<PAGE> 1
As filed with the Securities and Exchange Commission on January 15, 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 Y 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
(602) 423-2946
(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
(602) 423-2946
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
DAVID GOLAY, 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)(3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
7 3/8% Series B Senior Notes due 2004 $ 225,000,000 100% $ 225,000,000 $ 62,550
- -----------------------------------------------------------------------------------------------------------------------------------
7 5/8% Series B Senior Notes due 2006 $ 600,000,000 100% $ 600,000,000 $ 166,800
- -----------------------------------------------------------------------------------------------------------------------------------
7 7/8% Series B Senior Notes due 2009 $ 875,000,000 100% $ 875,000,000 $ 243,250
- -----------------------------------------------------------------------------------------------------------------------------------
Guarantees......................... -- -- -- None(2)
- -----------------------------------------------------------------------------------------------------------------------------------
Total....................... $1,700,000,000 100% $1,700,000,000 $ 472,600(1)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(footnotes continued on next page) -
<PAGE> 2
(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.
(3) Pursuant to Rule 429, registration fees of $373,983 were previously
paid in connection with the registration of an aggregate amount of
$1,255,345,000 in aggregate principal amount of debt securities under
Registration Statements (File No. 333-30559 and File No. 333-57507)
filed by the Registrant.
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.
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<PAGE> 3
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 of California, Inc.
Allied Waste Rural Sanitation, Inc.
Allied Waste Systems (Ohio) Inc.
Allied Waste Systems (Texas) Inc.
Americal Co.
American Disposal Services of New Jersey, Inc.
American Disposal Services of West Virginia, Inc.
American Disposal Transfer Services of Illinois, Inc.
American Transfer Company, Inc.
Apache Junction Landfill Corporation
Area Disposal, Inc.
B & L Waste Handling, Inc.
Belleville Landfill, Inc.
Better Disposal Services, Inc.
Borrego Landfill, Inc.
Bowers Phase II, Inc.
Brickyard Disposal & Recycling, Inc.
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.
Community Refuse Disposal, Inc.
Container Service, Inc.
County Disposal (Ohio), Inc.
County Landfill, Inc.
CRX, Inc.
D & D Garage Services, Inc.
Delta Container Corporation
Delta Paper Stock Co.
Denver Regional Landfill, Inc.
Dinverno Recycling, Inc.
Dinverno, Inc.
Dopheide Sanitary Service, 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 Corporation
Environmental Reclamation Company
Environtech, Inc.
Evergreen Scavenger Service, 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.
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.
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<PAGE> 4
SCHEDULE A (CONTINUED)
Illinois Landfill, Inc.
Illinois Recycling Services, Inc.
Independent Trucking Company
Indiana Recycling Services, Incorporated
Industrial Services of Illinois, Inc.
Ingrum Waste Disposal, Inc.
Joe Di Rese & Sons, 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
MCM Sanitation, Inc.
Manumit of Florida, Inc.
Medical Disposal Services, Inc.
Metropolitan Disposal, Inc.
Mississippi Waste Paper Company
MJS Associates, Inc.
Monarch Disposal, Inc.
Nimishillen Industrial Park, Inc.
Northwest Recycling, Inc.
Oakland Heights Development, Inc.
Oklahoma Refuse, Inc.
Otay Landfill, Inc.
Ottawa County Landfill, Inc.
Palomar Transfer Station, Inc.
Packman, Inc.
Paper Fibers, Inc.
Pittsburg County Landfill, Inc.
Price & Sons Recycling Company
R. 18, Inc.
R.C. Miller Enterprises, Inc.
R.C. Miller Refuse Service, Inc.
Rabanco Intermodal/B.C., Inc.
Rabanco Recycling, Inc.
Rabanco Regional Landfill Company
Rabanco, Ltd.
Ramona Landfill, Inc.
RCS, Inc.
Recycling Associates, 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.
San Marcos NCRRF, Inc.
Sanitary Disposal Service, Inc.
Sanitran, Inc.
Saugus Disposal, Inc.
Sauk Trail Development, Inc.
Selas Enterprises Ltd.
Shred-All Recycling, Inc.
South Chicago Disposal, Inc. of Indiana
Southwest Waste, Inc.
SSWI, Inc.
Standard Disposal Services of Florida, Inc.
Standard Environmental Services, Inc.
Standard Waste, Inc.
Stark Recycling Center, Inc.
Stewart Trash & Recycling Services, Inc.
Streator Area Landfill, Inc.
Suburban Transfer, Inc.
Suburban Warehouse, Inc.
Sunrise Sanitation Service, Inc.
Sunset Disposal, Inc.
Sunset Disposal Services, Inc.
Sycamore Landfill, Inc.
T & G Container, Inc.
Tates Transfer Systems, Inc.
Tom Luciano's Disposal Service, Inc.
Top Disposal Service, Inc.
Tri-State Recycling Services, Inc.
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.
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<PAGE> 5
SCHEDULE A (CONTINUED)
Waste Associates, Inc.
Waste Reclaiming Services, Inc.
Wayne County Landfill IL, Inc.
Williams County Landfill, Inc.
WJR Environmental, Inc.
World Sanitation Corporation
SCHEDULE B
SUBSIDIARY GUARANTORS
AAWI, Inc.
ADS, Inc.
Allied Acquisition Pennsylvania, Inc.
Allied Acquisition Two, Inc.
Allied Waste Company, Inc.
Allied Waste Industries of New York, Inc.
Allied Waste Landfill Holdings, Inc.
Allied Waste of Long Island, Inc.
Allied Waste Services, Inc. (MA)
Allied Waste Systems, Inc. (Del. corp.)
Allied Waste Transportation, Inc.
American Disposal Services, Inc.
American Disposal Services of Illinois, Inc.
American Disposal Services of Kansas, Inc.
American Disposal Services of Missouri, Inc.
Autoshred, Inc.
AWIN Management, Inc.
County Disposal, Inc.
Cousins Carting Corp.
Liberty Waste Holdings, Inc.
Nationswaste, Inc.
Northeast Sanitary Landfill, Inc.
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection Systems of Fremont, Inc.
Pinal County Landfill Corp.
S & S Recycling, Inc.
Standard Disposal Services, Inc.
Tricil (N.Y.), Inc.
Wastehaul, Inc.
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<PAGE> 6
SCHEDULE C
SUBSIDIARY GUARANTORS
Allied Waste Systems Holdings, Inc.
SCHEDULE D
SUBSIDIARY GUARANTORS
Draw Acquisition Company Eighteen
Draw Acquisition Company Twenty Three
Draw Acquisition Company Twenty Two
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
Anderson Regional Landfill, LLC
Anson County Landfill NC, LLC
Bridgeton Landfill, LLC
Brunswick Waste Management Facility, LLC
Butler County Landfill, LLC
Ellis Scott Landfill MO, 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.
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<PAGE> 7
SCHEDULE I
SUBSIDIARY GUARANTORS
Camelot Landfill TX, LP
Crow Landfill TX, L.P.
Ellis County Landfill TX, L.P.
Fort Worth Landfill 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
AWIN I Acquisition Corporation
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.
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<PAGE> 8
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
SUBSIDIARY GUARANTORS
Paper Fibres Company
SCHEDULE S
SUBSIDIARY GUARANTORS
Tri-State Refuse Corporation
Mesa Disposal, Inc.
Refuse Service, 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
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<PAGE> 9
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL OR OFFER THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY , 1999
PROSPECTUS
OFFER FOR
ALL OUTSTANDING 7 3/8% SERIES A SENIOR NOTES DUE 2004
IN EXCHANGE FOR
7 3/8% SERIES B SENIOR NOTES DUE 2004
ALL OUTSTANDING 7 5/8% SERIES A SENIOR NOTES DUE 2006
IN EXCHANGE FOR
7 5/8% SERIES B SENIOR NOTES DUE 2006
ALL OUTSTANDING 7 7/8% SERIES A SENIOR NOTES DUE 2009
IN EXCHANGE FOR
7 7/8% SERIES B SENIOR 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 Notes to be issued are
substantially identical to each of the outstanding Series A Senior
Notes that we issued on December 23, 1998, except for certain transfer
restrictions, registration rights and special interest provisions
relating to the outstanding Series A Senior Notes. Sometimes, we will
refer to the Series A Senior Notes and the Series B Senior Notes
together in this Prospectus as the Senior Notes. We also refer to the
Series B Senior Notes exchanged in the exchange offer as the Exchange
Notes.
- - Interest on the Senior Notes is payable semi-annually in arrears on
each January 1 and July 1, commencing July 1, 1999.
- - The Senior Notes are senior, unsecured obligations of the Company and
will rank equally to each other, and to all our existing and future
senior unsecured indebtedness and will rank senior in right of payment
to all our existing and future subordinated indebtedness. The Senior
Notes are guaranteed on a senior unsecured basis by Allied Waste
Industries, Inc. ("Allied"), a Delaware corporation of which we are a
direct wholly-owned subsidiary, and, so long as our senior credit
facility is similarly guaranteed, by substantially all of our direct
and indirect subsidiaries. However, the Senior Notes will be
effectively subordinated to all of our secured indebtedness, including
outstanding indebtedness under our senior credit facility to the extent
of the assets securing such indebtedness.
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 Notes that are validly tendered and not
validly withdrawn will be exchanged for an equal principal amount of
Series B Senior Notes which are registered under the Securities Act of
1933, as amended.
- - The exchange of Senior 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 Notes may be withdrawn at any
time prior to the expiration of the Exchange Offer.
CONSIDER CAREFULLY THE "RISK FACTORS" BEGINNING ON PAGE 12 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THE SENIOR 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> 10
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
Where You Can Find More Information.......................................................... 1
Incorporation of Certain Documents by Reference.............................................. 1
Forward-Looking Statements................................................................... 2
Prospectus Summary........................................................................... 3
The Exchange Offer......................................................................... 3
The Company................................................................................ 3
Summary of the Terms of the Exchange Offer................................................. 4
Consequences of Not Exchanging Old Senior Notes............................................ 8
Summary Description of the New Senior Notes................................................ 8
Risk Factors................................................................................. 12
Selected Financial Data...................................................................... 21
The Exchange Offer........................................................................... 23
Certain Indebtedness......................................................................... 31
Description of the New Senior Notes.......................................................... 33
Certain United States Federal Income Tax Consequences........................................ 68
Plan of Distribution......................................................................... 72
Validity of the New Senior Notes............................................................. 72
Experts...................................................................................... 72
</TABLE>
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 OR THE INITIAL PURCHASERS. 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> 11
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 7 3/8% Series B Senior Notes due
2004, 7 5/8% Series B Senior Notes due 2006 and 7 7/8% Series B Senior 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 Senior Notes provides that we
will furnish to the holders of the Senior 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 Senior 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 Senior Notes.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We hereby incorporate by reference into this Prospectus the following
documents or information filed with the SEC (File No. 000-19285):
(a) Allied's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (the "1997 10-K"), filed with the SEC on
March 31, 1998, as amended by the Form 8-K/A filed on August
28, 1998 and as supplemented by the Form 8-K, dated October
29, 1998 filed with the SEC.
