republic Services, Inc. It also
includes numerous regional and local companies, including Superior Services,
Inc., which was acquired by Vivendi S.A. in July 1999, and Waste Industries,
Inc. Some of our competitors have considerably greater financial and operational
resources. In addition, many counties and municipalities that operate their own
waste collection and disposal facilities have the benefits of tax-exempt
financing and may control the disposal of waste collected within their
jurisdictions.
We also encounter increased competition due to the use of alternatives to
landfill disposal, such as recycling and composting. In addition, incineration
is an alternative used in some markets. Further, most of the states in which
Allied and BFI operate landfills have adopted plans or requirements that will
require counties to adopt comprehensive plans within the next few years to
reduce the volume of solid waste deposited in landfills through waste planning,
composting and recycling or other programs. State and local governments are
increasingly mandating waste reduction at the source and prohibiting the
disposal of certain types of wastes, such as yard wastes, at landfills. These
trends may reduce the volume of waste going to landfills in certain areas. If
this occurs, we cannot assure you that we will be able to operate our landfills
at their full capacity or charge current prices for landfill disposal services
due to the decrease in demand for services.
We also encounter competition with our acquisition of landfills and
collection operations. This competition is due to the significant consolidation
of companies in the solid waste collection and disposal industry. As a result we
cannot assure you that we will be able to locate or acquire suitable acquisition
candidates at economical prices and terms in the current markets we serve or new
markets.
FEDERAL AND STATE STATUTES MAY ALLOW COURTS TO FURTHER SUBORDINATE OR VOID THE
GUARANTEES. FEDERAL AND STATE STATUTES ALLOW COURTS, UNDER SPECIFIC
CIRCUMSTANCES, TO VOID OR SUBORDINATE GUARANTEES AND REQUIRE NOTEHOLDERS TO
RETURN PAYMENTS RECEIVED FROM GUARANTORS.
Under the federal bankruptcy law and comparable provisions of state
fraudulent transfer laws, a guarantee could be voided, or claims in respect of a
guarantee could be subordinated to all other debts of that guarantor if, among
other things, the guarantor, at the time it incurred the indebtedness evidenced
by its guarantee (1) issued the guarantee with the intent of hindering, delaying
or defrauding any current or future creditor or contemplated insolvency with a
design to favor one or more creditors to the total or partial exclusion of other
creditors, or (2) received less than reasonably equivalent value or fair
consideration for issuing its guarantee and:
- was insolvent or rendered insolvent by reason of such incurrence; or
- was engaged in a business or transaction for which the guarantor's
remaining assets constituted unreasonably small capital; or
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<PAGE> 28
- intended to incur, or believed that it would incur, debts beyond its
ability to pay such debts as they mature.
In addition, any payment by that guarantor pursuant to its guarantee could
be voided and required to be returned to the guarantor, or to a fund for the
benefit of the creditors of the guarantor.
The measures of insolvency for purposes of these fraudulent transfer laws
will vary depending upon the law applied in any proceeding to determine whether
a fraudulent transfer has occurred. Generally, however, a guarantor would be
considered insolvent if:
- the sum of its debts, including contingent liabilities, were greater
than the fair saleable value of all of its assets; or
- the present fair saleable value of its assets were less than the amount
that would be required to pay its probable liability on its existing
debts, including contingent liabilities, as they become absolute and
mature; or
- it could not pay its debts as they become due.
On the basis of historical financial information, recent operating history
and other factors, we believe, after giving effect to the debt incurred by us
and the guarantors under the notes and the acquisition of BFI neither we nor the
guarantors will be insolvent, will not have unreasonably small capital for the
business in which we are engaged and will not have incurred debts beyond each of
our ability to pay such debts as they mature. However, we cannot assure you as
to what standard a court would apply in making such determinations or that a
court would agree with our conclusions in this regard.
WE CANNOT ASSURE YOU THAT UNDER LAWS APPLICABLE TO FRAUDULENT TRANSFERS THAT THE
PAYMENT OF THE MERGER CONSIDERATION IN THE ACQUISITION TO BFI STOCKHOLDERS WILL
NOT BE DEEMED TO BE A "FRAUDULENT TRANSFER."
If at the effective time and after giving effect to the acquisition
(including the proposed financing of the acquisition), BFI is, as a matter of
United States federal or state law, determined to have (1) been insolvent or
rendered insolvent by reason of the financing contemplated by the merger
agreement, (2) engaged or about to engage in a business or transaction for which
its remaining assets constituted unreasonably small capital to carry on its
business, or (3) intended to incur, or believed that it would incur, debts
beyond its ability to pay such debts as they matured, the transfer of the
consideration in the acquisition to BFI's stockholders may be deemed to be a
"fraudulent transfer," or an otherwise impermissible dividend or distribution
under applicable United States federal or state law, and therefore may be
subject to claims of the respective creditors or trustees in bankruptcy of BFI,
Allied and Allied NA or any of such corporations as a debtor-in-possession. In
addition, a trustee in Bankruptcy may seek to have the obligations represented
by the notes and the guarantees by the guarantors voided in whole, or in part.
The measures of insolvency for purposes of the foregoing will vary depending
on the law of the jurisdiction that is being applied. Generally, however, a
debtor will be considered insolvent at a particular time if the sum of its debts
is then greater than all of its property at a fair valuation or if the present
fair saleable value of its assets was then less than the amount that would be
required to pay its probable liabilities with respect to its existing debts as
they became absolute and matured. In connection with the funding of our senior
credit facility, The Chase Manhattan Bank received a letter from an independent
evaluation firm satisfactory to the initial lenders which set forth that firm's
opinion as to the solvency of Allied after giving effect to the acquisition. BFI
also received a solvency letter to BFI reasonably satisfactory in form and
substance to BFI and also received a certificate from Allied regarding the
solvency of Allied and its subsidiaries, taken as a whole, giving effect to the
acquisition and the transactions contemplated by the merger agreement, including
the related financing. We cannot assure you, however, that a court passing on
these same issues would reach the same conclusion.
WE MAY NOT BE ABLE TO REPURCHASE NOTES UPON A CHANGE OF CONTROL WHICH WOULD BE
AN EVENT OF DEFAULT UNDER THE INDENTURE.
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<PAGE> 29
Upon the occurrence of certain specific kinds of change of control events,
we will be required to offer to repurchase all outstanding notes. Our senior
credit facility restricts us from repurchasing the notes without the approval of
the lenders. In addition, it is possible that we will not have sufficient funds
at the time of the change of control to make the required repurchase of notes or
that restrictions in our senior credit facility will not allow such repurchases.
Certain corporate events would also constitute a change of control under the
senior credit facility which might not constitute a change of control under our
other debt instruments, including these notes. This would constitute an event of
default under the senior credit facility, entitling the lenders to, among other
things, cause all our outstanding debt obligations thereunder to become due and
payable, and proceed against their collateral. For example, certain important
corporate events, such as leveraged recapitalizations that would increase the
level of our indebtedness, would constitute a change of control under our senior
credit facility but would not constitute a "Change of Control" under the
indenture. Our failure to repurchase the notes would constitute an event of
default under the indenture. See "Description of Notes -- Repurchase at the
Option of Holders."
LOSS OF KEY EXECUTIVES AND FAILURE TO ATTRACT QUALIFIED MANAGEMENT COULD LIMIT
OUR GROWTH AND NEGATIVELY IMPACT OUR OPERATIONS.
We depend highly upon our senior management team. As we grow, we will
increasingly require operations management with waste industry experience. We do
not know the availability of such experienced management or the compensation
levels that will be within industry norms. The loss of the services of any
member of senior management or the inability to hire experienced operations
management could materially adversely affect our operations and financial
condition. See "Management."
WE ARE SUBJECT TO COSTLY ENVIRONMENTAL REGULATIONS AND MAY HAVE FUTURE
LITIGATION.
Our equipment, facilities and operations are subject to extensive and
changing federal, state and local environmental laws and regulations relating to
environmental protection and occupational health and safety. These include,
among other things, laws and regulations governing the use, treatment, storage
and disposal of solid and hazardous wastes and materials, air quality, water
quality and the remediation of contamination associated with the release of
hazardous substances.
Our compliance with regulatory requirements is costly. We are often required
to enhance or replace our equipment and to modify landfill operations or, in
some cases, to close landfills. We cannot assure you that we will be able to
implement price increases sufficient to offset the cost of complying with these
standards. In addition, environmental regulatory changes could accelerate or
increase expenditures for closure and post-closure monitoring at solid waste
facilities and obligate us to spend sums in addition to those presently accrued
for such purposes.
In addition to the costs of complying with environmental regulations, we are
involved in administrative and judicial proceedings related to environmental
matters. As a result we may be required to pay fines or may lose certain permits
and licenses. For example, BFI recently discovered and self-reported to the
Michigan Department of Natural Resources certain violations of the federal Clean
Air Act in connection with the operation of a medical waste incinerator in
Michigan. Although there has been no final resolution of the matter, and the
parties are still negotiating, the Michigan Department of Natural Resources has
proposed penalties of approximately $200,000. In addition, we may have to defend
ourselves against governmental agencies and surrounding landowners who assert
claims alleging environmental damage, personal injury, property damage and/or
violations of permits and licenses by us. Citizens' groups have become
increasingly active in challenging the grant or renewal of permits and licenses,
and responding to such challenges has further increased the costs associated
with permitting new facilities and expanding current facilities. A significant
judgment against us, the loss of a significant permit or license or the
imposition of a significant fine could have a material negative effect on our
financial condition.
Certain of Allied's and BFI's waste disposal operations traverse state and
county boundaries. In the future, our collection, transfer and landfill
operations may also be affected by proposed federal legislation that authorizes
the states to enact legislation governing interstate shipments of waste. Such
proposed federal legislation may allow individual states to prohibit or limit
importing out-of-state waste to be disposed of and may require states, under
certain circumstances, to reduce the amounts of waste exported to other states.
If this or similar legislation is enacted
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<PAGE> 30
in states in which we operate landfills that receive a significant portion of
waste originating from out-of-state, our operations could be negatively
affected. We believe that several states have proposed or have considered
adopting legislation that would regulate the interstate transportation and
disposal of waste in the states' landfills. Our collection, transfer and
landfill operations may also be affected by "flow control" legislation which may
be proposed in the United States Congress. This proposed federal legislation may
allow states and local governments to direct waste generated within their
jurisdiction to a specific facility for disposal or processing. If this or
similar legislation is enacted, state or local governments with jurisdiction
over our landfills could act to limit or prohibit disposal or processing of
waste in our landfills.
WE MAY HAVE HAZARDOUS SUBSTANCES LIABILITY.
Each of Allied and BFI has been identified as a potentially responsible
party at numerous sites under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"). CERCLA has been
interpreted to impose strict, joint and several liability on current and former
owners or operators of a facility at which there has been a release or a
threatened release of a "hazardous substance" and on persons who generate,
transport or arrange for the disposal of such substances at the facility.
Hundreds of substances are defined as "hazardous" under CERCLA and their
presence, even in minute amounts, can result in substantial liability. The
statute provides for the remediation of contaminated facilities and imposes
costs on the responsible parties. The expense of conducting such a cleanup can
be significant. Notwithstanding our efforts to comply with applicable
regulations and to avoid transporting and receiving hazardous substances, such
substances may be present in waste collected by us or disposed of in our
landfills, or in waste collected, transported or disposed of in the past by
acquired companies. Cleanup liability may also arise under various state laws
similar to CERCLA. As used in this prospectus, "non-hazardous waste" means
substances that are not defined as hazardous waste under federal regulations.
THERE MAY BE POTENTIAL UNDISCLOSED LIABILITIES ASSOCIATED WITH OUR ACQUISITIONS,
INCLUDING THE ACQUISITION OF BFI.
We may be exposed to liabilities that we fail or are unable to discover in
connection with acquisitions. These liabilities may arise from non-compliance
with environmental laws by prior owners, and for which we, as a successor owner,
are responsible. In connection with any acquisition made by us, including the
acquisition of BFI, there may be liabilities that we fail to discover or are
unable to discover including liabilities arising from non-compliance with
environmental laws by prior owners and for which we, as successor owner, may be
responsible. There may also be liabilities arising from transactions by BFI
prior to our acquisition of BFI which we may fail to discover and/or for which
we may be responsible. Additionally, as is typical in agreements for the
acquisition of a public company, our merger agreement with BFI does not provide
for indemnification of us by BFI for any environmental liabilities or for other
potential liabilities.
WE MAY BE UNINSURED AND/OR WE MAY BE UNDERINSURED FOR ENVIRONMENTAL LIABILITIES.
As is typically the case in the solid waste industry, we are able to obtain
only very limited environmental impairment insurance regarding our landfills.
Allied carries environmental impairment liability insurance for substantially
all of its operating landfills. The environmental impairment liability insurance
is in the amount of up to $5.0 million for the policy term in excess of a $1.0
million deductible per claim. We have obtained higher limits of $10.0 million in
excess of a $1.0 million deductible per claim where required by state law. After
the acquisition, the cost of such liability insurance may increase or may not be
available to us on commercially reasonable terms. Although BFI has environmental
impairment insurance to the extent it is required to do so by applicable law,
its policy requires it to reimburse the insurer for any losses, and accordingly,
BFI has been, from a practical viewpoint, self-insured. An uninsured or
underinsured claim of sufficient magnitude would require us to fund such claim
from cash flow generated by operations or borrowings under our senior credit
facility or other sources of liquidity. We cannot assure you that we would be
able to fund any such claim from cash provided by operations, our senior credit
facility or elsewhere.
WE MAY BE AFFECTED BY ADVERSE WEATHER CONDITIONS.
Our collection and landfill operations could be adversely affected by long
periods of inclement weather which interfere with collection and landfill
operations, delay the development of landfill capacity and/or reduce the volume
of
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<PAGE> 31
waste generated by our customers. In addition, certain of our operations may be
temporarily suspended as a result of particularly harsh weather conditions. We
cannot assure you that long periods of inclement weather will not have a
material adverse effect on our future results of operations.
YOU MAY NOT BE ABLE TO SELL YOUR NOTES IF A TRADING MARKET FOR THE EXCHANGE
NOTES DOES NOT DEVELOP.
There is no existing trading market for the Exchange Notes, and we cannot
assure you regarding the future development of a market for the Exchange Notes,
or the ability of the holders of the Exchange Notes to sell their Exchange
Notes, or the price at which such holders may be able to sell their Exchange
Notes. If such a market were to develop, the Exchange Notes could trade at
prices that may be higher or lower than the initial offering price of the Notes
depending on many factors, including prevailing interest rates, Allied's or our
operating results and the market for similar securities. Each of the initial
purchasers has advised us that it intends to make a market in the Exchange
Notes. The initial purchasers are not obligated to do so, however, and any
market making with respect to the Exchange Notes may be discontinued at any time
without notice. Therefore, we cannot assure you as to the liquidity of any
trading market for the Exchange Notes or that an active trading market for the
Exchange Notes will develop. The notes are eligible for trading in the PORTAL
market. However, we do not intend to apply for listing of the notes or, if
issued, the exchange notes, on any securities exchange or for quotation through
the National Association of Securities Dealers Automated Quotation System.
Historically, the market for non-investment grade debt has been subject to
disruptions that have caused substantial volatility in the prices of such
securities. We cannot assure you that the market for the Exchange Notes will not
be subject to similar disruptions. Any such disruptions may have an adverse
effect on holders of the Exchange Notes.
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<PAGE> 32
RATIO OF EARNINGS TO FIXED CHARGES OF ALLIED
The following table sets forth the ratio of earnings to fixed charges of
Allied for the nine months ended September 30, 1999 and for each of the five
years in the period ended December 31, 1998.
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
------------------- -------------------------------------------------------
1999 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges......... * ** 1.5x *** 1.9x 1.2x
</TABLE>
- ---------------------------
(1) For purposes of calculating the ratio of earnings to fixed charges, earnings
consist of income (loss) before taxes and fixed charges, exclusive of
preferred stock dividends. Fixed charges include interest expense and
capitalized interest.
* Earnings were inadequate to cover fixed charges by $313,690.
** Earnings were inadequate to cover fixed charges by $121,977.
*** Earnings were inadequate to cover fixed charges by $65,519.
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<PAGE> 33
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER
Summary: The Company will accept for exchange old notes that are validly
tendered to the exchange agent before the earliest of:
- 5:00 p.m., New York City time, on , 1999, or such later date
and time to which it is extended, except that it may not be extended
beyond , 1999,
- the date when all old notes have been tendered, or
- the date on which the Company terminates the Exchange Offer.
The Company will return any old note that it does not accept for exchange for
any reason, as promptly as practicable after expiration or termination of the
Exchange Offer, without charge to the holder of the old note.
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept for exchange old notes
that are properly tendered on or prior to the Expiration Date and not withdrawn
as permitted below. "Expiration Date" means 5:00 p.m., New York City time, on ,
1999, or, if the Company, in its sole discretion, has extended the period of
time for which the Exchange Offer is open, the latest time and date to which the
Exchange Offer is extended.
As of the date of this Prospectus, $2 billion aggregate principal amount of
the old notes was outstanding. This Prospectus, together with the Letter of
Transmittal, is first being sent on or about the date set forth on the cover
page to all holders of old notes at the addresses set forth in the securities
register with respect to old notes maintained by the Trustee. The Company's
obligation to accept old notes for exchange pursuant to the Exchange Offer is
subject to certain conditions as set forth below. See "-- Acceptance of Old
Notes; Delivery of New Notes."
The Company expressly reserves the right, at any time or from time to time,
to extend the period of time during which the Exchange Offer is open, and
thereby delay acceptance for exchange of any old notes, by mailing written
notice of such extension to the holders thereof as described below. During any
extension, all old notes previously tendered will remain subject to the Exchange
Offer and may be accepted for exchange by the Company. Any old notes not
accepted for exchange for any reason will be returned without expense to the
Note holder as promptly as practicable after the expiration or termination of
the Exchange Offer.
Old notes tendered in the Exchange Offer must be $1,000 in principal amount
or any integral multiple thereof.
The Company will mail written notice of any extension, amendment,
non-acceptance or termination to the holders of the old notes as promptly as
practicable, such notice to be mailed to the holders of record of the old notes
no later than 9:00 a.m. New York City time, on the next business day after the
previously scheduled Expiration Date or other event giving rise to such notice
requirement.
PROCEDURES FOR TENDERING OLD NOTES
Summary: The Trustee is serving as Exchange Agent in connection with the
Exchange Offer. Holders of old notes that wish to participate in the Exchange
Offer must complete and sign a Letter of Transmittal according to the
instructions contained in the Letter of Transmittal, and forward it to the
Exchange Agent (not to the Company) in compliance with the procedures set forth
in the Letter of Transmittal. Broker-dealers, commercial banks, trust companies
and other nominees may tender old notes which they hold as nominee by book-entry
transfer. Questions regarding the Exchange Offer, tender of the old notes, or
the Exchange Offer generally, must be directed to the Exchange Agent.
Letter of Transmittal. The tender to the Company of old notes by a holder
thereof as set forth below and the acceptance thereof by the Company will
constitute a binding agreement between the tendering holder and the
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<PAGE> 34
Company upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal. Except as set forth below, a holder
who wishes to tender old notes for exchange pursuant to the Exchange Offer must
transmit a properly completed and duly executed Letter of Transmittal, together
with all other documents required by such Letter of Transmittal, to the Exchange
Agent at the address set forth below under "-- Exchange Agent" on or prior to
the Expiration Date.
Other Documents. In addition,
- the Exchange Agent must receive certificates for the old notes along
with the Letter of Transmittal,
- the Exchange Agent must receive prior to the Expiration Date a timely
confirmation of a book-entry transfer (a "Book-Entry Confirmation") of
the old notes, if such procedure is available, into the Exchange Agent's
account at the DTC (the "Book-Entry Transfer Facility") pursuant to the
procedure for book-entry transfer described below, or
- the holder must comply with the guaranteed delivery procedures described
in "-- Guaranteed Delivery Procedures," below.
Note: The method of delivery of old notes, Letters of Transmittal
and all other required documents is at the election and risk
of the holders. If the delivery is by mail, it is recommended
that registered mail, properly insured, with return receipt
requested, be used in all cases. Sufficient time should be
allowed to assure timely delivery. No Letters of Transmittal
or old notes should be sent to the Company.
Signatures. Signatures on a Letter of Transmittal or a notice of
withdrawal, as the case may be, must be guaranteed unless the old notes
surrendered for exchange pursuant thereto are tendered (1) by a registered
holder of the old notes who has not completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or
(2) for the account of an Eligible Institution (as defined herein). If
signatures on a Letter of Transmittal or a notice of withdrawal, as the case may
be, are required to be guaranteed, the guarantees must be by a firm that is an
eligible guarantor institution (bank, stockbroker, national securities exchange,
registered securities association, savings and loan association or credit union
with membership in a signature medallion program) pursuant to Exchange Act Rule
17Ad-15 (collectively, "Eligible Institutions"). If old notes are registered in
the name of a person other than the person signing the Letter of Transmittal,
the old notes surrendered for exchange must be endorsed by, or be accompanied by
a written instrument or instruments of transfer or exchange, in satisfactory
form as determined by the Company in its sole discretion, duly executed by the
registered holder, with the signature thereon guaranteed by an Eligible
Institution.
Powers of Attorney. If the Letter of Transmittal is signed by a person or
persons other than the registered holder or holders of old notes, the old notes
must be endorsed or accompanied by appropriate powers of attorney, in either
case signed exactly as the name or names of the registered holder or holders
that appear on the old notes.
Representatives. If the Letter of Transmittal or any old notes or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
unless waived by the Company, proper evidence satisfactory to the Company of
their authority to so act must be submitted with the Letter of Transmittal.
Required Acknowledgments; Resales by Broker-Dealers. By tendering old
notes, each holder, other than a broker-dealer, must acknowledge that it is not
engaged in, and does not intend to engage in, a distribution of new notes. If
any holder of old notes is an "affiliate" of the Company, as defined in Rule 405
under the Securities Act, or is engaged in or intends to engage in or has any
arrangement with any person to participate in the distribution of the new notes
to be acquired pursuant to the Exchange Offer, the holder:
- could not rely on the applicable interpretations of the staff of the
SEC, and
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<PAGE> 35
- must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives new notes for its own account in exchange for
old notes must acknowledge that the old notes were acquired by the broker-dealer
as a result of market-making activities or other trading activities and that it
will deliver a prospectus in connection with any resale of the new notes. Any
such broker-dealer may be deemed to be an "underwriter" under the Securities
Act. See "Plan of Distribution -- Broker-Dealers." The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
The Company will accept, promptly after the Expiration Date, all old notes
properly tendered and will issue the new notes promptly after acceptance of the
old notes. For each old note accepted for exchange, the holder of the old note
will receive a new note having a principal amount equal to that of the
surrendered old note. The new notes will bear interest from the most recent date
to which interest has been paid on the old notes or, if no interest has been
paid on the old notes, from July 30, 1999. Accordingly, if the relevant record
date for interest payment occurs after the completion of the Exchange Offer,
registered holders of new notes on the record date will receive interest
accruing from the most recent date to which interest has been paid or, if no
interest has been paid, from July 30, 1999. If, however, the relevant record
date for interest payment occurs prior to the completion of the Exchange Offer,
registered holders of old notes on the record date will receive interest
accruing from the most recent date to which interest has been paid or, if no
interest has been paid, from July 30, 1999. Old notes accepted for exchange will
cease to accrue interest from and after the date of completion of the Exchange
Offer, except as set forth in the immediately preceding sentence. Holders of old
notes whose old notes are accepted for exchange will not receive any payment in
respect of interest on the old notes otherwise payable on any interest payment
date the record date for which occurs on or after completion of the Exchange
Offer.
In all cases, issuance of new notes for old notes that are accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of:
- certificates for the old notes or a timely Book-Entry Confirmation of
the old notes into the Exchange Agent's account at the Book-Entry
Transfer Facility,
- a properly completed and duly executed Letter of Transmittal, and
- all other required documents.
If any tendered old notes are not accepted for any reason set forth in the
terms and conditions of the Exchange Offer or if certificates representing old
notes are submitted for a greater principal amount than the holder desires to
exchange, certificates representing the unaccepted or non-exchanged old notes
will be returned without expense to the tendering holder thereof (or, in the
case of old notes tendered by book-entry transfer into the Exchange Agent's
account at the Book-Entry Transfer Facility pursuant to the book-entry transfer
procedures described below, the non-exchanged old notes will be credited to an
account maintained with the Book-Entry Transfer Facility) as promptly as
practicable after the expiration or termination of the Exchange Offer.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of old notes tendered for exchange will be determined by
the Company in its sole discretion, which determination shall be final and
binding. The Company reserves the absolute right to reject any and all tenders
of any particular old notes not properly tendered or not to accept any
particular old notes if acceptance might, in the judgment of the Company or its
counsel, be unlawful. The Company also reserves the absolute right in its sole
discretion to waive any defects or irregularities or conditions of the Exchange
Offer as to any particular old notes either before or after the Expiration Date
(including the right to waive the ineligibility of any holder who seeks to
tender old notes in the Exchange Offer). The interpretation of the terms and
conditions of the Exchange Offer as to any particular old notes either before or
after the Expiration Date (including the Letter of Transmittal and the
instructions thereto) by the Company shall be final and binding on all parties.
Unless waived, any defects or irregularities in connection with tenders of old
notes for exchange must be
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<PAGE> 36
cured within a reasonable period of time that the Company shall determine.
Neither the Company, the Exchange Agent nor any other person shall be under any
duty to give notification of any defect or irregularity with respect to any
tender of old notes for exchange, nor shall any of them incur any liability for
failure to give any notification.
BOOK-ENTRY TRANSFER
The Exchange Agent will ask to establish an account with respect to the old
notes at the Book-Entry Transfer Facility for purposes of the Exchange Offer
within two business days after the date of this Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of old notes by causing the Book-Entry Transfer
Facility to transfer the old notes into the Exchange Agent's account at the
Book-Entry Transfer Facility in accordance with the Book-Entry Facility's
procedures for transfer.
Note: Although delivery of old notes may be effected through
book-entry transfer at the Book-Entry Transfer Facility, the
Letter of Transmittal or a facsimile thereof, with any
required signature guarantees and any other required
documents, must, in any case, be transmitted to and received
by the Exchange Agent at the address set forth below under
"Exchange Agent" on or prior to the Expiration Date, or the
guaranteed delivery procedures described below must be
complied with.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of old notes desires to tender the old notes and the
old notes are not immediately available, or time will not permit the holder's
old notes or other required documents to reach the Exchange Agent before the
Expiration Date, or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected if:
- the tender is made through an Eligible Institution,
- prior to the Expiration Date, the Exchange Agent receives from the
Eligible Institution a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by the Company (by
telegram, telex, facsimile transmission, mail or hand delivery),
setting forth the name and address of the holder of old notes and the
amount of old notes tendered, stating that the tender is being made
thereby and guaranteeing that within five New York Stock Exchange
("NYSE") trading days after the date of execution of the Notice of
Guaranteed Delivery, the certificates for all physically tendered old
notes, in proper form for transfer, or a Book-Entry Confirmation, as
the case may be, and any other documents required by the Letter of
Transmittal will be deposited by the Eligible Institution with the
Exchange Agent, and
- the certificates for all physically tendered old notes, in proper form
for transfer, or a Book-Entry Confirmation, as the case may be, and
all other documents required by the Letter of Transmittal, are
received by the Exchange Agent within five NYSE trading days after the
date of execution of the Notice of Guaranteed Delivery.
WITHDRAWAL RIGHTS
Tenders of old notes may be withdrawn at any time prior to 5:00 p.m., New
York City time, on the Expiration Date. For a withdrawal to be effective, a
written or facsimile notice of withdrawal must be received by the Exchange Agent
at the address set forth below under "-- Exchange Agent." Any notice of
withdrawal must specify the name of the person having tendered the old notes to
be withdrawn, identify the old notes to be withdrawn (including the principal
amounts of such old notes), and (where certificates for old notes have been
transmitted) specify the name in which such old notes are registered, if
different from that of the withdrawing holder.
If certificates for old notes have been delivered or otherwise identified
to the Exchange Agent, then, prior to the release of such certificates, the
withdrawing holder must also submit the serial numbers of the particular
certificates to be withdrawn and a signed notice of withdrawal with signatures
guaranteed by an Eligible Institution unless the holder is an Eligible
Institution. If old notes have been tendered pursuant to the procedure for
book-entry transfer, any notice
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<PAGE> 37
of withdrawal must specify the name and number of the account at the Book-Entry
Transfer Facility to be credited with the withdrawn old notes and otherwise
comply with the procedures of the facility. All questions as to the validity,
form and eligibility (including time of receipt) of the notices will be
determined by the Company, whose determination shall be final and binding on all
parties. Certificates for any old notes so withdrawn will be deemed not to have
been validly tendered for exchange for purposes of the Exchange Offer. Any old
notes that have been tendered for exchange but which are not exchanged for any
reason will be returned to the holder thereof without cost to the holder (or, in
the case of old notes tendered by book-entry transfer into the Exchange Agent's
account at the Book-Entry Transfer Facility pursuant to the book-entry transfer
procedures described above, the old notes will be credited to an account
maintained with the Book-Entry Transfer Facility for the old notes) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn old notes may be retendered by following one of the
procedures described under "-- Procedure for Tendering Old Notes," above, at any
time on or prior to the Expiration Date.
EXCHANGE AGENT
All executed Letters of Transmittal should be directed to the Exchange
Agent at the address set forth below. Questions and requests for assistance,
requests for additional copies of this Prospectus or of the Letter of
Transmittal and requests for Notices of Guaranteed Delivery should be directed
to the Exchange Agent, addressed as follows:
By Registered or Certified Mail: U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
By Overnight Courier or By Hand: U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Confirm by Telephone: (651) 244-5011
Note: Delivery of the Letter of Transmittal to an address other than
as set forth above or transmission of instructions via
facsimile other than as set forth above does not constitute a
valid delivery of the Letter of Transmittal.
FEES AND EXPENSES
The Company will not make any payment to brokers-dealers or others
soliciting acceptances of the Exchange Offer.
TRANSFER TAXES
Holders who tender old notes for exchange will not be obligated to pay any
transfer tax in connection therewith, except that Holders who instruct the
Company to register new notes in the name of, or request that old notes not
tendered or not accepted in the Exchange Offer be returned to, a person other
than the registered tendering Holder will be responsible for the payment of any
applicable transfer tax thereon.
APPRAISAL RIGHTS
Holders of old notes will not have dissenters' rights or appraisal rights
in connection with the Exchange Offer.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD NOTES
Holders of old notes who do not exchange their old notes for new notes
pursuant to the Exchange Offer will continue to be subject to the restrictions
on transfer of the old notes. In general, the old notes may not be offered or
sold unless registered under the Securities Act, except pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act and applicable state securities laws. The Company does not
anticipate that it will register old notes under the Securities Act.
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<PAGE> 38
RESALE OF THE NEW NOTES
Based on interpretations by the staff of the SEC issued to third parties,
new notes issued pursuant to the Exchange Offer in exchange for old notes may be
offered for resale, resold or otherwise transferred by holders thereof (other
than any holder that is an "affiliate" of the Company as defined in Rule 405
under the Securities Act, and other than any broker-dealer) without compliance
with the registration and prospectus delivery provisions of the Securities Act,
provided that:
- the new notes are acquired in the ordinary course of the holders'
business, and
- the holders have no arrangement with any person to participate in the
distribution of the new notes.
Each holder, other than a broker-dealer, must acknowledge that it is not
engaged in, and does not intend to engage in, a distribution of new notes. This
analysis is based upon the SEC's position in no-action letters that the SEC has
issued previously regarding other transactions that were substantially similar
to the Exchange Offer. Although the SEC has not indicated that it has changed
its position on this issue, the Company has not sought its own interpretive
letter from the SEC. There is no assurance that the SEC would make a similar
determination with respect to the resale of the new notes. See "Risk Factors --
Resale of the new notes".
If any holder is an affiliate of the Company, or if any holder is engaged
in or intends to engage in or has any arrangement or understanding with respect
to the distribution of the new notes to be acquired pursuant to the Exchange
Offer, the holder
- could not rely on the applicable interpretations of the staff of the
SEC, and
- must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives new notes for its own account in exchange
for old notes must acknowledge that the old notes were acquired by the
broker-dealer as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with any resale
of the new notes. Any such broker-dealer may be deemed to be an "underwriter"
under the Securities Act. See "Plan of Distribution." In addition, to comply
with the securities laws of certain jurisdictions, if applicable, it may be
necessary to qualify for sale or to register the new notes in that jurisdiction
prior to offering or selling the new notes.
REGISTRATION RIGHTS AGREEMENT
Summary: The Company is making the Exchange Offer to comply with its obligation
under the Registration Rights Agreement to register the exchange of the new
notes for the old notes. In the Registration Rights Agreement, the Company also
agreed under limited circumstances to file the Shelf Registration Statement to
register the resale of certain old notes and new notes. If the Company defaults
on certain of its registration obligations under the Registration Rights
Agreement, the affected note holders will be entitled to Special Interest.
This summary of the Registration Rights Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all provisions of the Registration Rights Agreement, a copy of which is an
exhibit to the Registration Statement.
REGISTRATION STATEMENT
Obligations of the Company. In the Registration Rights Agreement, the Company
and the Guarantors agreed to:
- use their best efforts to keep the Registration Statement effective
continuously, and the Exchange Offer open, for a period of not less
than 30 business days, and
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<PAGE> 39
- cause the Exchange Offer to be consummated no later than the 45th
business day after the SEC declares the Registration Statement to be
effective (the "Consummation Deadline"); and
- use their best efforts to keep the Prospectus available for use by
broker-dealers for 90 days after the Consummation Deadline.
Representations by the Note Holders. To participate in the Exchange Offer,
each holder of old notes must represent that it:
- is not an affiliate of the Company,
- is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of new notes issued in the Exchange Offer, and
- is acquiring the new notes in the Exchange Offer in the ordinary
course of its business.
SHELF REGISTRATION STATEMENT
Obligation to File. In the Registration Rights Agreement, the Company and
the Guarantors agreed to file with the SEC a Shelf Registration Statement
covering the public resale, by any holder who provides the Company with certain
information for inclusion in the Shelf Registration Statement, of:
- the old notes if the Exchange Offer is not permitted by applicable law
or SEC policy, or
- any new notes or Transfer Restricted Securities held by any holder who
notifies the Company prior to the 20th business day following the
consummation of the Exchange Offer that:
(1) such holder is prohibited by law or SEC policy from participating
in the Exchange Offer, or
(2) such holder may not resell the new notes acquired by it in the
Exchange Offer to the public without delivering a prospectus, and
the prospectus contained in the Registration Statement is not
appropriate or available for such resales by it.
"Transfer Restricted Securities" means each old note until the earliest of the
date on which the old note
- is exchanged for a new note in the Exchange Offer that is
entitled to be resold to the public by the holder thereof without
complying with the prospectus delivery requirements of the
Securities Act,
- has been disposed of in accordance with the Shelf Registration
Statement, or
- is disposed of by a broker-dealer pursuant to the "Plan of
Distribution," and distributed to the public pursuant to Rule 144
under the Securities Act. See "Plan of Distribution."
Further Obligations of the Company. If a Shelf Registration Statement is
required, the Company must:
- file the Shelf Registration Statement within 30 days after the
Company receives the required notice from by a Note holder,
- use its best efforts to cause the SEC to declare the Shelf
Registration Statement effective within 120 days after the
obligation to file a Shelf Registration Statement arises, and
- use its best efforts to keep the Shelf Registration Statement
continuously effective for at least two years after the SEC
initially declares it effective.
If the Company files a Shelf Registration Statement, the Company will:
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<PAGE> 40
- provide to each named selling Note holder copies of the prospectus
which is part of the Shelf Registration Statement, and any amendments
and supplements, and
- provide notice for the Registration Statement or Prospectus until
after the holders have five days to object to any such documents.
Obligations of Selling Note Holders. A holder selling Notes under the Shelf
Registration Statement generally:
- would be required to be named as a selling security holder in the
related prospectus and to deliver a prospectus to purchasers,
- will be subject to certain of the civil liability provisions under the
Securities Act in connection with such sales, and
- will be bound by the provisions of the Registration Rights Agreement
that are applicable to such holder (including certain indemnification
obligations).
SPECIAL INTEREST
In the Registration Rights Agreement, the Company and the Guarantors agree to
pay to each Holder of Transfer Restricted Securities affected by a Registration
Default, the following special interest ("Special Interest"):
- a per annum rate of 0.25% for the first 90 days after February 25,
2000,
- a per annum rate of 0.50% for the second 90 days after February 25,
2000,
- a per annum rate of 0.75% for the third 90 days after February 25,
2000,
- a per annum rate of 1.0% for periods after the third 90 days after
February 25, 2000.
Following the cure of all Registration Defaults, the accrual of Special Interest
will cease. All accrued Special Interest will be paid in the same manner and on
the same dates as interest payments are paid on the Notes. Special Interest, if
determined to be a penalty, may be limited or unenforceable under applicable
law.
Registration Default
"Registration Default" means the occurrence of any of the following events:
- the Exchange Offer is not consummated on or before the Consummation
Deadline, (which is 45 days after the Registration Statement becomes
effective),
- the Company or the Guarantors fail to file the Registration Statement,
if required, with the SEC by the applicable filing deadline,
- the SEC does not declare the Registration Statement, if required, to
be effective by the applicable effectiveness deadline, or
- the Shelf Registration Statement, if required, is declared effective
but thereafter ceases to be effective or useable for its intended
purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and
that is itself immediately declared effective.
INDEMNIFICATION
The Company agrees in the Registration Rights Agreement to indemnify
selling Note holders against certain liabilities, including certain liabilities
under the Securities Act.
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<PAGE> 41
CERTAIN INDEBTEDNESS
The following summary of our senior credit facility and other debt,
including the 1998 Senior Notes, does not purport to be complete and is
qualified in its entirety by reference to the agreements described, including
the definitions of certain capitalized terms used in this section, copies of
which are available upon request. Any terms not defined in this section are
defined in the senior credit facility. See "Available Information."
On September 30, 1999, our debt structure consisted primarily of $5.6
billion outstanding under the Senior Credit Facility, $1.7 billion of the 1998
Senior Notes, $2.0 billion of the 1999 Notes and $1.3 billion of senior debt
acquired in connection with the BFI acquisition. As of September 30, 1999, we
had aggregate availability under the revolving senior credit facility of
approximately $1.1 billion to be used for working capital, letters of credit,
acquisitions and other general corporate purposes.
The following chart shows Allied's principal debt structure giving effect to
the acquisition of BFI, including the BFI Dispositions, assuming they were
completed as of September 30, 1999, as well as the related financings:
<TABLE>
<CAPTION>
PRO FORMA
AS OF
SEPTEMBER 30, 1999
------------------
(IN MILLIONS)
<S> <C>
Senior Credit Facility........ $4,181.0
Assumed BFI debt.............. 1,218.4
1998 Senior Notes............. 1,698.2
1999 Notes.................... 2,008.3
Capital leases and other notes 136.4
Current portion of long-term debt 24.0
--------
Total indebtedness....... $9,266.3
========
</TABLE>
THE SENIOR CREDIT FACILITY
In connection with the acquisition of BFI, we entered into a new credit
agreement with a bank group led by The Chase Manhattan Bank for $7.5 billion in
financing under a senior credit facility. The senior credit facility provides
for an aggregate of $7.0 billion of senior secured facilities and $.5 billion of
senior subordinated borrowings. The senior credit facility consist of the
following facilities with each maturing the number of years after July 30, 1999,
the date of the acquisition of BFI, indicated below:
- a $1.5 billion six-year Revolving Credit Facility, including letters
of credit and Swingline Loans;
- a $1.0 billion two-year Asset Sale Term Loan facility;
- a $1.75 billion six-year amortizing Tranche A Term Loan facility;
- a $1.25 billion seven-year amortizing Tranche B Term Loan facility;
- a $1.5 billion eight-year amortizing Tranche C Term Loan facility; and
- a $.5 billion Tranche D Subordinated Term Loan.
ASSET SALES REDUCTIONS
We may reduce amounts borrowed under the Asset Sale Term Loan (and
thereafter the other senior secured facilities and the Tranche D Subordinated
Term Loan) through sales of non-core assets at any time whether before or after
the acquisition or from equity issuances, subject to the limitations of
availability of net proceeds resulting therefrom. After the acquisition, the
senior secured facilities and the Tranche D Subordinated Term Loan also may be
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<PAGE> 42
subject to mandatory prepayment. After the acquisition of BFI, we entered into
definitive agreements to divest certain non-core and non-integrated assets
including: (1) the medical waste operations of BFI to Stericycle, Inc. for
approximately $410.5 million, which was completed in November 1999, (2) the
Canadian operations of BFI to Waste Management, Inc. for approximately $225.0
million, (3) certain assets of BFI Gas Services, Inc. to Gas Recovery Systems,
Inc. for approximately $63.0 million and (4) certain government mandated and
other identified non-core or non-integrated operations for an aggregate of
approximately $700.5 million. Each of these transactions is subject to certain
customary closing conditions. We cannot assure you whether these transactions
will be completed or the timing of the closing of these transactions. Upon
closing of these transactions, net proceeds from the transactions will be used
to reduce indebtedness under our senior credit facility.
AMORTIZATION OF TERM LOANS
The schedule of amortization for the term loans and the maturity date
represented by the number of years after the acquisition upon which any
principal amounts remaining outstanding is as follows:
<TABLE>
<CAPTION>
ASSET SALE TRANCHE A TRANCHE B TRANCHE C TRANCHE D
DATE TERM LOAN TERM LOAN TERM LOAN TERM LOAN TERM LOAN
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
September 30, 2000......... No amortization $ 75,000 $ 5,000 $ 5,000 No amortization
requirements requirements
September 30, 2001......... 100,000 5,000 5,000
September 30, 2002......... 250,000 5,000 5,000
September 30, 2003......... 350,000 5,000 5,000
September 30, 2004......... 450,000 5,000 5,000
September 30, 2005......... -- 5,000 5,000
September 30, 2006......... -- -- 5,000
Maturity................... Second Sixth Seventh Eighth Eighth
Anniversary Anniversary Anniversary Anniversary Anniversary
</TABLE>
INTEREST RATE CALCULATIONS
Interest will be payable quarterly, or at the end of the relevant interest
period, if earlier, at a per annum rate equal to Alternate Base Rate for ABR
Borrowings, or an Adjusted LIBO Rate for Eurodollar (LIBOR) Borrowings, plus in
each case, the relevant Applicable Margin based upon our leverage ratio.
The Alternate Base Rate is a fluctuating rate calculated on a daily basis at
the higher of:
- the rate of interest publicly announced by The Chase Manhattan Bank
for the date of determination; and
- 0.5% over the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System as arranged by
Federal Funds brokers on the date of determination.
The Tranche D Subordinated Term Loan will pay interest at a rate per annum
equal to the three month Adjusted LIBOR plus the relevant Applicable Margin. If
the Tranche D Subordinated Term Loan is not repaid in whole within 12 months,
the spread will increase by 50 points; and, thereafter, it will increase by 50
basis points at the end of each three month period up to a maximum spread of 525
basis points.
The Adjusted LIBO Rate is the per annum rate determined by the
administrative agent to be the product of the rate that appears on the Telerate
British Bankers Association Interest Settlement Rates Page 3750 and the
Statutory Reserve Rate (as defined and which is as adjusted for reserve
requirements).
The credit agreement requires us to pay the following fees:
- a quarterly commitment fee based upon our Leverage Ratio;
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<PAGE> 43
- a fee to each lender based upon our Leverage Ratio in proportion to
the lender's standby letter of credit liability;
- an issuing fee on the face amount of each letter of credit; and
- an administrative fee to The Chase Manhattan Bank for its services as
administrative agent under our senior credit facility.
COVENANTS
In addition to certain customary covenants, the credit agreement includes
covenants that restrict our ability and our subsidiaries' ability to:
- dispose of assets;
- incur additional indebtedness;
- incur liens on property or assets;
- repay other indebtedness;
- pay dividends;
- enter into certain investments or transactions;
- repurchase or redeem capital stock;
- engage in mergers or consolidations; or
- engage in certain transactions with subsidiaries and affiliates and
otherwise restrict corporate activities.
In addition, we may not prepay, redeem, defease or repurchase any
subordinated indebtedness or the notes except for regularly scheduled mandatory
payments of interest and certain other exceptions.
FINANCIAL COVENANTS
The senior credit facility contains financial covenants including the
following:
- an Interest Coverage Ratio;
- a Leverage Ratio; and
- a limitation on Capital Expenditures.
CERTAIN PREPAYMENTS
We will be required to make prepayments on our senior credit facility under
certain circumstances, including upon certain asset sales and issuances of debt
or equity securities. We must make mandatory prepayments based on a relevant
percentage of the net proceeds of any debt incurrence or equity issuance (other
than the notes). The relevant percentage begins at 100% and decreases as our
Leverage Ratio declines; provided, however, that the relevant percentage will be
100% so long as any Asset Sale Term Loan commitment is outstanding. Commencing
on December 31, 2000 we must make mandatory prepayments equal to 75% of excess
cash flow. The mandatory prepayments shall be allocated as described below.
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<PAGE> 44
(1) On or prior to the closing of the senior credit facility, if the notes
are outstanding, the Net Available Proceeds of an issuance of permitted
debt or equity shall be applied: first, to reduce commitments under the
Tranche D Subordinated Term Loan; second, to reduce commitments under
the Asset Sale Term Loan; and third, to reduce the commitments under the
Tranche A, B and C Term Loans, pro rata.
(2) If any Asset Sales are completed, then the Net Available Proceeds shall
be applied: first, to reduce borrowings and commitments under the Asset
Sale Term Loan; and second, to reduce the borrowings and commitments
under the Tranche A, B and C Term Loans, pro rata. Notwithstanding, if
Net Available Proceeds from Asset Sales are received and there are no
outstanding Asset Sale Term Loan commitments and the Tranche D
Subordinated Term Loan have been reduced below $500.0 million, then the
Net Available Proceeds may be applied to reduce borrowings under the
Tranche D Subordinated Term Loan.
(3) If a mandatory prepayment arises from the issuance of the notes or other
subordinated debt or equity securities after the closing of the senior
credit facility, then the Net Available Proceeds shall be applied:
first, to repay borrowings under the Tranche D Subordinated Term Loan;
second, to repay outstanding borrowings under Asset Sale Term Loan; and
third, to reduce borrowings and commitments under the Tranche A, B and C
Term Loan, pro rata; provided that once the Asset Sale Term Loan has
been repaid, all proceeds of the sale of capital stock may be retained
by us.
The Tranche D Subordinated Term Loan contains a mandatory prepayment
provision that provides for the repayment of the Tranche D Subordinated Term
Loan from the proceeds of any permitted subordinated debt offering or equity
issuance, other than the senior convertible preferred stock.
Additionally, in the case of certain other asset sales, incurrences of debt
and issuances of equity securities we may apply the proceeds within one year to
make acquisitions, certain investments, acquire property and/or equipment or
assets.
SECURITY
Allied NA's obligations as the principal borrower under the credit facility
and those of BFI, as a wholly-owned subsidiary, under the senior secured
facilities will be (1) secured by a first priority lien on (a) all of our equity
interests in Allied NA and substantially all of our domestic subsidiaries and
65% of the equity interests in all of our foreign subsidiaries and (b) all
tangible and intangible assets (other than certain landfill properties) owned by
Allied NA and substantially all of our domestic subsidiaries and (2) guaranteed
by us and substantially all of Allied NA's domestic subsidiaries, in each case,
subject to the prior consent of any unaffiliated minority equity holders to the
extent that consent is required. The holders of the 1998 Senior Notes and
specified debt of BFI will also be granted equal and ratable security interests
in the stock of BFI's subsidiaries and assets of BFI and its subsidiaries to the
extent granted as collateral for the senior secured facilities.
EVENTS OF DEFAULT
The senior credit facility contains customary events of default, which
include a default in the payment of principal or interest on debt aggregating
$50.0 million or more. If any event of default occurs, our obligations under the
credit agreement could be accelerated and the lenders could foreclose on the
collateral securing these obligations, with material adverse results to the
holders of the notes. Notwithstanding the forgoing, in the event of a failure to
comply with the Interest Coverage Ratio or the Leverage Ratio, we have the right
within ten business days of the date required to certify compliance to issue
securities for cash or otherwise receive cash contributions to Allied's capital,
and contribute such cash to our capital to cure the default. We are in
compliance with all applicable covenants under our existing credit facilities at
September 30, 1999.
THE 1998 SENIOR NOTES
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<PAGE> 45
In December 1998, Allied NA issued an aggregate of $1.7 billion of the 1998
Senior Notes consisting of $225.0 million 7 3/8% senior notes due 2004 (the
"Five Year Notes"), $600.0 million 7 5/8% senior notes due 2006 (the "Seven Year
Notes"), and $875.0 million 7 7/8% senior notes due 2009 (the "Ten Year Notes")
without giving effect to any unamortized discount. We used the net proceeds from
the 1998 Senior Notes to fund the purchase of the 10.25% senior subordinated
notes due 2006 and the 11.30% senior discount notes due 2007 pursuant to tender
offers we commenced in November 1998 and completed in December 1998, to repay
borrowings outstanding under the existing senior credit facility and certain
capital lease obligations, and for general corporate purposes.
We can redeem the Five Year Notes and Seven Year Notes, at our option, in
whole or in part, at any time, in cash, 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 at a semi-annual basis at the treasury yield plus 50
basis points, plus in each case accrued but unpaid interest to but excluding the
date of redemption. We can redeem the Ten Year Notes at our option, in whole or
in part, at any time on or after January 1, 2004 in cash at redemption prices,
which begin at 103.9375% in the first year and decline annually, plus accrued
and unpaid interest to but excluding the date of redemption. Prior to January 1,
2004, we can redeem the Ten Year Notes, at our option, in whole or in part, at
any time, in cash, 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 at the treasury yield plus 50 basis points, plus accrued but
unpaid interest to but excluding the date of redemption. In addition, at any
time prior to January 1, 2002, we may on any one or more occasions redeem up to
33 1/3% of the aggregate principal amount of Ten Year Notes originally issued at
a redemption price equal to 107.9% of the principal amount thereof, plus accrued
and unpaid interest to the date of redemption, with the net cash proceeds of one
or more public equity offerings, to the extent permitted under our senior credit
facility. The 1998 Senior Notes are guaranteed by Allied and substantially all
of Allied NA's current and future subsidiaries. The holders of the 1998 Senior
Notes and specified debt of BFI have been granted equal and ratable security
interests in the stock of BFI's subsidiaries and assets of BFI and its
subsidiaries to the extent granted as collateral for the senior secured
facilities. The indenture relating to the 1998 Senior Notes contains operating
covenants and restrictions on Allied NA and its subsidiaries, which are
substantially the same as in the covenants in the indenture for the notes.
ASSUMED BFI DEBT
The following table outlines indebtedness of BFI, substantially all of which
has been unconditionally and fully guaranteed by us at the time of the
acquisition:
<TABLE>
<CAPTION>
AS OF
SEPTEMBER 30, 1999
------------------
(IN MILLIONS)
<S> <C>
6.08% MVPs due 2002................... $ 248.8
6.10% Senior Notes due 2003........... 145.1
6.375% Senior Notes due 2008.......... 134.9
7.875% Senior Notes due 2005.......... 66.1
7.40% Debentures due 2035............. 277.9
9.25% Debentures due 2021............. 94.7
Solid Waste Revenue Bonds(1).......... 250.9
------------
Total Existing BFI Debt.......... $ 1,218.4
============
</TABLE>
- ------------
(1) Weighted average interest rate is 6.73% with various maturity dates through
the year 2027.
6.08% MARKET VALUE PUT SECURITIES
In January 1999, BFI issued $250.0 million of 6.08% MVPs due January 18,
2002. The 6.08% MVPs have a mandatory put on January 18, 2000. First National
Bank of Chicago holds an option to purchase the 6.08% MVPs and, if BFI so
chooses, to remarket the 6.08% MVPs on that date for an additional two year
term. If First National Bank of Chicago does not exercise its option to purchase
the 6.08% MVPs on January 18, 2000, the 6.08% MVPs will
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<PAGE> 46
be purchased by BFI on that date. The 6.08% MVPs are secured by the assets of
BFI and are guaranteed by Allied and Allied NA and will be effectively
subordinated to our senior credit facility to the extent of the value of the
assets of Allied NA and each of its domestic subsidiaries, excluding BFI.
6.10% AND 6.375% SENIOR NOTES
In January 1996, BFI issued $200.0 million of 6.10% Senior Notes due January
15, 2003 and $200.0 million of 6.375% Senior Notes due January 15, 2008. The
notes are not redeemable prior to maturity and are not subject to any sinking
fund. The notes rank equal in right of payment with our senior credit facility.
The notes are secured by the assets of BFI and are guaranteed by Allied and
Allied NA and are effectively subordinated to our senior credit facility to the
extent of the value of the assets of Allied NA and each of its domestic
subsidiaries, excluding BFI.
7.875% SENIOR NOTES
In March 1995, BFI issued $300.0 million of 7.875% Senior Notes which mature
on March 15, 2005. The notes rank equal in right of payment with our senior
credit facility. The notes are secured by the assets of BFI and are guaranteed
by Allied and Allied NA and are effectively subordinated to our senior credit
facility to the extent of the value of the assets of Allied NA and each of its
domestic subsidiaries, excluding BFI.
7.40% DEBENTURES
In September 1995, BFI issued $400.0 million of 7.40% Debentures due
September 15, 2035. These debentures are not subject to any sinking fund and may
be redeemed as a whole or in part, at the option of BFI at any time. The
redemption price is equal to the greater of (1) the principal amount of the
debentures and (2) the present value of future principal and interest payments
discounted to maturity on a semiannual basis at the Treasury Yield plus 20 basis
points, plus in each case, accrued but unpaid interest. The debentures rank
equal in right of payment with our senior credit facility. The debentures are
secured by the assets of BFI and are guaranteed by Allied and Allied NA and are
effectively subordinated to our senior credit facility to the extent of the
value of the assets of Allied NA and each of its domestic subsidiaries,
excluding BFI.
9.25% DEBENTURES
In May 1991, BFI issued $100.0 million of 9.25% Debentures which mature on
May 1, 2021. The debentures may not be redeemed prior to maturity and are not
subject to any sinking fund. The debentures rank equal in right of payment with
our senior credit facility. The debentures are secured by the assets of BFI and
are guaranteed by Allied and Allied NA and are effectively subordinated to our
senior credit facility to the extent of the value of the assets of Allied NA and
each of its domestic subsidiaries, excluding BFI.
SOLID WASTE REVENUE BONDS
Some subsidiaries of BFI have entered into agreements under which they
receive proceeds from the sale of solid waste revenue bonds by government
authorities. These subsidiaries are obligated to make payments sufficient to pay
the interest and retire the bonds. The weighted average interest rate of these
issues is approximately 5.63%. These issues mature at various dates from 2006
through the year 2027. The Solid Waste Revenue Bonds of the subsidiaries are
either guaranteed by BFI or supported by letters of credit issued by commercial
banks.
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<PAGE> 47
DESCRIPTION OF THE NEW NOTES
As used below in this "Description of the New Notes" (unless the context
indicates otherwise), references to the "notes" refer to the old notes and the
new notes, which are described in the future tense for convenience only. You can
find the definitions of certain terms used in this description under the caption
"Certain Definitions." In this description, the word "Allied" refers only to
Allied Waste North America, Inc. and not to any of its subsidiaries, and the
term "AWI" refers only to Allied Waste Industries, Inc. and not to any of its
subsidiaries. In addition, the word "notes" refers to the notes offered hereby
and do not include any other debt securities that Allied may issue from time to
time pursuant to a separate supplement to the same indenture governing these
notes.
THE NOTES
The Company issued the old notes to the Initial Purchasers on July 30,
1999. The Initial Purchasers sold the old notes to "qualified institutional
buyers," as defined in Rule 144A under the Securities Act. The terms of the new
notes are substantially identical to the terms of the old notes. However, the
new notes are not subject to transfer restrictions or registration rights unless
held by certain broker-dealers, affiliates of the Company or certain other
persons. See "The Exchange Offer -- Resale of the New Notes." In addition, the
Company does not plan to list the new notes on any securities exchange or seek
quotation on any automated quotation system. The old notes are listed on
Nasdaq's PORTAL system.
The following chart summarizes the basic terms of the notes:
Principal Amount at Maturity:........... $2 billion of 10% series B senior
subordinated notes due 2009.
Maturity Date:.......................... The 10% series B senior
subordinated notes will mature on
August 1, 2009.
Interest Payments Dates:................ The 10% series B senior
subordinated notes will bear
interest at the rate of 10%
compounded semi-annually on May 1
and November 1 of each year,
commencing November 1, 1999.
Ranking:................................ The notes and the guarantees are
general unsecured obligations of
the Company and:
- are subordinate in right of
payment to all of our and the
guarantors' existing and
future senior debt;
- are subordinate to
indebtedness under
our senior credit
facility, except for the
Tranche D Subordinated Term
Loan under the senior credit
facility;
- are equal in right of
payment to our and the
guarantors' other existing and
future senior subordinated
indebtedness; and
- are senior to our senior
convertible preferred stock.
As of September 30, 1999, on a pro
forma basis after giving effect the
BFI Dispositions, the notes and the
guarantees would have been
subordinated to $6,758.0 million of
senior debt and approximately
$1,056.9 million would have been
available for borrowing as
additional senior debt under our
revolving senior credit facility.
We will be permitted to borrow
substantial additional
indebtedness, including senior
debt, in the future under the terms
of the indenture. The terms
"indebtedness" and subordinated
indebtedness" are defined in the
"Description of the New Notes --
Subordination" and "Description of
the New Notes -- Certain
Definitions" sections of this
Prospectus.
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<PAGE> 48
Global Note:............................ The new notes will be issued as a
single, global note that will be
deposited with The Depository Trust
Company in New York, New York
("DTC"). Individual note holders
will not receive certificates for
the new notes, except in certain
limited circumstances.
Payment
Procedures:............................. The Company will make all payments
on the notes (including principal,
premium, if any, interest and
Special Interest, if any) in
immediately available same day
funds, at the office or agency of
the Company maintained for such
purpose, which office or agency
shall be maintained in the Borough
of Manhattan, The City of New York,
except that:
- Payments on notes
represented by the Global
Notes will be payable by wire
transfer to the accounts
specified by the holder of
interests in such Global Note.
- Payments on Certificated
Notes, if any, will be payable
by wire transfer to the
accounts specified by the Note
holders or, if no such account
is specified, by mailing a
check to each Senior Note
holder's registered address.
REGISTRATION RIGHTS AGREEMENT
The Company has filed the Registration Statement to comply with its
obligation under the Registration Rights Agreement to register the issuance of
the new notes. See "The Exchange Offer - Registration Rights Agreement."
THE INDENTURE
The old notes were issued, and the new notes will be issued, pursuant to a
Series Supplement dated as of July 30, 1999 to an Indenture, (the "Indenture"),
among the Company, Allied, as a Guarantor, the Subsidiary Guarantors and U.S.
Bank Trust, N.A., as Trustee (the "Trustee"). The following summarizes certain
provisions of the Indenture. This summary does not purport to be complete and is
qualified in its entirety by reference to all of the provisions of the
Indenture. Wherever this summary refers to a particular provision of the
Indenture, such provision is incorporated by reference as a part of the
statements made, and such statements are qualified in their entirety by such
reference. References to the "Indenture" in this Description of the New Notes
include the Series Supplement relating to the notes. All references in this
section to the "Company" refer solely to Allied Waste North America, Inc., the
issuer of the notes, and to "Allied" refer solely to Allied Waste Industries,
Inc., and not to their respective subsidiaries.
The definitions of many capitalized terms used in this section are
summarized in "- Certain Definitions", below. Capitalized terms that are not
defined below have the meanings set forth in the Indenture.
BRIEF DESCRIPTION OF THE NOTES AND THE GUARANTEES
THE NOTES
These notes:
- are general unsecured obligations of Allied;
- are subordinated in right of payment to all existing and future Senior
Debt of Allied;
- rank equally in right of payment with each other;
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- rank equally in right of payment with any future senior subordinated
Indebtedness of Allied;
- are senior in right of payment to any future subordinated Indebtedness
of Allied; and
- are unconditionally guaranteed by the Guarantors.
THE GUARANTEES
The Guarantees of these notes:
- are general unsecured obligations of each Guarantor;
- are subordinated in right of payment to all existing and future Senior
Debt of each Guarantor;
- rank equally in right of payment with all future senior subordinated
Indebtedness of each Guarantor; and
- are senior in right of payment to any future subordinated Indebtedness
of each Guarantor.
Assuming we had completed the BFI Dispositions and applied the net proceeds
as intended, as of September 30, 1999, Allied and the Guarantors would have had
total Senior Debt of approximately $6,758.0 million. As indicated above and as
discussed in detail below under the caption "Subordination," payments on these
notes and under the Guarantees will be subordinated to the payment of Senior
Debt. The indenture will permit us and the Guarantors to incur additional Senior
Debt.
The notes will be fully and unconditionally guaranteed on a senior
subordinated unsecured basis by AWI (in such capacity, the "Parent Guarantor,"
and such guarantees, the "Parent Guarantees").
The notes will also be fully and unconditionally guaranteed on a senior
subordinated unsecured basis by the Restricted Subsidiaries of Allied, including
BFI and its subsidiaries other than BFI's foreign subsidiaries, and Allied will
cause any Restricted Subsidiary acquired or created in the future that
guarantees the Bank Agreement to fully and unconditionally guarantee the notes
on a senior subordinated unsecured basis (such guarantors, the "Subsidiary
Guarantors" and together with the Parent Guarantor, the "Guarantors"; such
guarantees, the "Subsidiary Guarantees" and, together with the Parent
Guarantees, the "Guarantees").
As of the date of the indenture, all of our subsidiaries (including BFI and
its subsidiaries, but excluding Insurance Subsidiaries) will be "Restricted
Subsidiaries." However, under the circumstances described below under the
caption "Certain Covenants -- Limitation on Restricted Payments," we will be
permitted to designate certain of our subsidiaries as "Unrestricted
Subsidiaries." Unrestricted Subsidiaries will not be subject to many of the
restrictive covenants set forth in the indenture. Unrestricted Subsidiaries and
foreign subsidiaries of BFI will not guarantee these notes. The non-guarantor
subsidiaries represent in the aggregate approximately 1% of our combined company
revenues and assets.
The notes will be effectively subordinated to all existing and future
indebtedness and other liabilities, including trade payables and capital lease
obligations, of Allied's Subsidiaries, if any, that are Unrestricted
Subsidiaries and thus not Subsidiary Guarantors. In addition, the notes would be
effectively subordinated to all existing and future indebtedness of the
Subsidiary Guarantors if the Subsidiary Guarantees were avoided or subordinated
in favor of the Subsidiary Guarantors' other creditors or if the Subsidiary
Guarantors are released from their Subsidiary Guarantees as described below
under the subheading "Guarantees." See "Risk Factors -- Federal and state
statutes may allow courts to further subordinate or void the guarantees. Federal
and state statutes allow courts, under specific circumstances, to void or
subordinate guarantees and require noteholders to return payments received from
guarantors."
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INTEREST AND PAYMENTS
Summary: The notes will bear interest at the rate of 10% per annum
compounded semi-annually on May 1 and November 1 of each year,
commencing November 1, 1999.
The notes will have a maximum aggregate principal amount of $2.0 billion and
will mature on August 1, 2009. Interest on the notes will accrue at a rate of
10% per annum.
Interest on the notes will be payable semi-annually in arrears on May 1 and
November 1 of each year, commencing on November 1, 1999. Allied will make each
interest payment to the Holders of record on the immediately preceding April 15
and October 15. The notes will bear interest on overdue principal and premium,
if any, and, to the extent permitted by law, overdue interest at the rates of
interest referred to in the preceding paragraph plus 2%. Interest on the notes
accrue from the date of original issuance or, if interest has already been paid,
from the date it was most recently paid. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
Allied will issue notes in denominations of $1,000 and integral multiples of
$1,000. Additional notes may be issued from time to time after the date of the
supplement for each series of notes under the indenture, subject to the
provisions of the indenture, including those in the covenant described below
under the caption "Certain Covenants -- Limitation on Consolidated Debt."
Additional notes may be part of the same class and series, including with
respect to voting, as the notes issued in this offering.
METHODS OF RECEIVING PAYMENTS ON THE NOTES
If a Holder has given wire transfer instructions to Allied at least ten
business days prior to the applicable payment date, Allied will make all
principal, premium, if any, and interest, including Special Interest (as defined
below), payments on that Holder's notes in accordance with those instructions.
All other payments on the notes will be made at the office or agency of the
paying agent and registrar for the notes within the City and State of New York
unless Allied elects to make interest payments by check mailed to the Holders at
their addresses set forth in the register of Holders.
PAYING AGENT AND REGISTRAR FOR THE NOTES
Allied initially will act as paying agent and registrar. Allied may change
the paying agent or registrar without prior notice to the Holders of the notes,
and any of its Subsidiaries may act as paying agent or registrar.
TRANSFER AND EXCHANGE
A Holder may transfer or exchange notes in accordance with the indenture.
The registrar and the trustee may require a Holder to furnish appropriate
endorsements and transfer documents in connection with a transfer of notes.
Holders will not be required to pay a service charge for any registration of a
transfer or exchange of notes, but Holders may be required to pay taxes and
other governmental charges due on transfer or exchange of the notes. Allied is
not required to transfer or exchange any note selected for redemption. Also,
Allied is not required to transfer or exchange any note for a period of 15 days
before a selection of notes to be redeemed.