(b) Allied's Quarterly Reports on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed with the SEC on May 14, 1998, the
quarter ended June 30, 1998, filed with the SEC on August 14,
1998 and the quarter ended September 30, 1998 filed with the
SEC on November 16, 1998.
(c) Allied's Current Reports on Form 8-K filed on May 18, 1998,
August 21, 1998, August 28, 1998, October 29, 1998, October
30, 1998, November 25, 1998, December 7, 1998, December 8,
1998 and December 28, 1998, respectively.
(d) Allied's Proxy Statement filed April 29, 1998.
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<PAGE> 12
(e) 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 termination of the
offering made hereby.
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 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
(602) 423-2946.
This Exchange Offer is not being made to, nor will we accept surrenders
for exchange from, holders of outstanding Senior 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. You are urged to consider these factors carefully in
evaluating the forward-looking statements, including the factors described below
under "Risk Factors." The forward-looking statements included herein are made
only as of the date of this Prospectus and we undertake no obligation to
publicly update such forward-looking statements to reflect subsequent events or
circumstances. We cannot assure you that projected results or events will be
achieved.
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<PAGE> 13
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. Except if
the context requires otherwise, references in this Prospectus to (1) "we," "us,"
"our," "AWNA" or "Company" refer to Allied Waste North America, Inc., a wholly
owned subsidiary of Allied Waste Industries, Inc., and its direct and indirect
subsidiaries; and (2) "Allied" is to Allied Waste Industries, Inc., and its
direct and indirect subsidiaries on a consolidated basis, including AWNA. The
term "Old Senior Notes" refers to the 7 3/8% Series A Senior Notes due 2004, the
7 5/8% Series A Senior Notes due 2006 and the 7 7/8% Series A Senior Notes due
2009 that were issued on December 23, 1998. The term "New Senior Notes" refers
to the 7 3/8% Series B Senior Notes due 2004, the 7 5/8% Series B Senior Notes
due 2006 and the 7 7/8% Series B Senior Notes due 2009 offered pursuant to this
Prospectus. The term "Senior Notes" refers to the Old Senior Notes and the New
Senior Notes collectively.
THE EXCHANGE OFFER
We completed on December 23, 1998 the private offering of an aggregate
of $1,700,000,000 of Senior Notes consisting of $225,000,000 7 3/8% Senior Notes
due 2004, $600,000,000 7 5/8% Senior Notes due 2006 and $875,000,000 7 7/8%
Senior Notes due 2009. We entered into registration rights agreements 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 180 days of the issuance of the Old Senior Notes. You are entitled to
exchange in the Exchange Offer your outstanding Old Senior Notes for registered
New Senior Notes with substantially identical terms. If the Exchange Offer is
not completed by July 5, 1999, then special interest, in addition to the base
interest that would otherwise accrue on the Senior Notes, shall accrue at a per
annum rate of 0.25% for the first 90 days after July 5, 1999, at a per annum
rate of 0.50% for the second 90 days after July 5, 1999, at a per annum rate of
0.75% for the third 90 days after July 5, 1999 and after that, at a per annum
rate of 1.0%. You should read the discussion under the headings "Summary --
Description of the New Senior Notes" and "Description of the New Senior Notes"
for further information regarding the registered notes.
We believe that the New Senior 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 Senior Notes.
THE COMPANY
Allied is a vertically integrated solid waste management company
providing non-hazardous waste collection, transfer, recycling and disposal
services to approximately 2.4 million residential, municipal and commercial
customers located in 28 states primarily in the Midwest, Northeast, Southeast,
Southwest and Northwest United States. Allied conducts its operations primarily
through the Company and subsidiaries of the Company. As of November 30, 1998, we
conducted our operations through 114 collection companies, 72 transfer stations,
26 recycling facilities and 72 landfills. 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 (602) 423-2946.
BUSINESS STRATEGY
The major components of our business strategy consist of:
- operating vertically integrated non-hazardous solid waste
services businesses with a high rate of waste internalization;
- managing these businesses locally with a strong focus on
operations;
- maintaining a high rate of growth through acquisitions and
internal growth 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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SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
The Exchange Offer relates to the exchange of up to $1,700,000,000
aggregate principal amount of outstanding Old Senior Notes for an equal
aggregate principal amount of New Senior Notes. The New Senior Notes will be
obligations of the Company entitled to the benefits of the indenture governing
the outstanding Senior Notes. The form and terms of the New Senior Notes are
identical in all material respects to the form and terms of the outstanding Old
Senior Notes except that the New Senior 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 agreements, executed
as part of the offering of the outstanding Old Senior Notes, dated December 23,
1998 among the Company and the initial purchasers in the private offering,
including Donaldson, Lufkin & Jenrette Securities Corporation, Goldman, Sachs &
Co., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, Bear Stearns & Co. Inc.,
BT Alex. Brown Incorporated, CIBC Oppenheimer Corp. and Salomon Smith Barney
Inc., relating to certain contingent increases in the interest rates provided
for pursuant thereto. As a result of this registration, the New Senior Notes
will not bear legends restricting their transfer.
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Registration Rights Agreements.................... You are entitled to exchange your Old Senior Notes for registered New Senior
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 Senior
Notes.
The Exchange Offer................................ We are offering to exchange $1,000 principal amount of the following New Senior
Notes which have been registered under the Securities Act for each $1,000
principal amount of our outstanding Old Senior Notes listed below which
were issued in December 1998 in a private offering:
- 7 3/8% Series A Senior Notes due 2004 in exchange for 7 3/8% Series B
Senior Notes due 2004 (the "Five Year Notes")
- 7 5/8% Series A Senior Notes due 2006 in exchange for 7 5/8% Series B
Senior Notes due 2006 (the "Seven Year Notes")
- 7 7/8% Series A Senior Notes due 2009 in exchange for 7 7/8% Series B
Senior Notes due 2009 (the "Ten Year Notes")
In order to be exchanged, an outstanding Old Senior Note must be properly
tendered and accepted. All outstanding Old Senior Notes that are validly
tendered and not validly withdrawn will be exchanged.
The following principal amounts of the Old Senior Notes are outstanding:
- $225,000,000 7 3/8% Series A Senior Notes due 2004
- $600,000,000 7 5/8% Series A Senior Notes due 2006
- $875,000,000 7 7/8% Series A Senior Notes due 2009
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
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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 Senior 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 Senior 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 Senior Notes issued to you in the Exchange
Offer;
- you are not a broker-dealer who purchased such outstanding Old Senior
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.
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 Senior
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 Senior Notes in the Exchange Offer for its own account in
exchange for Old Senior 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 Senior 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
Senior 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 Senior
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 Senior 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, ____________,
1999, unless we decide to extend the expiration date.
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Accrued Interest on the New Senior Notes
and the Outstanding Old Senior Notes.............. The Old Senior Notes and the New Senior Notes will bear interest from December
23, 1998. Old Senior 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 Senior Notes for New Senior Notes
will receive the same interest payment on July 1, 1999 (the first interest
payment date with respect to the outstanding Old Senior Notes and the New Senior
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 Senior Notes
will have certain rights against Allied and us under the registration rights
agreements executed as part of the offering of the outstanding Old Senior Notes
should we fail to consummate the Exchange Offer.
Procedures for Tendering Outstanding
Old Senior Notes.................................. If you are a holder of an Old Senior Note and you wish to tender your Old Senior
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
Senior 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.
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By executing the Letter of Transmittal, each holder will represent to us that,
among other things,
- the New Senior Notes to be issued in the Exchange Offer are obtained in
the ordinary course of business of the person receiving such New Senior
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 Senior 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 Senior Notes and your name does not
appear on a security position listing of DTC as the holder of such Old Senior
Notes or if you are a beneficial owner of registered Old Senior 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 Senior Notes or registered Old
Senior Notes in the Exchange Offer, you should promptly contact the person in
whose name your Old Senior 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 Senior Notes, either make
appropriate arrangements to register ownership of the outstanding Old Senior
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 Senior 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 Senior Notes cannot be delivered on time, you may tender your
Old Senior 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 Senior 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 Senior Notes were previously accepted for exchange
Acceptance of Outstanding Old Senior 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
Senior 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 Senior Notes issued
pursuant to Exchange Offer will be delivered promptly following the Expiration
Date.
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Certain U.S. Federal Income Tax Consequences...... An exchange of Old Senior Notes for New Senior Notes will not 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 Senior 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 [( ) - ] and the facsimile number for the Exchange
Agent is [(612) 244-0711].
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CONSEQUENCES OF NOT EXCHANGING OLD SENIOR NOTES
If you do not exchange your Old Senior Notes in the Exchange Offer,
your Old Senior Notes will continue to be subject to the restrictions on
transfer set forth in the legend on the certificate for your Old Senior Notes.
In general, you may offer or sell your Old Senior 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 Senior Notes
under the Securities Act. See "The Exchange Offer--Consequences of Exchanging or
Failing to Exchange Old Senior Notes."
SUMMARY DESCRIPTION OF THE NEW SENIOR NOTES
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Notes Offered..................................... $225,000,000 in aggregate principal amount at maturity of 7 3/8% Series B Senior
Notes due 2004
$600,000,000 in aggregate principal amount at maturity of 7 5/8% Series B Senior
Notes due 2006
$875,000,000 in aggregate principal amount at maturity of 7 7/8% Series B Senior
Notes due 2009
Maturity Date..................................... The 7 3/8% Series B Senior Notes will mature on January 1, 2004.
The 7 5/8% Series B Senior Notes will mature on January 1, 2006.
The 7 7/8% Series B Senior Notes will mature on January 1, 2009.
Interest Payments Dates........................... The 7 3/8% Series B Senior Notes will bear interest at the rate of 7 3/8%
compounded semi-annually on January 1 and July 1 of each year, commencing July
1, 1999.
The 7 5/8% Series B Senior Notes will bear interest at the rate of 7 5/8%
compounded semi-annually on January 1 and July 1 of each year, commencing July
1, 1999.
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The 7 7/8% Series B Senior Notes will bear interest at the rate of 7 7/8%
compounded semi-annually on January 1 and July 1 of each year, commencing July
1, 1999.
Ranking........................................... The Senior Notes are senior, unsecured obligations of the Company and will rank
equally to each other, and to all our existing and future senior unsecured
indebtedness and will rank senior in right of payment to all our existing and
future subordinated indebtedness. The Senior Notes are guaranteed on a senior
unsecured basis by Allied of which we are a direct wholly-owned subsidiary, and,
so long as our senior credit facility is similarly guaranteed, by substantially
all of our direct and indirect subsidiaries. However, the Senior Notes will be
effectively subordinated to all of our secured indebtedness, including
outstanding indebtedness under our senior credit facility to the extent of the
assets securing such indebtedness. As of September 30, 1998, on a pro forma
basis after giving effect to the issuance of the Senior Notes and the
application of the proceeds therefrom, we would have had approximately $368
million of secured indebtedness outstanding and approximately an additional $730
million of availability under our Senior Credit Facility which would be secured
indebtedness. The terms "indebtedness" and subordinated indebtedness" are
defined in the "Description of the New Senior Notes--Subordination" and
"Description of the New Senior Notes--Certain Definitions" sections of this
Prospectus.