The registered Holder of a note will be treated as its owner for all
purposes.
GUARANTEES
Summary: The Company's payment obligations under the notes will be fully
guaranteed on a senior unsecured basis (the "Parent Guarantees") by Allied and,
so long as the Company's senior credit facility is similarly guaranteed, all of
the Company's existing and future Restricted Subsidiaries (as defined herein)
(such subsidiary guarantors, the "Subsidiary Guarantors" and, together with
Allied, the "Guarantors" and the guarantees of such Subsidiary Guarantors the
"Subsidiary Guarantees" and together with the Parent Guarantees, the
"Guarantees"). The
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Guarantors will, jointly and severally, on a senior unsecured basis,
unconditionally guarantee the due and punctual payment of principal of (and
premium, if any) and interest (including Special Interest) on each issue of the
notes, when and as the same shall become due and payable, whether at the
maturity date, by declaration of acceleration, call of redemption or otherwise.
The Guarantors will jointly and severally guarantee Allied's obligations
under the notes. Each Guarantee will be subordinated to the prior payment in
full of all Senior Debt of that Guarantor. The obligations of each Guarantor
under its Guarantee will be limited as necessary to prevent that Guarantee from
constituting a fraudulent conveyance under applicable law. See "Risk Factors --
Federal and state statutes may allow courts to further subordinate or void the
guarantees. Federal and state statutes allow courts, under specific
circumstances, to void or subordinate guarantees and require noteholders to
return payments received from guarantors."
The Guarantees of each Guarantor will remain in effect with respect to each
issue of notes until the entire principal of, premium, if any, and interest on
the notes shall have been paid in full or otherwise discharged in accordance
with the provisions of the indenture; provided, however, that if:
(1) with respect to each Guarantor, an issue of notes is defeased and
discharged as described under clause (1) under the caption
"Defeasance," or
(2) with respect to each Subsidiary Guarantor, such Subsidiary Guarantor:
(a) ceases to be a Restricted Subsidiary, or
(b) all or substantially all of the assets of such Subsidiary
Guarantor or all of the Capital Stock of such Subsidiary
Guarantor is sold (including by issuance, merger, consolidation
or otherwise) by Allied or any of its Subsidiaries in a
transaction constituting an Asset Disposition and the Net
Available Proceeds from such Asset Disposition are used in
accordance with the provisions described below under the caption
"Repurchase at the Option of Holders -- Asset Dispositions," or
(c) ceases to be a guarantor under, or to pledge any of its assets to
secure obligations under, the Bank Agreement,
then in each case of (1) and (2) above, such Guarantor or, in the event of a
sale or other disposition of all or substantially all of the assets of such
Subsidiary Guarantor, the corporation acquiring such assets shall be released
and discharged of its Guarantee obligations.
SUBORDINATION
The payment of principal, premium and interest, if any, on the notes will be
subordinated to the prior payment in full of all Senior Debt of Allied.
The holders of Senior Debt will be entitled to receive payment in full of
all Obligations due in respect of Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the applicable
Senior Debt) before the Holders of notes will be entitled to receive any payment
with respect to the notes (except that Holders of notes may receive and retain
Permitted Junior Securities and payments made from the trust described below
under the caption "Defeasance"), in the event of any distribution to creditors
of Allied:
(1) in a liquidation or dissolution of Allied;
(2) in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Allied or its property;
(3) in an assignment for the benefit of creditors; or
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<PAGE> 52
(4) in any marshalling of Allied's assets and liabilities.
In the event that the Trustee or the Holder of a note shall have received
any payments on the Notes upon the occurrence of an event described in (1)-(4)
above before all Senior Debt of the Company or the Guarantor, as applicable, is
paid in full or payment thereof provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of such Senior Debt, then and
in such event such payment shall be paid over or delivered to the holders of
Senior Debt for application to the payment of such Senior Debt remaining unpaid,
to the extent necessary to pay such Senior Debt in full, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Debt.
Allied also may not make any payment in respect of the notes, except in
Permitted Junior Securities or from the trust described below under the caption
"Defeasance," if:
(1) a payment default on Designated Senior Debt occurs and is continuing
beyond any applicable grace period; or
(2) any other default occurs and is continuing on Designated Senior Debt
that permits holders of the Designated Senior Debt to accelerate its
maturity and the trustee receives a notice of such default (a "Payment
Blockage Notice") from Allied or the holders of any Designated Senior
Debt.
Payments on the notes may and shall be resumed:
(1) in the case of a payment default, upon the date on which such default
is cured or waived; and
(2) in case of a nonpayment default, the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date on
which the applicable Payment Blockage Notice is received, unless the
maturity of any Designated Senior Debt has been accelerated.
No new Payment Blockage Notice may be delivered unless and until:
(1) 360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice; and
(2) all scheduled payments of principal, premium and interest on the notes
that have come due have been paid in full in cash.
No nonpayment default that existed or was continuing on the date of delivery
of any Payment Blockage Notice to the trustee shall be, or be made, the basis
for a subsequent Payment Blockage Notice unless such default shall have been
cured for a period of not less than 90 days.
Allied must promptly notify holders of Senior Debt if payment of the notes
is accelerated because of an Event of Default.
As a result of the subordination provisions described above, in the event of
a bankruptcy, liquidation or reorganization of Allied, Holders of these notes
may recover less ratably than trade creditors and other creditors of Allied that
are holders of Senior Debt. See "Risk Factors -- Holders of senior indebtedness
will be paid before holders of the notes are paid."
OPTIONAL REDEMPTION
SUMMARY:
1. Before August 1, 2004, we may redeem the notes at any time, at the
redemption price equal to the greater of
- 100% of their principal amount or
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<PAGE> 53
- 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).
2. On or after August 1, 2004, we may redeem all or part of the notes, at
redemption prices that decline over time until the maturity date.
3. We also may redeem the following amount of the notes on the occasion of a
public equity offering:
- Before August 1, 2002, we may redeem on any one or more occasions up
to 33 1/3% of the aggregate principal amount of the notes with the net
proceeds of one or more public equity offerings at a price equal to
110.0% of the principal amount thereof, plus accrued and unpaid
interest and Special Interest, if any.
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
nor more than 60 days' notice mailed to each Holder of Ten Year Notes to be
redeemed at such Holder's address appearing in the applicable Note Register, in
amounts of $1,000 or an integral multiple of $1,000, at a Redemption Price equal
to the greater of
- 100% of their principal amount or
- 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).
During the first 36 months following the date that the notes are first
issued, Allied may redeem up to 33 1/3% 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.
On or after August 1, 2004, the notes will be subject to redemption, in
whole or in part, at the option of Allied 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:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2004....................... 105.0000%
2005....................... 103.3333%
2006....................... 101.6667%
2007 and thereafter........ 100.0000%
</TABLE>
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<PAGE> 54
MANDATORY REDEMPTION
Except as described below under the captions "Repurchase at the Option of
Holders -- Asset Dispositions" and "Repurchase at the Option of Holders --
Change of Control," the notes will not have the benefit of any mandatory
redemption or sinking fund obligations of Allied.
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
- --------------------------------------------------------------------------------
Summary: If Allied experiences a Change of Control, the holder of notes will
have the right to require Allied to repurchase the notes for:
- 101% of the principal amount thereof; and
- accrued and unpaid interest on that principal.
- --------------------------------------------------------------------------------
If a Change of Control occurs, within 30 days of that event Allied will
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. Such obligation will not continue after a
discharge of Allied or defeasance from its obligations with respect to the
notes. See "Defeasance."
A "Change of Control" will be deemed to have occurred in the event that,
after the date of the indenture,
(1) so long as Allied is a Subsidiary of AWI:
(a) any Person, or any Persons (other than a Permitted AWI
Successor) acting together that would constitute a
"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 have 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, will 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
that could be paid by Allied as a Restricted
Payment under the indenture after giving pro forma
effect to such transaction, or
(iii) a combination of (1) and (2), 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,
(2) if Allied is not a Subsidiary of AWI:
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<PAGE> 55
(a) any Person, or any Persons (other than a Permitted
Allied Successor), acting together that would constitute
a "group" for purposes of Section 13(d) of the Exchange
Act (an "Allied Group"), together with any Affiliates or
Related Persons thereof (other than any employee stock
ownership plan) beneficially own 50% or more of the
total voting power of all classes of Voting Stock of
Allied,
(b) any Person or Allied Group, together with any Affiliates
or Related Persons thereof, succeeds in having
sufficient of its nominees who have not been approved by
the Continuing Directors elected to the board of
directors of Allied such that such nominees, when added
to any existing director remaining on the board of
directors of Allied after such election who is an
Affiliate or Related Person of such Person or Allied
Group, will constitute a majority of the board of
directors of Allied, or
(c) there occurs any transaction or series of related
transactions other than a merger, consolidation or other
transaction with a Related Business in which the
shareholders of Allied immediately prior to such
transaction (or series) receive:
(i) solely Voting Stock of Allied (or its successor or
parent, as the case may be),
(ii) cash, securities and other property in an amount
which could be paid by Allied as a Restricted
Payment under the indenture after giving pro forma
effect to such transaction, or
(iii) a combination of (1) and (2), and the beneficial
owners of the Voting Stock of Allied immediately
prior to such transaction (or series) do not,
immediately after such transaction (or series),
beneficially own Voting Stock representing more
than 50% of the total voting power of all classes
of Voting Stock of Allied (or in the case of a
transaction (or series) in which another entity
becomes a successor to Allied, 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 (1)(c) of the definition of Change of Control,
(ii) Apollo and (iii) Blackstone.
A "Permitted Allied Successor" means an issuer, other than Allied, of
Voting Securities issued to the shareholders of Allied in a merger,
consolidation or other transaction permitted by clause (2)(c) of the definition
of Change of Control.
Allied will 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 "Change of Control"
covenant, but in any event within 90 days following a Change of Control, Allied
will 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. Allied will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
Within 30 days of a Change of Control, an Offer to Purchase required by
the provisions described above containing the written terms and conditions of
such Offer to Purchase will be sent, by first class mail, to Holders of each
issue of the notes, accompanied by such information regarding Allied and its
Subsidiaries as Allied 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 incorporate by reference:
(1) 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 the provisions of the
covenant described below under the caption "Certain Covenants
--
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Provision of Financial Information," which requirements may be
satisfied by delivery of such documents together with the
Offer to Purchase; and
(2) any other information required by applicable law to be
included in such offer document.
Each offer document will contain all instructions and materials necessary
to enable Holders of the applicable notes to tender such notes pursuant to the
Offer to Purchase. Each offer document will also state:
(1) that a Change of Control or an Asset Disposition, as
applicable, has occurred and that Allied will offer to
purchase the Holder's notes;
(2) the Expiration Date of the Offer to Purchase, which will be,
subject to any contrary requirements of applicable law, not
less than 30 days or more than 60 days after the date of the
Offer to Purchase;
(3) the purchase date for the tendered notes which will be within
five business days after the Expiration Date;
(4) the aggregate principal amount of notes to be purchased, and,
if the offer is to purchase less than all of the notes, the
manner in which tendered notes will be selected for purchase
pursuant to the indenture;
(5) the purchase price; and
(6) a description of the procedure that a Holder must follow to
tender all or any portion of the notes.
To tender any note, a Holder must surrender that note at the place or
places specified in the Offer to Purchase prior to the close of business on the
Expiration Date. If Allied or the trustee so requires, each tendered note must
be duly endorsed by, or accompanied by a written instrument or transfer in form
satisfactory to Allied and the trustee duly executed by, the Holder of the
tendered note or that Holder's attorney duly authorized in writing. Holders will
be entitled to withdraw all or any portion of notes tendered if Allied or its
paying agent receives, not later than the close of business on the Expiration
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the note tendered, the certificate number
of the note tendered and a statement that such Holder is withdrawing all or a
portion of the tendered note. Any portion of a note tendered must be tendered in
an integral multiple of $1,000 principal amount.
ASSET DISPOSITIONS
Allied may not make, and may not permit any Restricted Subsidiary to make,
any Asset Disposition unless:
(1) Allied, or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such disposition at
least equal to the fair market value of the shares or the
assets disposed of, as determined in good faith by the board
of directors of Allied 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 Allied's capital expenditure budget previously
approved by its board of directors;
(2) at least 75% of the consideration received by Allied or such
Restricted Subsidiary consists of:
(a) cash or readily marketable cash equivalents,
(b) the assumption of Debt or other liabilities reflected on
the consolidated balance sheet of Allied and its
Restricted Subsidiaries in accordance with generally
accepted accounting principles (excluding Debt or any
other liabilities subordinate in right of payment to the
notes) and release from all liability on such Debt or
other liabilities assumed,
(c) assets used in, or stock or other ownership interests in
a Person that upon the consummation of such Asset
Disposition becomes a Restricted Subsidiary and will be
principally engaged in, the business of Allied or
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<PAGE> 57
any of its Restricted Subsidiaries as such business is
conducted immediately prior to such Asset Disposition,
(d) any securities, notes or other obligations received by
Allied or any such Restricted Subsidiary from such
transferee that are contemporaneously (subject to
ordinary settlement periods) converted by Allied or such
Restricted Subsidiary into cash or Cash Equivalents (to
the extent of cash and Cash Equivalents received),
(e) any Designated Noncash Consideration received pursuant
to this clause (e) that is at the time outstanding, not
to exceed 15% of Consolidated Total Assets at the time
of the receipt of such Designated Noncash Consideration
(with the fair market value of each item of Designated
Noncash Consideration being measured at the time
received and without giving effect to subsequent changes
in value), or
(f) any combination thereof; and
(3) 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 Allied 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 Allied or its
Restricted Subsidiaries then outstanding that would
require such application or which would prohibit
payments pursuant to clause (b) below or Tranche D
Subordinated 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 Allied that is not
otherwise prohibited by the indenture;
provided further that the 75% limitation referred to in clause
(2) above will not apply to any Asset Disposition if the
consideration received from the Asset Disposition, as
determined in good faith by Allied'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, Allied will not be required to comply with
the provisions of the indenture described in clause (3) of the preceding
paragraph:
(1) 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 Allied
or any of its Restricted Subsidiaries as such business is
conducted prior to such Asset Disposition (determined by the
board of directors of Allied in good faith); or
(2) to the extent Allied elects to redeem the notes with the Net
Available Proceeds pursuant to any of the provisions described
above under the caption "Optional Redemption."
Notwithstanding the foregoing, Allied will not be required to comply with
the requirements described in clause (2) of the second preceding paragraph if
the Asset Disposition is an Excepted Disposition.
Any Offer to Purchase required by the provisions described above will be
effected by the sending of the offer document, by first class mail, to Holders
of the notes within 30 days after the date that is one year after the later of
the
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date of such Asset Disposition or the receipt of the related Net Available
Proceeds. The form of the Offer to Purchase and the requirements that a Holder
must satisfy to tender any note pursuant to such Offer to Purchase are
substantially the same as those described above under the subheading " -- Change
of Control."
The agreements governing Allied's outstanding Senior Debt currently
prohibit Allied from purchasing any notes, and also provide that certain change
of control or asset sale events with respect to Allied would constitute a
default under these agreements. Any future credit agreements or other agreements
relating to Senior Debt to which Allied becomes a party may contain similar
restrictions and provisions. In the event a Change of Control or Asset Sale
occurs at a time when Allied is prohibited from purchasing notes, Allied could
seek the consent of its senior lenders to the purchase of notes or could attempt
to refinance the borrowings that contain such prohibition. If Allied does not
obtain such a consent or repay such borrowings, Allied will remain prohibited
from purchasing notes. In such case, Allied's failure to purchase tendered notes
would constitute an Event of Default under the indenture which in some cases
would, in turn, constitute a default under such Senior Debt. In such
circumstances, the subordination provisions in the indenture would likely
restrict payments to the Holders of notes.
SELECTION AND NOTICE
If less than all of the notes are to be redeemed, the trustee will select
notes to be redeemed from the outstanding notes not previously called for
redemption. The trustee will make its selection by such method as the trustee
deems fair and appropriate, but in no event will the trustee make its selection
more than 60 days prior to the redemption date. Such method may provide for the
selection for redemption of portions of the principal amount of the notes.
No notes of $1,000 or less will be redeemed in part. Notices of redemption
will be mailed by first class mail at least 30 but not more than 60 days before
the Redemption Date to each Holder of notes to be redeemed at its registered
address. Notice of redemption may not be conditional.
If any note is to be redeemed in part only, the notice of redemption that
relates to that note will state the portion of the principal amount of the note
that is to be redeemed. A new note in principal amount equal to the unredeemed
portion of the original note will be issued in the name of the Holder of the
original note upon cancellation of the original note. Notes called for
redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on notes or portions of them called
for redemption.
CERTAIN COVENANTS
- --------------------------------------------------------------------------------
Summary: The Indenture contains certain covenants that, among other things,
limit our ability and the ability of our restricted subsidiaries to:
- incur additional indebtedness or issue preferred equity interests;
- pay certain dividends, redeem capital stock or make certain other
restricted payments or investments;
- create liens on assets;
- enter into certain transactions with affiliates or related persons;
or
- merge, consolidate or sell all or substantially all of its assets.
The indenture contains a number of covenants, including the following:
LIMITATION ON CONSOLIDATED DEBT
Allied will not incur any Debt and will 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
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thereof, the Consolidated EBITDA Coverage Ratio of Allied for the four full
fiscal quarters immediately 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, Allied or any restricted
Subsidiary of Allied may Incur the following Debt:
(1) 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;
(2) Debt evidenced by the notes and the Guarantees;
(3) Debt owed by Allied to any Restricted Subsidiary or Debt owed
by a Restricted Subsidiary to Allied or to a Restricted
Subsidiary; provided, however, that in the event that either:
(a) Allied or the Restricted Subsidiary to which such Debt
is owed transfers or otherwise disposes of such Debt to
a Person other than Allied or another Restricted
Subsidiary or
(b) such Restricted Subsidiary ceases to be a Restricted
Subsidiary,
the provisions of this clause (3) 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;
(4) Debt outstanding on the date of the indenture;
(5) Debt incurred in connection with an acquisition, merger or
consolidation transaction permitted under the provisions of
the indenture described below under the subheading " --
Mergers, Consolidations and Certain Sales of Assets," which
Debt:
(a) was issued by a Person prior to the time such Person
becomes a Restricted Subsidiary in such transaction,
including by way of merger or consolidation with Allied
or another Restricted Subsidiary, and was not issued in
contemplation of such transaction, or
(b) is issued by Allied or a Restricted Subsidiary to a
seller in connection with such transaction,
in an aggregate amount for all such Debt issued pursuant this clause (5)
and then outstanding not to exceed 7.5% of the Consolidated Total Assets
of Allied at the time of such Incurrence;
(6) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(7) Debt Incurred to renew, extend, refinance or refund any
outstanding Debt permitted in the preceding paragraph or in
clauses (1) through (5) above or Incurred pursuant to this
clause (7); 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
(8) Debt not otherwise permitted to be Incurred pursuant to
clauses (1) through (7) above, which, in aggregate amount,
together with the aggregate amount of all other Debt
previously Incurred pursuant this clause (8) then outstanding,
does not exceed 7.5% of the Consolidated Total Assets of
Allied at the time of such Incurrence.
LIMITATION ON RESTRICTED PAYMENTS
Allied will not, and will not permit any Restricted Subsidiary to,
directly or indirectly:
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(1) 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 Allied or any Restricted
Subsidiary or to the holders of such Capital Stock in their
capacity as such, excluding:
(a) any dividends or distributions to the extent payable in
shares of the Capital Stock of Allied (other than
Redeemable Interests) or in options, warrants or other
rights to acquire the Capital Stock of Allied (other
than Redeemable Interests),
(b) dividends or distributions by a Restricted Subsidiary to
Allied 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;
(2) purchase, redeem or otherwise acquire or retire for value:
(a) any Capital Stock of Allied or any Capital Stock of or
other ownership interests in any Subsidiary or any
Affiliate or Related Person of Allied, or
(b) any options, warrants or rights to purchase or acquire
shares of Capital Stock of Allied or any Capital Stock
of or other ownership interests in any Subsidiary or any
Affiliate or Related Person of Allied,
excluding, in each case of (a) and (b) of this clause (2), 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 Allied or a Wholly Owned Restricted Subsidiary;
(3) make any Investment that is not a Permitted Investment; or
(4) redeem, defease, repurchase, retire or otherwise acquire or
retire for value prior to any scheduled maturity, repayment or
sinking fund payment, Debt of Allied that is subordinate in
right of payment to the notes,
(each of the transactions described in clauses (1) through (4) above being
a "Restricted Payment"), if:
(1) a Default or an Event of Default shall have occurred and be
continuing; or
(2) Allied 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 of
the covenant described above under the subheading "--
Limitation on Consolidated Debt"; or
(3) upon giving effect to such Restricted Payment, the aggregate
of all Restricted Payments (excluding Restricted Payments
permitted by clauses (2), (3), (4), (5) and (7) of the next
succeeding paragraph) from the date of the indenture (the
amount so expended, if other than in cash, determined in good
faith by the Board of Directors) exceeds the sum, without
duplication, of:
(a) 50% of the aggregate Consolidated Net Income (or, in
case Consolidated Net Income shall be negative, less
100% of such deficit) for the period (taken as one
accounting period) from the beginning of the first
fiscal quarter commencing after the date of the
indenture to the end of Allied's most recently ended
fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment;
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(b) 100% of the aggregate net cash proceeds from the
issuance and sale to AWI of Capital Stock (other than
Redeemable Interests) of Allied and options, warrants or
other rights to acquire Capital Stock (other than
Redeemable Interests and Debt convertible into Capital
Stock) of Allied and the principal amount of Debt and
Redeemable Interests of Allied that has been converted
into Capital Stock (other than Redeemable Interests) of
Allied after the date of the indenture, provided that
any such net proceeds received by Allied from an
employee stock ownership plan financed by loans from
Allied or a Subsidiary of Allied 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 Allied or a Wholly
Owned Restricted Subsidiary after the date of the
indenture from an Unrestricted Subsidiary of Allied; and
(d) $300.0 million.
The preceding provisions will not prohibit:
(1) 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;
(2) any refinancing or refunding of Debt permitted if such
refinancing or refunding is permitted pursuant to clause (7)
of the second paragraph of the covenant described above under
the subheading " -- Limitation on Consolidated Debt";
(3) the purchase, redemption or other acquisition or retirement
for value of any Debt or Capital Stock of Allied or any
options, warrants or rights to purchase or acquire shares of
Capital Stock of Allied in exchange for, or out of the net
cash proceeds of, the substantially concurrent issuance or
sale (other than to a Restricted Subsidiary of Allied) of
Capital Stock (other than Redeemable Interests) of Allied;
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;
(4) 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 Allied;
(5) the purchase or redemption of any Debt from Net Available
Proceeds to the extent permitted by the covenant described
above under the caption "Repurchase at the Option of Holders
-- Asset Dispositions";
(6) payments pursuant to the Intercompany Agreements; and
(7) 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 the
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 Allied's most
recently ended fiscal quarter for which internal financial statements are
available prior to such designation will 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 provisions described in the second preceding
paragraph.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
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Allied will not, and will not permit any Restricted Subsidiary to, suffer
to exist any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary:
(1) 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 Allied or any other Restricted Subsidiary;
(2) to make loans or advances to Allied or any other Restricted
Subsidiary; or
(3) to sell, lease or transfer any of its property or assets to
Allied or any Wholly Owned Restricted Subsidiary.
The preceding restrictions will not apply to any encumbrance or
restriction existing pursuant to:
(1) the notes, the indenture, the Guarantees or any other
agreement in effect on the date of the indenture;
(2) the Bank Agreement, including any Guarantees of or Liens
securing the Debt Incurred under the Bank Agreement;
(3) an agreement relating to any Debt Incurred by such Subsidiary
prior to the date on which such Subsidiary was acquired by
Allied and outstanding on such date and not incurred in
anticipation of becoming a Subsidiary;
(4) an agreement that 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;
(5) customary non-assignment provisions in leases and other
agreements entered into in the ordinary course of business;
(6) any security agreement (including a capital lease) securing
Debt permitted to be Incurred under the indenture that impose
restrictions of the nature described in clause (3) of the
preceding paragraph on the property subject to the Lien of
such security agreement;
(7) an agreement effecting a renewal, extension, refinancing or
refunding of Debt incurred pursuant to an agreement referred
to in clause (1), (2) or (6) 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 Allied's board of
directors; or
(8) applicable corporate law or regulation relating to the payment
of dividends or distributions.
LIMITATION ON LIENS
Each of AWI and Allied will not, and Allied will 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, Allied or any of its Restricted Subsidiaries.
TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS
Allied will not, and will 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
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or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of Allied (each
of the preceding, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to Allied or such Restricted Subsidiary than those
that would have been obtained in a comparable transaction by
Allied or such Restricted Subsidiary with an unrelated Person
and
(2) Allied 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:
(a) a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate
Transaction complies with clause (1) above and that such
Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors; or
(b) an opinion as to the fairness to Allied 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 will not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of the previous paragraph:
(1) customary directors' fees, indemnification or similar
arrangements or any employment agreement or other compensation
plan or arrangement entered into by Allied or any of its
Restricted Subsidiaries in the ordinary course of business,
including ordinary course loans to employees not to exceed:
(a) $50,000,000 outstanding in the aggregate at any time,
and
(b) $5,000,000 to any one employee,
and consistent with the past practice of Allied or such Restricted
Subsidiary;
(2) loans by Allied 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:
(a) Allied from Allied, or
(b) 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
Allied;
(3) transactions between or among Allied and/or its
Restricted Subsidiaries;
(4) payments of customary fees by Allied 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;
(5) any agreement as in effect on the date of the 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
(6) Restricted Payments that are permitted by the provisions
of the indenture described above under the subheading
"-- Limitation on Restricted Payments."
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NO SENIOR SUBORDINATED DEBT
Allied will 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 Allied and senior in any respect in right of payment to the notes.
No Guarantor will 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.
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, Allied (or AWI for so long
as Allied is a Wholly-Owned Subsidiary of AWI) will file with the SEC the annual
reports, quarterly reports and other documents that Allied (or AWI for so long
as Allied is a Wholly-Owned Subsidiary of AWI) would have been required to file
with the SEC pursuant to such Section 13(a) or 15(d) or any successor provision
thereto if Allied (or AWI for so long as Allied is a Wholly-Owned Subsidiary of
AWI) were so required. Such documents shall be filed with the SEC on or prior to
the respective dates (the "Required Filing Dates") by which Allied would have
been required so to file such documents if Allied were so required. Allied shall
also in any event:
(1) within 15 days of each Required Filing Date file with the
trustee copies of the annual reports, quarterly reports and
other documents which Allied (or AWI for so long as Allied is
a Wholly-Owned Subsidiary of AWI) filed with the SEC pursuant
to such Section 13(a) or 15(d) or any successor provisions
thereto or would have been required to file with the SEC
pursuant to such Section 13(a) or 15(d) or any successor
provisions thereto if Allied (or AWI for so long as Allied is
a Wholly-Owned Subsidiary of AWI) were required to comply with
such Sections, and
(2) if filing such documents by Allied (or AWI for so long as
Allied is a Wholly-Owned Subsidiary of AWI) with the SEC is
not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective
Holder.
DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
Allied at any time may designate any Person that is a Subsidiary of
Allied, or that becomes a Subsidiary of Allied after the date of the 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 will be deemed to be
an Unrestricted Subsidiary. In addition, Allied 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 Allied, if any, of
which such Subsidiary is a Subsidiary will be a Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a Subsidiary of
Allied from a Restricted Subsidiary to an Unrestricted Subsidiary or from an
Unrestricted Subsidiary to a Restricted Subsidiary will be effective, and no
Person may otherwise become a Restricted Subsidiary, if:
(1) 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
indenture described under clause (3) of the first paragraph of
the covenant described above under the subheading " --
Limitation on Restricted Payments"; or
(2) 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
Allied may become an Unrestricted Subsidiary, and the status of any Unrestricted
Subsidiary as an Unrestricted Subsidiary will be deemed to have been immediately
terminated, when:
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(1) such Subsidiary:
(a) has outstanding Debt that is Unpermitted Debt, or
(b) owns or holds any Capital Stock of or other ownership
interests in, or a Lien on any property or other assets
of, Allied or any of its Restricted Subsidiaries; or
(2) Allied or any other Restricted Subsidiary:
(a) provides credit support for, or a Guarantee of, any debt
of such Subsidiary, including any undertaking, agreement
or instrument evidencing such Debt, or
(b) is directly or indirectly liable on any Debt of such
Subsidiary.
Any termination of the status of an Unrestricted Subsidiary as an
Unrestricted Subsidiary pursuant to the preceding sentence will be deemed
to result in a breach of this covenant in any circumstance in which Allied
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 Allied if:
(1) 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 Allied 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 Allied or any such other Restricted Subsidiary, or
(2) such Debt is secured by a Lien on any property or other assets
of Allied and any of its other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of Allied will be deemed to be
a Restricted Subsidiary at all times when it is a Subsidiary of Allied that is
not an Unrestricted Subsidiary. Each Person that is or becomes a Wholly Owned
Subsidiary of Allied shall be deemed to be a Wholly Owned Restricted Subsidiary
at all times when it is a Wholly Owned Subsidiary of Allied that is not an
Unrestricted Subsidiary.
MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
Allied:
(1) may not consolidate with or merge into any Person;
(2) may not permit any Person other than a Restricted Subsidiary
to consolidate with or merge into Allied; and
(3) 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 Allied and its Subsidiaries on a consolidated basis,
unless, in each case (1), (2) and (3) above:
(1) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by Allied or a
Subsidiary of Allied as a result of such transaction (or
series) as having been incurred by Allied of such Subsidiary
at the time of the transaction (or series), no Default or
Event of Default shall have occurred and be continuing;
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(2) in a transaction (or series) in which Allied does not survive
or in which Allied 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 Allied's obligations under the indenture;
(3) if either:
(a) Allied or the successor entity would, at the time of
such transaction (or series) and after giving pro forma
effect to such transaction (or series) as if it 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 of the covenant
described above under the subheading " -- Limitation on
Consolidated Debt," or
(b) the Consolidated EBITDA Coverage Ratio of Allied or the
successor entity for the most recently ended four full
fiscal quarter period for which internal financial
statements are available immediately preceding the date
of such transaction (or series), calculated on a pro
forma basis as if such transaction (or series) had
occurred at the beginning of such four full fiscal
quarter period, would be no less than such Consolidated
EBITDA Coverage Ratio, calculated without giving effect
to such transaction or series or any other transactions
(or series) that is subject to the provisions of the
indenture described in this paragraph and that occurred
after the date that is twelve months before the date of
such transaction (or series);
(4) if, as a result of any such transaction, property or assets of
Allied or any Restricted Subsidiary of Allied would become
subject to a Lien prohibited by the covenant described above
under the subheading " -- Limitation on Liens," Allied or the
successor entity will have secured the notes as required by
such covenant; and
(5) Allied has delivered to the trustee an Officers' Certificate
and an Opinion of Counsel as specified in the indenture.
EVENTS OF DEFAULT
Each of the following is an Event of Default:
(1) 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;
(2) 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;
(3) failure to perform or comply with the provisions described
above under the caption "Mergers, Consolidations and Certain
Sales of Assets" or the provisions described above under the
caption "Repurchase at the Option of Holders -- Asset
Dispositions" and "Repurchase at the Option of Holders --
Change of Control";
(4) failure to perform any other covenant or warranty of Allied 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;
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(5) a default or defaults under any bonds, debentures, notes or
other evidences of, or obligations constituting, Debt by
Allied, 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 Allied, 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;
(6) the rendering of a final judgment or judgments, not subject to
appeal, against Allied, 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
(7) certain events of bankruptcy, insolvency or reorganization
affecting Allied, AWI or any Restricted Subsidiary of Allied.
Subject to the provisions of the indenture relating to the duties of the
trustee in case an Event of Default occurs and is continuing, the trustee will
be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the Holders of notes issued
under the indenture, unless such Holders have offered to the trustee reasonable
indemnity. Subject to such provisions for the indemnification of the trustee and
certain other conditions provided in the indenture, the Holders of a majority in
aggregate principal amount of the outstanding notes of any issue will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee with respect to such issue of notes or
exercising any trust or power conferred on the trustee with respect to such
issue of notes.
If an Event of Default (other than an Event of Default of the type
described in clause (7) above) occurs and is continuing, either the trustee or
the Holders of at least 25% in aggregate principal amount of the outstanding
notes may accelerate the maturity of all such notes. If an Event of Default of
the type described in clause (7) above occurs, the principal of and any accrued
interest on the notes then outstanding will become immediately due and 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. For
information as to waiver of defaults, see "Modification and Waiver."