Optional Redemption............................... We may redeem the Five Year Notes and the Seven Year Notes at the Redemption
Price (as defined) 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 at the Treasury Yield plus 50 basis points, plus in each case
accrued but unpaid interest (including Special Interest).
Before January 1, 2004, we may redeem the Ten Year 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 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).
On or after January 1, 2004, we may redeem all or part of the Ten Year Notes, at
redemption prices that decline over time until the maturity date.
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Public Equity Offering Optional Redemption....... Before January 1, 2002, we may redeem on any one or more occasions up to 33 1/3%
of the aggregate principal amount of the Ten Year Notes with the net proceeds of
one or more public equity offerings at a price equal to 107.9% of the principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any.
See "Description of the New Senior Notes-- Optional Redemption."
Change of Control................................. Upon certain change of control events, each holder of Senior Notes may require
us to repurchase all or a portion of its Senior Notes at a purchase price equal
to 101% of the principal amount thereof, plus accrued interest. See "Description
of the New Senior Notes--Certain Definitions" for the definition of a Change of
Control."
Guarantees ....................................... Our obligations under the Senior 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 Senior 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 Senior Notes" in this
Prospectus.
Following the first date upon which any one of the Senior Notes are rated the
following:
- Baa3 or better by Moody's Investors Service, Inc. and BB+ or better by
Standard & Poor's Ratings Group; or
- BBB- or better by Standard & Poor's Ratings Group and Ba1 or better by
Moody's Investors Service, Inc., then
certain covenants, including those relating to the incurrence of indebtedness,
the making of dividends, the redemption of capital stock and other restricted
payments, limitations on restrictions concerning distributions by subsidiaries
and transactions with affiliates will no longer be applicable to the Senior
Notes.
Exchange Offer; Registration Rights............... Under registration rights agreements executed as part of the offering of the
outstanding Old Senior Notes, we have agreed to:
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- file a registration statement within 90 days after the issue date of
the Old Senior Notes enabling holders to exchange the privately placed
Old Senior Notes for publicly registered notes with identical terms,
- use our best efforts to cause the registration statement to become
effective within 180 days after the issue date of the Old Senior 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 Senior Notes if we cannot effect an exchange offer
within the time periods listed above and in certain other
circumstances.
The interest rate on the Senior 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 Senior Notes.
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RISK FACTORS
You should consider carefully the following risks and all of the
information set forth in this Prospectus before tendering your Old Senior Notes
in the Exchange Offer and making an investment in the New Senior Notes. The risk
factors set forth below (other than "-- Consequences of Not Exchanging Old
Senior Notes") are generally applicable to the Old Senior Notes as well as the
New Senior Notes.
CONSEQUENCES OF NOT EXCHANGING NOTES
If you do not exchange your Old Senior Notes for the New Senior Notes
pursuant to the Exchange Offer, you will continue to be subject to the
restrictions on transfer of your Old Senior Notes described in the legend on
your Old Senior Notes. The restrictions on transfer of your Old Senior Notes
arise because we issued the Old Senior 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 Senior 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 Senior Notes under the
Securities Act. In addition, if you exchange your Old Senior 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 Senior Notes are tendered and accepted in the Exchange Offer, the
trading market, if any, for the Old Senior Notes would be adversely affected.
See "The Exchange Offer -- Consequences of Exchanging or Failing to Exchange Old
Senior Notes."
HOLDERS RESPONSIBLE FOR COMPLIANCE WITH EXCHANGE OFFER PROCEDURES; CONSEQUENCES
OF FAILURE TO EXCHANGE
We will issue the New Senior Notes in exchange for the Old Senior Notes
pursuant to this Exchange Offer only after we have timely received such Old
Senior 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 Senior Notes in exchange for New Senior 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 Senior 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 Senior
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 thereof. In
general, the Old Senior 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 Senior 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 Senior 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 Senior Notes under the Securities Act.
The New Senior Notes and any Old Senior 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.
REQUIREMENTS FOR TRANSFER OF NEW SENIOR 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 Senior 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 Senior 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 Senior 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 as in such other circumstances. If you are an affiliate of the Company,
are engaged in or intend to engage in or have any
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arrangement or understanding with respect to a distribution of the New Senior
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 Senior 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 Senior 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 Senior Notes where the Old
Senior Notes exchanged for such New Senior 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 Senior 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.
LEVERAGE
We have a substantial amount of outstanding indebtedness with
significant debt service requirements. At September 30, 1998, on a pro forma
basis after giving effect to the issuance of the Senior Notes and the
application of proceeds therefrom, Allied's consolidated debt would have been
approximately $2.1 billion, consisting primarily of the Senior Notes and
approximately $300 million outstanding under the Senior Credit Facility.
Our substantial amount of outstanding indebtedness could have important
consequences to you. For example, it could:
- impair our ability to obtain additional financing in the
future;
- reduce funds available to us for other purposes because we
must use our cash flow from operations to pay the principal
and interest on our outstanding debt;
- increase our vulnerability to economic downturns in the
industry we operate in; and
- increase our vulnerability to interest rate increases to the
extent debt under the Senior Credit Facility is not hedged
because our Senior Credit Facility is at a variable interest
rate.
ABILITY TO SERVICE DEBT
Our ability to pay interest on the Senior Notes and to satisfy our
other debt obligations will depend on, among other things, our future operating
performance and financial results. Each of these factors is to a large extent
dependent on economic, financial, competitive and other factors, beyond our
control. Although we believe that our cash flow will be adequate to meet our
interest payments, we cannot assure you that we will continue to generate
earnings in the future which are sufficient to cover our fixed charges. If, in
the future, our cash flows from operations are insufficient to allow us to pay
our fixed charges and we are unable to borrow sufficient funds under either the
Senior Credit Facility or from other sources, we may be required to refinance
our indebtedness or sell assets. We cannot assure you that we will be able to
refinance our indebtedness, or assure you that the timing of a sale of assets or
the receipt of proceeds from the sale will occur in time to sufficiently satisfy
our debt service requirements. In addition, our ability to use the proceeds from
the sale of assets to repay amounts outstanding under the Senior Notes may be
restricted by the terms of our Senior Credit Facility.
If we are unable to meet our debt service obligations for any reason,
including insufficient cash flow or proceeds from asset sales, we would be in
default under the terms of certain of our debt agreements. If we default, the
holders of the
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defaulted debt could cause all amounts borrowed under these agreements to be due
and payable immediately, and may terminate their commitments to fund the debt.
Further, if we are unable to repay, refinance or restructure our indebtedness
the debt holders could proceed against any collateral securing the indebtedness.
In the case of a default under the Senior Credit Facility, the lenders could
proceed against our capital stock and the capital stock of Allied's subsidiaries
and substantially all of our assets and our subsidiaries, including Allied and
its subsidiaries. A default under any of Allied's debt could result in a default
under other debt or result in Allied's or our bankruptcy.
RISKS ASSOCIATED WITH ALLIED'S BUSINESS STRATEGY; POTENTIAL DIFFICULTY IN
OBTAINING SUITABLE LANDFILLS, COLLECTION OPERATIONS, TRANSFER STATIONS AND
PERMITS
The ability of Allied to continue to implement its vertical integration
strategy successfully will depend on its ability to identify and acquire or
develop appropriate landfills, collection operations and transfer stations. We
cannot assure you that Allied will be able to find appropriate acquisition
candidates, acquire those acquisition candidates that it does find, or integrate
the acquisition candidates effectively or profitably.
Acquisitions by Allied may increase our capital requirements because
acquisitions require sizable amounts of capital and competition with other solid
waste companies which have a similar acquisition strategy may drive the price
up. If acquisition candidates are unavailable or too costly, Allied may need to
change its business strategy. In addition, we cannot assure you that Allied will
successfully obtain the permits it requires to operate its businesses, 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. Allied's failure to obtain the required permits to
operate non-hazardous solid waste landfills could have a material adverse effect
on its future results of operations.
In connection with Allied's acquisition of existing landfills, Allied
may also have to spend considerable time, effort and money to obtain permits
required to increase the capacity of existing landfills. Allied cannot predict
if it will be able to obtain the governmental approvals necessary to establish
new or expand existing landfills and, if it does, whether or not it will be
economically beneficial to do so. Further, Allied cannot assure you that it will
be successful in obtaining new landfill sites or expanding the permitted
capacity of its current landfills once its landfill capacity is full, because in
some areas suitable land may be unavailable for new landfill sites. In such
event, Allied may have to dispose collected waste at landfills operated by its
competitors or haul the waste long distances at a higher cost to another of
Allied's landfills, which could have a material adverse effect on Allied's waste
disposal expenses.
LIMITED OPERATING HISTORY IN REGARD TO ACQUIRED BUSINESSES
During 1997 and 1998 Allied acquired many companies and therefore we
have only a limited history of operating a significant portion of our business.
During 1997, Allied acquired 35 companies, which collectively had $369.1 million
in annual revenues. Further, during 1997 Allied sold 37 operations which
represented approximately $127.9 million in annual revenues. The additional
revenue due to the sale and purchase of companies represents approximately 28%
of Allied's revenue in 1997. During 1998, Allied acquired 54 businesses which
collectively had annual revenues of approximately $748.8 million. Allied plans
to continue acquiring landfills, collection operations and transfer stations in
the future. We cannot assure you that Allied's efforts to integrate acquired
operations will be effective, or that expected financial benefits and
operational efficiencies will be realized. Allied's failure to effectively
integrate the acquired operations could have an adverse effect on Allied's
future results of operations and financial position. As Allied continues to
pursue its acquisitions strategy, its financial position and results of
operations may fluctuate significantly from period to period.
CAPITAL REQUIREMENTS AND LIMITED WORKING CAPITAL
Allied's ability to remain competitive, sustain its growth and
operations, and expand operations largely depends on its access to capital.
Allied intends to fund its cash needs through cash flow from operations and
borrowings under the Senior Credit Facility. The solid waste industry is a
capital intensive industry which may consume Allied's cash from its operations
and borrowings under the Senior Credit Facility. As a result, Allied may require
additional equity and/or debt financing to fund its growth through acquisitions
and internal development of solid waste operations, and for debt
-14-
<PAGE> 25
repayment obligations. During 1999, Allied expects to spend approximately $260
million for capital expenditures and closure and post-closure and remediation
expenditures related to its landfill operations. If Allied acquires or expands
its operations, the amount it expends 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 Allied to finance working capital
deficits.
Allied's 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 Allied's operating costs and therefore impair Allied's
ability to invest in its facilities.
Allied's ability to pay its debt obligations or to refinance its
indebtedness depends on its future performance. Allied's future performance may
be affected by general economic, financial, competitive, legislative, regulatory
and other factors beyond its control. Allied's management believes that its
current available cash flow and borrowings available under the Senior Credit
Facility and other sources of liquidity will meet its anticipated future
requirements for working capital, letters of credit, capital, closure,
post-closure and remediation expenditures, debt obligations incurred under the
Senior Credit Facility, and interest due on the Senior Notes.
However, Allied may need to refinance the Senior Notes to pay the
principal due at maturity. In addition, Allied may need additional capital to
fund future acquisitions and integrations of solid waste businesses. We cannot
assure you that Allied's business will generate sufficient cash flow or obtain
sufficient funds to enable Allied or us to pay its debt obligation and capital
expenditures or that refinancing will be available on commercially reasonable
terms or at all.
COMPETITION FROM OTHER COMPANIES AND MUNICIPALITIES; LANDFILL ALTERNATIVES
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 four large national waste management companies,
Waste Management, BFI, Republic Services, Inc., and Allied. It also includes
numerous regional and local companies such as Superior Services, Inc. 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 operates 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 Allied will be able to operate its
landfills at their full capacity or charge current prices for landfill disposal
services due to the decrease in demand for services.
Allied also encounters competition with its 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 Allied will be able to locate or acquire
suitable acquisition candidates at economical prices and terms in the current
markets Allied serves or new markets.
FRAUDULENT CONVEYANCE
Under the federal bankruptcy law and comparable provisions of state
fraudulent transfer laws, if, among other things, any Guarantor, at the time it
incurred the debt evidenced by its guarantee of the Senior Notes:
- (1) was insolvent or rendered insolvent by reason of such
incurrence, or (2) was engaged in a business or transaction
for which that Guarantor's remaining assets constituted
unreasonably small capital, or
-15-
<PAGE> 26
(3) intended to incur, or believed that it would incur, debts
beyond its ability to pay such debts as they mature; and
- that Guarantor received less than reasonably equivalent value
or fair consideration for the incurrence of such debt;
then the guarantee of that Guarantor could be voided, or claims by holders of
the notes under that Guarantee could be subordinated to all other debts of that
Guarantor. In addition, any payment by that Guarantor pursuant to its guarantee
could be required to be returned to that Guarantor, or to a fund for the benefit
of the creditors of that Guarantor.
The measures of insolvency for purposes of the foregoing considerations
will vary depending upon the law applied in any proceeding with respect to the
foregoing. Generally, however, a Guarantor would be considered insolvent if:
- the sum of its debts, including contingent liabilities, was
greater than the saleable value of all of its assets at a fair
valuation; or
- the present fair saleable value of its assets was 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 that each Guarantor, after giving effect
to the debt incurred by that Guarantor in connection with the private offering
and the Exchange Offer, will not be insolvent, will not have unreasonably small
capital for the business in which it is engaged and will not have incurred debts
beyond its 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.
POTENTIAL INABILITY TO EFFECT CHANGE OF CONTROL REPURCHASES
The Indenture requires us, in the event of a Change of Control, to make
an offer to purchase all outstanding Senior Notes at a price equal to 101% of
their principal amount, in each case, plus accrued interest to the repurchase
date. The Senior Credit Facility restricts us from repurchasing the Senior Notes
without the approval of the lenders thereunder. We cannot assure you that Allied
will have the sufficient funds available or will be permitted by our lenders
under the Senior Credit Facility to repurchase the Senior Notes upon a Change of
Control. Our failure to repurchase the Senior Notes would constitute an event of
default under the Indenture. See "Description of the Senior Notes -- Repurchase
at Option of Holders -- Change of Control."
RESTRICTIONS IMPOSED BY THE SENIOR CREDIT FACILITY AND THE SENIOR NOTES
The Senior Credit Facility and the Indenture relating to the Senior
Notes contain covenants that restrict our ability and our subsidiaries 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,
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<PAGE> 27
- engage in mergers or consolidations, or
- engage in certain transactions with subsidiaries and
affiliates and otherwise restrict corporate activities.
We cannot assure you that these restrictions will not adversely affect
our ability to finance our future operations or capital needs or engage in other
business activities that may be in our interest. In addition, the Senior Credit
Facility contains financial covenants including
- a total debt to EBITDA ratio,
- a fixed charge coverage ratio, and
- an interest expense coverage ratio.
Our compliance with these ratios may be affected by events beyond our
control. Our breach or failure to comply with any of these covenants or
financial ratios could result in a default under the Senior Credit Facility or
the Indenture relating to the Senior Notes. If we default under the Senior
Credit Facility, the lenders thereunder could cause all our outstanding debt
obligations under the Senior Credit Facility 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. If a default under the Indenture
relating to the Senior Notes occurs, holders could elect to declare the Senior
Notes due and payable. If the indebtedness under the Senior Credit Facility or
the Senior Notes is accelerated, we may not have sufficient assets to repay
amounts due under the Senior Credit Facility, the Senior Notes, or on other debt
securities then outstanding.
RELIANCE ON MANAGEMENT
Allied highly depends upon its senior management team. As Allied grows,
it 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 have a material adverse effect on Allied.
COST OF COMPLIANCE WITH ENVIRONMENTAL REGULATIONS; RISK OF 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, storages
and disposal of solid and hazardous wastes and materials, air quality and the
remediation of contamination associated with the release of hazardous
substances.
Our compliance with regulatory requirements is costly. As waste
management companies 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 Allied will be able to implement price increases
sufficient to offset the cost of complying with these standards. In addition,
environmental regulatory changes could accelerate expenditures for closure and
post-closure monitoring at solid waste facilities and obligate Allied to spend
sums in addition to those presently accrued for such purposes.
In addition to the costs of complying with environmental regulations,
Allied is involved in administrative and judicial proceedings related to
environmental matters. As a result Allied may be required to pay fines or may
lose certain permits and licenses. In addition, Allied may have to defend itself
against governmental agencies and surrounding landowners who assert claims
alleging environmental damage or violations of permits and licenses by Allied.
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 or expanding
current facilities. A significant judgment against Allied, the loss of a
significant permit or license or the imposition of a significant fine could have
a material adverse effect on Allied's financial condition.
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<PAGE> 28
Certain of Allied's waste disposal operations traverse state and county
boundaries. In the future, Allied's collection, transfer and landfill operations
may also be affected by 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 and that may require states, under certain
circumstances, to reduce the amounts of waste exported to other states. If this
or similar legislation is enacted in states in which Allied operates landfills
that receive a significant portion of waste originating from out-of-state
Allied's operations could be adversely 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.
As a condition to the acquisition of the non-hazardous solid waste
management business of Laidlaw, Inc. (the "Laidlaw Acquired Businesses" and
"Laidlaw", respectively) in December 1996 (the "Laidlaw Acquisition"), Allied
engaged Emcon Environmental Services, Inc. ("Emcon"), an independent
environmental consultant, to conduct environmental assessments of the Laidlaw
Acquired Businesses. In its report (the "Emcon Environmental Report"), Emcon
identified several contaminated properties under the management of the Laidlaw
Acquired Businesses, including landfills and other locations owned by the
Laidlaw Acquired Businesses, that could pose significant sources of liability to
the Laidlaw Acquired Businesses. The costs of performing the investigation,
design, remediation and allocation of responsibility to the subsidiaries of
Allied vary significantly between sites. Based on the information then
available, Allied recorded a provision of $51.5 million for environmental
matters, including closure and post-closure costs, in the 1996 consolidated
statement of operations and expects these amounts to be disbursed over the next
30 years. The actual liability at these sites cannot currently be determined due
to a number of uncertainties including the extent of the contamination, the
appropriate remedy, the financial viability of other potentially responsible
parties and the ultimate apportionment of responsibility among such potentially
responsible parties.
The representations made by the Laidlaw sellers in the Stock Purchase
Agreement, dated September 17, 1996, among Allied, AWNA and Laidlaw, among
others, relating to the Laidlaw Acquisition (the "Laidlaw Acquisition
Agreement") with respect to the environmental matters (1) terminated on the
closing of the Laidlaw Acquisition as to all matters disclosed in writing to
Allied at least five business days prior to the closing or disclosed with
specificity in the Emcon Environmental Report and (2) terminate on the third
anniversary of the closing of the Laidlaw Acquisition as to all matters other
than those described in clause (1) and which are known to Laidlaw on the closing
date. The Laidlaw Acquisition Agreement further provided that Laidlaw's
indemnification obligations with respect to environmental matters would be
limited to the amount by which the aggregate of all such damages exceeded a $1
million basket, without giving effect to any materiality qualifications. At the
closing of the Laidlaw Acquisition, Allied and Laidlaw entered into a special
environmental indemnity which was subsequently amended to provide an indemnity
for damages arising out of the Etobicoke, Ontario and Delafield, Wisconsin sites
that will be limited to a three-year period from the closing of the Laidlaw
Acquisition and to an amount in excess of a $25 million basket with such $25
million basket to be reduced by any damages to which the $1 million basket in
the Laidlaw Acquisition Agreement applies. Laidlaw's indemnity for properties
located at Gary Lagoons, Indiana remains intact and is not subject to the
three-year limitation or any basket.
HAZARDOUS SUBSTANCES LIABILITY
We may be identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"). CERCLA has been interpreted to impose joint and several
liability on current and former owners or operators of facilities 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 its efforts to comply with applicable
regulations and to avoid transporting and receiving hazardous substances, such
substances may be present in waste collected by Allied or disposed of in its
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.
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<PAGE> 29
POTENTIAL UNDISCLOSED LIABILITIES ASSOCIATED WITH ACQUISITIONS
Allied 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 Allied, as
a successor owner, is responsible.
POTENTIAL UNINSURED OR UNDERINSURED ENVIRONMENTAL LIABILITIES
As is typically the case in the solid waste industry, Allied is able to
obtain only very limited environmental impairment insurance regarding its
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 million for the policy term in
excess of a $1 million deductible per claim. An uninsured or underinsured claim
of sufficient magnitude would require Allied to fund such claim from cash flow
generated by operations or borrowings under the Senior Credit Facility or other
sources of liquidity. We cannot assure you that Allied would be able to fund any
such claim from cash provided by operations, the Senior Credit Facility or
elsewhere.
LAIDLAW TAX INDEMNIFICATION
In connection with the Laidlaw Acquisition, Laidlaw disclosed to the
Company the existence of a tax controversy relating to disallowed deductions in
income tax returns with the United States Internal Revenue Service involving the
consolidated U.S. federal income tax liability of the members of an affiliated
group of corporations, of which Laidlaw Transportation, Inc. is the common
parent corporation, which includes Laidlaw Transportation, those Laidlaw
Acquired Businesses which are incorporated in the U.S., and other U.S.
subsidiaries of Laidlaw Transportation, which were not acquired in the Laidlaw
Acquisition.
Laidlaw's United States subsidiaries petitioned the United States Tax
Court with respect to their consolidated federal income tax returns for the
fiscal years ended August 31, 1986, 1987 and 1988. The principal issue related
to the timing and deductibility for tax purposes of interest attributable to
loans owing to a related foreign person. On June 30, 1998, the Court issued an
opinion concluding that advances from one of Laidlaw's foreign subsidiaries were
equity rather than debt and that interest deductions claimed were disallowed.
Based on this opinion, taxes of $49.6 million (plus interest of approximately
$91.4 million as of May 31, 1998) would be payable. Laidlaw expects to appeal
this opinion. As of May 31, 1998, Laidlaw had available tax reserves of more
than $200 million for these purposes. Similar claims have been asserted with
respect to the consolidated federal income tax returns for the fiscal years
ended August 31, 1989, 1990, and 1991. A petition has been filed with the United
States Tax Court with respect to these years. The income taxes at issue for
these years is approximately $143.5 million (plus interest of approximately
$145.3 million as of May 31, 1998) Laidlaw also anticipates that similar claims
will be asserted for the fiscal years ended August 31, 1992, 1993 and 1994.