No Holder of any note will have any right to institute any proceeding with
respect to the indenture or for any remedy under the indenture, unless such
Holder has previously given to the trustee written notice of a continuing Event
of Default and unless also the Holders of at least 25% in aggregate principal
amount of the outstanding notes have made a written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as trustee,
and the trustee has not received from the Holders of a majority in aggregate
principal amount of outstanding notes a direction inconsistent with such request
and has failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a Holder of a note for
enforcement of payment of the principal of and premium, if any, or interest on
such note on or after the respective due dates expressed in such note.
In the case of any Event of Default occurring by reason of any willful
action or inaction taken or not taken by or on behalf of Allied with the
intention of avoiding payment of the premium that Allied would have had to pay
if Allied then had elected to redeem the notes pursuant to the optional
redemption provisions of the indenture, an equivalent premium will also become
and be immediately due and payable upon the acceleration of the notes.
Allied will be required to furnish to the trustee annually a statement
regarding Allied's performance of its obligations under the indenture. Allied
will be required to deliver to the trustee, as soon as possible and in any event
within 30 days after Allied becomes aware of the occurrence of a Default or an
Event of Default, an officers' certificate setting forth the details of such
Default or Event of Default, and the action which Allied proposes to take with
respect to such Default or Event of Default.
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DEFEASANCE
(1) If applicable, Allied will be discharged from any and all
obligations in respect of the outstanding notes; or
(2) If applicable, Allied may omit to comply with certain
restrictive covenants, and that such omission will not be
deemed to be an Event of Default under the indenture with
respect to the notes,
in either case upon irrevocable deposit with the trustee, in trust, of money
and/or U.S. Government Obligations that will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent
certified public accountants to pay the principal of and premium, if any, and
each installment of interest, if any, of the outstanding notes. With respect to
clause (2), the obligations under the indenture with respect to the notes other
than with respect to such covenants and the Events of Default other than the
Event of Default relating to such covenants above will remain in full force and
effect.
Such trust may only be established if, among other things:
(1) with respect to:
(a) clause (1) of the previous paragraph, Allied has
received from, or there has been published by, the
Internal Revenue Service a ruling or there has been a
change in law, that in the opinion of counsel provides
that Holders of the notes will not recognize gain or
loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to
federal income tax on the same amount, in the same
manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not
occurred, or
(b) clause (2) of the previous paragraph, Allied has
delivered to the trustee an opinion of counsel to the
effect that the Holders of the notes will not recognize
gain or loss for federal income tax purposes as a result
of such deposit and defeasance and will be subject to
federal income tax on the same amount, in the same
manner and at the same times as would have been the case
if such deposit and defeasance had not occurred;
(2) no Default or Event of Default shall have occurred or be
continuing;
(3) Allied has delivered to the trustee an Opinion of Counsel to
the effect that such deposit shall not cause the trustee or
the trust so created to be subject to the Investment Company
Act of 1940; and
(4) certain other customary conditions precedent are satisfied.
In the event Allied omits to comply with its remaining obligations under
the indenture and the notes after a defeasance of the indenture with respect the
notes as described under the clause (2) of the second preceding paragraph and
the notes are declared due and payable because of the occurrence of any Event of
Default, the amount of money and U.S. Government Obligations on deposit with the
trustee may be insufficient to pay amounts due on the notes at the time of the
acceleration resulting from such Event of Default. However, Allied will remain
liable in respect of such payments.
MODIFICATION AND WAIVER
Modifications and amendments of the indenture with respect to the notes
may be made by Allied and the trustee with the consent of the Holders of a
majority in aggregate principal amount of outstanding notes; provided, however,
that without the consent of the Holder of each such outstanding note affected by
such modification or amendment, no modification or amendment may:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any note;
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(2) reduce the principal amount of or the premium, if any, or
interest on, any note;
(3) change the place or currency of payment of principal of, or
premium, if any, or interest on, any note;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any note;
(5) reduce the above stated percentage of outstanding notes
necessary to modify or amend the indenture;
(6) reduce the percentage of aggregate principal amount of
outstanding notes necessary for waiver of compliance with
certain provisions of the indenture or for waiver of certain
defaults under the indenture; or
(7) modify any provisions of the indenture relating to the
modification and amendment of the indenture or the waiver of
past defaults or covenants with respect to the notes, except
as otherwise specified.
The Holders of a majority in aggregate principal amount of the outstanding
notes may waive compliance by Allied with certain restrictive provisions of the
indenture. The Holders of a majority in aggregate principal amount of the
outstanding notes may waive any past default under the indenture with respect to
the notes, except a default in the payment of principal, premium, if any, or
interest.
In addition, any amendment to, or waiver of, the provisions of the
indenture relating to subordination that adversely affects the rights of the
Holders of the notes will require the consent of the Holders of at least 75% in
aggregate principal amount of notes then outstanding.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
indenture. Reference is made to the indenture for the full definition of all
such terms, as well as any other terms used in this description of notes for
which no definition is provided.
"Acquired Business" means:
(1) any Person at least a majority of the capital stock or other
ownership interests of which is acquired after the date hereof
by Allied or a Subsidiary of Allied and
(2) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by Allied or a Subsidiary
of Allied.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Allied Waste Group" means, collectively, AWI, Allied and their respective
subsidiaries, and a "member" of the Allied Waste Group means AWI, Allied and
each of their respective subsidiaries.
"Apollo" means Apollo Management IV, L.P. or its Permitted Transferees
(exclusive of the Allied Waste Group).
"Asset Disposition" by any Person that is Allied or any Restricted
Subsidiary means any transfer, conveyance, sale, lease or other disposition by
Allied 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:
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(1) shares of Capital Stock, other than directors' qualifying
shares, or other ownership interests of a Restricted
Subsidiary;
(2) the property or assets of such Person or any Restricted
Subsidiary representing a division or line or business; or
(3) 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:
(1) a disposition by a Subsidiary of such Person to such Person or
a Restricted Subsidiary or by such Person to a Restricted
Subsidiary;
(2) the disposition of all or substantially all of the assets of
Allied in a manner permitted pursuant to the provisions
described above under the caption "Certain Covenants --
Mergers, Consolidations and Certain Sales of Assets"; and
(3) any disposition that constitutes a Restricted Payment or
Permitted Investment that is permitted pursuant to the
provisions described above under the caption "Certain
Covenants -- Limitation on Restricted Payments."
"Bank Agreement" means the credit agreement of Allied dated July 21, 1999,
as amended, among Allied, AWI, certain lenders party thereto, and 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.
"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 that 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.
"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
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corporate debt securities of a maturity comparable to the remaining term of the
notes on such date, "Independent Investment Banker" means Donaldson, Lufkin &
Jenrette 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:
(1) Consolidated Interest Expense of such Person for such period;
plus
(2) Consolidated Income Tax Expense of such Person for such
period; plus
(3) the consolidated depreciation and amortization expense
deducted in determining the Consolidated Net Income of such
Person for such period; plus
(4) the aggregate amount of letter of credit fees accrued during
such period; plus
(5) all non-cash or non-recurring charges during such period,
including charges for costs related to acquisitions, it being
understood that:
(a) non-cash non-recurring charges shall not include
accruals for closure and post-closure liabilities, and
(b) 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 (b), Allied 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
(6) all cash charges attributable to the execution, delivery and
performance of the indenture or the Bank Agreement; plus
(7) all non-recurring cash charges related to acquisitions and
financings, including amendments thereto; and minus
(8) 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:
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(1) 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
(2) only to the extent that the amount specified in clause (1) 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:
(1) Consolidated EBITDA of such Person for such period to
(2) 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 (2)(a),
minus
(c) Consolidated Interest Expense of such Person which
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 (2)(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
of such Acquired Business, actions taken by Allied 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):
(1) the portion of any rental obligation in respect of any Capital
Lease Obligation allocable to interest expense in accordance
with generally accepted accounting principles;
(2) the amortization of Debt discounts;
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(3) any payments or fees with respect to letters of credit,
bankers' acceptances or similar facilities;
(4) 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;
(5) any Preferred Stock dividends declared and paid or payable in
cash; and
(6) 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:
(1) for purposes solely of calculating Consolidated Net Income for
purposes of clause (3)(a) of the second half of the first
paragraph under the caption "Certain Covenants --Limitation on
Restricted Payments" 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;
(2) 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;
(3) 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;
(4) gains or losses on asset dispositions by such Person or its
Consolidated Subsidiaries;
(5) any net income (loss) of a Consolidated Subsidiary that is
attributable to a minority interest in such Consolidated
Subsidiary;
(6) all extraordinary gains and extraordinary losses that involve
a present or future cash payment;
(7) 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 clause (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
(8) the tax effect of any of the items described in clauses (1)
through (7) 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.
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"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 of the
supplement to the indenture with respect to each series of
notes; or
(2) was nominated for election or elected to such board of
directors with the approval of a majority of the Continuing
Directors that were members of such board of directors at the
time of such nomination or election.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses;
(3) every reimbursement obligation of such Person with respect to
letters of credits, bankers' acceptances or similar facilities
issued for the account of such Person;
(4) every obligation of such Person issued or assumed as the
deferred purchase price of property or services, but excluding
trade accounts payable or accrued liabilities arising in the
ordinary course of business;
(5) every Capital Lease Obligation of such Person;
(6) the maximum fixed redemption or repurchase price of Redeemable
Interests of such Person at the time of determination;
(7) every net payment obligation of such Person under interest
rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination;
and
(8) every obligation of the type referred to in clauses (1)
through (7) of another Person and all dividends of another
Person the payment of which, in either case, such Person has
Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor,
Guarantor or otherwise.
"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.
"Designated Noncash Consideration" means:
(1) the fair market value of non-cash consideration received by
Allied 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 Allied, minus
(2) the amount of cash or Cash Equivalents received in connection
with a sale of such Designated Noncash Consideration.
"Designated Senior Debt" means:
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(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 the indenture
the principal amount of which is $100.0 million or more and
that has been designated by Allied as "Designated Senior
Debt."
"Excepted Disposition" means a transfer, conveyance, sale, lease or other
disposition by Allied or any Restricted Subsidiary of any asset of Allied or any
Restricted Subsidiary the fair market value of which itself does not exceed 2.5%
of Consolidated Total Assets of Allied 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 Allied.
"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:
(1) 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;
(2) to purchase property, securities or services for the purpose
of assuring the holder of such Debt of the payment of such
Debt; or
(3) 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.
"Incur" means, with respect to any Debt of any Person, to create, issue,
incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise
become liable in respect of such Debt, or the taking of any other action which
would cause such Debt, in accordance with generally accepted accounting
principles, to be recorded on the balance sheet of such Person. "Incurrence,"
"incurred," "incurrable" and "incurring" shall have meanings correlative to the
preceding. Notwithstanding the foregoing, the Debt of any other Person becoming
a Restricted Subsidiary of such Person will be deemed for this purpose to have
been Incurred by such Person at the time other Person becomes a Restricted
Subsidiary of such Person, provided, however, that a change in generally
accepted accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an incurrence of Debt.
"Insurance Subsidiaries" means Reliant Insurance Company and Indemnity
Corporation, a Vermont corporation and a Subsidiary of Allied, 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
Allied 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:
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(1) 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;
(2) 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;
(3) 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
(4) any other investment of cash or other property by such Person
in or for the account of such other Person.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement or title exception, encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets, including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing.
"Net Available Proceeds" from any Asset Disposition by any Person that is
Allied 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:
(1) 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;
(2) 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;
(3) 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
(4) 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.
"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:
(1) either:
(a) is not subordinated in right of payment to any other
Debt of such Person, or
(b) 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
(2) 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.
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"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 that shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby.
"Permitted Investment" means:
(1) Investments in Allied or any Person that is, or as a
consequence of such investment becomes, a Restricted
Subsidiary;
(2) 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;
(3) 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;
(4) demand deposits made in the ordinary course of business and
consistent with Allied'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;
(5) insured deposits issued by commercial banks of the type
described in clause (4) above;
(6) mutual funds whose investment guidelines restrict such funds'
investment primarily to those satisfying the provisions of
clauses (1) through (3) above;
(7) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clauses
(2) and (3) above entered into with any bank meeting the
qualifications specified in clause (3) above;
(8) 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 Moody's Investors Services, Inc.,
and in each case maturing within 360 days;
(9) receivables owing to Allied or a Restricted Subsidiary of
Allied 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;
(10) any Investment consisting of loans and advances to employees
of Allied or any Restricted Subsidiary for travel,
entertainment, relocation or other expenses in the ordinary
course of business;
(11) any Investment consisting of loans and advances by Allied or
any Restricted Subsidiary to employees, officers and directors
of Allied 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:
(a) Allied from Allied, or
(b) AWI from AWI if AWI uses the proceeds thereof to acquire
Capital Stock (other than Redeemable Interests) of
Allied,
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such limitation on the amount of such Investments at any time outstanding
shall not apply with respect to such Investments;
(12) any Investment consisting of a Permitted Interest Rate or
Currency Protection Agreement;
(13) any Investment acquired by Allied or any of its Restricted
Subsidiaries:
(a) in exchange for any other Investment or accounts
receivables held by Allied 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 Allied 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;
(14) any Investment that constitutes part of the consideration from
any Asset Disposition made pursuant to, and in compliance
with, the covenant described above under the caption
"Repurchase at the Option of Holders -- Asset Dispositions";
(15) Investments the payment for which consists exclusively of
Capital Stock exclusive of Redeemable Interests of Allied; and
(16) other Investments in an aggregate amount not to exceed 15% of
the Consolidated Total Assets of Allied outstanding at any
time.
"Permitted Junior Securities" means:
(1) Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock) of
Allied or any Guarantor; or
(2) debt securities of Allied or any Guarantor that are
subordinated to all Senior Debt (and any debt securities
issued in exchange for Senior Debt) to substantially the same
extent as, or to a greater extent than, the notes are
subordinated to Senior Debt pursuant to Article 15 of the
indenture.
"Permitted Liens" means:
(1) Liens incurred after the date of the indenture securing Debt
of Allied that ranks pari passu in right of payment to the
notes, if the notes are secured equally and ratably with such
Debt;
(2) Liens in favor of Allied or any Restricted Subsidiary;
(3) 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 Allied or any Restricted Subsidiary of
Allied, 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 Allied or any Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of such
property by Allied or any Restricted Subsidiary of Allied,
provided that such Liens were not incurred in contemplation of
such acquisition;
(5) Liens existing on the date of the indenture;
(6) 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;
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(7) Liens securing Permitted Refinancing Debt where the Liens
securing the Permitted Refinancing Debt were permitted under
the indenture;
(8) 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;
(9) 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;
(10) 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 Allied or such Restricted
Subsidiary;
(11) any attachment or judgment Lien that does not constitute an
Event of Default;
(12) Liens in favor of the trustee for its own benefit and for the
benefit of the Holders;
(13) any interest or title of a lessor pursuant to a lease
constituting a Capital Lease Obligation;
(14) pledges or deposits made in connection with acquisition
agreements or letters of intent entered into in respect of a
proposed acquisition;
(15) Liens in favor of prior holders of leases on property acquired
by Allied or of sublessors under leases on Allied property;
(16) 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);
(17) Liens, including extensions and renewals thereof, upon real or
personal property acquired after the date of the indenture;
provided that:
(a) any such Lien is created solely for the purpose of
securing Debt incurred, in accordance with the
"Limitation on Consolidated Debt" covenant:
(i) 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
(ii) 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;
(18) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of Allied and
its Restricted Subsidiaries, taken as a whole;
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(19) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(20) 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 Allied or
any Restricted Subsidiary other than the property or assets
acquired;
(21) Liens encumbering deposits securing Debt under Permitted
Interest Rate Currency or Commodity Price Agreements;
(22) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods
entered into by Allied or any of its Restricted Subsidiaries
in the ordinary course of business in accordance with the past
practices of Allied and its Restricted Subsidiaries;
(23) 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;
(24) Liens incurred in the ordinary course of business of Allied or
any Restricted Subsidiary of Allied 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 Allied or such Restricted
Subsidiary; and
(25) 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 the covenant described above under the caption "Certain Covenants
- -- Limitation on Consolidated Debt."
"Permitted Transferee" means, with respect to any Person: (a) any
Affiliate of such Person; (b) any investment manager, investment advisor, or
constituent general partner of such Person; or (c) any investment fund,
investment account, or investment entity that is organized by such Person or its
Affiliates and whose investment manager, investment advisor, or constituent
general partner is such Person or a Permitted Transferee of such Person.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designed) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"Public Offering" means any underwritten public offering of Common Stock
pursuant to a registration statement filed under the Securities Act.
"Redeemable Interest" of any Person means any equity security of or other
ownership interest in such Person that:
(1) by its terms;
(2) by the terms of any security into which it is convertible or
for which it is exchangeable; or
(3) otherwise (including upon the occurrence of an event),
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matures or is required to be redeemed, pursuant to any sinking fund obligation
or otherwise, or is convertible into or exchangeable for Debt or is redeemable
at the option of the holder thereof, in whole or in part, at any time prior to
the final Stated Maturity of the notes.
"Reference Treasury Dealer", means Donaldson, Lufkin & Jenrette 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"), Allied 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.
"Related Business" means a business substantially similar to the business
engaged in by Allied and its Subsidiaries on the date of the indenture.
"Related Person" of any Person means, without limitation, any other Person
owning:
(1) 5% or more of the outstanding Common Stock of such Person or
(2) 5% or more of the Voting Stock of such Person.
"Restricted Subsidiary" means:
(1) at any date, a Subsidiary of Allied that is not an
Unrestricted Subsidiary as of such date and
(2) for any period, a Subsidiary of Allied that for any portion of
such period is not an Unrestricted Subsidiary, provided that
such terms shall mean such Subsidiary only for such portion of
such period.
"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 the 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 Allied 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 Allied or any Guarantor;
(2) any other Indebtedness of Allied or any Guarantor permitted to
be incurred under the terms of the 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 or any Guarantee or subordinated to any
other Debt of Allied 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
will not include:
(1) any liability for federal, state, local or other taxes owed or
owing by Allied;
(2) any Indebtedness of Allied to any of its Subsidiaries or other
Affiliates;
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(3) any trade payables; or
(4) the portion of any Indebtedness that is incurred in violation
of the indenture.
"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 or 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 Subordinated Term Loans" means the Tranche D Term Loans issued
under the Bank Agreement as in effect on the date of the 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. Government Obligations" means securities that are:
(1) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of
America,
and that, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depositary receipt.
Notwithstanding the foregoing, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depositary receipt.
"Unrestricted Subsidiary" means:
(1) at any date, a Subsidiary of Allied that is an Unrestricted
Subsidiary in accordance with the provisions of the indenture
described under the caption "Certain Covenants -- Designation
of Restricted and Unrestricted Subsidiaries"; and
(2) for any period, a Subsidiary of Allied that for any portion of
such period is an Unrestricted Subsidiary in accordance with
the provisions of the indenture as described under the caption
"Certain Covenants -- Designation of Restricted and
Unrestricted Subsidiaries," provided that such term shall mean
such Subsidiary only for such portion of such period.
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"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.
FORM, DENOMINATION, TRANSFER, EXCHANGE AND BOOK-ENTRY PROCEDURES
Exchange Notes will be issued only in registered form, without interest
coupons, in denominations of $1,000 and integral multiples thereof. The Exchange
Notes generally will be represented by one or more fully-registered global notes
(collectively, the "Global Exchange Note"). Notwithstanding the foregoing, Notes
held in certificated form will be exchanged solely for Exchange Notes in
certificated form, as discussed below. The Global Exchange Note will be
deposited upon issuance with The Depository Trust Company ("DTC") and registered
in the name of DTC or a nominee of DTC (the "Global Exchange Note Registered
Owner"). Except as set forth below, the Global Exchange Note may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee.
A holder may transfer or exchange Exchange Notes in accordance with 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. We are not required to transfer or exchange any
Exchange Notes selected for redemption. Also, we are not required to transfer or
exchange an Exchange Note for a period of 15 days before a selection of Exchange
Notes to be redeemed.
The registered holder of an Exchange Note will be treated as the owner of
such Exchange Note for all purposes.
EXCHANGES OF BOOK-ENTRY EXCHANGE NOTES FOR CERTIFICATED EXCHANGE NOTES
A beneficial interest in a Global Exchange Note may not be exchanged for
an Exchange Note in certificated form unless
- DTC (a) notifies us that it is unwilling or unable to continue as
Depositary for the Global Exchange Note or (b) has ceased to be a
clearing agency registered under the Exchange Act, and in either
case we thereupon fails to appoint a successor Depositary,
- we may, at our option, notify the Trustee in writing that it elects
to cause the issuance of the Exchange Notes in certificated form or
- there shall have occurred and be continuing an Event of Default or
any event which after notice or lapse of time or both would be an
Event of Default with respect to the Exchange Notes. In all cases,
certificated Exchange Notes delivered in exchange for any Global
Exchange Note or beneficial interests therein will be registered in
the names, and issued in any approved denominations, requested by or
on behalf of the Depositary, in accordance with its customary
procedures. Any such exchange will be effected through the DWAC
System and an appropriate adjustment will be made in the records of
the Security Registrar to reflect a decrease in the principal amount
of the relevant Global Exchange Note.
CERTAIN BOOK-ENTRY PROCEDURES FOR GLOBAL EXCHANGE NOTES
The descriptions of the operations and procedures of DTC that follow are
provided solely as a matter of convenience. These operations and procedures are
solely within the control of the respective settlement systems and are subject
to changes by them from time to time. We take no responsibility for these
operations and procedures and urges investors to contact the system or their
participants directly to discuss these matters.
DTC has advised us as that it is:
- a limited purpose trust company organized under the laws of the
State of New York,
- a member of the Federal Reserve System,
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- a "clearing corporation" within the meaning of the Uniform
Commercial Code and
- a "Clearing Agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC was created to hold securities for its
participants ("participants") and facilitate the clearance and
settlement of securities transactions between participants through
electronic book-entry changes in accounts of its participants,
thereby eliminating the need for physical transfer and delivery of
certificates. DTC's participants include securities brokers and
dealers, banks, trust companies and clearing corporations and may
include certain other organizations. Access to DTC's system is also
available to other entities such as banks, brokers, dealers and
trust companies (collectively, the "indirect participants") that
clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Holders who are not
participants may beneficially own securities held by or on behalf of
the Depository only through participants or indirect participants.
We expect, pursuant to procedures established by DTC, that
- upon deposit of the Global Exchange Notes, DTC will credit the
accounts of Participants designated by the Initial Purchasers with
an interest in the Global Exchange Note and
- ownership of the notes will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained
by DTC (with respect to the interest of participants), the
participants and the indirect participants. Investors may hold their
interests in the Global Exchange Note directly through DTC, if they
are participants in such system, or indirectly through organizations
(including Euroclear and CEDEL) which are participants in such
system. The laws of some states require that certain persons take
physical delivery in definitive form of securities that they own and
that security interest in negotiable instruments can only be
perfected by delivery of certificates representing the instruments.
Consequently, the ability to transfer notes or to pledge the notes
as collateral will be limited to such extent.
So long as DTC or its nominee is the registered owner of a Global Note,
DTC or such nominee, as the case may be, will be considered the sole owner or
holder of the notes represented by the Global Exchange Note for all purposes
under the Indentures. Except as described above under "--Exchanges of
Book-Entry Exchange Notes for Certificated Notes," owners of beneficial
interests in a Global Exchange Note will not be entitled to have Notes
represented by such Global Exchange Note registered in their names, will not
receive or be entitled to receive physical delivery of certificated securities
(the "Certificated Securities"), and will not be considered the owners or
holders thereof under the Indentures or Exchange Notes for any purpose,
including with respect to giving of any directions, instruction or approval to
the Trustee thereunder. As a result, the ability of a person having a beneficial
interest in notes represented by a Global Exchange Note to pledge or transfer
such interest to persons or entities that do not participate in DTC's system or
to otherwise take action with respect to such interest, may be affected by the
lack of a physical certificate evidencing such interest.
Payments of the principal of, premium, if any, and interest on Global
Exchange Notes will be made to DTC or its nominee as the registered owner
thereof. We, the Trustee and any of its respective agents will not have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Exchange Notes or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
We expect that DTC or its nominee, upon receipt of any payment of
principal or interest in respect of a Global Exchange Note representing any
Exchange Notes held by it or its nominee, will credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Exchange Note for such Exchange Notes as
shown on the records of DTC or its nominee. We also expect that payments by
participants to owners of beneficial interests in such Global Exchange Note held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers registered in "street name." Such payments will be the responsibility
of such participants. We or the Trustee will not be liable for any delay by DTC
or any of its participants in identifying the beneficial owners of the Exchange
Notes, and we and the Trustee may conclusively rely on and will be protected in
relying on instructions from DTC or its nominee as the registered owner of the
Exchange Notes for all purposes.
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Interests in the Global Exchange Notes will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and its participants. Transfers between participants
in DTC will be effected in accordance with DTC's procedures, and will be settled
in same-day funds.
Because of time zone differences, the securities account of a Euroclear or
CEDEL participant purchasing an interest in a Global Exchange Note from a DTC
participant will be credited, and any such crediting will be reported to the
relevant Euroclear or CEDEL participant, during the securities settlement
processing day (which must be a business day for Euroclear and CEDEL)
immediately following the DTC settlement date. Cash received in Euroclear or
CEDEL as a result of sales of interests in a Global Exchange Note by or through
a Euroclear or CEDEL participant to a DTC participant will be received with
value on the DTC settlement date but will be available in the relevant Euroclear
or CEDEL cash account only as of the business day for Euroclear or CEDEL
following the DTC settlement date.
DTC has advised us that it will take any action permitted to be taken by a
holder of Exchange Notes only at the direction of one or more participants to
whose accounts with DTC interests in the Global Exchange Notes are credited and
only in respect of such portion of the aggregate principal amount of the
Exchange Notes as to which such participant or participants has or have given
such direction. However, if there is an Event of Default (as defined below)
under the Exchange Notes, DTC reserves the right to exchange the Global Exchange
Notes for Exchange Notes in certificated form, and to distribute such Exchange
Notes to its participants.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of beneficial ownership interests in the Global Exchange Notes among
participants of DTC, it is under no obligation to perform or continue to perform
such procedures, and such procedures may be discontinued at any time. We, the
Trustee and its respective agents will have no responsibility for the
performance by DTC, or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations, including maintaining, supervising or reviewing the records relating
to, or payments made on account of, beneficial ownership interests in Global
Exchange Notes.
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UNITED STATES FEDERAL TAX CONSEQUENCES
The following summary describes the material U.S. federal income tax
consequences and, in the case of Non-U.S. Holders, U.S. federal estate tax
consequences, of the acquisition, ownership and disposition of new notes by
investors that acquire new notes in the Exchange Offer. We do not discuss all of
the aspects of U.S. federal income and estate taxation which may be relevant to
investors in light of their particular investment or other circumstances. In
addition, we do not discuss any U.S. state or local income or foreign income or
other tax consequences. This summary is based upon the provisions of the
Internal Revenue Code, Treasury Regulations and administrative and judicial
interpretations thereof, all as in effect as of the date of this Prospectus and
all of which are subject to change or differing interpretation, possibly with
retroactive effect. The discussion below deals only with new notes held as
capital assets which is generally, property held for investment, and does not
address holders of new notes that may be subject to special rules, including,
without limitation, certain U.S. expatriates, financial institutions, insurance
companies, tax-exempt entities, dealers in securities or currencies, traders in
securities that elect mark-to-market accounting treatment, and persons who hold
new notes as part of a straddle, hedge, conversion or other integrated
transaction. You should consult your own tax advisor regarding the particular
U.S. federal, state and local and foreign income and other tax consequences of
acquiring, owning and disposing of the new notes that may be applicable to you.
FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER
The exchange of old notes for new notes in the Exchange Offer will not be
a taxable exchange for federal income tax purposes and, accordingly, for such
purposes a holder will not recognize any taxable gain or loss as a result of
such exchange and will have the same tax basis and holding period in the new
notes as it had in the old notes immediately before the exchange.
FEDERAL INCOME TAX CONSEQUENCES TO U.S. HOLDERS
For purposes of the following discussion, a "U.S. Holder" means a
beneficial owner of a new note that is, for U.S. federal income tax purposes,
(1) a citizen or individual resident of the United States,
(2) a corporation or partnership (unless the Internal Revenue Service
provides otherwise) created or organized in or under the laws of the
United States or of any political subdivision thereof,
(3) an estate the income of which is subject to U.S. federal income
taxation regardless of its source or
(4) a trust if, in general, the trust is subject to the supervision of a
court within the United States and the control of one or more United
States persons as described in section 7701(a)(30) of the Internal
Revenue Code.
TAXATION OF STATED INTEREST. In general, stated interest paid on a new
note will be taxable to a U.S. Holder as ordinary income at the time it is
received or accrued in accordance with the U.S. Holder's regular method of
accounting for federal income tax purposes.
MARKET DISCOUNT AND BOND PREMIUM. If a U.S. Holder purchases a new note,
or purchased the old note for which the new note was exchanged, as the case may
be, at a price that is less than its principal amount, the excess of the
principal amount over the U.S. Holder's purchase price will be treated as
"market discount." However, such market discount will be considered to be zero
if it is less than 1/4 of 1% of the principal amount multiplied by the number of
complete years to maturity from the date the U.S. Holder purchased such new note
or old note. Under the market discount rules of the Code, a U.S. Holder
generally will be required to treat any principal payment on, or any gain
realized on the sale, exchange, retirement or other disposition of, a new note
as ordinary income, which is generally treated as interest income, to the extent
of the market discount which accrued but was not previously included in income.
In addition, the U.S. Holder may be required to defer, until the maturity of the
new note or its earlier disposition in a taxable transaction, the deduction of
all or a portion of the interest expense on any indebtedness
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incurred or continued to purchase or carry such new note or the old note for
which the new note was exchanged, as the case may be.
In general, market discount will be considered to accrue ratably during
the period from the date of acquisition of the new note or old note for which
the new note was exchanged, as the case may be, to the maturity date of the new
note, unless the U.S. Holder makes an irrevocable election, on an
instrument-by-instrument basis, to accrue market discount under a constant yield
method. A U.S. Holder may elect to include market discount in income currently
as it accrues, under either a ratable or constant yield method, in which case
the rules described above regarding the treatment as ordinary income of gain
upon the disposition of the new note and upon the receipt of certain payments
and the deferral of interest deductions will not apply. The election to include
market discount in income currently, once made, applies to all market discount
obligations acquired on or after the first day of the first taxable year to
which the election applies, and may not be revoked without the consent of the
Internal Revenue Service.
If a U.S. Holder purchases a new note or purchased the old note for which
the new note was exchanged, as the case may be, for an amount in excess of the
amount payable at maturity of the new note, such holder will be considered to
have purchased the new note or old note with "bond premium" equal to the excess
of the U.S. Holder's purchase price over the amount payable at maturity or on an
earlier call date if it results in a smaller amortizable bond premium. A U.S.
Holder may elect to amortize such premium using a constant yield method over the
remaining term of the new note or until an earlier call date if it resulted in a
smaller amortizable bond premium. The amortized amount of such premium for a
taxable year generally will be treated first as a reduction of interest on such
new note included in such taxable year to the extent thereof, then as a
deduction allowed in that taxable year to the extent of the U.S. Holder's prior
interest inclusions on such new note, and finally as a carryforward allowable
against the U.S. Holder's future interest inclusions on such new note. Such
election, once made, is irrevocable without the consent of the Internal Revenue
Service and applies to all taxable bonds held during the taxable year for which
the election is made or subsequently acquired.
DISPOSITIONS. Upon the sale, exchange or retirement of a new note, a U.S.
Holder generally will recognize taxable gain or loss in an amount equal to the
difference, if any, between the amount realized on such sale, exchange or
retirement and such holder's adjusted tax basis in the new note. A U.S. Holder's
adjusted tax basis in a new note will generally equal the cost of such new note
or, in the case of a new note acquired in exchange for an old note in the
Exchange Offer, the tax basis of such old note, as discussed above under
"Certain Federal Income Tax Consequences of the Exchange Offer", increased by
the amount of any market discount previously included in the U.S. Holder's gross
income, and reduced by the amount of any amortizable bond premium applied to
reduce, or allowed as a deduction against, interest with respect to such new
note. Gain or loss recognized by a U.S. Holder on the sale, exchange or
retirement of a new note generally will be capital gain or loss, except with
respect to amounts received upon a disposition attributable to accrued but
unpaid interest or accrued market discount not previously included in income,
which in either case will be taxable as ordinary income. Such capital gain or
loss will be long-term capital gain or loss if the new note has been held for
more than one year at the time of the disposition, taking into account for this
purpose, in the case of a new note received in exchange for an old note in the
Exchange Offer, the period of time that the old note was held. Long-term capital
gain recognized by a non-corporate U.S. holder generally will be subject to a
maximum tax rate of 20%. Subject to certain limited exceptions, capital losses
cannot be used to offset ordinary income.