Under applicable Treasury Regulations, each member of the affiliated
tax group including each LSW Subsidiary, is or could be severally liable for
United States federal income tax liabilities of the entire affiliated group,
including all amounts at issue in the tax controversy which are ultimately
determined to be owed.
We have obtained an indemnity from Laidlaw and certain of its
subsidiaries (the "Laidlaw Group") which covers the amounts at issue in the tax
controversy for which any LSW Subsidiary may ultimately be found liable. The
obligation of the Laidlaw Group to indemnify the Company in respect of amounts
at issue in the tax controversy is a general, unsecured obligation of the
Laidlaw Group. We cannot assure you as to the ability of the Laidlaw Group to
pay and fulfill such indemnification obligation which will depend on the
financial condition of the Laidlaw Group at the time of any required performance
of such obligation.
IMPACT OF ADVERSE WEATHER CONDITIONS
Allied's 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 waste generated by Allied's customers. In addition, certain of
Allied's 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 Allied's future results of
operations.
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<PAGE> 30
LACK OF PUBLIC MARKET FOR THE EXCHANGE NOTES; RESTRICTIONS ON RESALE
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 Senior Notes are eligible for trading in the
PORTAL market. However, we do not intend to apply for listing of the Senior
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> 31
SELECTED FINANCIAL DATA
The selected financial data presented below as of December 31, 1993,
1994, 1995 and for the two years ended December 31, 1994 are derived from
Allied's Consolidated Financial Statements, which have not been restated for
business combinations accounted for as pooling-of-interests consummated
subsequent to 1997 and were audited by Arthur Andersen LLP, independent public
accountants. The selected financial data presented below as of December 31, 1996
and 1997 and for the three years ended December 31, 1997 are derived from
Allied's Supplemental Consolidated Financial Statements, which have been audited
by Arthur Andersen LLP, independent public accountants. The unaudited
supplemental financial data as of September 30, 1998 and for the nine months
ended September 30, 1997 and 1998 presented below are derived from Allied's
Supplemental Condensed Consolidated Financial Statements. The supplemental
statement of operations data, other data, and balance sheet data have been
restated to give effect to transactions accounted for using the
pooling-of-interests method for business combinations consummated through
October 15, 1998. See Note 2 to Allied's Supplemental Consolidated Financial
Statements included in Allied's Current Report on Form 8-K filed October 29,
1998.
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED SEPTEMBER 30,
------------------------------------------------------------------- -------------------------
1993 1994 1995 1996 1997 1997 1998
HISTORICAL SUPPLEMENTAL UNAUDITED SUPPLEMENTAL
------------------------- --------------------------------------- -------------------------
(IN THOUSANDS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues ......................... $ 108,948 $ 200,184 $ 580,784 $ 619,548 $ 1,301,391 $ 955,005 $ 1,119,788
Cost of operations ............... 68,374 128,271 366,980 386,001 747,150 551,752 626,596
Selling, general and
administrative expenses ......... 18,278 39,077 97,031 102,416 169,219 122,141 111,814
Depreciation and amortization
expense ......................... 10,637 19,829 55,414 67,823 156,200 113,889 133,880
Acquisition related, non-recurring
and unusual costs(1) ............ -- 2,100 1,531 96,508 5,010 2,652 75,925
----------- ----------- ----------- ----------- ----------- ----------- -----------
Operating income (loss) .......... 11,659 10,907 59,828 (33,200) 223,812 164,571 171,573
Interest income .................. (310) (1,107) (735) (2,479) (1,969) (1,471) (3,320)
Interest expense ................. 7,633 13,958 20,443 21,347 106,092 83,998 64,593
Other income, net ................ -- -- -- -- (1,076) -- --
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income (loss) before income
taxes ........................... 4,336 (1,944) 40,120 (52,068) 120,765 82,044 110,300
Income tax expense (benefit) ..... 1,694 (663) 10,904 354 40,153 26,001 55,444
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income (loss) before extraordinary
item ............................ 2,642 (1,281) 29,216 (52,422) 80,612 56,043 54,856
Extraordinary loss, net of income
tax benefit(2) .................. -- 3,029 908 13,887 53,205 53,205 3,093
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income (loss) ................ 2,642 (4,310) 28,308 (66,309) 27,407 2,838 51,763
Preferred dividends .............. (927) (3,773) (4,070) (1,073) (381) (381) --
Conversion fee on equity
securities converted(3) ......... -- -- (2,151) -- -- -- --
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income (loss) available to
common shareholders ............. $ 1,715 $ (8,083) $ 22,087 $ (67,382) $ 27,026 $ 2,457 $ 51,763
=========== =========== =========== =========== =========== =========== ===========
Ratio of earnings to
fixed charges(4) ................ 1.4x * 1.9x * 1.4x 1.5x 1.6x
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------------------------------------------------- -------------------------
1993 1994 1995 1996 1997 1997 1998
HISTORICAL SUPPLEMENTAL UNAUDITED SUPPLEMENTAL
------------------- ------------------ ----------------------
(IN THOUSANDS)
BALANCE SHEET DATA:
<S> <C> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents . $ 3,812 $ 6,269 $ 5,385 $ 70,015 $ 32,298 $ 103,482 $ 26,123
Working capital (deficit) . 3,892 (10,087) (43,101) 26,410 (33,478) 41,189 (34,013)
Property and equipment, net 94,208 222,386 316,837 932,110 1,576,674 1,216,009 1,709,614
Goodwill, net .............. 34,880 78,633 89,431 888,648 1,056,601 1,002,441 1,277,669
Total assets ............... 159,926 379,324 480,841 2,662,200 3,020,179 2,668,368 3,419,543
Total long-term debt,
net of current portion ... 61,019 177,126 196,428 1,283,327 1,454,270 1,320,374 1,551,589
Stockholders' equity ....... 70,277 93,174 139,571 385,218 950,537 777,425 1,181,573
Long-term debt, net to
total capitalization ..... 46% 66% 58% 77% 60% 63% 57%
</TABLE>
(footnotes on next page)
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<PAGE> 32
(footnotes from previous page)
(1) Acquisition related, non-recurring and unusual costs were recorded in
1994, 1995, 1996, 1997 and 1998 for environmental related matters,
asset impairments and abandonments, acquisition related liabilities,
litigation matters, relocation and transition costs and bonuses, and
other integration costs related to companies acquired. See Note 2 to
Allied's Supplemental Consolidated Financial Statements included in
Allied's Current Report on Form 8-K filed October 29, 1998.
(2) The extraordinary losses in 1994, 1995, 1996, 1997 and 1998 were
incurred as a result of premiums paid for the early extinguishment of
debt and the write-off of related deferred debt issue costs.
(3) A non-cash conversion fee of $2.2 million was incurred in the fourth
quarter 1995 as a result of an inducement offered by Allied to holders
of certain convertible preferred stock and convertible subordinated
notes to exercise their conversion option to receive Allied common
stock. The inducement fee consisted of payment of dividends or interest
from the conversion date through the first call or redemption date of
each convertible security. Approximately 7.8 million shares of common
stock were issued for conversion and approximately 285,000 shares were
issued for the conversion fee.
(4) For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of income before taxes and fixed charges, exclusive of
preferred stock dividends. Fixed charges include interest expense and
capitalized interest.
* Earnings were insufficient to cover fixed charges by $5.5 million in
1994 and by $64.2 million in 1996.
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<PAGE> 33
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER
Summary: The Company will accept for exchange Old Senior 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 Senior Notes have been tendered, or
- the date on which the Company terminates the Exchange Offer.
The Company will return any Old Senior 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 Senior 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 Senior 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, $1,700,000,000 aggregate principal
amount of the Old Senior 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 Senior Notes at the addresses set forth in
the securities register with respect to Old Senior Notes maintained by the
Trustee. The Company's obligation to accept Old Senior Notes for exchange
pursuant to the Exchange Offer is subject to certain conditions as set forth
below. See "- Acceptance of Old Senior Notes; Delivery of New Senior 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 Senior Notes, by mailing
written notice of such extension to the holders thereof as described below.
During any extension, all Old Senior Notes previously tendered will remain
subject to the Exchange Offer and may be accepted for exchange by the Company.
Any Old Senior 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 Senior 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 Senior Notes as promptly
as practicable, such notice to be mailed to the holders of record of the Old
Senior 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 SENIOR NOTES
Summary: The Trustee is serving as Exchange Agent in connection with the
Exchange Offer. Holders of Old Senior 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 Senior Notes which they hold as nominee by
book-entry transfer. Questions regarding the Exchange Offer, tender of the Old
Senior Notes, or the Exchange Offer generally, must be directed to the Exchange
Agent.
Letter of Transmittal. The tender to the Company of Old Senior 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 Company
upon the terms and
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<PAGE> 34
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 Senior
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
Senior 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 Senior 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 Senior 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 Senior 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 Senior Notes
surrendered for exchange pursuant thereto are tendered (1) by a registered
holder of the Old Senior 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 Senior Notes are registered in the name of a person other than the person
signing the Letter of Transmittal, the Old Senior 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 Senior Notes, the
Old Senior 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 Senior Notes.
Representatives. If the Letter of Transmittal or any Old Senior 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
Senior 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
Senior Notes. If any holder of Old Senior 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 Senior 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 Senior Notes for its own account in
exchange for Old Senior Notes must acknowledge that the Old Senior Notes were
acquired by the broker-dealer as a result of market-making activities or other
trading activities and that it will
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<PAGE> 35
deliver a prospectus in connection with any resale of the New Senior 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 SENIOR NOTES FOR EXCHANGE; DELIVERY OF NEW SENIOR NOTES
The Company will accept, promptly after the Expiration Date, all Old
Senior Notes properly tendered and will issue the New Senior Notes promptly
after acceptance of the Old Senior Notes. For each Old Senior Note accepted for
exchange, the holder of the Old Senior Note will receive a New Senior Note
having a principal amount equal to that of the surrendered Old Senior Note. The
New Senior Notes will bear interest from the most recent date to which interest
has been paid on the Old Senior Notes or, if no interest has been paid on the
Old Senior Notes, from December 23, 1998. Accordingly, if the relevant record
date for interest payment occurs after the completion of the Exchange Offer,
registered holders of New Senior 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 December 23, 1998. If, however, the relevant record
date for interest payment occurs prior to the completion of the Exchange Offer,
registered holders of Old Senior 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 December 23, 1998. Old Senior 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 Senior Notes whose Old Senior Notes are accepted for exchange
will not receive any payment in respect of interest on the Old Senior 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 Senior Notes for Old Senior 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 Senior Notes or a timely Book-Entry
Confirmation of the Old Senior 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 Senior Notes are not accepted for any reason set
forth in the terms and conditions of the Exchange Offer or if certificates
representing Old Senior Notes are submitted for a greater principal amount than
the holder desires to exchange, certificates representing the unaccepted or
non-exchanged Old Senior Notes will be returned without expense to the tendering
holder thereof (or, in the case of Old Senior 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 Senior 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 Senior 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 Senior Notes not properly tendered or not to
accept any particular Old Senior 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 Senior Notes either
before or after the Expiration Date (including the right to waive the
ineligibility of any holder who seeks to tender Old Senior Notes in the Exchange
Offer). The interpretation of the terms and conditions of the Exchange Offer as
to any particular Old Senior 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 Senior Notes for exchange must
be 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 Senior Notes for exchange, nor shall any of them incur any
liability for failure to give any notification.