BACKUP WITHHOLDING. In general, "backup withholding" at a rate of 31% may
apply to payments of principal and interest made on a new note, and to the
proceeds of a sale or exchange of a new note before maturity, that are made to a
non-corporate U.S. Holder if such holder fails to provide a correct taxpayer
identification number or otherwise comply with applicable requirements of the
backup withholding rules. The backup withholding tax is not an additional tax
and may be credited against a U.S. Holder's U.S. federal income tax liability,
provided that correct information is provided to the Internal Revenue Service.
U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO NON-U.S. HOLDERS
For purposes of the following discussion, a "Non-U.S. Holder" is a
beneficial owner of a new note that is not, for U.S. federal income tax
purposes, a U.S. Holder. An individual may, subject to certain exceptions, be
deemed to be a
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resident alien, as opposed to a non-resident alien, by virtue of being present
in the United States on at least 31 days in the calendar year and for an
aggregate of at least 183 days during a three-year period ending in the current
calendar year, counting for such purposes all of the days present in the current
year, one-third of the days present in the immediately preceding year, and
one-sixth of the days present in the second preceding year. Resident aliens are
subject to U.S. federal tax as if they were U.S. citizens.
Under present U.S. federal income and estate tax law and subject to the
discussion of backup withholding below:
- payments of principal, premium, if any, and interest on a new
note by us or any of our agents to any Non-U.S. Holder will
not be subject to withholding of U.S. federal income tax,
provided that in the case of interest
(1) the Non-U.S. Holder does not directly or
indirectly, actually or constructively, own 10
percent or more of the total combined voting power
of all classes of our stock entitled to vote,
(2) the Non-U.S. Holder is not
(x) a controlled foreign corporation that is
related to us through sufficient stock
ownership, or
(y) a bank receiving interest described in
Section 881(c)(3)(A) of the Internal Revenue
Code, and
(3) either
(A) the beneficial owner of the new note
certifies to us or our agent, under
penalties of perjury, that it is not a
"United States person", as defined in the
Internal Revenue Code and provides its name
and address, or
(B) a securities clearing organization, bank or
other financial institution that holds
customers' securities in the ordinary course
of its trade or business (a "financial
institution") and holds the new note on
behalf of the beneficial owner certifies to
us or our agent under penalties of perjury
that such statement has been received from
the beneficial owner by it or by the
financial institution between it and the
beneficial owner and furnishes the payor
with a copy thereof;
- a Non-U.S. Holder will not be subject to U.S. federal income
tax on any gain or income realized on the sale, exchange,
redemption, retirement at maturity or other disposition of a
new note; provided that, in the case of proceeds representing
accrued interest, the conditions described in the preceding
bullet paragraph above are met, unless
(1) such Non-U.S. Holder is an individual who is
present in the United States for 183 days or more
during the taxable year and certain other
conditions are met, or
(2) such gain is effectively connected with the
conduct of a U.S. trade or business by such
Non-U.S. Holder, or if an income tax treaty
applies, is generally attributable to a U.S.
"permanent establishment" maintained by such
Non-U.S. Holder; and
- a new note held by an individual who at the time of death is
not a citizen or resident of the United States will not be
subject to U.S. federal estate tax as a result of such
individual's death if, at the time of such death,
(1) the individual did not directly or indirectly,
actually or constructively, own 10 percent or more
of the total combined voting power of all classes
of our stock entitled to vote, and
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(2) the income on the new note would not have been
effectively connected with the conduct of a trade
or business by the individual in the United
States.
If a Non-U.S. Holder is engaged in a trade or business in the United
States and interest on the new note is effectively connected with the conduct of
such trade or business or, if an income tax treaty applies, and the Non-U.S.
Holder maintains a U.S. "permanent establishment" to which the interest is
generally attributable, the Non-U.S. Holder, although exempt from the
withholding tax discussed in first bullet paragraph above, provided that such
holder furnishes a properly executed United States Internal Revenue Service Form
W-8ECI or successor form on or before any payment date to claim such exemption,
may be subject to U.S. federal income tax on such interest, as well as on gain
or income discussed in the second bullet paragraph above, on a net basis in the
same manner as if it were a U.S. Holder.
In addition, a foreign corporation that is a holder of a new note may be
subject to a branch profits tax equal to 30% of its effectively connected
earnings and profits for the taxable year, subject to some adjustments, unless
it qualifies for a lower rate under an applicable income tax treaty. For this
purpose, interest on a new note or gain recognized on the disposition of a new
note will be included in earnings and profits if such interest or gain is
effectively connected with the conduct by the foreign corporation of a trade or
business in the United States.
Recently finalized Treasury Regulations generally effective for payments
made after December 31, 2000 will provide alternative methods for satisfying the
certification requirement described in clause (3) of the first bullet paragraph
above and may also require a Non-U.S. Holder claiming the benefit of an income
tax treaty, to also provide its U.S. taxpayer identification number. These
regulations generally also will require, in the case of a new note held by a
foreign partnership, that
(1) the certification described in clause (3) of the first bullet
paragraph above be provided by the partners and
(2) the partnership provide certain information, including a U.S.
taxpayer identification number.
A look-through rule will apply in the case of tiered partnerships.
Under current Treasury Regulations, backup withholding and information
reporting will not apply to payments made by us or any agent of ours, in its
capacity as such, to a Non-U.S. Holder of a new note if such holder has provided
the required certification that it is not a United States person as set forth in
the first bullet paragraph above, provided that neither us nor our agent has
actual knowledge that the holder is a United States person. We or our agent may,
however, report payments of interest on the new notes. Payments of the proceeds
from a disposition by a Non-U.S. Holder of a new note made to or through a
foreign office of a broker will not be subject to information reporting or
backup withholding, except that information reporting may apply to such payments
if the broker is
(1) a United States person,
(2) a controlled foreign corporation for U.S. federal income tax
purposes,
(3) a foreign person 50% or more of whose gross income is effectively
connected with a U.S. trade or business for a specified three-year period, or
(4) with respect to payments made after December 31, 2000, a foreign
partnership, if at any time during its tax year, one or more of its partners are
U.S. persons, as defined in Treasury regulations, who in the aggregate hold more
than 50% of the income or capital interest in the partnership or if, at any time
during its tax year, such foreign partnership is engaged in a U.S. trade or
business.
Payments of the proceeds from a disposition by a Non-U.S. Holder of a new
note made to or through the U.S. office of a broker is subject to information
reporting and backup withholding unless the holder or beneficial owner certifies
as to its taxpayer identification number or otherwise establishes an exemption
from information reporting and backup withholding.
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<PAGE> 90
You should consult your own tax advisor regarding application of backup
withholding in your particular circumstance and the availability of and
procedure for obtaining an exemption from backup withholding under current
Treasury regulations and the Treasury regulations that will become effective
after December 31, 2000. Any amounts withheld under the backup withholding rules
from a payment to a Non-U.S. Holder would be allowed as a refund or a credit
against such holder's U.S. federal income tax liability, provided the required
information is furnished to the Internal Revenue Service.
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<PAGE> 91
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities. We have agreed that we will, for a period of 90 days after
the consummation of the Exchange Offer, make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
We will not receive any proceeds from any sale of new notes by
broker-dealers. new notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new notes. Any broker-dealer
that resells new notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such new notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of new notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the consummation of the Exchange Offer, we
will promptly send additional copies of the Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such document
in the Letter of Transmittal. We have agreed to pay all expenses incident to the
Exchange Offer other than commissions or concessions of any brokers or dealers
and will indemnify the holders of the new notes, including any broker-dealers,
against certain liabilities, including liabilities under the Securities Act.
Following consummation of the Exchange Offer, we may, in our sole
discretion, commence one or more additional exchange offers to holders of old
notes who did not exchange their old notes for new notes in the Exchange Offer
on terms which may differ from those contained in the Registration Agreement.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by us in connection with any such additional exchange offers. Such
additional exchange offers will take place from time to time until all
outstanding old notes have been exchanged for new notes pursuant to the terms
and conditions contained herein.
VALIDITY OF THE NEW NOTES
The validity of the new notes will be passed upon for us by Fried, Frank,
Harris, Shriver & Jacobson (a partnership including professional corporations),
New York, New York.
EXPERTS
The consolidated financial statements of Allied as of December 31, 1998
and 1997 and for each of the three years in the period ended December 31, 1998
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report, and are incorporated by reference in
reliance upon the authority of said firm as experts in giving such reports.
The consolidated financial statements of BFI as of September 30, 1998 and
1997 and for each of the three years in the period ended September 30, 1998
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report, and are incorporated by reference in
reliance upon the authority of such firm as experts in giving such reports.
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====================================================================
[LOGO]
ALLIED WASTE NORTH AMERICA, INC.
OFFER FOR
ALL OUTSTANDING
10% SERIES A SENIOR SUBORDINATED NOTES DUE 2009
IN EXCHANGE FOR
10% SERIES B SENIOR SUBORDINATED NOTES DUE 2009
OF
ALLIED WASTE NORTH AMERICA, INC.
---------------
PROSPECTUS
, 1999
====================================================================
- 86 -
<PAGE> 93
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action. In an
action brought to obtain a judgment in the corporation's favor, whether by the
corporation itself or derivatively by a stockholder, the corporation may only
indemnify for expenses, including attorney's fees, actually and reasonably
incurred in connection with the defense or settlement of such action, and the
corporation may not indemnify for amounts paid in satisfaction of a judgment or
in settlement of the claim. In any such action, no such person shall have been
adjudged liable to the corporation except as claim was brought. In any type of
proceeding, the indemnification may extend to judgments, fines and amounts paid
in settlement, actually and reasonably incurred in connection with such other
proceeding, as well as to expenses.
The statute does permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner be reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote of
a quorum of disinterested members of the board of directors, (2) by independent
legal counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the stockholders.
The Company's Certificate of Incorporation and Bylaws require the Company to
indemnify its directors to the fullest extent permitted under Delaware law.
Pursuant to employment agreements entered into by the Company with its executive
officers and certain other key employees, the Company must indemnify such
officers and employees in the same manner and to the same extent that, the
Company is required to indemnify its directors under the Company's Bylaws. The
Company's Certificate limits the personal liability of a director to the
corporation or its stockholders to damages for breach of the director's
fiduciary duty.
The Company has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws. The Company
has entered into indemnification agreements to indemnify its directors to the
extent permitted under Delaware law.
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ITEM 21. EXHIBITS AND FINANCIAL DATA SCHEDULES.
(A) EXHIBITS
The following is a list of all the exhibits filed as part of the
Registration Statement.
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------
<S> <C>
*3.1 Amended Certificate of Incorporation of the Company (incorporated
herein by reference to Exhibit 3.1 to the Company's Report on Form
10-K for the fiscal year ended December 31, 1996).
*3.2 Amended and Restated Bylaws of the Company as of May 13, 1997.
Exhibit 3.2 to the Company's Report on Form 10-Q for the quarter
ended June 30, 1997 is incorporated herein by reference.
*3.3 Amendment to Amended Certificate of Incorporation of the Company
dated October 15, 1998. Exhibit 3.4 to the Company's Report on
Form 10-Q for the quarter ended September 30, 1998 is incorporated
herein by reference.
**4.1 Indenture relating to the 10% Senior Subordinated Notes due 2009,
dated as of July 30, 1999, by and among the Company and U.S. Bank
Trust National Association, as Trustee, with respect to the Notes
and Exchange Notes.
**4.2 Series Supplement Indenture relating to the 10% Senior Subordinated
Notes due 2009, dated July 30, 1999 (Incorporated by Reference to
Exhibit 4.1 to Allied's Form 8-K dated September 14, 1999).
**4.3 Form of 10% Series B Senior Subordinated Notes due 2009 (included
in Exhibit 4.2).
***5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson, as to the
legality of the securities, dated November , 1999.
*10.1 Registration Rights Agreement, dated as of July 30, 1999, by and
among the Company, the Guarantors and the initial purchasers,
relating to the $2 billion 10% Senior Subordinated Notes due 2009.
Exhibit 10.3 to Allied's Current Report on Form 8-K dated August
10, 1999 is incorporated herein by reference.
*10.2 Purchase Agreement dated December 14, 1998, by and among the
Company, the Guarantors and the initial purchasers, with respect
to the $2 billion 10% Senior Subordinated Notes due 2009. Exhibit
10.4 to Allied's Registration Statement on Form S-4 (No.
333-70709) is incorporated herein by reference.
*12.1 Ratio of earnings to fixed charges. (Incorporated by Reference to
Exhibit 12 to Allied's Form 10-Q dated September 30, 1999).
***23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1).
**23.2 Consent of Arthur Andersen LLP, Houston.
**23.3 Consent of Arthur Andersen, Phoenix.
**24.1 Powers of Attorney (included in the signature pages to this
Registration Statement).
**25.1 Statement of Eligibility and Qualification of Trustee on Form T-1
of U.S. Bank Trust National Association under the Trust Indenture
Act of 1939.
***99.1 Letter of Transmittal, with respect to old notes and Exchange
Notes.
***99.2 Notice of Guaranteed Delivery, with respect to old notes and
Exchange Notes.
***99.3 Instructions to Registered Holders from Beneficial Owners, with
respect to the old notes and Exchange Notes.
***99.4 Letter to Registered Holders.
***99.5 Letter to Our Clients.
</TABLE>
- ----------
* Previously Filed.
** Filed Herewith.
*** To be filed by amendment.
(B) FINANCIAL STATEMENT SCHEDULES
Schedules are omitted since the information required to be submitted has
been included in the Supplemental Consolidated Financial Statements of the
Company or the notes thereto, or the required information is not applicable.
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ITEM 22. UNDERTAKINGS
The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(5) to supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the registration statement when it became
effective.
(6) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Allied
Waste Industries, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-4 and it has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Scottsdale, State of Arizona, on the
23rd day of November, 1999.
Allied Waste Industries, Inc.
By: /s/ Henry L. Hirvela
-------------------------------
Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
Chairman of the Board of Directors, President and
/s/ Thomas H. Van Weelden Chief Executive Officer
-----------------------------------
Thomas H. Van Weelden (Principal Executive Officer)
/s/ Henry L. Hirvela Vice President - Chief Financial Officer
-----------------------------------
Henry L. Hirvela (Principal Financial Officer)
/s/ James S. Eng Corporation Controller
-----------------------------------
James S. Eng (Principal Accounting Officer)
/s/ Nolan Lehmann Director
-----------------------------------
Nolan Lehmann
/s/ Michael Gross Director
-----------------------------------
Michael Gross
/s/ David B. Kaplan Director
-----------------------------------
David B. Kaplan
/s/ Antony P. Ressler Director
-----------------------------------
Antony P. Ressler
</TABLE>
II-4
<PAGE> 97
<TABLE>
<S> <C>
/s/ Howard A. Lipson Director
-----------------------------------
Howard A. Lipson
/s/ Dennis Hendrix Director
-----------------------------------
Dennis Hendrix
/s/ Roger A. Ramsey Director
-----------------------------------
Roger A. Ramsey
/s/ Warren B. Rudman Director
-----------------------------------
Warren B. Rudman
/s/ Vincent Tese Director
-----------------------------------
Vincent Tese
/s/ David Blitzer Director
-----------------------------------
David Blitzer
</TABLE>
II-5
<PAGE> 98
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Allied
Waste North America, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-4 and it has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Scottsdale, State of
Arizona, on the 23rd day of November, 1999.
Allied Waste North America, Inc.
By: /s/ Henry L. Hirvela
-------------------------------
Henry L. Hirvela
Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Thomas H. Van Weelden Director, President and Chief Executive Officer
-----------------------------------
Thomas H. Van Weelden (Principal Executive Officer)
/s/ Henry L. Hirvela Director, Vice President and Chief Financial Officer
-----------------------------------
Henry L. Hirvela (Principal Financial Officer)
/s/ James S. Eng Corporation Controller
-----------------------------------
James S. Eng (Principal Accounting Officer)
/s/ Steven M. Helm Director, Vice President-Legal and Corporate Secretary
-----------------------------------
Steven M. Helm
</TABLE>
II-6
<PAGE> 99
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule A hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule A hereto.
By: /s/Donald W. Slager
-----------------------------------------
Donald W. Slager
Executive Vice President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr., James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager Director and Executive Vice President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ James S. Eng Director
----------------------------------
James S. Eng
</TABLE>
II-7
<PAGE> 100
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule B hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule B hereto.
By: /s/Donald W. Slager
-----------------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr., James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager Director and President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ James S. Eng Director
----------------------------------
James S. Eng
</TABLE>
II-8
<PAGE> 101
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule C hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule C hereto.
By: /s/Peter S. Hathaway
-----------------------------------------
Peter S. Hathaway
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Peter S. Hathaway, G. Thomas
Rochford, Jr., Steven M. Helm and each of them (with full power to act alone),
as attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Peter S. Hathaway Director and President
----------------------------------
Peter S. Hathaway (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ Steven M. Helm Director and Secretary
----------------------------------
Steven M. Helm
/s/ Michael G. Hannon Director
----------------------------------
Michael G. Hannon
</TABLE>
II-9
<PAGE> 102
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule D hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule D hereto.
By: /s/Larry D. Henk
--------------------------------------------
Larry D. Henk
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Larry D. Henk, Steven M. Helm
and each of them (with full power to act alone), as attorney and agents for the
undersigned, with full power of substitution, for and in the name, place and
stead of the undersigned, to sign and file with the Commission under the
Securities Act any and all amendments and exhibits to this Registration
Statement and any and all applications, instruments and other documents to be
filed with the Commission pertaining to the registration of the securities
covered hereby, with full power and authority to do and perform any and all acts
and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Larry D. Henk Director and President
----------------------------------
Larry D. Henk (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ Steven M. Helm Director
----------------------------------
Steven M. Helm
</TABLE>
II-10
<PAGE> 103
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule E hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule E hereto.
By: /s/Henry L. Hirvela
------------------------------------------
Henry L. Hirvela
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Henry L. Hirvela, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Henry L. Hirvela Director and President
----------------------------------
Henry L. Hirvela (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
</TABLE>
II-11
<PAGE> 104
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule F hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule F hereto.
By: /s/James S. Eng
--------------------------------------------
James S. Eng
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr., James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ James S. Eng Director and President
----------------------------------
James S. Eng (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ Donald W. Slager Director and Vice President
----------------------------------
Donald W. Slager
</TABLE>
II-12
<PAGE> 105
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule G hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule G hereto.
By: /s/Donald W. Slager
---------------------------------------------
Donald W. Slager
Executive Vice President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr., James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager Executive Vice President
----------------------------------
Donald W. Slager (Principal Executive Officer)
Treasurer
/s/ G. Thomas Rochford, Jr.
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
Director, President and Chief Executive Officer of Allied Waste
/s/ Thomas H. Van Weelden North America, Inc. as Managing Member
----------------------------------
Thomas H. Van Weelden
Director, Vice President and Chief Financial Officer of Allied
/s/ Henry L. Hirvela Waste North America, Inc. as Managing Member
----------------------------------
Henry L. Hirvela
Director, Vice President - Legal and Corporate Secretary of
/s/ Steven M. Helm Allied Waste North America, Inc. as Managing Member
----------------------------------
Steven M. Helm
</TABLE>
II-13
<PAGE> 106
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule H hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule H hereto.
By: /s/ Donald W. Slager
-------------------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager Director and President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ James S. Eng Director
----------------------------------
James S. Eng
/s/ Douglas W. Borro Director
----------------------------------
Douglas W. Borro
Director
----------------------------------
Ward Herst
/s/ Jo Lynn White Director
----------------------------------
Jo Lynn White
</TABLE>
II-14
<PAGE> 107
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule I hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule I hereto.
By: Allied Waste Landfill Holdings, Inc.
General Partner
By: /s/ James S. Eng
--------------------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ James S. Eng Director of Allied Waste Landfill Holdings, Inc.
----------------------------------
James S. Eng
/s/ Donald W. Slager Director of Allied Waste Landfill Holdings, Inc.
----------------------------------
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Director of Allied Waste Landfill Holdings, Inc.
----------------------------------
Thomas Rochford, Jr.
</TABLE>
II-15
<PAGE> 108
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule J hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule J hereto.
By: /s/ Donald W. Slager
----------------------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ Thomas H. Van Weelden Director, President and Chief Executive Officer of Allied Waste
----------------------------------
Thomas H. Van Weelden North America, Inc. as Managing Member
/s/ Henry L. Hirvela Director,Vice President and Chief Executive Financial Officer of
----------------------------------
Henry L. Hirvela Allied Waste North America, Inc. as Managing Member
/s/ Steven M. Helm Director, Vice President - Legal and Corporate Secretary of
----------------------------------
Steven M. Helm Allied Waste North America, Inc. as Managing Member
</TABLE>
II-16
<PAGE> 109
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule K hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule K hereto.
By: /s/ Donald W. Slager
-----------------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23rd, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager President and Director
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ Doug Borro Director
----------------------------------
Doug Borro
/s/ Jo Lynn White Director
----------------------------------
Jo Lynn White
Director
----------------------------------
Ronald Poland
/s/ James Eng Director
----------------------------------
James Eng
</TABLE>
II-17
<PAGE> 110
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule L hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule L hereto.
By: Allied Waste Landfill Holdings, Inc.
General Partner
By: /s/ James S. Eng
---------------------------------------------
James S. Eng
Attorney-in-fact
On behalf of each
Subsidiary Guarantor listed
on Schedule L hereto.
By: Allied Waste North America, Inc.
General Partner
By: /s/ James S. Eng
---------------------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ James S. Eng Director of Allied Waste Landfill Holdings, Inc.
----------------------------------
James S. Eng
/s/ Donald W. Slager Director of Allied Waste Landfill Holdings, Inc.
----------------------------------
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Director of Allied Waste Landfill Holdings, Inc.
----------------------------------
G. Thomas Rochford, Jr.
</TABLE>
II-18
<PAGE> 111
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Thomas H. Van Weelden Director of Allied Waste North America, Inc.
----------------------------------
Thomas H. Van Weelden
/s/ Thomas H. Van Weelden Director of Allied Waste North America, Inc.
----------------------------------
Henry L. Hirvela
/s/ Steven M. Helm Director of Allied Waste North America, Inc.
----------------------------------
Steven M. Helm
</TABLE>
II-19
<PAGE> 112
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule M hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule M hereto.
By: /s/ Donald W. Slager
------------------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/ G. Thomas Rochford, Jr. Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/ Thomas H. Van Weelden Director, President and Chief Executive Officer of Allied Waste
----------------------------------
Thomas H. Van Weelden North America, Inc. as Managing Member
/s/ Henry L. Hirvela Director, Vice President - Chief Financial Officer of Allied
----------------------------------
Henry L. Hirvela Waste North America, Inc. as Managing Member
/s/ Steven M. Helm Director, Vice President - Legal and Corporate Secretary of Allied
----------------------------------
Steven M. Helm Waste North America, Inc. as Managing Member
</TABLE>
II-20
<PAGE> 113
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule N hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule N hereto.
By: Liberty Waste Services of Illinois, L.L.C
Managing Member
By: Liberty Waste Services Limited, L.L.C
Managing Member
By: American Disposal Services of Illinois, Inc.
Managing Member
By: /s/ Donald W. Slager
---------------------------------------------
Donald W. Slager
Executive Vice President
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager Director and Executive Vice President of American Disposal
----------------------------------
Donald W. Slager Services of Illinois, Inc.
/s/ G. Thomas Rochford, Jr. Director and Treasurer of American Disposal Services of
----------------------------------
G. Thomas Rochford, Jr. Illinois, Inc.
/s/ James S. Eng Director of American Disposal Services of
----------------------------------
James S. Eng Illinois, Inc.
</TABLE>
II-21
<PAGE> 114
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule O hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule O hereto.
By: Draw Enterprises Real Estate, Inc.
General Partner
By: /s/ Donald W. Slager
--------------------------------------------
Donald W. Slager
Executive Vice-President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/ Donald W. Slager Director and Executive Vice President of Draw Enterprises
----------------------------------
Donald W. Slager Real Estate, Inc.
/s/ G. Thomas Rochford, Jr. Director and Treasurer of Draw Enterprises Real Estate, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/ James S. Eng Director of Draw Enterprises Real Estate, Inc.
----------------------------------
James S. Eng
</TABLE>
II-22
<PAGE> 115
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule P hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule P hereto.
By: Liberty Waste Services Limited, L.L.C.
Managing Member
By: American Disposal Services of Illinois, Inc.
Managing Member
By: /s/Donald W. Slager
---------------------------------------------
Donald W. Slager
Executive Vice President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of American Disposal
----------------------------------
Donald W. Slager Services of Illinois, Inc.
/s/G. Thomas Rochford, Jr. Director and Treasurer of American Disposal Services of
----------------------------------
G. Thomas Rochford, Jr. Illinois, Inc.
/s/James S. Eng Director of American Disposal Services of Illinois, Inc.
----------------------------------
James S. Eng
</TABLE>
II-23
<PAGE> 116
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule Q hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule Q hereto.
By: American Disposal Services of Illinois, Inc.
Managing Member
By: /s/Donald W. Slager
-------------------------------------------------
Donald W. Slager
Executive Vice President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of American Disposal
----------------------------------
Donald W. Slager Services of Illinois, Inc.
/s/G. Thomas Rochford, Jr. Director and Treasurer of American Disposal Services of
----------------------------------
G. Thomas Rochford, Jr. Illinois, Inc.
/s/James S. Eng Director of American Disposal Services of Illinois, Inc.
----------------------------------
James S. Eng
</TABLE>
II-24
<PAGE> 117
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule R hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule R hereto.
By: Rabanco Recycling, Inc.
General Partner
By: /s/Donald W. Slager
--------------------------------------------------
Donald W. Slager
Executive Vice-President
By: Paper Fibers, Inc.
General Partner
By: /s/Donald W. Slager
--------------------------------------------------
Donald W. Slager
Executive Vice-President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of Rabanco Recycling, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Rabanco Recycling, Inc.
----------------------------------
G. Thomas Rochford, Jr.
Director of Rabanco Recycling, Inc.
/s/James S. Eng
----------------------------------
James S. Eng
</TABLE>
II-25
<PAGE> 118
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of Paper Fibers, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Paper Fibers, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of Paper Fibers, Inc.
----------------------------------
James S. Eng
</TABLE>
II-26
<PAGE> 119
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule S hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule S hereto.
By: /s/Donald W. Slager
-----------------------------------------
Donald W. Slager
Executive Vice-President
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager President and Director
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/Doug Borro Director
----------------------------------
Doug Borro
/s/Jo Lynn White Director
----------------------------------
Jo Lynn White
Director
----------------------------------
Bob Hawthorne
/s/James Eng Director
----------------------------------
James Eng
</TABLE>
II-27
<PAGE> 120
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule T hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule T hereto.
By: ECDC Holdings, Inc.
Managing Member
By: /s/Donald W. Slager
-------------------------------------------------
Donald W. Slager
Executive Vice-President
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice-President of ECDC Holdings, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of ECDC Holdings, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of ECDC Holdings, Inc.
----------------------------------
James S. Eng
</TABLE>
II-28
<PAGE> 121
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule U hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule U hereto.
By: Allied Waste Systems, Inc.
Managing Member
By: /s/Donald W. Slager
-------------------------------------------------
Donald W. Slager
President
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and President of Allied Waste Systems, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Allied Waste Systems, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of Allied Waste Systems, Inc.
----------------------------------
James. S. Eng
</TABLE>
II-29
<PAGE> 122
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule V hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule V hereto.
By: Rabanco Recycling, Inc.
Managing General Partner
By: /s/Donald W. Slager
---------------------------------------------------
Donald W. Slager
Executive Vice-President
By: Rabanco, Ltd.
By: /s/Donald W. Slager
---------------------------------------------------
Donald W. Slager
Executive Vice-President
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of Rabanco Recycling, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Rabanco Recycling, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of Rabanco Recycling, Inc.
----------------------------------
James S. Eng
/s/Donald W. Slager Director and Executive Vice President of Rabanco, Ltd.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Rabanco, Ltd.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of Rabanco, Ltd.
----------------------------------
James S. Eng
</TABLE>
II-30
<PAGE> 123
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule W hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule W hereto.
By: United Waste Control Corp.
Managing General Partner
By: /s/Donald W. Slager
----------------------------------------------
Donald W. Slager
Executive Vice-President
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of United Waste
----------------------------------
Donald W. Slager Control Corp.
/s/G. Thomas Rochford, Jr. Director and Treasurer of United Waste Control Corp.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of United Waste Control Corp.
----------------------------------
James S. Eng
</TABLE>
II-31
<PAGE> 124
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule X hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule X hereto.
By: Paper Fibres Company
General Partner
By: Rabanco Recycling, Inc.
General Partner
By: /s/Donald W. Slager
-------------------------------------------------
Donald W. Slager
Executive Vice-President
By: Paper Fibers, Inc.
General Partner
By: /s/Donald W. Slager
------------------------------------------------
Donald W. Slager
Executive Vice-President
By: CCAI, Inc.
General Partner
By: /s/Donald W. Slager
------------------------------------------------
Donald W. Slager
Executive Vice-President
By: SSWI, Inc.
General Partner
By: /s/Donald W. Slager
------------------------------------------------
Donald W. Slager
Executive Vice-President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
II-32
<PAGE> 125
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice-President of Rabanco Recycling, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Rabanco Recycling, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of Rabanco Recycling, Inc.
----------------------------------
James S. Eng
/s/Donald W. Slager Director and Executive Vice-President of Paper Fibers, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of Paper Fibers, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of Paper Fibers, Inc.
----------------------------------
James S. Eng
/s/Donald W. Slager Director and Executive Vice-President of CCAI, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of CCAI, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of CCAI, Inc.
----------------------------------
James S. Eng
/s/Donald W. Slager Director and Executive Vice-President of SSWI, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer of SSWI, Inc.
----------------------------------
G. Thomas Rochford, Jr.
/s/James S. Eng Director of SSWI, Inc.
----------------------------------
James S. Eng
</TABLE>
II-33
<PAGE> 126
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule Y hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule Y hereto.
By: WJR Environmental, Inc.
Managing General Partner
By: /s/Donald W. Slager
--------------------------------------------
Donald W. Slager
President
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Vice-President of WJR Environmental, Inc.
----------------------------------
Donald W. Slager
/s/G. Thomas Rochford, Jr. Director and Treasurer or WJR Environmental, Inc.
----------------------------------
G. Thomas Rochford, Jr.
James S. Eng Director of WJR Environmental, Inc.
----------------------------------
James S. Eng
</TABLE>
II-34
<PAGE> 127
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule Z hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule Z hereto.
By: /s/Donald W. Slager
-----------------------------------------
Donald W. Slager
President
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/James Eng Director
----------------------------------
James S. Eng
/s/Peter S. Hathaway
----------------------------------
Peter S. Hathaway Director
/s/Steven M. Helm
----------------------------------
Steven M. Helm Director
----------------------------------
Edward S. Contant Director
</TABLE>
II-35
<PAGE> 128
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule AA hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule AA hereto.
By: /s/Michael Stone
-------------------------------------------
Michael Stone
President and Sole Director
II-36
<PAGE> 129
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule BB hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule BB hereto.
By: /s/Donald W. Slager
--------------------------------------------
Donald W. Slager
Vice President
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President
----------------------------------
Donald W. Slager (Principal Executive Officer)
/s/G. Thomas Rochford, Jr. Director and Treasurer
----------------------------------
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/James S. Eng Director
----------------------------------
James S. Eng
----------------------------------
Steve Forney Director
</TABLE>
II-37
<PAGE> 130
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule CC hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule CC hereto.
By: /s/Roger A. Ramsey
-------------------------------------------
Roger A. Ramsey
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr. and each of them (with full power to act alone), as attorney and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Roger A. Ramsey Director and Executive Vice President
----------------------------------
Roger A. Ramsey (Principal Executive Officer)
/s/Henry L. Hirvela Director and Vice President- Finance
----------------------------------
Henry L. Hirvela (Principal Financial Officer and Principal Accounting Officer)
/s/Thomas H. Van Weelden Director
----------------------------------
Thomas H. Van Weelden
</TABLE>
II-38
<PAGE> 131
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule DD hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-4 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 23rd day of November, 1999.
On behalf of each
Subsidiary Guarantor listed
on Schedule DD hereto.
By: Allied Waste North America, Inc.
General Partner
By: /s/Donald W. Slager
--------------------------------------------------
Donald W. Slager
Executive Vice-President
By: Browning-Ferrris Industries of Tennessee, Inc.
General Partner
By: /s/Donald W. Slager
--------------------------------------------------
Donald W. Slager
Executive Vice-President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Thomas H. Van Weelden Director, President and Chief Executive Officer of Allied Waste
---------------------------------- North America, Inc.
Thomas H. Van Weelden (Principal Executive Officer)
/s/Henry L. Hirvela Director, Vice President and Chief Financial Officer of Allied
---------------------------------- Waste North America, Inc.
Henry L. Hirvela (Principal Financial Officer)
/s/James S. Eng Corporation Controller of Allied Waste North America, Inc.
----------------------------------
James S. Eng (Principal Accounting Officer)
</TABLE>
II-39
<PAGE> 132
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Steven M. Helm Director, Vice President-Legal and Corporate Secretary of Allied
---------------------------------- Waste North America, Inc.
Steven M. Helm
</TABLE>
POWER OF ATTORNEY
Each of the undersigned hereby appoints Donald W. Slager, G. Thomas
Rochford, Jr., James S. Eng and each of them (with full power to act alone), as
attorney and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Commission under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
---------------------------------- -----------------------------------------------------------------
<S> <C>
/s/Donald W. Slager Director and Executive Vice President of Browning-Ferrris
---------------------------------- Industries of Tennessee, Inc.
Donald W. Slager (Principal Executive Officer)
/s/G. Thomas Rochford, Jr. Director and Treasurer of Browning-Ferrris Industries of
---------------------------------- Tennessee, Inc.
G. Thomas Rochford, Jr. (Principal Financial Officer and Principal Accounting Officer)
/s/James S. Eng Director of Browning-Ferris Industries of Tennessee, Inc.
----------------------------------
James S. Eng
</TABLE>
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<PAGE> 133
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------------------------
<S> <C>
*3.1 Amended Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 to the
Company's Report on Form 10-K for the fiscal year ended
December 31, 1996).
*3.2 Amended and Restated Bylaws of the Company as of May 13, 1997.
Exhibit 3.2 to the Company's Report on Form 10-Q for the
quarter ended June 30, 1997 is incorporated herein by
reference.
*3.3 Amendment to Amended Certificate of Incorporation of the
Company dated October 15, 1998. Exhibit 3.4 to the Company's
Report on Form 10-Q for the quarter ended September 30, 1998 is
incorporated herein by reference.
**4.1 Indenture relating to the 10% Senior Subordinated Notes due
2009, dated as of July 30, 1999, by and among the Company and
U.S. Bank Trust National Association, as Trustee, with respect
to the Notes and Exchange Notes.
**4.2 Series Supplement Indenture relating to the 10% Senior
Subordinated Notes due 2009, dated July 30, 1999 (Incorporated
by Reference to Exhibit 4.1 to Allied's Form 8-K dated
September 14, 1999).
**4.3 Form of 10% Series B Senior Subordinated Notes due 2009
(included in Exhibit 4.2).
***5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson, as to the
legality of the securities, dated November , 1999.
*10.1 Registration Rights Agreement, dated as of July 30, 1999, by
and among the Company, the Guarantors and the initial
purchasers, relating to the $2 billion 10% Senior Subordinated
Notes due 2009. Exhibit 10.3 to Allied's Current Report on Form
8-K dated August 10, 1999 is incorporated herein by reference.
*10.2 Purchase Agreement dated December 14, 1998, by and among the
Company, the Guarantors and the initial purchasers, with
respect to the $2 billion 10% Senior Subordinated Notes due
2009. Exhibit 10.4 to Allied's Registration Statement on Form
S-4 (No. 333-70709) is incorporated herein by reference.
*12.1 Ratio of earnings to fixed charges. (Incorporated by Reference
to Exhibit 12 to Allied's Form 10-Q dated September 30, 1999).
***23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included
in Exhibit 5.1).
**23.2 Consent of Arthur Andersen LLP, Houston.
**23.3 Consent of Arthur Andersen, Phoenix.
**24.1 Powers of Attorney (included in the signature pages to this
Registration Statement).
**25.1 Statement of Eligibility and Qualification of Trustee on
Form T-1 of U.S. Bank Trust National Association under the
Trust Indenture Act of 1939.
***99.1 Letter of Transmittal, with respect to old notes and Exchange
Notes.
***99.2 Notice of Guaranteed Delivery, with respect to old notes and
Exchange Notes.
***99.3 Instructions to Registered Holders from Beneficial Owners, with
respect to the old notes and Exchange Notes.
***99.4 Letter to Registered Holders.
***99.5 Letter to Our Clients.
</TABLE>
- ---------------
* Previously Filed.
** Filed Herewith.
*** To be filed by amendment.
<PAGE> 1
Exhibit 4.1
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
SUBORDINATED INDENTURE
Dated as of July 30, 1999
Providing for Issuance of
Senior Subordinated Debt Securities in Series
<PAGE> 2
Reconciliation and tie between Subordinated Indenture, dated
as of July 30, 1999 (the "Indenture") and the Trust Indenture Act of 1939, as
amended.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
- -------------------------------------------------------------------------------
<S> <C>
310(a)(1) ............................................... 6.9
(a)(2) .................................................. 6.9
(a)(3) .................................................. TIA
(a)(4) .................................................. Not Applicable
(a)(5) .................................................. TIA
(b) ..................................................... 6.8; 6.10; TIA
311(a) .................................................. TIA
(b) ..................................................... TIA
312(a) .................................................. 10.1
(b) ..................................................... TIA
(c) ..................................................... TIA
313(a) .................................................. 10.3; TIA
(b) ..................................................... TIA
(c) ..................................................... TIA
(d) ..................................................... TIA
314(a) .................................................. 10.4; TIA
(b) ..................................................... Not Applicable
(c)(1) .................................................. 1.2
(c)(2) .................................................. 1.2
(c)(3) .................................................. Not Applicable
(d) ..................................................... Not Applicable
(e) ..................................................... TIA
(f) ..................................................... TIA
315(a) .................................................. 6.1
(b) ..................................................... 6.2
(c) ..................................................... 6.1
(d)(1) .................................................. TIA
(d)(2) .................................................. TIA
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
(d)(3) .................................................. TIA
(e) ..................................................... TIA
316(a)(last sentence) ................................... 1.1
(a)(1)(A) ............................................... 5.2; 5.8
(a)(1)(B) ............................................... 5.7
(b) ..................................................... 5.9; 5.10
(c) ..................................................... TIA
317(a)(1) ............................................... 5.3
(a)(2) .................................................. 5.4
(b) ..................................................... 9.3
318(a) .................................................. 1.12
(b) ..................................................... TIA
(c) ..................................................... 1.12; TIA
</TABLE>
- ----------------
This reconciliation and tie section does not constitute part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Recitals .......................................................................................... 1
ARTICLE 1 Definitions and Other Provisions of General Application ............................... 2
Section 1.1. Definitions ............................................................... 2
Section 1.2. Compliance Certificates and Opinions ...................................... 15
Section 1.3. Form of Documents Delivered to Trustee .................................... 16
Section 1.4. Acts of Holders ........................................................... 17
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors ......................... 19
Section 1.6. Notice to Holders; Waiver ................................................. 19
Section 1.7. Headings and Table of Contents ............................................ 20
Section 1.8. Successors and Assigns .................................................... 20
Section 1.9. Separability .............................................................. 21
Section 1.10. Benefits of Indenture ..................................................... 21
Section 1.11. Incorporators, Officers and Directors of the Company
Exempt from Individual Liability ........................................ 21
Section 1.12. Governing Law; Conflict with Trust Indenture Act ......................... 21
Section 1.13. Legal Holidays ........................................................... 22
Section 1.14. Moneys of Different Currencies to Be Segregated .......................... 22
Section 1.15. Independence of Agreements ............................................... 22
Section 1.16. Counterparts ............................................................. 22
ARTICLE 2 Security and Subordinated Guarantee Forms ............................................. 23
Section 2.1. Forms Generally ........................................................... 23
Section 2.2. Form of Trustee's Certificate of Authentication ........................... 23
Section 2.3. Form of Subordinated Guarantee ............................................ 24
Section 2.4. Global Securities ......................................................... 28
Section 2.5. Form of Legend for Global Securities ...................................... 29
ARTICLE 3 The Securities ........................................................................ 29
Section 3.1. Amount Unlimited; Issuable in Series ...................................... 29
Section 3.2. Denominations ............................................................. 34
Section 3.3. Execution, Authentication, Delivery and Dating ............................ 34
Section 3.4. Temporary Securities ...................................................... 38
Section 3.5. Registration, Transfer and Exchange ....................................... 39
Section 3.6. Replacement Securities .................................................... 43
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
Section 3.7. Payment of Interest; Interest Rights Preserved ............................ 44
Section 3.8. Persons Deemed Owners ..................................................... 47
Section 3.9. Cancellation .............................................................. 48
Section 3.10. Computation of Interest ................................................... 48
Section 3.11. CUSIP Numbers ............................................................. 48
Section 3.12. Currency and Manner of Payment in Respect of Securities ................... 49
ARTICLE 4 Satisfaction, Discharge and Defeasance ................................................ 49
Section 4.1. Termination of Company's Obligations Under the Indenture .................. 49
Section 4.2. Application of Trust Funds ................................................ 51
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Agreement Defeasance ................................... 51
Section 4.4. Defeasance and Discharge .................................................. 51
Section 4.5. Agreement Defeasance ...................................................... 52
Section 4.6. Conditions to Defeasance or Agreement Defeasance .......................... 53
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust ............ 55
Section 4.8. Repayment to Company ...................................................... 55
Section 4.9. Indemnity for Government Obligations ...................................... 55
Section 4.10. Reinstatement ............................................................. 56
ARTICLE 5 Defaults and Remedies ................................................................. 56
Section 5.1. Events of Default ......................................................... 56
Section 5.2. Acceleration; Rescission and Annulment .................................... 58
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee ........... 60
Section 5.4. Trustee May File Proofs of Claim .......................................... 60
Section 5.5. Trustee May Enforce Claims Without Possession of Securities ............... 61
Section 5.6. Delay or Omission Not Waiver .............................................. 61
Section 5.7. Waiver of Past Defaults ................................................... 61
Section 5.8. Control by Majority ....................................................... 62
Section 5.9. Limitation on Suits by Holders ............................................ 62
Section 5.10. Rights of Holders to Receive Payment ...................................... 63
Section 5.11. Application of Money Collected ............................................ 63
Section 5.12. Restoration of Rights and Remedies ........................................ 64
Section 5.13. Rights and Remedies Cumulative ............................................ 64
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<S> <C>
Section 5.14. Undertaking for Costs ..................................................... 64
Section 5.15. Waiver of Stay, Extension or Usury Laws ................................... 65
ARTICLE 6 The Trustee ........................................................................... 65
Section 6.1. Certain Duties and Responsibilities ....................................... 65
Section 6.2. Notice of Defaults ........................................................ 66
Section 6.3. Certain Rights of Trustee ................................................. 66
Section 6.4. Not Responsible for Recitals or Issuance of Securities. ................... 67
Section 6.5. May Hold Securities. ...................................................... 67
Section 6.6. Money Held in Trust. ...................................................... 67
Section 6.7. Compensation and Reimbursement. ........................................... 68
Section 6.8. Conflicting Interests. .................................................... 68
Section 6.9. Corporate Trustee Required; Eligibility. .................................. 69
Section 6.10. Resignation and Removal; Appointment of Successor. ........................ 69
Section 6.11. Acceptance of Appointment by Successor. ................................... 70
Section 6.12. Merger, Conversion, Consolidation or Succession to Business. .............. 72
Section 6.13. Preferential Collection of Claims Against Company. ........................ 72
Section 6.14. Appointment of Authenticating Agent. ...................................... 72
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company ................................ 74
Section 7.1. Consolidation, Merger or Sale of Assets Permitted ......................... 74
Section 7.2. Successor Substituted ..................................................... 75
ARTICLE 8 Supplemental Indentures ............................................................... 75
Section 8.1. Supplemental Indentures Without Consent of Holders ........................ 75
Section 8.2. Supplemental Indentures With Consent of Holders ........................... 77
Section 8.3. Compliance with Trust Indenture Act ....................................... 78
Section 8.4. Execution of Supplemental Indentures ...................................... 78
Section 8.5. Effect of Supplemental Indentures ......................................... 79
Section 8.6. Reference in Securities to Supplemental Indentures ........................ 79
Section 8.7. Notice of Supplemental Indentures ......................................... 79
ARTICLE 9 Agreements ............................................................................ 79
Section 9.1. Payment of Principal, Premium, if any, and Interest ....................... 79
Section 9.2. Maintenance of Office or Agency ........................................... 80
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money ........ 81
Section 9.4. Corporate Existence ....................................................... 83
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
Section 9.5. Annual Review Certificate ................................................. 83
Section 9.6. Maintenance of Properties ................................................. 83
Section 9.7. Payments of Taxes and Other Claims ........................................ 83
Section 9.8. Waiver of Certain Agreements .............................................. 84
ARTICLE 10 Holders' Lists and Reports by Trustee and Company .................................... 84
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders ................ 84
Section 10.2. Preservation of Information, Communications to Holders ................... 85
Section 10.3. Reports by Trustee ....................................................... 85
Section 10.4. Reports by the Company and the Guarantors ................................ 85
ARTICLE 11 Redemption ........................................................................... 86
Section 11.1. Applicability of Article ................................................. 86
Section 11.2. Election to Redeem; Notice to Trustee .................................... 86
Section 11.3. Selection of Securities to Be Redeemed ................................... 86
Section 11.4. Notice of Redemption ..................................................... 87
Section 11.5. Deposit of Redemption Price .............................................. 88
Section 11.6. Securities Payable on Redemption Date .................................... 89
Section 11.7. Securities Redeemed in Part .............................................. 90
ARTICLE 12 Sinking Funds ........................................................................ 90
Section 12.1. Applicability of Article ................................................. 90
Section 12.2. Satisfaction of Sinking Fund Payments with Securities .................... 90
Section 12.3. Redemption of Securities for Sinking Fund ................................ 91
ARTICLE 13 Meetings of Holders of Securities .................................................... 91
Section 13.1. Purposes for Which Meetings May Be Called ................................ 91
Section 13.2. Call, Notice and Place of Meetings ....................................... 92
Section 13.3. Persons Entitled to Vote at Meetings ..................................... 92
Section 13.4. Quorum; Action ........................................................... 92
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings ...... 94
Section 13.6. Counting Votes and Recording Action of Meetings .......................... 94
ARTICLE 14 Conversion or Exchange of Securities ................................................. 95
Section 14.1. Applicability of Article ................................................. 95
</TABLE>
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<PAGE> 8
<TABLE>
<S> <C>
Section 14.2. Exercise of Conversion or Exchange Privilege ............................. 95
Section 14.3. No Fractional Equity Securities .......................................... 97
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger ...... 97
Section 14.5. Notice of Certain Corporate Actions ...................................... 98
Section 14.6. Reservation of Equity Securities ......................................... 99
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange ..................... 99
Section 14.8. Duties of Trustee Regarding Conversion or Exchange ....................... 100
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange ................... 100
ARTICLE 15 Subordination of Securities and Subordinated Guarantees .............................. 101
Section 15.1. Securities Subordinate to Senior Debt .................................... 101
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc. .......................... 101
Section 15.3. No Payment When Senior Debt in Default ................................... 103
Section 15.4. Certain Payments Permitted ............................................... 105
Section 15.5. Subrogation to Rights of Holders of Senior Debt .......................... 106
Section 15.6. Provisions Solely to Define Relative Rights .............................. 106
Section 15.7. Trustee to Effectuate Subordination ...................................... 106
Section 15.8. No Waiver of Subordination Provisions .................................... 107
Section 15.9. Notice to Trustee ........................................................ 107
Section 15.10. Reliance on Judicial Order or Certificate of Liquidating Agent .......... 108
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt ........................ 108
Section 15.12. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights ............................................................... 108
Section 15.13. Article Applicable to Paying Agents ..................................... 109
Section 15.14. Defeasance of this Article 15 ........................................... 109
ARTICLE 16 Subordinated Guarantee ................................................................. 109
Section 16.1. Subordinated Guarantee ................................................... 109
Section 16.2. Execution and Delivery of Subordinated Guarantees ........................ 112
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms ............ 113
Section 16.4. Release of Guarantors .................................................... 113
Section 16.5. Additional Guarantors .................................................... 114
ARTICLE 17 Jurisdiction and Consent to Service of Process ...................................... 114
Section 17.1. Jurisdiction and Consent to Service of Process ............................. 114
</TABLE>
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<PAGE> 9
SENIOR SUBORDINATED INDENTURE (the "Indenture"), dated as of
July 30, 1999, among ALLIED WASTE NORTH AMERICA, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
having its principal office at 15880 North Greenway - Hayden Loop, Suite 100,
Scottsdale, Arizona 85260, each of the GUARANTORS (as hereinafter defined) and
U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee
(the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured senior subordinated debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as herein
provided.
Allied (as defined herein) owns beneficially and of record
100% of the Capital Stock of the Company; the Company, directly or indirectly,
owns beneficially and of record 100% of the Capital Stock or other ownership
interests, as the case may be, of each Subsidiary Guarantor; Allied, the Company
and the Subsidiary Guarantors are members of the same consolidated group of
companies and are engaged in related businesses and the Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities.
Accordingly, each of the Guarantors has duly authorized the execution and
delivery of this Indenture to provide for its Subordinated Guarantees with
respect to the Securities as set forth in this Indenture.
All things necessary (i) to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Subordinated
Guarantees of each of the Guarantors, when executed by the respective Guarantors
and endorsed on the Securities executed, authenticated and delivered hereunder,
the valid obligations of the respective Guarantors, and (iii) to make this
Indenture a valid agreement of the Company and of each of the Guarantors, all in
accordance with their respective terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
-1-
<PAGE> 10
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
senior subordinated basis, by Allied of the due and punctual payment of
principal of, premium, if any, and interest on the Securities, as provided
pursuant to Article 16.
"Allied Subsidiary Guarantee" means the unconditional
guarantee, on a senior subordinated basis, by Allied of each of the Subsidiary
Guarantors' obligations under the Subsidiary Guarantees.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the
-2-
<PAGE> 11
Depositary for such Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such Guarantor, as
the case may be, or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors of the
Company.
"Board Resolution" of the Company or any Guarantor means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by its
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as otherwise expressly
provided or unless the context otherwise requires, each reference herein to a
"Board Resolution" shall mean a Board Resolution of the Company.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"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 by 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
-3-
<PAGE> 12
capitalized amount thereof that would appear on a balance sheet of such Person
in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents, however designated, of corporate
stock or other equity participations, including partnership interests, whether
general or limited, of such Person.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100 Wall
Street, 20th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
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"corporation" shall mean a corporation, association,
joint-stock company or business trust.
"Credit Agreement" means the Credit Agreement, dated as of
July 21, 1999, among Allied Waste Industries, Inc., Allied Waste North America
Inc., the Lenders party thereto, The Chase Manhattan Bank, as Administrative
Agent, Collateral Agent and Collateral Trustee, Citicorp USA, Inc., as
syndication agent, and Credit Suisse First Boston and DLJ Capital Funding, Inc.,
as documentation agents, providing for the bank financing commitments totaling
$9.5 billion, consisting of $7.0 billion of senior secured facilities and $2.5
billion of senior subordinated facilities.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such series.
"Depositary", when used with respect to any Global Securities
means the Person designated as Depositary by the Company pursuant to Section
3.1(b) until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or include
each Person which is then a Depositary hereunder, and if at any time there is
more than one such Person, shall be a collective reference to such Persons.
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"Designated Senior Debt" means (i) any Indebtedness
outstanding under the Credit Agreement; and (ii) after payment in full of all
Obligations under the Credit Agreement, any other Senior Debt permitted under
the Indenture the principal amount of which is $100.0 million or more and that
has been designated by Allied as "Designated Senior Debt."
"Domestic Subsidiary" means a Restricted Subsidiary organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal of, premium, if any, and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" shall have the meaning set forth in Section
2.3.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "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
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<PAGE> 15
the payment of such Debt, (ii) to purchase property, securities or services for
the purpose of assuring the holder of such Debt of the payment of such Debt or
(iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt (and "Guaranteed" and "Guaranteeing" shall have
meanings correlative to the foregoing); provided, however, that the Guaranty by
any Person shall not include endorsements by such Person for collection or
deposit, in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person.
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the preceding. Notwithstanding the foregoing the Debt of any
other Person becoming a Restricted Subsidiary of such Person will be deemed for
this purpose to have been Incurred by such Person at the time such other Person
becomes a Restricted Subsidiary of such Person; provided, further, that a change
in generally accepted accounting principles that results in an obligation of
such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
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"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).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading -- Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
other section of The Wall Street Journal in which foreign currency exchange
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-Guarantor Foreign Subsidiary" means any Restricted
Subsidiary that is not a Domestic Subsidiary.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor
means a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or such
Guarantor, as the case may be, and delivered to the Trustee. Unless the context
otherwise requires, each reference herein to an "Officers' Certificate" shall
mean an Officers' Certificate of the Company. References
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<PAGE> 17
herein, or in any Security or Subordinated Guarantee, to any officer of a
Guarantor or other Person that is a partnership shall mean such officer of the
partnership or, if none, of a general partner of the partnership authorized
thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company or any
Guarantor) in trust or set aside and segregated in trust by the Company
or a Guarantor (if the Company or a Guarantor, as the case may be,
shall act as a Paying Agent) for the Holders of such Securities and any
interest coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to
the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance
and/or agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations
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required by Section 313 of the Trust Indenture Act, (w) the principal amount of
any Original Issue Discount Securities that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Certificate, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (w) above) of such Security, (y) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 3.1,
and (z) Securities owned by the Company, any Guarantor or any other obligor upon
the Securities or any Affiliate of the Company, of any Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, any Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, of any Guarantor or
of such other obligor.
"Parent Guarantor" means Allied.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Permitted Junior Securities" means (i) Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is
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convertible into, or exchangeable for, Capital Stock) of Allied or any
Guarantor; or (ii) debt securities of Allied or any Guarantor that are
subordinated to all Senior Debt (and any debt securities issued in exchange for
Senior Debt) to substantially the same extent as, or to a greater extent than,
the Securities are subordinated to Senior Debt pursuant to Article 15 of this
Indenture.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that: (i) by its terms, (ii) by
the terms of any security into which it is convertible or for which it is
exchangeable, or (iii) otherwise (including upon the occurrence of an event)
matures or is required to be redeemed, pursuant to any sinking fund obligation
or otherwise, or is convertible into or exchangeable for Debt or is redeemable
at the option of the holder thereof, in whole or in part, at any time prior to
the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
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"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Senior Debt" means (i) with respect to the Company, Debt
created pursuant to the Credit Agreement, (ii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, as the case may be, (a)
every obligation of such Person for money borrowed, (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (v) every Capital Lease Obligation of such
Person and (d) every net payment obligation of such Person under interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements at the time of determination, whether Incurred on or prior to the
date hereof or thereafter Incurred, (iii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, Guarantees by such person
of Senior Debt and (iv) amendments, modifications, renewals, extensions,
refinancings and refundings of any such Debt; provided, however, the following
shall not constitute Senior Debt: (A) any Debt owed to a Person when such Person
is a Subsidiary of the Company, (B) any Debt which by the terms of the
instrument creating or evidencing the same is pari passu or subordinate in right
of payment to the Securities, (C) any Debt Incurred in violation of this
Indenture or (D) any Debt which is subordinate in right of payment in any
respect to any other Debt of the Company. For purposes of this definition,
"Debt" includes any obligation to pay principal, premium, if any, interest,
penalties, reimbursement or indemnity amounts, fees and expenses (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for post-petition
interest is allowed in such proceeding).
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"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subordinated Guarantees" means the Allied Guarantee, the
Subsidiary Guarantees and the Allied Subsidiary Guarantee.
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof, (ii) a partnership of which such Person, or 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 (iii) 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 affair thereof.
"Subsidiary Guarantees" means the unconditional guarantees on
a senior subordinated basis by the respective Subsidiary Guarantors of the due
and punctual payment of principal of, premium, if any, and interest on the
Securities, as provided pursuant to Article 16.
"Subsidiary Guarantors", as of any time, means, in respect of
a series of Securities, each and all of the Restricted Subsidiaries at such
time, other than Reliant Insurance Company and Indemnity Corporation, Global
Indemnity Assurance, Commercial Reassurance Limited and the Non-Guarantor
Foreign Subsidiaries, which Subsidiary Guarantors as of the date of this
Indenture are set forth in Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more
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<PAGE> 22
than one Trustee, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, and that in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the holder
of such depository receipt. Notwithstanding the foregoing, such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depository receipt.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not designated by
a number or a word or words added before or after the title "Vice President."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
the Company or by one or more Wholly Owned Restricted Subsidiaries or by the
Company and one or more Wholly Owned Restricted Subsidiaries.
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<PAGE> 23
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"Company Payment
Blockage Period" 15.3
"Company Proceeding" 15.2
"Company Securities Payment" 15.2
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"Guarantor Payment
Blockage Period" 15.3
"Guarantor Proceeding" 15.2
"Guarantor Securities Payment" 15.2
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Proceeding" 15.2
"Register" 3.5
"Registrar" 3.5
"Securities Payment" 15.2
"Senior Nonmonetary Default" 15.3
"Senior Payment Default" 15.3
</TABLE>
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or agreement provided for in this Indenture (other than pursuant to
Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or agreement and the definitions
herein relating thereto;
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<PAGE> 24
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such condition or agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
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<PAGE> 25
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the second paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are received (either physically or,
if the Securities are held through the facilities of a Depositary, by means of a
facsimile or an electronic transmission, provided, in the case of an electronic
transmission, that it is transmitted through the facilities of a Depositary) by
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at such meeting. The Company
and the Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time that
the action to which such Act relates has become effective. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such trust company,
bank, banker or other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such
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<PAGE> 26
ownership of any Bearer Security continues until (i) another such certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, (ii) such Bearer Security is produced to the Trustee by some other
Person, (iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
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Section 1.5. Notices, Etc., to Trustee, Company and
Guarantors. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or at
any other address previously furnished in writing to the Holders or the
Company by the Trustee, or, with respect to notices by the Company,
transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (612) 244-0711 or
to any other facsimile number previously furnished in writing to the
Company by the Trustee, or
(b) the Company or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to it addressed to it at the address of
the Company's principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company or, with respect to notices by the Trustee,
transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (602) 423-9424 or
to any other facsimile number previously furnished in writing to the
Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice
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mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their respective successors and assigns,
whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the Subordinated Guarantees shall 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 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities or the Subordinated Guarantees, expressed or implied, shall
give to any Person, other than the parties hereto, any Registrar, any Paying
Agent and their successors hereunder, and the Holders and the holders of Senior
Debt, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability. No recourse under or upon any
obligation or agreement of or contained in this Indenture or of or contained in
any Security or interest coupon appertaining thereto, or for any claim based
thereon or otherwise in respect
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thereof, or because of any indebtedness represented thereby, shall be had
against any incorporator, officer or director, as such, past, present or future,
of the Company or any successor Person, either directly or through the Company
or any successor Person, whether by virtue of any constitution, statute or rule
of law, by the enforcement of any assessment or penalty, by any legal or
equitable proceeding or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of the
acceptance of, and as a part of the consideration for the execution of this
Indenture and the issuance of, the Securities and any interest coupons
appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture
Act. THIS INDENTURE, THE SECURITIES, THE SUBORDINATED GUARANTEES ENDORSED
THEREON AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE DEEMED TO BE
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE. This
Indenture is subject to the Trust Indenture Act and if and to the extent that
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon or any Subordinated Guarantee other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal, premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, if such amount is so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any
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other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
Section 1.15. Independence of Agreements. All agreements in
this Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any such agreement, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
agreement shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
Section 1.16. Counterparts. This 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.
ARTICLE 2
SECURITY AND SUBORDINATED GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto and the Subordinated
Guarantees to be endorsed thereon shall be in substantially such form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any applicable securities exchange, organizational document,
governing instrument or law or as may, consistently herewith, be determined by
the officers executing such Securities and interest coupons, if any, or
Subordinated Guarantees to be endorsed thereon, as the case may be, as evidenced
by their execution of the Securities and interest coupons, if any, or
Subordinated Guarantees to be endorsed thereon, as the case may be. If temporary
Securities and Subordinated Guarantees of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and interest coupons, if any, and
Subordinated Guarantees of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or interest coupons, if any, and Subordinated
Guarantees shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery of
such Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other
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manner (or, if such Securities are listed on any securities exchange, any other
manner permitted by the rules of such securities exchange), all as determined by
the officers executing such Securities and interest coupons, if any, as
evidenced by their execution of such Securities and interest coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities with the Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------------
Authorized Signatory
Section 2.3. Form of Subordinated Guarantee
SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed
herein to be named) below hereby jointly and severally unconditionally
guarantees, on a subordinated basis to the Holder of the Security upon which
this Subordinated Guarantee is endorsed, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of, premium, if any, and
interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by acceleration, call for redemption, purchase
or otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of the Company punctually to make any such
payment, each of the Guarantors hereby jointly and severally agrees to cause
such payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, and as if such payment were made by the Company. Further,
in case of the failure of any Subsidiary Guarantor punctually to make any
payment required of it hereunder, Allied agrees to cause such payment to be made
when and as the same shall become due and payable, as if such payment were made
by such Subsidiary Guarantor.
The Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
Each of the Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or the Indenture, the
absence of any action to enforce the
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same, any creation, exchange, release or non-perfection of any Lien on any
collateral for, or any release or amendment or waiver of any term of any other
Guarantee of, or any consent to departure from any requirement of any other
Guarantee of, all or of any of the Securities, the election by the Trustee or
any of the Holders in any proceeding under Chapter 11 of the Bankruptcy Code of
the application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or
grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the Trustee or any of
the Holders for payment of any of the Securities, any waiver or consent by the
Holder of such Security or by the Trustee or either of them with respect to any
provisions of such security or of the Indenture, the obtaining of any judgment
against the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each of the Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other Lien on any property subject thereto or exhaust any right or take any
action against the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantor) or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company (or,
with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor), any
right to require a proceeding first against the Company (or, with respect to the
Allied Subsidiary Guarantee, any Subsidiary Guarantor), protest or notice with
respect to such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees) or the indebtedness evidenced thereby and all demands
whatsoever, and agrees that this Subordinated Guarantee will not be discharged
except by complete performance of the obligations contained in such Security
(or, with respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees)
and in this Subordinated Guarantee. Each of the Guarantors hereby agrees that,
in the event of a default in payment of principal of, premium, if any, or
interest on such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees), whether at its Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees), subject
to the terms and conditions set forth in the Indenture, directly against each or
any of the Guarantors (or, with respect to the Allied Subsidiary Guarantee,
against Allied) to enforce this Subordinated Guarantee without first proceeding
against the Company (or, with respect to the Allied Subsidiary Guarantee,
against any Subsidiary Guarantor). Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities or to enforce or exercise any other right or remedy with respect to
the Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce
or
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<PAGE> 33
exercise the Subsidiary Guarantees), or the Trustee or the Holders are prevented
from taking any action to realize on any collateral, such Guarantor agrees to
pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this
Subordinated Guarantee or of the Indenture shall alter or impair (i) the
Subordinated Guarantee of any Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal of, premium, if any, and interest
on the Security upon which this Subordinated Guarantee is endorsed, or (ii) the
Allied Subsidiary Guarantee, which is absolute and unconditional, of the due and
punctual performance by the Subsidiary Guarantors of their obligations under the
Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holder
of such Security against the Company (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor) in respect of any amounts paid by such
Guarantor on account of such Security (or, with respect to the Allied Subsidiary
Guarantee, on account of the Subsidiary Guarantees) pursuant to the provisions
of its Subordinated Guarantee or the Indenture; provided, however, that such
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of,
premium, if any, and interest on this Security and all other Securities issued
under the Indenture shall have been paid in full.
This Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) for liquidation or reorganization, should the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets (or, with respect to the Allied Subsidiary Guarantee, the
assets of any Subsidiary Guarantors), and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantee) is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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<PAGE> 34
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released
from this Subordinated Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the Holder
of the Security upon which this Subsidiary Guarantee is endorsed, and Allied
will be deemed to have guaranteed the Subsidiary Guarantee of such Person with
the same effect as if such Subsidiary Guarantor was named below and had executed
and delivered this Subsidiary Guarantee.
All terms used in this Subordinated Guarantee which are
defined in the Indenture referred to in the Security upon which this
Subordinated Guarantee is endorsed shall have the meanings assigned to them in
such Indenture.
This Subordinated Guarantee shall not be valid or obligatory
for any purpose until the certificate of authentication on the Security upon
which this Subordinated Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by manual signature.
Reference is made to Article Sixteen of the Indenture for
further provisions with respect to this Subordinated Guarantee.