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<PAGE> 36
BOOK-ENTRY TRANSFER
The Exchange Agent will ask to establish an account with respect to the
Old Senior 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 Senior Notes by causing
the Book-Entry Transfer Facility to transfer the Old Senior 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 Senior 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 Senior Notes desires to tender the Old
Senior Notes and the Old Senior Notes are not immediately available, or time
will not permit the holder's Old Senior 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 Senior Notes and the amount of Old Senior
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 Senior 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 Senior 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 Senior 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
Senior Notes to be withdrawn, identify the Old Senior Notes to be withdrawn
(including the principal amounts of such Old Senior Notes), and (where
certificates for Old Senior Notes have been transmitted) specify the name in
which such Old Senior Notes are registered, if different from that of the
withdrawing holder.
If certificates for Old Senior 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 Senior Notes have been tendered pursuant to the
procedure for book-entry transfer, any notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Old Senior 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 Senior Notes so withdrawn will be deemed not to have
been validly tendered for exchange for purposes of the Exchange Offer. Any Old
Senior 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 Senior 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 Senior Notes
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<PAGE> 37
will be credited to an account maintained with the Book-Entry Transfer Facility
for the Old Senior Notes) as soon as practicable after withdrawal, rejection of
tender or termination of the Exchange Offer. Properly withdrawn Old Senior Notes
may be retendered by following one of the procedures described under "-
Procedure for Tendering Old Senior 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: First Trust Center
180 East Fifth Center
St. Paul, Minnesota 55101
By Overnight Courier or By Hand: First Trust Center
180 East Fifth Center
St. Paul, Minnesota 55101
Confirm by Telephone: (651) 244-8162
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 Senior 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 Senior Notes in the name of, or request that Old
Senior 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 Senior Notes will not have dissenters' rights or appraisal
rights in connection with the Exchange Offer.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD SENIOR NOTES
Holders of Old Senior Notes who do not exchange their Old Senior Notes for
New Senior Notes pursuant to the Exchange Offer will continue to be subject to
the restrictions on transfer of the Old Senior Notes. In general, the Old Senior
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 Senior Notes
under the Securities Act.
RESALE OF THE NEW SENIOR NOTES
Based on interpretations by the staff of the SEC issued to third parties,
New Senior Notes issued pursuant to the Exchange Offer in exchange for Old
Senior 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 Senior Notes are acquired in the ordinary course of the
holders' business, and
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<PAGE> 38
- the holders have no arrangement with any person to participate in
the distribution of the New Senior 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 Senior
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 Senior Notes.
See "Risk Factors Resale of the New Senior 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 Senior 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 Senior Notes for its own account in
exchange for Old Senior Notes must acknowledge that the Old Senior 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 Senior Notes. Any such broker-dealer may be deemed to be an
"underwriter" under the Securities Act. See "Plan of Distribution -
Broker-Dealers." 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 Senior Notes in that jurisdiction prior to offering or selling
the New Senior 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
Senior Notes for the Old Senior Notes. In the Registration Rights Agreements,
the Company also agreed under limited circumstances to file the Shelf
Registration Statement to register the resale of certain Old Senior Notes and
New Senior Notes. If the Company defaults on certain of its registration
obligations under the Registration Rights Agreements, the affected Note holders
will be entitled to Special Interest.
- --------------------------------------------------------------------------------
This summary of the Registration Rights Agreements 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
- 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 Senior Notes must represent that it:
- is not an affiliate of the Company,
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<PAGE> 39
- 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 Senior Notes issued in the Exchange Offer, and
- is acquiring the New Senior 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 Senior Notes if the Exchange Offer is not permitted by
applicable law or SEC policy, or
- any New Senior 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 Senior 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 Senior Note until the earliest
of the date on which the Old Senior Note
- is exchanged for a New Senior 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:
- provide to each named selling Note holder copies of the prospectus
which is part of the Shelf Registration Statement, and any
amendments and supplements
- 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,
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<PAGE> 40
- 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 July 5, 1999,
- a per annum rate of 0.50% for the second 90 days after July 5, 1999,
- a per annum rate of 0.75% for the third 90 days after July 5, 1999,
- a per annum rate of 1.0% for periods after the third 90 days after
July 5, 1999.
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
At September 30, 1998, on a pro forma basis after giving effect to the
issuance of the Senior Notes and the application of proceeds therefrom, Allied's
consolidated debt would have been approximately $2.1 billion, consisting
primarily of the Senior Notes and approximately $300 million outstanding under
the Senior Credit Facility. At that date, we also had approximately $730 million
of availability under our Revolving Credit Facility to be used for working
capital, letters of credit, acquisitions and other general corporate purposes.
The Senior Credit Facility comprises a $300 million term loan (the "Term Loan"),
which is fully drawn, and a $800 million revolving credit facility (the
"Revolving Credit Facility" and together with the Term Loan, the "Senior Credit
Facility"). The Revolving Credit Facility includes a $250 million sublimit for
the issuance of letters of credit. The credit agreement governing the terms of
the Senior Credit Facility (the "Credit Agreement") contains financial and
operating covenants and restrictions on our ability to complete acquisitions,
pay dividends, incur indebtedness, make investments and take certain other
corporate actions. A portion of our available cash must be applied to service
indebtedness. As of September 30, 1998, Allied was in compliance with the
covenants contained in the Credit Agreement.
The Term Loan Facility is an amortizing senior secured term loan with
annual principal payments increasing from $75 million in 2001 to $105 million in
2002, and to $120 million in 2003. Principal under the Revolving Credit Facility
is due upon maturity in June 2003.
In addition to the scheduled principal payments, we are required to make
mandatory prepayments on the Senior Credit Facility from the proceeds from
certain asset sales and the issuance of new debt securities and cash-pay
preferred stock. The amount of the mandatory prepayment is based upon the ratio
of total debt to EBITDA (the "Ratio"). Prepayments equal
- 75% of the net proceeds when the Ratio exceeds 4.50 to 1.00,
- 50% of the net proceeds when the Ratio exceeds 4.00 to 1.00 but is
less than 4.50 to 1.00 and
- 0% when the Ratio is less than 4.00 to 1.00.
Proceeds from new equity issues are exempt from mandatory prepayment
requirements. Mandatory prepayments are applied first to repay outstanding
Revolving Credit Facility advances (but not to reduce commitments under the
Revolving Credit Facility) and the Term Loan pro rata based on amount
outstanding, until no Revolving Credit Facility advances are outstanding, and
then to repay the outstanding Term Loan.
Borrowings under the Revolving Credit Facility may be used for
acquisitions, the issuance of letters of credit, working capital and other
general corporate purposes.
The Senior Credit Facility bears interest, at our option, at either (1) a
Base Rate, or (2) a LIBOR Rate, both terms as defined in the Credit Agreement,
plus, in either case, an applicable margin. The applicable margin is adjusted
from time to time pursuant to a pricing grid based upon the Ratio, as defined in
the Credit Agreement, and varies between zero percent and 0.50% for Base Rate
loans, and 0.75% and 1.75% for Eurodollar loans.
The Senior Credit Facility is guaranteed by substantially all of our
present and future subsidiaries. In addition, the Senior Credit Facility is
secured by substantially all of Allied's and the personal property and a pledge
of the stock of substantially all the our present and future subsidiaries.
The Senior Credit Facility agreement contains certain financial covenants
including, but not limited to, a Total Debt to EBITDA ratio, a Fixed Charge
Coverage ratio and an Interest Expense Coverage ratio, all terms as defined in
the Credit Agreement. In addition, the Credit Agreement also limits our ability
to
- make acquisitions and purchase fixed assets above certain amounts,
- pay dividends,
- incur additional indebtedness and liens,
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<PAGE> 42
- make optional prepayments on certain subordinated indebtedness,
- make investments, loans or advances,
- enter into certain transactions with affiliates or
- enter into a merger, consolidation or sale of all or a substantial
portion of the Company's assets.
The Company was in compliance with all applicable covenants at September
30, 1998.
The Company has entered into interest rate protection agreements (the
"Agreements"), with commercial banks and investment banking institutions to
reduce its exposure to fluctuations in variable interest rates. A summary of the
Agreements outstanding as of September 30, 1998 is as follows:
<TABLE>
<CAPTION>
NOTIONAL AMOUNT FIXED RATE PERIOD
(IN MILLIONS)
<S> <C> <C>
$ 50 6.08% September 1997 - September 2000
50 6.06 September 1997 - March 2000
50 5.12 February 1998 - April 1999
50 6.02 October 1997 - October 1999
50 5.90 November 1997 - November 1999
50 5.91 November 1997 - November 1999
130 6.06 May 1998 - May 2001
</TABLE>
The Agreements effectively change the Company's interest rate paid on its
floating rate long-term debt to a weighted average fixed rate of approximately
5.91% plus applicable margins imposed by the terms of the Credit Agreement at
September 30, 1998.
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<PAGE> 43
DESCRIPTION OF THE NEW SENIOR NOTES
As used below in this "Description of the New Senior Notes" (unless the
context indicates otherwise), references to the "Senior Notes" refer to the Old
Senior Notes and the New Senior Notes, which are described in the future tense
for convenience only.
THE SENIOR NOTES
The Company issued the Old Senior Notes to the Initial Purchasers on
December 23, 1998. The Initial Purchasers sold the Old Senior Notes to
"qualified institutional buyers," as defined in Rule 144A under the Securities
Act. The terms of the New Senior Notes are substantially identical to the terms
of the Old Senior Notes. However, the New Senior 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 Senior Notes." In addition, the Company does
not plan to list the New Senior Notes on any securities exchange or seek
quotation on any automated quotation system. The Old Senior Notes are listed on
Nasdaq's PORTAL system.
The following chart summarizes the basic terms of the Senior Notes:
Principal Amount at Maturity:...- $225,000,000 of 7 3/8% Series B Senior Notes
due 2004 (the "Five Year Notes")
- $600,000,000 of 7 5/8% Series B Senior Notes
due 2006 (the "Seven Year Notes")
- $875,000,000 of 7 7/8% Series B Senior Notes
due 2009 (the "Ten Year Notes")
Maturity Date:..................- The 7 3/8% Series B Senior Notes will mature
on January 1, 2004.
- The 7 5/8% Series B Senior Notes will mature
on January 1, 2006.
- The 7 7/8% Series B Senior Notes will mature
on January 1, 2009.
Interest Payments Dates:........- The 7 3/8% Series B Senior Notes will bear
interest at the rate of 7 3/8% compounded
semi-annually on January 1 and July 1 of
each year, commencing July 1, 1999.