THIS SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Guarantors has caused this
Subordinated Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor of the Securities and as Guarantor of
the obligations of the Subsidiary Guarantors under
the Subsidiary Guarantees
By: _________________________
[Officer]
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<PAGE> 35
Each of the Subsidiary Guarantors
Listed on Schedule I to the Indenture,
As Guarantor of the Securities
By:*/ _________________________
[Officer]
Section 2.4. Global Securities. If Securities of or within a
series are issuable in whole or in part in global form (each, a "Global
Security"), any such Global Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges for certificated securities. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 3.3 or 3.4. Subject to the provisions of Section 3.3, Section 3.4, if
applicable, and Section 3.5, the Trustee shall deliver and redeliver any Global
Security in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a Global
Security shall be in writing but need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Global Security if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Global Security together
with written instructions (which need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last paragraph
of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
- -------------
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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<PAGE> 36
Section 2.5. Form of Legend for Global Securities. Any
Security global form authenticated and delivered hereunder shall bear a legend
in substantially the following form or in such other form as may be specified in
accordance with Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or
methods of determination thereof;
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(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating
such rate or rates of interest, the date or dates from which such
interest shall accrue or the method or methods by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
(in the case of Bearer Securities) where notices to Holders pursuant to
Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 11.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the other terms and conditions
upon which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series
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shall be denominated, and the particular provisions applicable thereto
in accordance with, in addition to, or in lieu of the provisions of
Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto in lieu
of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or agreements of the Company
set forth in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on
the Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the
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Company will have the option to redeem such Securities rather than pay
such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a
series may be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary Global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
(20) if other than as provided in Section 2.3, the forms of
the Subordinated Guarantees applicable to such series and the event or
events upon which the Subordinated Guarantees may be released for such
Subordinated Guarantees;
(21) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or agreement defeasance as may be
specified for the Securities and interest coupons, if any, of such
series;
(22) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(23) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for Global Securities
(ii) whether beneficial owners of interests in the Global Securities
may exchange such interests for certificated Securities of such series,
to be registered in the names of or to be held by such beneficial
owners or their nominees and to be of like tenor of any authorized form
and denomination, and (iii) if other than as provided in Section 3.5,
the circumstances under which any such exchange may occur;
(24) any restrictions on the registration, transfer or
exchange of the Securities;
(25) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
principal or interest is payable, only upon receipt
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of certain certificates or other documents or satisfaction of other
conditions in addition to those specified in this Indenture, the form
and terms of such certificates, documents or conditions;
(26) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the
Company, including provisions for the payment of interest on Securities
being converted or exchanged as contemplated by Section 3.7(d) and
Section 14.2;
(27) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(28) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(29) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations
or advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officers'
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
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Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities denominated in a Foreign Currency shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, or any Vice President of the
Company, and need not be attested. The signatures of any of these officers on
the Securities may be manual or facsimile. The interest coupons, if any, of
Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, or any Vice President of the
Company, and need not be attested.
Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company and having endorsed (by attachment or imprint)
thereon the Subordinated Guarantees executed as provided in Section 16.2 by the
Guarantors to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities with such Subordinated
Guarantees endorsed thereon, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities with such Subordinated
Guarantees endorsed thereon to or upon the order of the Company (as set forth in
such Company Order); provided, however, that, in the case of Securities of a
series offered in a Periodic Offering, the Trustee shall authenticate and
deliver such Securities from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be specified by or
pursuant to a Company Order delivered to the Trustee prior to the time of the
first authentication of Securities of such series.
If the form or terms of the Securities with the Subordinated
Guarantees endorsed thereon of a series have been established by or pursuant to
one or more Board Resolutions or one or more indentures supplemental hereto as
permitted by Sections 2.1
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and 3.1, in authenticating such Securities with Subordinated Guarantees endorsed
thereon and accepting the additional responsibilities under this Indenture in
relation to such Securities with Subordinated Guarantees endorsed thereon, the
Trustee shall be entitled to receive, and (subject to section 315(a) through (d)
of the Trust Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons with Subordinated Guarantees endorsed thereon have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons
have been, or, in the case of Securities of a series with Subordinated
Guarantees endorsed thereon offered in a Periodic Offering, will be,
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or, in the case of Securities
of a series with Subordinated Guarantees endorsed thereon offered in a
Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject, in the case of Securities with
Subordinated Guarantees endorsed thereon offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the
Company and the Guarantors and, when duly authorized, executed and
delivered by the Trustee, will constitute a legal, valid and binding
obligation enforceable against the Company and the Guarantors in
accordance with its terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), and
(ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Subordinated Guarantees when issued by
the Company and the Guarantors and (in the case of the Securities)
authenticated and delivered by the Trustee in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company and the
Guarantors, respectively, enforceable against the Company and the
Guarantors in accordance with their terms, subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability
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relating to or affecting the enforcement of creditors' rights and to
general equity principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to
any Securities or Subordinated Guarantees denominated other than in
Dollars (or a Foreign Currency or currency unit judgment in respect of
such claim) be converted into Dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in Foreign
Currencies or currency units or payments outside the United States, and
(ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Securities have been complied with and that, to the knowledge of
the signers of such certificate, no Event of Default with respect to
such Securities shall have occurred and be continuing.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation with counsel),
the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such authentication may
not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities with Subordinated Guarantees
endorsed thereon of a series offered in a Periodic Offering, the Trustee may
rely, as to the authorization by the Company of any of such Securities and by
the Guarantors of any such Subordinated Guarantees endorsed thereon, the form
and terms thereof and the legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and the other documents delivered pursuant
to Sections 2.1 and 3.1 and this Section, as applicable, in connection with the
first authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part as Global
Securities then the Company and
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the Guarantors shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities with Subordinated Guarantees endorsed
thereon that (i) shall represent and shall be denominated in an amount equal to
the aggregate principal amount of the Outstanding Securities of such series to
be represented by such Global Security or Securities, (ii) shall be registered,
if a Registered Security, in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 2.5.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation. If requested by
the Company, the Trustee shall enter into an agreement with a Depositary
governing the respective duties and rights of such Depositary and the Trustee
with regard to Global Securities with Subordinated Guarantees endorsed thereon.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or
Subordinated Guarantee endorsed thereon shall be entitled to any benefits under
this Indenture or be valid or obligatory for any purpose until such Security has
been authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent. Such signature upon any Security with
Subordinated Guarantees endorsed thereon shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
under this Indenture and is entitled to the benefits of this Indenture and that
each Subordinated Guarantee endorsed thereon has been duly endorsed thereon and
delivered under this Indenture. Except as permitted by Section 3.6 or 3.7, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant interest coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
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Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Subordinated Guarantees endorsed thereon of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form, with or
without interest coupons, of the definitive Securities with Subordinated
Guarantees endorsed thereon in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and such Subordinated Guarantees may
determine, as conclusively evidenced by their execution of such Securities and
interest coupons, if any and such Subordinated Guarantees. In the case of
Securities of any series, such temporary Securities may be in Global Securities,
representing all or a portion of the Outstanding Securities of such series.
Except in the case of temporary Global Securities, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company and the Guarantors will cause
definitive Securities with Subordinated Guarantees endorsed thereon of such
series to be prepared without unreasonable delay. After preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
pursuant to Section 9.2 in a Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured interest coupons
appertaining thereto), the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities with Subordinated Guarantees endorsed thereon of
the same series of authorized denominations and of like tenor; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
such delivery shall occur outside the United States. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time.
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The Trustee is hereby initially appointed "Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or nominee thereof or to a successor of such Depositary or
nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities with
Subordinated Guarantees endorsed thereon of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor and containing
identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities with Subordinated Guarantees
endorsed thereon which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may
not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the
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face amount of such missing interest coupon or coupons, or the surrender of such
missing interest coupon or interest coupons may be waived by the Company, the
Guarantors and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing interest coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Guarantors, the Trustee nor the Registrar shall exchange any Bearer Securities
for Registered Securities if it has received an Opinion of Counsel that as a
result of such exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
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If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the Depositary and, in any
event, within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company's designation of the Depositary pursuant to
Section 3.1(b)(22) shall no longer be effective with respect to the Securities
of such series and the Company and the Guarantors shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities with Subordinated Guarantees endorsed thereon of such
series of like tenor, shall authenticate and deliver, Securities with
Subordinated Guarantees endorsed thereon of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities of
such series of like tenor in exchange for such Global Security or Securities in
global form.
The Company may at any time in its sole discretion determine
that Global Securities shall no longer be represented by such a Global Security
or Securities. In such event the Company and the Guarantors shall execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of certificated Securities with Subordinated Guarantees endorsed thereon of such
series of like tenor, shall authenticate and deliver, Securities with
Subordinated Guarantees endorsed thereon of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities of
such series of like tenor in exchange for such Global Security or Securities in
global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Global Security of such series in exchange in whole or in part for Securities
of such series in certificated form on such terms as are acceptable to the
Company, the Guarantors and such Depositary. Thereupon, the Company and the
Guarantors shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities with Subordinated Guarantees
endorsed thereon of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(ii) to such Depositary a new Global Security with
Subordinated Guarantees endorsed thereon of like tenor in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global
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Security and the aggregate principal amount of certificated Securities
delivered to Holders thereof.
Upon the exchange of a Global Security with Subordinated
Guarantees endorsed thereon for Securities with Subordinated Guarantees endorsed
thereon in certificated form, such Global Security with Subordinated Guarantees
endorsed thereon shall be cancelled by the Trustee. Unless expressly provided
with respect to the Securities of any series that such Security may be exchanged
for Bearer Securities, Securities with Subordinated Guarantees endorsed thereon
in certificated form issued in exchange for a Global Security with Subordinated
Guarantees endorsed thereon pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security with Subordinated Guarantees endorsed thereon pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities with Subordinated
Guarantees endorsed thereon to the Persons in whose names such Securities with
Subordinated Guarantees endorsed thereon are so registered.
Whenever any Securities are surrendered for exchange, the
Company and the Guarantors shall execute, and the Trustee shall authenticate and
deliver, the Securities with Subordinated Guarantees endorsed thereon which the
Holder making the exchange is entitled to receive.
All Securities with Subordinated Guarantees endorsed thereon
issued upon any registration of transfer or upon any exchange of Securities with
Subordinated Guarantees endorsed thereon shall be the valid obligations of the
Company and the Guarantors, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities with Subordinated Guarantees
endorsed thereon surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Guarantors, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Guarantors, the Registrar and the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company and the Guarantors shall not be required (i) to
issue, register the transfer of, or exchange any Securities with Subordinated
Guarantees endorsed thereon for a period beginning at the opening of business 15
days before any selection for
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redemption of Securities of like tenor and of the series of which such Security
is a part and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all Holders of
Securities of like tenor and of such series to be redeemed; (ii) to register the
transfer of or exchange any Registered Security with Subordinated Guarantees
endorsed thereon so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security with Subordinated Guarantees endorsed thereon so selected
for redemption, except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity as
may be required by the Company, the Guarantors or the Trustee to save each of
them harmless, the Company and the Guarantors shall execute and the Trustee
shall authenticate and deliver a replacement Registered Security with
Subordinated Guarantees endorsed thereon, if such surrendered Security was a
Registered Security, or a replacement Bearer Security with Subordinated
Guarantees endorsed thereon with interest coupons corresponding to the interest
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity.
If there shall be delivered to the Company, the Guarantors and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or interest coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or interest coupon has been acquired by a bona fide purchaser, the Company and
the Guarantors shall execute and the Trustee shall authenticate and deliver in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen interest coupon appertains (with
all appurtenant interest coupons not destroyed, lost or stolen), a replacement
Registered Security with Subordinated Guarantees endorsed thereon, if such
Holder's claim appertains to a Registered Security with Subordinated Guarantees
endorsed thereon, or a replacement Bearer Security with Subordinated Guarantees
endorsed thereon with interest coupons corresponding to the interest coupons
appertaining to the destroyed, lost or stolen Bearer Security or the Bearer
Security to which such lost, destroyed or stolen interest coupon appertains, if
such Holder's claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Subordinated Guarantees endorsed thereon, pay such Security
or interest coupon; provided, however, that payment of principal of and any
premium or interest on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 3.1, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the interest coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company and the Guarantors may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee, its agents
and counsel) connected therewith.
Every new Security with Subordinated Guarantees endorsed
thereon of any series with its interest coupons, if any, issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security, or in exchange for a
Security to which a destroyed, lost or stolen interest coupon appertains, shall
constitute an original additional contractual obligation of the Company and the
relevant Guarantor, whether or not the destroyed, lost or stolen Security and
its interest coupon, if any, or the destroyed, lost or stolen interest coupon,
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their interest coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
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Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements
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satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause (1) provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
such Registered Securities at his or her address as it appears in the
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(d) In the case of any Registered Security which is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any on) which shall become due and payable, whether at Stated
Maturity or by declaration of
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acceleration, call for redemption, or otherwise, prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion or
exchange and such interest (whether or not punctually paid or duly provided for)
shall be paid to the Person in whose name that Registered Security (or any one
or more Predecessor Securities) is registered at the close of business on such
Regular Record Date, unless otherwise provided with respect to Securities of
that series pursuant to Section 3.1(b).
Section 3.8. Persons Deemed Owners. Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
interest coupon as the absolute owner of such Bearer Security or interest coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or interest
coupon be overdue, and neither the Company, the Guarantors, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantors, the Trustee or any agent
of the Company, any Guarantor or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. No holder of any beneficial interest in any Global Security, held on
its behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee as the owner of such Global Security for
all purposes whatsoever. With respect to any Global Security, nothing herein
shall prevent the Company, the Guarantors or the Trustee, or any agent of the
Company, any Guarantor or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security or impair, as
between such Depositary and owners of beneficial interests in such
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Global Security, the operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of such Global
Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, together with the Subordinated Guarantees endorsed thereon,
shall be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities, together with interest coupons appertaining
thereto, if any, previously authenticated hereunder which the Company has not
issued and sold, and all Securities and interest coupons so delivered shall,
together with the Subordinated Guarantees endorsed thereon, be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 3.9, except as
expressly permitted by this Indenture. All cancelled Securities and interest
coupons held by the Trustee shall, together with the Subordinated Guarantees
endorsed thereon, be disposed of in accordance with its customary procedures,
and the Trustee shall thereafter deliver to the Company a certificate with
respect to such disposition.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
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ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the Stated Maturity thereof (but not upon
acceleration), and rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights of holders of Securities to convert or exchange
Securities, (v) rights, obligations, duties and immunities of the Trustee
hereunder, (vi) any rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 9.2) and the Trustee, upon payment of all amounts due it under Section
6.7, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when
(1) either (A) all such Securities previously authenticated
and delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) such interest coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in
Section 11.6 and (iv) such Securities and interest coupons for whose
payment money in the currency or currencies or currency unit or units
in which such Securities are payable has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 9.3) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any interest coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
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(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such interest coupons not
theretofore delivered to the Trustee for cancellation, for principal, premium,
if any, and interest, with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and the Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2, Section 9.2 and the last paragraph of Section
9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to
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Section 3.1 with respect to any series of Securities, shall be applicable to the
Securities and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge. On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that (i) the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii) (B) of this Section, and
to have satisfied all its other obligations under such Securities and any
interest coupons appertaining thereto and this Indenture insofar as such
Securities and any interest coupons appertaining thereto are concerned (and the
Trustee, upon payment of all amounts due it under Section 6.7, at the expense of
the Company, shall on a Company Order execute proper instruments acknowledging
the same) and (ii) the Guarantors shall be released from all of their
obligations under their Subordinated Guarantees and under Article 16 of this
Indenture, except the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (C) the Company's obligations with respect to a
conversion or exchange of such Securities; (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (E) this Article 4. Subject
to compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior agreement defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Section 7.1 and, if specified pursuant to Section 3.1, its
obligations under any other agreement, with respect to such Securities and any
interest coupons appertaining thereto, (ii) the occurrence of any event
specified in Section 5.1(d) or 5.1(i) (in each case, with respect to any of the
obligations described in clause (i) above) or 5.1(e) shall be deemed not to be
or result in a Default or Event of Default (hereinafter, "agreement
defeasance"),
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and such Securities and any interest coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with Section 7.1,
such other agreement specified pursuant to Section 3.1, or Section 5.1(d) or
5.1(i) (in each case, with respect to any of the obligations described in clause
(i) above) or 5.1(e), but shall continue to be deemed "Outstanding" for all
other purposes hereunder and (iii) the provisions of Article Fifteen shall cease
to be effective as to such Securities to the extent provided therein. For this
purpose, such agreement defeasance means that, with respect to such Securities
and any interest coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other agreement, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other agreement or by reason of reference in any such Section or such other
agreement to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
interest coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Agreement Defeasance.
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the
provisions of Sections 4.3 through 4.9 inclusive and the last paragraph
of Section 9.3 applicable to the Trustee, for purposes of such sections
also a "Trustee") as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any
interest coupons appertaining thereto, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in an amount
sufficient in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written opinion
with respect thereto delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (x) the principal of, premium, if any, and each
installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such
principal or installment of interest and (y) any mandatory sinking fund
payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such
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Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities and any
interest coupons appertaining thereto will not recognize gain or loss
for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any interest coupons
appertaining thereto will not recognize gain or loss for Federal income
tax purposes as a result of such deposit and agreement defeasance and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and agreement defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed
on any securities exchange or approved for trading in any automated
quotation system, will not be delisted or disapproved for such trading
as a result of such deposit.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company.
(f) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
5.1(g) and (h) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(g) Such defeasance or agreement defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming all Securities are in default within the
meaning of such Act).
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(h) Such defeasance or agreement defeasance shall not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(i) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 4.4 or the agreement defeasance under Section 4.5 (as the
case may be) have been complied with.
(j) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that such defeasance or agreement defeasance
shall not result in the trust arising from such deposit constituting an
investment company as defined in the Investment Company Act of 1940, as
amended from time to time, or such trust shall be registered under such
act or exempt from registration thereunder.
(k) Such defeasance or agreement defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
Section 4.7. Deposited Money and U.S. Government Obligations
to Be Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 4.6 in respect of any Securities of any
series and any interest coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any interest coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any interest coupons appertaining thereto of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except as provided
herein and except to the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
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Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the defeasance or
agreement defeasance, as the case may be, with respect to such Securities.
Section 4.9. Indemnity for U.S. Government Obligations. The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations
deposited pursuant to this Article or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent)
is unable to apply any money or U.S. Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 4.6; provided, however, that if the
Company makes any payment to the Trustee (or Paying Agent) of principal of,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee (or Paying Agent) shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money and
U.S. Government Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional
amount payable with
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respect to any Security of that series as specified pursuant to Section
3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days; or
(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes
due and payable; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any agreement or
warranty of the Company or any Guarantor in this Indenture (other than
an agreement or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with) or the
Securities, and continuance of such default or breach for a period of
60 days after there has been given, in the manner provided in Section
1.6, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 10% in principal amount of the Outstanding
Securities of the series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company, any Guarantor or any Restricted
Subsidiary, or under any mortgage(s), indenture(s), agreement(s) or
instrument(s) under which there may be issued or existing or by which
there may be secured or evidenced, any Debt of the Company, any
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 Incurred,
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 thereto or
results in such Debt becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable; or
(f) the rendering of a final judgment or final judgments (not
subject to appeal) for the payment of money against the Company, Allied
or any Restricted Subsidiary in an aggregate amount in excess of $50
million by a court or courts of competent jurisdiction, which judgments
remain unstayed, undischarged or unbonded for a period of 60 days after
such rendering; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company, Allied
or any Restricted
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Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company, Allied or
any Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company, Allied or
any Restricted Subsidiary under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, Allied or any
Restricted Subsidiary or of any substantial part of the property of the
Company, Allied or any Restricted Subsidiary, or ordering the winding
up or liquidation of the affairs of the Company, Allied or any
Restricted Subsidiary, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company, Allied or any
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company, Allied or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company, Allied or any Restricted Subsidiary or the filing by the
Company, Allied or any Restricted Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or state law, or the consent by the Company, Allied or any Restricted
Subsidiary to the filing of such a petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company, Allied or any
Restricted Subsidiary or of any substantial part of the property of the
Company, Allied or any Restricted Subsidiary, or the making by the
Company, Allied or any Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company, Allied or any
Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company, Allied or any Restricted Subsidiary in furtherance of any such
action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the
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Outstanding Securities of that series, by written notice received by the Company
(and, if given by the Holders, received by the Trustee), may declare the
principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of, premium, if any, and accrued
interest, if any, on all the Securities of that series to be due and payable and
upon any such declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount), premium, if
any, and interest, if any, shall be immediately due and payable. If an Event of
Default specified in clause (g) or (h) of Section 5.1 with respect to the
Securities of any series at the time Outstanding occurs and is continuing, then
the principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of, premium, if any, and accrued
interest, if any, on all the Securities of that series shall be immediately due
and payable without any declaration or act on the part of the Trustee or any
Holder of such Securities.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company or any of the Guarantors has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of and premium, if any, on any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate borne by the Securities of that series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities of that series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
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(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including all amounts due the
Trustee, its agents and counsel under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, any Guarantor or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, any
Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy, subject, however, to
Section 5.8.
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Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any Guarantor
or its creditors), the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Subordinated Guarantee may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with
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respect to that series and its consequences except a Default or Event of Default
(i) in the payment of the principal of, premium, if any, or interest on any
Security of such series or any interest coupon appertaining thereto or (ii) in
respect of an agreement or provision hereof which pursuant to Article 8 cannot
be amended or modified without the consent of the Holder of each Outstanding
Security of such series affected. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with any governmental rule or
law or this Indenture, (ii) the Trustee may refuse to follow any direction that
is unduly prejudicial to the rights of the Holders of Securities of such series
not consenting, or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability without
adequate indemnity having been offered therefor and (iii) subject to Section
6.1, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate
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principal amount of the Outstanding Securities of that series have not
given to the Trustee a direction inconsistent with such written
request;
provided, however, that the limitations contained in (a) through (e) of this
Section do not apply to any suit by a Holder of any Security for enforcement of
payment of the principal of (and premium, if any) or interest on such Security
on or after the respective due date expressed in such Security.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, each of the right of any Holder of a Security or interest coupon to receive
payment of principal of, premium, if any, and, subject to Sections 3.5 and 3.7,
interest on the Security, on or after the respective due dates expressed in the
Security (or, in case of redemption or a required repurchase by the Company
under the terms of the relevant Securities, on the Redemption Dates or specified
repurchase dates), the right of any Holder of an interest coupon to receive
payment of interest due as provided in such interest coupon, or to bring suit
for the enforcement of any such payment on or after such respective dates, and
the right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without the
consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
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The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or any Guarantor, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of
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the Outstanding Securities of the relevant series or in any suit instituted by
any Holder for the enforcement of principal of, premium, if any, or interest on
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or any required repurchase by the
Company, on or after the Redemption Date or specified repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors agrees (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury or other law wherever enacted, now or at any time hereafter in force,
which would prohibit or forgive the Company from paying all or any portion of
the principal of, and premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the agreements or
the performance of this Indenture or prohibit or forgive any Guarantor from
performance under its Subordinated Guarantee; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and agrees that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such Default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any Default
of the character specified in Section 5.1(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
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Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to
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inquire as to the performance by the Company or any Guarantor of the agreements
set forth in Article 9 beyond its good faith review of any certificates or other
notices received by it from the Company or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Subordinated Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Subordinated Guarantees endorsed thereon. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, any Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
the definition of "Outstanding" set forth in Section 1.1, and subject to
Sections 6.8 and 6.13, may otherwise deal with the Company, any Guarantor and
any other obligor upon the Securities and the Subordinated Guarantees with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
Section 6.7. Compensation and Reimbursement. The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out
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of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
Section 6.8. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one series
or a trustee under (i) the Indenture dated as of December 23, 1998 between the
Company, the Guarantors named therein and the Trustee relating to senior
unsecured debt securities which may be issued thereunder, (ii) the First
Supplemental Indenture, dated as of December 23, 1998 between the Company, the
Guarantors named therein and the Trustee relating to the Company's 7 3/8% Senior
Notes Due 2004, (iii) the Second Supplemental Indenture dated as of December 23,
1998 between the Company, the Guarantors named therein and the Trustee relating
to the Company's 7 5/8% Senior Notes Due 2006, (iv) the Third Supplemental
Indenture dated as of December 23, 1998 between the Company, the Guarantors
named therein and the Trustee relating to the Company's 7 7/8% Senior Notes Due
2009, (v) the Fourth Supplemental Indenture dated as of July 30, 1999 between
the Company, the Guarantors named therein and the Trustee relating to each of
the Company's outstanding series of notes in clauses (ii) through (iv) above, or
(vi) any other indenture specified in (A) a Board Resolution, (B) an action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth in
an Officers' Certificate or (C) one or more indentures supplemental hereto.
Section 6.9. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York or be a part of a bank
holding company with a combined capital and surplus of at least $100,000,000 as
set forth in is most recent published annual report of condition. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant
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to this Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section
6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with
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respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series. The Company shall give notice of
each resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Guarantors and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the Guarantors the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture
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as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, any Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and
the Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company or
any Guarantor (or any other obligor upon the Securities or the Subordinated
Guarantees endorsed thereon), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any Guarantor or any such other obligor).
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Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated and the Subordinated Guarantees
endorsed thereon shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $25,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall
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become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities with the Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
,
-------------------------------
As Trustee
By: ,
-------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company (a) shall not consolidate with or merge into any Person;
(b) shall not permit any Person other than a Restricted Subsidiary to
consolidate with or merge into the Company or (c) shall 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 any such
transaction (or series) contemplated by Clause (a), (b) or (c) above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety, the
Person formed by such consolidation or into which the Company is merged
or the Person which acquires by transfer, conveyance,
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sale, lease or other disposition all or substantially all of the
properties and assets of the Company and its Subsidiaries on a
consolidated basis (for purposes of this Article 7, a "Successor
Company") shall be a corporation, partnership, limited liability
company or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume by an indenture supplemental
hereto executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of, premium,
if any, and interest on all the Securities and the performance of every
agreement of this Indenture on the part of the Company to be performed
or observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
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 Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Section 7.2 Successor Substituted
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis, in each case in accordance
with Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and under the Securities and any interest coupons appertaining thereto with the
same effect as if such Successor Company had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person (if still
in existence) shall be relieved of all obligations and agreements under this
Indenture and the Securities and any interest coupons appertaining thereto.
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ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company or any Guarantor and the assumption by any such successor of the
agreements and obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements are to be
for the benefit of less than all series of Securities, stating that such
agreements are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to provide
that Bearer Securities may be registrable as to principal only) or to facilitate
the issuance or administration of Global Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to
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the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the States
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal of, premium, if any, or
interest, if any, on Bearer Securities or interest coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or exchange
rights of Holders pursuant to the requirements of Article 14, including
providing for the conversion or exchange of the Securities into any Equity
Securities of Allied; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other provisions
as may be expressly required under the Trust Indenture Act; or
(m) to add new Subsidiary Guarantors pursuant to Section 16.5.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change in any
manner or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify in any manner the rights of the Holders of
Securities of such series; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof or upon any
required repurchase by the Company, or change the manner in which the amount of
any principal thereof or premium, if any, or interest thereon is determined or
reduce the amount of the principal of any Original Issue
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Discount Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or
change the currency or currency unit in which any Securities or any premium or
the interest thereon is payable, or change the place of payment of principal of,
or premium, if any, or interest on, or any installment of principal of, or
premium, if any, or interest on, any Security, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or any required repurchase of Securities
by the Company, on or after the Redemption Date or specified repurchase date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the conversion or
exchange rate or increase the conversion or exchange price of any such Security;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof; or
(f) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the consent of
the Holders of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 9.6 or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
agreement or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such agreement or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
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It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
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ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest, together with additional amounts, if any, on the Securities
of that series in accordance with the terms of the Securities of such series,
any interest coupons appertaining thereto and this Indenture; provided, however,
that amounts properly withheld under the Internal Revenue Code of 1986, as
amended, by any Person from a payment to any Holder of Securities, after having
requested such Holder to provide applicable information that would allow such
Person to make such payment without withholding, shall be considered as having
been paid by the Company to such Holder for purposes of this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date it is due if there shall have been sent to the Trustee or Paying
Agent by wire transfer, received by no later than the close of business on such
due date, or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange or conversion and where
notices and demands to or upon the Company or any Guarantor in respect of the
Securities or the Subordinated Guarantees of that series and this Indenture may
be served. Unless otherwise specified as contemplated by Section 3.1, if
Securities of a series are issuable as Bearer Securities, the Company will
maintain (i) subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for that series which is located outside the United
States where Securities of that series and related interest coupons may be
presented and surrendered for payment; provided, however, that if the Securities
of that series are listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a Place of Payment for
that series which is located outside the United States, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the
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location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company and each Guarantor hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
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Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of that
series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
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the Trustee or such Paying Agent, before being required to make any such
repayment, may in the name and at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment with respect
to such series, or cause to be mailed to such Holder, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of the
Company, a certificate from the principal executive officer, principal financial
officer, treasurer or principal accounting officer of the Company stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under his or her supervision and to the best
of his or her knowledge, based on such review, each of the Company and the
Guarantors has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him or her and the nature and
status thereof. For purposes of this Section 9.5, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
The Company shall deliver to the Trustee, as soon as possible
and in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or Default, and the action
which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order, normal wear and tear excepted, and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 9.6 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties, or disposing of any of them,
if such discontinuance or disposition is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary.
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Section 9.7. Payments of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a material lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any agreement provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date;
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content for any or all series as of a date not
more than 15 days prior to the time such list is furnished;
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excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders of Securities made
pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or
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15(d) of the Exchange Act shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission. Notwithstanding
anything contrary herein, the Trustee shall have no duty to review such
documents for purposes of determining compliance with any provisions of this
Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 60 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. The Trustee shall promptly notify the Company
in
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writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Guarantor, any Affiliate or any Subsidiary of the
Company or any Guarantor shall not be included in the Securities selected for
redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
If any Security that is convertible or exchangeable is
selected for partial redemption and is converted or exchanged in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as applicable) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purposes of such selection.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing on or after the Redemption Date, are to be surrendered
for payment of the Redemption Price;
(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
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(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all interest coupons maturing subsequent to the Redemption Date or the amount
of any such missing interest coupon or interest coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions thereof to
be redeemed) will terminate and the place or places where such Securities may be
surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an amount
equal to the then applicable Redemption Price for such Securities against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
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Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest Payment Dates that
are on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company
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or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Subordinated Guarantee of each Guarantor executed by each such
Guarantor and endorsed thereon) of the same series, having the same form, terms
and Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable to the
Company. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 1.6,
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
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such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
8.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
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Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections
13.4, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons
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entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount of
Securities held or represented by him or her; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of Allied, and to the
issuance of such Equity
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Securities upon the conversion or exchange of such Securities, except as
otherwise specified as contemplated by Section 3.1 for the Securities of such
series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01 par
value (the "Common Stock"), (ii) Allied's Preferred Stock, $.10 par value (the
"Preferred Stock"), and (iii) any other equity securities of Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege.
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto, to the
Company at the office or agency maintained for that purpose pursuant to Section
9.2, accompanied by written notice to Allied and the Company that the Holder
elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name and address of such Holder,
the name or names (with address) in which the certificate or certificates for
Equity Securities which shall be issuable on such conversion or exchange shall
be issued. Registered Securities surrendered for conversion or exchange shall
(if so required by Allied, the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to Allied, the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as Allied and the Company may prescribe, Allied shall
issue and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of Equity Securities issuable upon the conversion or
exchange of such Security (or specified portion thereof), in accordance with the
provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Equity Security otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by Allied and the Company and such Security shall
have been surrendered as aforesaid and at such time the rights of the Holder of
such Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for
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Equity Securities of Allied shall be issuable upon such conversion or exchange
shall be deemed to have become the Holder or Holders of record of the Equity
Securities represented thereby. Except as set forth above and subject to
paragraph (d) of Section 3.7, no payment or adjustment shall be made upon any
conversion or exchange on account of any interest accrued on the Securities
surrendered for conversion or exchange, or on account of any dividends on the
Equity Securities of Allied issued upon such conversion or exchange if the
record date for the payment of such dividends occurs prior to or on the date on
which such conversion or exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Any requirements for notice, surrender or delivery of
Securities pursuant to this Article Fourteen shall, with respect to any Global
Security, be subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of Allied shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of
Allied upon the conversion or exchange of such Security or Securities, or
specified portions thereof, Allied or the Company shall pay to such Holder an
amount in cash equal to the current market value of such fractional share
computed, (i) if such Equity Security is listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the last reported
sale price regular way on the principal exchange where such Equity Security is
listed or admitted, on the last trading day prior to the date of conversion or
exchange upon which such a sale shall have been effected, (ii) if such Equity
Security is not at the time so listed or admitted on a national securities
exchange but is quoted on the National Market System of the National Association
of Securities Dealers, Inc. ("NASDAQ"), on the basis of the average of the last
bid and asked prices of such Equity Security on NASDAQ on the last trading day
prior to the date of conversion or exchange, (iii) if such Equity Security is
not at the time so listed or admitted to unlisted trading privileges on a
national securities exchange or quoted on NASDAQ, on the basis of the average of
the last bid and asked prices of such Equity Security in the
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over-the-counter market, on the last trading day prior to the date of
conversion or exchange, as reported by the National Quotation Bureau
Incorporated or similar organization if the National Quotation Bureau
Incorporated is no longer reporting such information, or (iv) in accordance with
the terms of the supplemental indenture or Board Resolutions setting the terms
of the Securities of such series. For purposes of this Section, "trading day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than any
day on which the applicable Equity Security is not traded or quoted on a
national securities exchange, or if the applicable Equity Security is not traded
or quoted on a national securities exchange, on NASDAQ or the principal exchange
or market on which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of Allied
shall be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied
and the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate setting forth the adjusted
conversion or exchange price and showing in reasonable detail the facts upon
which such adjustment is based. Whenever the securities, assets or other
property into or for which Securities of any series may be converted or
exchanged are changed as a result of any consolidation, merger or similar
transaction, Allied and the Company shall determine the nature and amount of
such securities, assets or other property in accordance with the terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officer's Certificate describing such securities, assets or other property and
stating the amount of such securities, assets or other property into or for
which such Securities have become convertible or exchangeable. Such certificates
shall forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if different,
with the Trustee. Allied and the Company shall forthwith cause a notice setting
forth the adjusted conversion or exchange price or describing such securities,
assets or other property, as applicable, to be mailed, first class postage
prepaid, to each Holder of Registered Securities of such series at its address
appearing on the Register and to any conversion or exchange agent other than the
Trustee and shall give notice to Holders of Bearer Securities as provided in
Section 1.6.