- The 7 5/8% Series B Senior Notes will bear
interest at the rate of 7 5/8% compounded
semi-annually on January 1 and July 1 of
each year, commencing July 1, 1999.
- The 7 7/8% Series B Senior Notes will bear
interest at the rate of 7 7/8% compounded
semi-annually on January 1 and July 1 of
each year, commencing July 1, 1999.
Collateral and Ranking:......... The Senior Notes are senior, unsecured
obligations of the Company and will rank
equally to each other, and to all our
existing and future senior unsecured
indebtedness and will rank senior in right
of payment to all our existing and future
subordinated indebtedness. The Senior Notes
are guaranteed on a senior unsecured basis
by Allied of which we are a direct
wholly-owned subsidiary, and, so long as our
senior credit facility is similarly
guaranteed, by substantially all of our
direct and indirect subsidiaries. However,
the Senior Notes will be effectively
subordinated to all of our secured
indebtedness, including outstanding
indebtedness under our Senior Credit
Facility to the extent of the assets
securing such indebtedness. As of September
30, 1998, on a pro forma basis after giving
effect to the issuance of the Senior Notes
and the application of the proceeds
therefrom, we would have had approximately
$368 million of secured indebtedness
outstanding and approximately an additional
$730 million of availability under our
Senior Credit Facility which would be
secured indebtedness. The terms
"indebtedness" and subordinated
indebtedness" are defined in the
"Description of the New Senior
Notes--Subordination" and "Description of
the New Senior Notes--Certain Definitions"
sections of this Prospectus.
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<PAGE> 44
Global Note:.................... The New Senior 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 Senior
Note holders will not receive certificates
for the New Senior Notes, except in certain
limited circumstances.
Payment
Procedures:..................... The Company will make all payments on the
Senior 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 Senior 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 Senior Notes. See "The Exchange Offer - Registration Rights Agreement."
THE INDENTURE
The Old Senior Notes were issued, and the New Senior Notes will be issued,
pursuant to Series Supplements dated as of December 23, 1998 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
Senior Notes include each Series Supplement relating to the Senior Notes. All
references in this section to the "Company" refer solely to Allied Waste North
America, Inc., the issuer of the Senior 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.
GENERAL
The Five Year Notes, the Seven Year Notes and the Ten Year Notes will be
unsecured senior obligations of the Company and will be pari passu in right of
payment to each other. The Five Year Notes will be limited to $300 million
aggregate principal amount, of which $225 million has been issued and will
mature on January 1, 2004. The Seven Year Notes will be limited to $700 million
aggregate principal amount, of which $600 million has been issued, and will
mature on January 1, 2006. The Ten Year Notes will be limited to $1 billion
aggregate principal amount, of which $875 million has been issued, and will
mature on January 1, 2009. Additional Senior Notes may be issued from time to
time after the date of the Series Supplements under the Indenture, subject to
the provisions of the Indenture, including those described below under the
caption " -- Certain Covenants -- Limitation on Consolidated Debt." Any such
additional Senior Notes may be part of the same class and series (including with
respect to voting) as the Senior Notes of such issue issued in this Offering.
The Senior Notes will be fully and unconditionally guaranteed on a senior
unsecured basis by Allied (such guarantees, the "Parent Guarantees").
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<PAGE> 45
The Senior Notes will also be fully and unconditionally guaranteed by the
existing Restricted Subsidiaries of the Company, and the Company will covenant
to cause any Restricted Subsidiaries acquired or created in the future that
guarantees the Bank Agreement to fully and unconditionally guarantee the Senior
Notes, in each case jointly and severally on a senior unsecured basis (such
guarantees, the "Subsidiary Guarantees" and, together with the Parent
Guarantees, the "Senior Guarantees" of such guarantors, the "Subsidiary
Guarantors").
As of the date of the Indenture, all of the Company's Subsidiaries (other
than Allied Insurance) were Restricted Subsidiaries. However, under certain
circumstances, the Company will be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries will not be
subject to many of the restrictive covenants set forth in the Indenture. See "
- -- Certain Covenants -- Limitation on Restricted Payments."
The Senior Notes will be effectively subordinated to all existing and
future indebtedness and other liabilities (including trade payables and capital
lease obligations) of the Company's Subsidiaries (if any) that are Unrestricted
Subsidiaries (and thus not Subsidiary Guarantors) and would be so 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 under " -- Guarantees." See "Risk
Factors -- Fraudulent Conveyance."
The Senior Notes will be effectively subordinated to all secured Debt of
the Company and its Subsidiaries, including outstanding Debt under the Company's
Senior Credit Facility to the extent of the assets securing such Debt. See "
Terms of Certain Outstanding Debt."
INTEREST AND PAYMENTS
- --------------------------------------------------------------------------------
Summary: The Senior Notes will bear interest at the rates set forth below:
- The Five Year Notes will bear interest at the rate of 7 3/8%
compounded semi-annually on January 1 and July 1 of each year,
commencing July 1, 1999.
- The Seven Year Notes will bear interest at the rate of 7 5/8%
compounded semi-annually on January 1 and July 1 of each year,
commencing July 1, 1999.
- The Ten Year Notes will bear interest at the rate of 7 7/8%
compounded semi-annually on January 1 and July 1 of each year,
commencing July 1, 1999.
- --------------------------------------------------------------------------------
The Senior Notes will bear interest at the rate per annum shown above from
December 23, 1998 (the "Issue Date") or from the most recent interest Payment
Date to which interest has been paid or provided for, payable semi-annually on
July 1 and January 1 of each year, commencing July 1, 1999, until the principal
thereof is paid or made available for payment, to the Person on whose name the
Senior Note, or any predecessor note, is registered at the close of business on
the preceding June 15 or December 15, as the case may be. The Senior Notes will
bear interest on overdue principal and premium, if any, and, to the extent
permitted by law, overdue interest at the rate per annum shown on the front
cover of this Prospectus plus 2%. Interest on the Senior Notes will be computed
on the basis of a 360-day year of twelve 30-day months.
The principal of and premium, if any, and interest, including Special
Interest (as defined below) on the Senior Notes will be payable, and the
transfer of Senior Notes will be registrable, at the office or agency of the
Company in The Borough of Manhattan, The City of New York. In addition, payment
of interest may, at the option of the Company, be made by check mailed to the
address of the Person entitled thereto as it appears in the Security Register;
provided, however, that all payments of the principal (and premium, if any) and
interest on Senior Notes the Holders of which have given wire transfer
instructions to the Company or its agent at least 10 Business Days prior to the
applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by such Holders in such
instructions.
The Company has agreed to file and cause to become effective a
registration statement relating to an exchange offer for each issue of the
Senior Notes and Senior Guarantees, or, in lieu thereof, to file and cause to
become effective a resale shelf registration statement for each issue of the
Senior Notes and Senior Guarantees. If any such exchange offer or shelf
registration statement is not filed or is not declared effective, or if any such
exchange offer is not consummated, within the time periods set forth herein,
Special
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<PAGE> 46
Interest (as defined below) will accrue and be payable on the Senior Notes
either temporarily or permanently. See " -- Registration Covenant; Exchange
Offers."
No service charge will be made for any registration of transfer or
exchange of Senior Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
OPTIONAL REDEMPTION
- --------------------------------------------------------------------------------
SUMMARY:
1. We may redeem the Five Year Notes and the Seven Year Notes at the
Redemption Price (as defined) 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 at the Treasury Yield plus 50 basis points, plus
in each case accrued but unpaid interest (including Special
Interest).
2. Before January 1, 2004, we may redeem the Ten Year 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 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).
3. On or after January 1, 2004, we may redeem all or part of the Ten Year
Notes, at redemption prices that decline over time until the maturity
date.
4. We also may redeem the following amount of the Ten Year Notes on the
occasion of a public equity offering:
- Before January 1, 2002, we may redeem on any one or more occasions
up to 33 1/3% of the aggregate principal amount of the Ten Year
Notes with the net proceeds of one or more public equity offerings
at a price equal to 107.9% of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any.
- --------------------------------------------------------------------------------
FIVE YEAR NOTES
Except as provided below, the Five Year Notes will not be subject to any
redemption at the option of the Company prior to the final maturity of such
Notes.
Five Year Notes will be subject to redemption, at the option of the
Company, in whole or in part, at any time, upon not less than 30 nor more than
60 days' notice mailed to each Holder of Five 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.
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<PAGE> 47
SEVEN YEAR NOTES
Except as provided below, the Seven Year Notes will not be subject to any
redemption at the option of the Company prior to the final maturity of such
Notes.
Seven Year Notes will be subject to redemption, at the option of the
Company, in whole or in part, at any time, upon not less than 30 nor more than
60 days' notice mailed to each Holder of Seven 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).
TEN YEAR NOTES
The Ten Year Notes will not be subject to any redemption at the option of
the Company prior to January 1, 2004 except as set forth in the following
paragraphs. On or after January 1, 2004, the Ten Year Notes will be subject to
redemption, in whole or in part, at the option of the Company at any time prior
to maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Ten Year Notes to be redeemed at such Holder's address appearing in
the applicable Note Register, in amounts of $1,000 or an integral multiple of
$1,000, at the following Redemption Prices (expressed as percentages of
principal amount) plus accrued but unpaid interest (including Special Interest)
to but excluding the Redemption Date (subject to the right of Holders of record
on the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date), if redeemed during the
twelve-month period beginning on January 1 of each of the years indicated below:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
<S> <C>
2004 ............................................................. 103.9375%
2005 ............................................................. 102.6250%
2006 ............................................................. 101.3125%
2007 and thereafter . ............................................ 100.0000%
</TABLE>
Prior to January 1, 2004, the Ten Year Notes will be subject to
redemption, at the option of the Company, in whole or in part, at any time, upon
not less than 30 nor more than 60 days' notice mailed to each Holder of Ten Year
Notes to be redeemed at such Holder's address appearing in the applicable Note
Register, in amounts of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the greater of
- 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).
At any time, or from time to time, prior to January 1, 2002, up to 33 1/3%
in aggregate principal amount of the Ten Year Notes originally issued under the
Indenture will be redeemable, at the option of the Company, from the net
proceeds of one or more Public
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<PAGE> 48
Offerings of Capital Stock (other than Redeemable Interests) of Allied, at a
Redemption Price equal to 107.9% of the principal amount thereof, together with
accrued but unpaid interest, including Special Interest, to the Redemption Date,
subject to the right of Holders of record on the relevant Regular Record Date to
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date; provided that the notice of redemption with respect to any such
redemption is mailed within 30 days following the closing of the corresponding
Public Offering.
SELECTION AND NOTICE
If less than all the Senior Notes of any issue are to be redeemed, the
particular Senior Notes to be redeemed will be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Notes of such
issue not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions, equal to $1,000 or any integral multiples thereof, of the principal
amount of the applicable Senior Notes of a denomination larger than $1,000.
MANDATORY REDEMPTION
Except as described below under " -- Repurchase at the Option of Holders
- -- Asset Dispositions" and " -- Change of Control," the Senior Notes will not
have the benefit of any mandatory redemption or sinking fund obligations of the
Company.