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Section 14.5. Notice of Certain Corporate Actions. If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) Allied shall declare a dividend (or any other
distribution) on any class of such Equity Securities payable (i)
otherwise than exclusively in cash out of its retained earnings, or
(ii) exclusively in cash out of its retained earnings in an amount
that, under the terms of such Securities, would require an adjustment
in the exchange or conversion price of such Securities; or
(b) Allied shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of any class of such Equity
Securities (other than a subdivision or combination of its outstanding
shares of such Equity Securities), or of any consolidation or merger to
which the Company is a party and for which approval of any shareholders
of the Company is required, or of the sale of all or substantially all
of the assets of Allied; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of Allied; or
(e) the Company or any Subsidiary of the Company shall
commence a tender or exchange offer for all or a portion of the
Company's outstanding shares of such Equity Securities (or shall amend
any such tender or exchange offer);
then Allied and the Company shall cause to be filed with the Trustee, and shall
cause to be mailed to all Holders at their addresses as they shall appear in the
Register and shall give notice to the Holder of Bearer Securities as provided in
Section 1.6, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Securities of record
to be entitled to such dividend, distribution, rights, options or warrants are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up or (iii) the date on which such tender or exchange
offer commenced, the date on which such tender or exchange offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). If at any time the
Trustee shall not be the conversion or exchange
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agent, a copy of such notice shall also forthwith be filed by Allied and the
Company with the Trustee.
Section 14.6. Reservation of Equity Securities. Allied shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, solely for the purpose of effecting
the conversion or exchange of Securities, the full number of Equity Securities
of Allied then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. Allied and the Company will pay any and all taxes that may be payable
in respect of the issue or delivery of Allied's Equity Securities on conversion
or exchange of Securities pursuant hereto. Allied and the Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of its Equity Securities in a name
other than that of the Holder of the Security or Securities to be converted or
exchanged, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to Allied and the Company the amount of
any such tax, or has established, to the satisfaction of Allied and the Company,
that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange. Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of Allied to
determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of Allied and
the Company provided to be employed in making the same. Neither the Trustee nor
any conversion or exchange agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Equity Securities of Allied, or
of any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of Allied or the Company
to issue, transfer or deliver any of Allied's Equity Securities or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or exchange or to comply with any of the covenants
of Allied and the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of Allied and the
Company.
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Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, premium, if any, and interest, if any, on any of the Securities
(including funds deposited for redemption pursuant to Article 11 or for any
sinking fund referred to in Article 12 hereof) and which shall not be required
for such purposes because of the conversion or exchange of such Securities as
provided in this Article 14 shall after such conversion or exchange be repaid to
the Company by the Trustee upon the Company's written request by Company
Request.
ARTICLE 15
SUBORDINATION OF SECURITIES AND SUBORDINATED GUARANTEES
Section 15.1. Securities Subordinate to Senior Debt. Unless
otherwise specified as contemplated by Section 3.1, the Company agrees, and each
Holder of a Security, by his acceptance thereof, likewise agrees, that, to the
extent and in the manner hereinafter set forth in this Article 15 (subject to
the provisions of Article 4), (i) the payment of the principal of, premium, if
any, and interest on the Securities and any other obligations in respect of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Debt of the Company, and (ii) the
payment of each Guarantor's obligations in respect of its Subordinated Guarantee
is hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all the obligations of such Guarantor under all Senior
Debt of such Guarantor.
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Company Proceeding") the holders of all Senior Debt
of the Company shall first be entitled to receive payment in full of all amounts
due or to become due on or in respect of all such Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, before the Holders of
the Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Securities on account of principal of, premium, if any, or
interest on or other
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obligations in respect of the Securities or on account of any purchase or
redemption or other acquisition of Securities by the Company or Allied or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively, as a "Company
Securities Payment"), and to that end the holders of Senior Debt of the Company
shall be entitled to receive, for application to the payment thereof, any
Company Securities Payment which may be payable or deliverable in respect of the
Securities in any such Company Proceeding. Notwithstanding the foregoing,
Holders may receive and retain Permitted Junior Securities and payments made
from the trust pursuant to Article 4.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets and liabilities of any Guarantor,
then and in any such event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a "Guarantor Proceeding"; the Company
Proceeding and the Guarantor Proceeding each may be referred to as a
"Proceeding") the holders of all Senior Debt of such Guarantor shall first be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all such Senior Debt, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character from such Guarantor,
whether in cash, property or securities (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of such Guarantor subordinated to the payment of its Subordinated Guarantee by
such Guarantor) on account of its Subordinated Guarantee (all such payments and
distributions herein referred to, individually and collectively, as a "Guarantor
Securities Payment"; any of the Company Securities Payment and the Guarantor
Securities Payment each may be referred to as a "Securities Payment"), and to
that end the holders of Senior Debt of such Guarantor shall be entitled to
receive, for application to the payment thereof, any Guarantor Securities
Payment which may be payable or deliverable in respect of the Subordinated
Guarantee by such Guarantor in any such Guarantor Proceeding. Notwithstanding
the foregoing, Holders may receive and retain Permitted Junior Securities and
payments made from the trust pursuant to Article 4.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt of the Company or the Guarantor, as
applicable, is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of such Senior
Debt, then and in such event such Securities Payment shall be paid over or
delivered forthwith to the holders of Senior Debt for
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application to the payment of such Senior Debt remaining unpaid, to the extent
necessary to pay such Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt.
The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor with, another Person or the liquidation
or dissolution of the Company or any Guarantor following the conveyance or
transfer of all or substantially all of its properties and assets as an entirety
to another Person upon the terms and conditions set forth in Article 7 shall not
be deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or with which the Company or any Guarantor merges or the
Person which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article 7.
Section 15.3. No Payment When Senior Debt in Default. In the
event that any Company Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Company Securities Payment shall be made
unless and until such Company Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of Senior Debt of the Company shall have been paid in full, or provision
shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of such Senior Debt. Notwithstanding the foregoing,
Holders may receive and retain Permitted Junior Securities and payments made
from the trust pursuant to Article 4. "Company Senior Payment Default" means (i)
any default in the payment of principal of, premium, if any, or interest on any
Designated Senior Debt of the Company and (ii) any event of default with respect
to Designated Senior Debt of the Company which has resulted in such Designated
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable.
In the event that any Guarantor Senior Payment Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then no Guarantor Securities Payment shall be made by such Guarantor
unless and until such Guarantor Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of the Senior Debt of such Guarantor shall have been paid in full, or
provision shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of Senior Debt of such Guarantor. Notwithstanding
the foregoing, Holders may receive and retain Permitted Junior Securities and
payments made from the trust pursuant to Article 4. "Guarantor Senior Payment
Default" means, with respect to any Guarantor, (i) any default in the payment of
principal of, premium, if any, or interest on any Designated Senior Debt of such
Guarantor and (ii) any event of default with respect to Designated Senior Debt
of such Guarantor which has resulted in such Designated Senior Debt becoming or
being declared
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due and payable prior to the date on which it would otherwise have become due
and payable. Any Company Senior Payment Default or Guarantor Senior Payment
Default may be referred to herein as a "Senior Payment Default".
In the event that any Company Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, upon the receipt by
the Company and the Trustee of written notice (the "Payment Blockage Notice") of
such Company Senior Nonmonetary Default from any holder of Designated Senior
Debt, no Company Securities Payment shall be made during the period (the
"Company Payment Blockage Period") commencing on the date of such receipt of
such written notice and ending on the earlier of (i) the date on which such
Company Senior Nonmonetary Default shall have been cured or waived or shall have
ceased to exist and any acceleration of Designated Senior Debt of the Company
shall have been rescinded or annulled or the Designated Senior Debt of the
Company to which such Company Senior Nonmonetary Default relates shall have been
discharged or (ii) the 179th day after the date of such receipt of such written
notice. If the Trustee receives any Payment Blockage Notice, no subsequent
Payment Blockage Notice shall be effective for purposes of this Section 15.3
unless and until (A) at least 360 days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice and (B) all
scheduled payments of principal, premium, if any, and interest (including
Special Interest) on the Securities that have come due have been paid in full in
cash. For all purposes of this paragraph, no Senior Nonmonetary Default that
existed or was continuing on the date of commencement of any Company Payment
Blockage Period shall be, or can be, made the basis for the commencement of a
subsequent Company Payment Blockage Period whether or not within a period of 360
consecutive days by holders of Designated Senior Debt of the Company or their
representatives unless such Company Senior Nonmonetary Default shall have been
cured for a period of not less than 90 consecutive days. "Company Senior
Nonmonetary Default" means the occurrence or existence and continuance of any
event of default, or of any event which, after notice or lapse of time (or
both), would become an event of default, under the terms of any instrument
pursuant to which any Designated Senior Debt of the Company is outstanding,
permitting (after notice or lapse of time or both) one or more holders of such
Designated Senior Debt (or a trustee or agent on behalf of the holders thereof)
to declare such Designated Senior Debt due and payable prior to the date on
which it would otherwise become due and payable, other than a Company Senior
Payment Default. Notwithstanding the foregoing, Holders may receive and retain
Permitted Junior Securities and payments made from the trust pursuant to Article
4.
In the event that a Guarantor Senior Nonmonetary Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then, upon the receipt by such Guarantor and the Trustee of written
notice of such Guarantor Senior Nonmonetary Default from a holder of Designated
Senior Debt, no Guarantor Securities Payment shall be made by such Guarantor
during the period (a "Guarantor Payment Blockage Period") commencing on the date
of such receipt of such written notice and
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ending on the earlier of (i) the date on which such Guarantor Senior Nonmonetary
Default shall have been cured or waived or shall have ceased to exist and any
acceleration of Designated Senior Debt of such Guarantor shall have been
rescinded or annulled or the Designated Senior Debt of such Guarantor to which
such Guarantor Senior Nonmonetary Default relates shall have been discharged or
(ii) the 179th day after the date of such receipt of such written notice. If the
Trustee receives any Payment Blockage Notice, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section 15.3 unless and until (A)
at least 360 days shall have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice and (B) all scheduled payments of principal,
premium, if any, and interest (including Special Interest) on the Securities
that have come due have been paid in full in cash. For all purposes of this
paragraph, no Guarantor Senior Nonmonetary Default with respect to a Guarantor
that existed or was continuing on the date of commencement of any Guarantor
Payment Blockage Period with respect to such Guarantor shall be, or be made, the
basis for the commencement of a subsequent Guarantor Payment Blockage Period
with respect to such Guarantor whether or not within a period of 360 consecutive
days by holders of Designated Senior Debt of such Guarantor or their
representatives unless such Guarantor Senior Nonmonetary Default shall have been
cured for a period of not less than 90 consecutive days. A "Guarantor Senior
Nonmonetary Default" means, with respect to any Guarantor, the occurrence or
existence and continuance of any event of default, or of any event which, after
notice or lapse of time (or both), would become an event of default, under the
terms of any instrument pursuant to which any Designated Senior Debt of such
Guarantor is outstanding, permitting (after notice or lapse of time or both) one
or more holders of such Designated Senior Debt (or a trustee or agent on behalf
of the holders thereof) to declare such Designated Senior Debt due and payable
prior to the date on which it would otherwise become due and payable, other than
a Guarantor Senior Payment Default. Any Company Senior Nonmonetary Default or
Guarantor Senior Nonmonetary Default may be referred to herein as a "Senior
Nonmonetary Default". Notwithstanding the foregoing, Holders may receive and
retain Permitted Junior Securities and payments made from the trust pursuant to
Article 4.
In the event that, notwithstanding the foregoing, the Company
or any Guarantor shall make any Company Securities Payment or Guarantor
Securities Payment, as the case may be, to the Trustee or any Holder prohibited
by the foregoing provisions of this Section, then and in such event such
Securities Payment shall be paid over and delivered forthwith to the holders of
the Senior Debt of the Company or the Guarantor, as the case may be.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 15.2 would be applicable.
Section 15.4. Certain Payments Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities or the
Subordinated
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Guarantees endorsed thereon shall prevent the Company or any Guarantor, at any
time except during the pendency of any Proceeding referred to in Section 15.2 or
under the conditions described in Section 15.3, from making Securities Payments.
Section 15.5. Subrogation to Rights of Holders of Senior Debt.
After all Senior Debt is paid in full and until the Securities are paid in full,
Holders of Securities shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Securities) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Securities have been applied
to the payment of Senior Debt. A distribution made under this Article 15 to
holders of Senior Debt that otherwise would have been made to Holders of
Securities is not, as between the Company and Holders, a payment by the Company
on the Securities.
Section 15.6. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall (a) impair, as among
the Company or any Guarantor, as applicable, its creditors other than holders of
Senior Debt and the Holders of the Securities with the Guarantees endorsed
thereon, the obligation of the Company or any Guarantor, as applicable, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company or any Guarantor, as applicable, of the
Holders of the Securities and creditors of the Company or any Guarantor, as
applicable, other than the holders of Senior Debt; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
If the Company or any Guarantor fails because of this Article
15 to pay principal of, premium, if any, or interest on a Security on the due
date, the failure is still a default or event of default under this Indenture.
Section 15.7. Trustee to Effectuate Subordination. Each Holder
of a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 5.4 hereof at least 30 days before the expiration of
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the time to file such claim, the Agent banks under the Credit Agreement are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Securities.
Section 15.8. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or any Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company or any Guarantor with the terms, provisions and agreements of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii) release any
Person liable in any manner for the collection of Senior Debt; and (iv) exercise
or refrain from exercising any rights against the Company, the Guarantors and
any other Person.
Section 15.9. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or any of the Subordinated Guarantees. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities or any
of the Subordinated Guarantees and the Trustee may continue to make payments on
the Securities, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment obligations with respect to the
Securities to violate this Article from the Company or a holder of Senior Debt
or from any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 6.1, shall be entitled
in all respects to assume that no such facts exist, provided that nothing in
this Section 15.9 shall impair the subordination provisions of this Article
Fifteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of
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Senior Debt (or a trustee, representative or agent therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee,
representative or agent therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities of
the Company or any Guarantor referred to in this Article, the Trustee, subject
to the provisions of Section 6.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company or any Guarantor, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 15.11. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or any Guarantor or to any other Person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
Section 15.13. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and
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be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Section 15.12 shall not apply to
the Company, any Guarantor or any Affiliate of the Company or of any Guarantor
if it or such Affiliate acts as Paying Agent.
Section 15.14. Defeasance of this Article 15. The
subordination of the Securities and the Subordinated Guarantees provided by this
Article 15 is expressly made subject to the provisions for defeasance or
agreement defeasance in Article 4 and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or agreement
defeasance, the Securities then Outstanding and the Subordinated Guarantees
relating thereto shall thereupon cease to be subordinated pursuant to this
Article 15.
ARTICLE 16
SUBORDINATED GUARANTEE
Section 16.1. Subordinated Guarantee. Unless otherwise
specified as contemplated by Section 3.1, each of Allied and the Subsidiary
Guarantors hereby jointly and severally unconditionally guarantees on a
subordinated basis to each Holder of a Security authenticated and delivered by
the Trustee, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of, premium, if any, and interest on such Security when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, in accordance with
the terms of such Security and of this Indenture. In case of the failure of the
Company punctually to make any such payment, each of Allied and the Subsidiary
Guarantors hereby jointly and severally agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, purchase or otherwise,
and as if such payment were made by the Company. Further, in the case of the
failure of any Subsidiary Guarantor punctually to make any payment required of
it hereunder, Allied agrees to cause such payment to be made when and as the
same shall become due and payable, as if such payment were made by such
Subsidiary Guarantor.
Unless otherwise specified as contemplated by Section 3.1,
each of the Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of any Security or this Indenture, the absence of any action to
enforce the same, any creation, exchange, release or nonperfection of any Lien
on any collateral for, or any release or amendment or waiver of any term of any
other Guarantee of, or any consent to departure from any requirement of any
other Guarantee, of all or any of the Securities, the election by the
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Trustee or any of the Holders in any proceeding under Chapter 11 of Title 11 of
the United States Code (the "Bankruptcy Code") of the application of Section
1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security interest
by the Company, as debtor in possession, under Section 364 of the Bankruptcy
Code, the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Trustee or any of the Holders for payment of any of
the Securities, any waiver or consent by the Holder of any Security or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) or any action to enforce the
same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company (or, with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantor), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), protest or notice with respect to any Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) or the indebtedness
evidenced thereby and all demands whatsoever, and agrees that this Subordinated
Guarantee will not be discharged in respect of any Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) except by complete
performance of the obligations contained in such Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) and in this
Subordinated Guarantee. Each of the Guarantors hereby agrees that, in the event
of a default in payment of principal of, premium, if any, or interest on any
Security (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees), whether at its Stated Maturity or by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Security subject to the terms
and conditions set forth in this Indenture, directly against each or any of the
Guarantors (or, with respect to the Allied Subsidiary Guarantee, against Allied)
to enforce its Subordinated Guarantee without first proceeding against the
Company (or, with respect to the Allied Subsidiary Guarantee, against any
Subsidiary Guarantor). Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the Securities
or to enforce or exercise any other right or remedy with respect to the
Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce or
exercise the Subsidiary Guarantees), or the Trustee or the Holders are prevented
from taking any action to realize on any collateral, such Guarantor agrees to
pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would
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otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
No provision of any Subordinated Guarantee or Security or of
the Indenture shall alter or impair (i) the Subordinated Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal of, premium, if any, and interest on the Security upon which
such Subordinated Guarantee is endorsed, or (ii) the Allied Subsidiary
Guarantee, which is absolute and unconditional, of the due and punctual
performance by the Subsidiary Guarantors of their obligations under the
Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Subordinated Guarantee is endorsed
against the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) in respect of any amounts paid by such Guarantor on
account of such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees) pursuant to the provisions of its Subordinated
Guarantee or this Indenture; provided, however, that no Guarantor shall be
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of, premium, if any, and interest
on all Securities issued hereunder shall have been paid in full.
Each Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) for liquidation or reorganization, should the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the assets
of the Company (or, with respect to the Allied Subsidiary Guarantee, the assets
of any Subsidiary Guarantor) and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Securities (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
No officer, director, employer or incorporator, past, present
or future, of any Guarantor, as such, shall have any personal liability under
any Subordinated Guarantee by reason of his, her or its status as such officer,
director, employer or incorporator.
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To the extent that any Subsidiary Guarantor shall be required
to pay any amounts on account of the Securities pursuant to its Subordinated
Guarantee in excess of the greater of (i) the amount of the economic benefit
actually received by such Subsidiary Guarantor from the issuance of the
Securities and (ii) an amount calculated as the product of (A) the aggregate
amount payable by the Subsidiary Guarantors on account of the Securities
pursuant to their Subordinated Guarantees times (B) the proportion (expressed as
a fraction) that such Subsidiary Guarantor's net worth at the date enforcement
of its Subordinated Guarantee is sought bears to the aggregate net worth of all
Subsidiary Guarantors at such date, then such Subsidiary Guarantor shall be
reimbursed by the other Subsidiary Guarantors for the amount of such excess, pro
rata, based upon the respective net worth of such other Subsidiary Guarantors at
the date enforcement of its Subordinated Guarantees is sought. This paragraph is
intended only to define the relative rights of the Subsidiary Guarantors as
among themselves, and nothing set forth in this paragraph is intended to or
shall impair the joint and several obligations of the Guarantors under their
respective Subordinated Guarantees.
The Guarantors shall have the right to seek contribution from
any nonpaying Guarantor so long as the exercise or such right does not impair
the rights of the Holders under any Subordinated Guarantee.
Section 16.2. Execution and Delivery of Subordinated
Guarantees. The Subordinated Guarantees to be endorsed on the Securities shall
include the terms of the Subordinated Guarantee set forth in Section 16.1 and
any other terms that may be set forth in the form established pursuant to
Section 2.3 and Section 3.1. Each of the Guarantors hereby agrees to execute its
Subordinated Guarantee, in a form established pursuant to Section 2.3 and
Section 3.1, to be endorsed on each Security authenticated and delivered by the
Trustee.
The Subordinated Guarantee shall be executed on behalf of each
respective Guarantor by any one of such Guarantor's Chairman of the Board, Vice
Chairman of the Board, President or Vice Presidents, attested by its Secretary
or Assistant Secretary. The signature of any or all of these officers on the
Subordinated Guarantee may be manual or facsimile and may be pursuant to a duly
executed power of attorney.
A Subordinated Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Guarantor shall bind such Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Subordinated Guarantee is endorsed or did
not hold such offices at the date of such Subordinated Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subordinated Guarantee endorsed thereon
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on behalf of the Guarantors. Each of the Guarantors hereby jointly and severally
agrees that its Subordinated Guarantee set forth in Section 16.1 shall remain in
full force and effect notwithstanding any failure to endorse a Subordinated
Guarantee on any Security.
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or a Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or a Guarantor.
Section 16.4. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, in each case as permitted by Section 16.3, and upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such consolidation, merger, sale or conveyance was made in
accordance with Section 16.3, the Trustee shall execute any documents reasonably
required in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Subsidiary Guarantees endorsed on the Securities and under
this Article 16. Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 16 shall remain liable for the full amount of principal of, premium, if
any, and interest on the Securities and for the other obligations of a
Subsidiary Guarantor under its Subsidiary Guarantees endorsed on the Securities
and under this Article 16.
(b) Concurrently with the defeasance of the Securities under
Section 4.4 or the agreement defeasance of the Securities under Section 4.5, the
Guarantors shall be released from all of their obligations under their
Subordinated Guarantees endorsed on the Securities and under this Article 16.
(c) Upon the consummation of any transaction (whether
involving a sale or other disposition of securities, a merger or otherwise)
whereby any Subsidiary Guarantor ceases to be a Restricted Subsidiary and which
transaction is otherwise in compliance with the provisions of this Indenture,
such Subsidiary Guarantor shall automatically be released from all obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 16.
(d) The Subsidiary Guarantors shall be released from all of
their obligations under the Subsidiary Guarantees endorsed on the Securities of
any series and under this Section 16 upon the occurrence of such other event or
events as may be established with respect to such series in accordance with
Section 3.1.
Section 16.5. Additional Guarantors. Unless otherwise
specified as contemplated by Section 3.1, the Company shall cause each Person
that becomes a Restricted Subsidiary after the date of this Indenture, upon
becoming a Restricted
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<PAGE> 118
Subsidiary, to become a Subsidiary Guarantor with respect to the Securities. Any
such Person shall become a Subsidiary Guarantor by executing and delivering to
the Trustee (a) a supplemental indenture, in form and substance satisfactory to
the Trustee, which subjects such Person to the provisions of this Indenture as a
Subsidiary Guarantor and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable obligation of such Person
(subject to such customary exceptions concerning creditors' rights and equitable
principles as may be acceptable to the Trustee in its discretion).
ARTICLE 17
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 17.1. Jurisdiction and Consent to Service of Process.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Securities, the
Subordinated Guarantees, this Indenture, or for recognition or enforcement of
any judgment, and each of such Persons hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the Company and the Guarantors agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Article 17 shall affect any right that any
Holder or the Trustee may otherwise have to bring any action or proceeding
relating to the Securities, the Subordinated Guarantees, this Indenture
Agreement against the Company, any Guarantor or their respective properties in
the courts of any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to the Securities,
the Subordinated Guarantees or this Indenture in any New York State or Federal
court. Each of the Company and the Guarantors hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably
consents to service of process in the manner provided for notices in Section
1.5. Nothing in this Agreement will affect the right of any Holder or the
Trustee to serve process in any other
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<PAGE> 119
manner permitted by law.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 120
IN WITNESS WHEREOF, the parties hereto have caused this
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. Thomas Rochford, Jr.
---------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
ALLIED WASTE INDUSTRIES,
INC., for purposes of
Article 16 and as Guarantor
of the Securities and as
Guarantor of the
obligations of the
Subsidiary Guarantors under
the Subsidiary Guarantees
By: /s/ G. Thomas Rochford, Jr.
---------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
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<PAGE> 121
Each of the Subsidiary Guarantors
listed on Schedule I hereto,
as Guarantor
By*: /s/ G. Thomas Rochford, Jr.
---------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Richard H. Prokosch
---------------------------------
Name: Richard H. Prokosch
Title: Assistant Vice President
* Signing as duly authorized officer for each such Subsidiary Guarantor.
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<PAGE> 1
EXHIBIT 4.2
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 15880 North Greenway-Hayden Loop, Suite 100,
Scottsdale, Arizona 85260, 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.
<PAGE> 2
(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 100 Wall Street, 20th Floor, New York, New York 10005,
Attention: Corporate Trust Administration. The place where notices or demands to
or upon the Company in respect of the Notes and 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 33 1/3% 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.
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<PAGE> 3
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:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2004...................................................105.000
2005...................................................103.3333
2006...................................................101.6667
2007 and thereafter....................................100.000%
</TABLE>
(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
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<PAGE> 4
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.
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<PAGE> 5
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
-5-
<PAGE> 6
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
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<PAGE> 7
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
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<PAGE> 8
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:
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(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
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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,
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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
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<PAGE> 12
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.
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<PAGE> 13
(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
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<PAGE> 14
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;
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(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.
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<PAGE> 16
(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.
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<PAGE> 17
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
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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
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<PAGE> 19
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
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<PAGE> 20
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
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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
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<PAGE> 22
(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
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<PAGE> 23
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
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<PAGE> 24
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
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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;
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<PAGE> 26
(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.
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<PAGE> 27
(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
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<PAGE> 28
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.
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(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.
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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.
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"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 Browning-Ferris 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
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restrict such funds' investments primarily to those satisfying the
provisions of Clauses (i) through (iii) above, (vii) repurchase
obligations with a term of not more than 90 days for underlying securities
of the types described in Clauses (ii) and (iii) above entered into with
any bank meeting the qualifications specified in Clause (iii) above and
(viii) commercial paper (other than commercial paper issued by an
Affiliate or Related Person) rated A-1 or the equivalent thereof by
Standard & Poor's Ratings Group or P-1 or the equivalent thereof by
Moody's Investors Services, Inc., and in each case maturing within 360
days.
"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 Donaldson, Lufkin &
Jenrette 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
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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).
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"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.
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"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 Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
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"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.
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"Initial Purchasers" means, with respect to the Notes, Donaldson,
Lufkin & Jenrette Securities Corporation, Chase Securities Inc., Salomon
Smith Barney Inc., CIBC World Markets, Credit Suisse First Boston
Corporation, Deutsche Banc Alex. Brown, Morgan Stanley & 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 Robertson Stephens 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.
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"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
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<PAGE> 39
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,
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<PAGE> 40
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
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<PAGE> 41
(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 Moody's Investors Services, Inc., and in each case maturing
within 360 days, (ix) receivables owing to the Company or a Restricted
Subsidiary of the Company if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms and extensions of trade credit in the ordinary course of business,
(x) any Investment consisting of loans and advances to employees of the
Company or any Restricted Subsidiary for travel, entertainment, relocation
or other expenses in the ordinary course of business, (xi) any Investment
consisting of loans and advances by the Company or any Restricted
Subsidiary to employees, officers and directors of the Company or 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',
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<PAGE> 42
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
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<PAGE> 43
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 Donaldson, Lufkin & Jenrette
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.
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<PAGE> 44
"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.
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<PAGE> 45
"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.
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<PAGE> 46
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.
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<PAGE> 47
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. Thomas Rochford, Jr.
-----------------------------------
Name: G. Thomas Rochford, Jr.
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. Thomas Rochford, Jr.
-----------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
Each of the Subsidiary Guarantors Listed
on Schedule I hereto, as Guarantor of
the Securities
By*: /s/ G. Thomas Rochford, Jr.
-----------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Richard H. Prokosch
-----------------------------------
Name: Richard H. Prokosch
Title: Assistant Vice President
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<PAGE> 48
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:_______________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
________________________________________
Authorized Signatory
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<PAGE> 49
EXHIBIT A
[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
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<PAGE> 50
EXHIBIT A
or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of 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 Sections 77aaa 77bbbb). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the indenture shall
govern and be controlling. The Notes are obligations of the Company limited to
$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 33 1/3%
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.
(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'
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<PAGE> 51
EXHIBIT A
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:
<TABLE>
<CAPTION>
Year Percentage
<S> <C>
2004.............................................................. 105.0000%
2005.............................................................. 103.3333%
2006.............................................................. 101.6667%
2007 and thereafter............................................... 100.0000%
</TABLE>
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.
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<PAGE> 52
EXHIBIT A
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.
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.
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<PAGE> 53
EXHIBIT A
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.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, AZ 85260
Attention: Treasurer
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<PAGE> 54
EXHIBIT A
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:___________________
Your Signature: _____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee: __________________________________________________________
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<PAGE> 55
EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to subsection 13(a) or 13(b) of Section 1.01 of the 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:____________________
-8-
<PAGE> 56
EXHIBIT A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
<TABLE>
<CAPTION>
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
<S> <C> <C> <C> <C>
</TABLE>
-9-
<PAGE> 57
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Allied Waste North America, Inc.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
180 East 5th Street
St. Paul, MN 55101
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
-1-
<PAGE> 58
EXHIBIT B
Act and (iv) if the proposed transfer is being made prior to the expiration of
the Restricted Period, the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a)/ / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
-2-
<PAGE> 59
EXHIBIT B
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 REGULATIONS. (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:
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<PAGE> 60
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ); or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ); or
(iv) / / Unrestricted Global Note (CUSIP ); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
-4-
<PAGE> 61
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Allied Waste North America, Inc.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
180 East 5th Street
St. Paul, MN 55101
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
Owner's Exchange of a Restricted Definitive
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<PAGE> 62
EXHIBIT C
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.
-2-
<PAGE> 63
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
<PAGE> 64
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Allied Waste North America, Inc.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
180 East 5th Street
St. Paul, MN 55101
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.
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
-1-
<PAGE> 65
EXHIBIT D
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:
-2-
<PAGE> 1
Exhibit 23.2
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Allied Waste Industries, Inc. Registration Statement on Form
S-4 of our report dated December 3, 1998 included in Browning-Ferris
Industries, Inc.'s Form 10-K/A for the year ended September 30, 1998, and to
all references to our firm included in this registration statement.
Arthur Andersen LLP
Houston, Texas,
November 19, 1999.
<PAGE> 1
Exhibit 23.3
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Allied Waste Industries, Inc. Registration Statement on Form
S-4 of our report dated March 3, 1999 included in Allied Waste Industries,
Inc.'s Form 10-K/A for the year ended December 31, 1998, and to all references
to our firm included in this registration statement.
Arthur Anderson LLP
Phoenix, Arizona,
November 19, 1999.
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ALLIED WASTE INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 88-0228636
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
(Address of Principal Executive Offices) (Zip Code)
ALLIED WASTE NORTH AMERICA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 86-0843596
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop
Scottsdale, Arizona 85260
(Address of Principal Executive Offices) (Zip Code)
10% SERIES B SENIOR SUBORDINATED NOTES DUE 2009
(Title of the Indenture Securities)
<PAGE> 2
GENERAL
1. GENERAL INFORMATION Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the
act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority is incorporated by reference to Registration
Number 333-70709.
* Incorporated by reference to Registration Number 22-27000.
<PAGE> 3
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. Bank Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 8th day of October,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Laurie Howard
--------------------------------
Laurie Howard
Vice President
/s/ Harry H. Hall Jr.
- -----------------------------------
Harry H. Hall, Jr.
Assistant Secretary
<PAGE> 4
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. Bank Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 8th day of October,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Laurie Howard
----------------------------------
Laurie Howard
Vice President
/s/ Harry H. Hall, Jr.
- ------------------------------------
Harry H. Hall, Jr.
Assistant Secretary
<PAGE> 5
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK TRUST NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: October 8, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Laurie Howard
------------------------------
Laurie Howard
Vice President
<PAGE> 6
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK TRUST NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: October 8, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Laurie Howard
------------------------------
Laurie Howard
Vice President