REPURCHASE AT THE OPTION OF HOLDERS
ASSET DISPOSITIONS
The Company may not make, and may not permit any Restricted Subsidiary to
make, any Asset Disposition unless:
(1) the Company (or such Restricted Subsidiary, as the case may be)
receives consideration at the time of such disposition at least
equal to the fair market value of the shares or the assets disposed
of, as determined in good faith by the Board of Directors for any
transaction (or series of transactions) involving in excess of $10
million and not involving the sale of equipment or other assets
specifically contemplated by the Company's capital expenditure
budget previously approved by the Board of Directors;
(2) at least 75% of the consideration received by the Company (or such
Restricted Subsidiary) consists of
(u) cash or readily marketable cash equivalents,
(v) the assumption of Debt or other liabilities reflected on the
consolidated balance sheet of the Company and its Restricted
Subsidiaries in accordance with generally accepted accounting
principles (excluding Debt or any other liabilities
subordinate in right of payment to the Senior 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
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<PAGE> 49
(3) 100% of the Net Available Proceeds from such Asset Disposition
(including from the sale of any marketable cash equivalents received
therein) are applied by the Company or a Restricted Subsidiary
(A) first, within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available
Proceeds, to Debt of the Company or its Restricted
Subsidiaries then outstanding under the Bank Agreement which
would require such application or which would prohibit
payments pursuant to Clause (B) following;
(B) second, to the extent Net Available Proceeds are not required
to be applied as specified in Clause (A), to purchases on a
pro rata basis of Outstanding Notes of each issue pursuant to
an Offer to Purchase (to the extent such an offer is not
prohibited by the terms of the Bank Agreement then in effect)
at a purchase price equal to 100% of their principal amount
plus accrued interest to the date of purchase (subject to the
rights of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that
is on or prior to the purchase date); and
(C) third, to the extent of any remaining Net Available Proceeds
following completion of such Offer to Purchase, to any other
use as determined by the Company which is not otherwise
prohibited by the Indenture and provided further that the 75%
limitation referred to in clause (2) above will not apply to
any Asset Disposition if the consideration received therefrom,
as determined in good faith by the Company's Board of
Directors, is equal to or greater than what the after-tax
proceeds would have been had the Asset Disposition complied
with the aforementioned 75% limitation.
Notwithstanding the foregoing, the Company will not be required to comply
with the provisions of the Indenture described in Clause (3) above
(a) if the Net Available Proceeds less any amounts ("Reinvested
Amounts") are invested or committed to be invested within one
year from the later of the date of the related Asset
Disposition or the receipt of such Net Available Proceeds in
assets that will be used in the business of the Company or any
of its Restricted Subsidiaries as such business is conducted
prior to such Asset Disposition (determined by the Board of
Directors in good faith) or
(b) to the extent the Company elects to redeem the Senior Notes of
any series with the Net Available Proceeds pursuant to any of
the provisions described under " -- Optional Redemption."
Notwithstanding the foregoing, the Company will not be required to comply
with the requirements described in Clause (2) of the above 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 written terms and conditions thereof (the "Offer
Document"), by first class mail, to Holders of the Notes within 30 days after
the date which is one year after the later of the date of 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 Senior
Note pursuant to such Offer to Purchase are substantially the same as those
described below under " -- Change of Control."
CHANGE OF CONTROL
- --------------------------------------------------------------------------------
Summary: If the Company experiences a Change of Control, the holder of Senior
Notes will have the right to require the Company to repurchase the Senior Notes
for:
- 101% of the principal amount thereof, and
- accrued and unpaid interest on that principal.
- --------------------------------------------------------------------------------
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 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 the Company or defeasance from
its obligations with respect to the Senior Notes. See " -- Defeasance."
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<PAGE> 50
A "Change of Control" will be deemed to have occurred in the event that,
after the date of the Indenture,
(1) so long as the Company is a Subsidiary of Allied,
(a) any Person, or any Persons (other than a Permitted Allied
Successor, as defined below), acting together that would
constitute a "Group" (a "Group") for purposes of Section 13(d)
of the Exchange Act, together with any Affiliates or Related
Persons thereof (other than any employee stock ownership
plan), beneficially own 50% or more of the total voting power
of all classes of Voting Stock of Allied,
(b) any Person or Group, together with any Affiliates or Related
Persons thereof, succeeds in having sufficient of its nominees
who have not been approved by the Continuing Directors elected
to the Board of Directors of Allied such that such nominees,
when added to any existing director remaining on the Board of
Directors of Allied after such election who is an Affiliate or
Related Person of such Person or Group, 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 the Company as a Restricted Payment
under the Indenture after giving pro forma effect to
such transaction, or
(III) a combination thereof), and the beneficial owners of the
Voting Stock of Allied immediately prior to such
transaction (or series) do not, immediately after such
transaction (or series), beneficially own Voting Stock
representing more than 50% of the total voting power of
all classes of Voting Stock of Allied (or in the case of
a transaction (or series) in which another entity
becomes a successor to, or parent of, Allied, of the
successor or parent entity),
(2) if the Company is not a Subsidiary of Allied,
(a) any Person, or any Persons (other than a Permitted Company
Successor, as defined below), acting together that would
constitute a "Group" (a "Group") for purposes of Section 13(d)
of the Exchange Act, together with any Affiliates or Related
Persons thereof (other than any employee stock ownership plan)
beneficially own 50% or more of the total voting power of all
classes of Voting Stock of the Company,
(b) any Person or Group, together with any Affiliates or Related
Persons thereof, succeeds in having sufficient of its nominees
who have not been approved by the Continuing Directors elected
to the Board of Directors of the Company such that such
nominees, when added to any existing director remaining on the
Board of Directors of the Company after such election who is
an Affiliate or Related Person of such Person or Group, will
constitute a majority of the Board of Directors of the Company
or,
(c) there occurs any transaction or series of related transactions
(other than a merger, consolidation or other transaction with
a Related Business in which the shareholders of the Company
immediately prior to such transaction (or series) receive
(I) solely Voting Stock of the Company (or its successor or
parent, as the case may be),
(II) cash, securities and other property in an amount which
could be paid by the Company as a Restricted Payment
under the Indenture after giving pro forma effect to
such transaction or
(III) a combination thereof), and the beneficial owners of the
Voting Stock of the Company immediately prior to such
transaction (or series) do not, immediately after such
transaction (or series), beneficially own Voting Stock
representing more than 50% of the total voting power of
all classes of Voting Stock of the Company
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<PAGE> 51
(or in the case of a transaction (or series) in which
another entity becomes a successor to the Company, of
the successor entity).
A "Permitted Allied Successor" means an issuer, other than Allied, of
Voting Securities issued to the shareholders of Allied in a merger,
consolidation or other transaction permitted by clause (1)(c) of the definition
of Change of Control. A "Permitted Company Successor" means an issuer, other
than the Company, of Voting Securities issued to the shareholders of the Company
in a merger, consolidation or other transaction permitted by clause (2)(c) of
the definition of Change of Control.
The Company 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.
The terms of the Credit Agreement prohibit any repurchase of Senior Notes
by the Company in the event of a Change of Control, unless all indebtedness then
outstanding under the Bank Agreement is first repaid. In order to repay such
indebtedness and repurchase the Senior Notes, it may be necessary for the
Company to recapitalize and/or refinance some or all of its outstanding
indebtedness. We cannot assure you that such recapitalization or refinancing, if
required, would be accomplished on favorable terms, in a timely manner or at
all. Were any obligation of the Company to repurchase Senior Notes upon a Change
of Control to result in a default under the Bank Agreement, the Company may not
have sufficient assets to satisfy its obligations under the Bank Agreement and
the Indenture. See "Risk Factors -- Leverage; Ability to Service Debt."
Within 30 days of a Change of Control, an Offer Document will be sent, by
first class mail, to Holders of each issue of the Senior Notes, accompanied by
such information regarding the Company and its Subsidiaries as 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 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" and contained in the documents required to be
filed with the Trustee pursuant to the provisions described under
" -- Certain Covenants -- Provision of Financial Information" below
(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
therein. Each Offer Document will contain all instructions and
materials necessary to enable Holders of the applicable Senior Notes
to tender such Senior Notes pursuant to the Offer to Purchase. Each
Offer Document will also state
(a) that a Change of Control has occurred (or, if the Offer to
Purchase is delivered in connection with an Asset Disposition,
that an Asset Disposition has occurred) and that the Company
will offer to purchase the Holder's Senior Notes,
(b) 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 such
Offer Document,
(c) the Purchase Date for the purchase of Senior Notes which will
be within five Business Days after the Expiration Date,
(d) the aggregate principal amount of Senior Notes to be purchased
(including, if less than 100%, the manner by which such
purchase has been determined pursuant to the Indenture) and
the purchase price and
(e) a description of the procedure which a Holder must follow to
tender all or any portion of the Senior Notes.
To tender any Senior Note, a Holder must surrender such Senior Note at the
place or places specified in the Offer Document prior to the close of business
on the Expiration Date (such Senior Note being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument or transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing). Holders will be entitled to
withdraw all or any portion of Senior Notes tendered if the Company (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 Senior Note and Holder
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tendered, the certificate number of the Note the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender. Any portion of a
Senior Note tendered must be tendered in an integral multiple of $1,000
principal amount.
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GUARANTEES
- --------------------------------------------------------------------------------
Summary: The Company's payment obligations under the Senior 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 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 Senior 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 Senior Guarantees of each Guarantor will remain in effect with respect
to each issue of Senior Notes until the entire principal of, premium, in any,
and interest on such issue of Senior 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 Senior Notes is defeased
and discharged as described under Clause (A) under "-- 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 the Company 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 under "-- 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 the
corporation acquiring such assets (in the event of a sale or other
disposition of all or substantially all of the assets of such
Subsidiary Guarantor) shall be released and discharged of its Senior
Guarantee obligations.
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.
- merge, consolidate or sell all or substantially all of its assets.
Following the first date upon which any one of the Senior Notes are rated the
following:
- Baa3 or better by Moody's Investors Service, Inc. and BB+ or better
by Standard & Poor's Ratings Group; or
- BBB- or better by Standard & Poor's Ratings Group and Ba1 or better
by Moody's Investors Service, Inc.
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certain covenants, including those relating to the incurrence of indebtedness,
the making of dividends, the redemption of capital stock and other restricted
payments, limitations on restrictions concerning distributions by subsidiaries
and transactions with affiliates will no longer be applicable to the Senior
Notes.
- --------------------------------------------------------------------------------
CHANGES IN COVENANTS WHEN NOTES RATED INVESTMENT GRADE
Following the first date upon which any of the Five Year Notes, the Seven
Year Notes or the Ten Year Notes are rated the following:
(1) Baa3 or better by Moody's Investors Service, Inc. ("Moody's") and
BB+ or better by Standard & Poor's Ratings Group ("S&P"); or
(2) BBB- or better by S&P and Ba1 or better by Moody's (a "Rating
Event") (or, in any case, if such person ceases to rate both issues
of the Notes for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any other "nationally
recognized statistical rating organization" (within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the
Company as a replacement agency) (the "Rating Event Date") (and
provided no Event of Default or event that with notice or the
passage of time would constitute an Event of Default shall exist on
the Rating Event Date), then
the covenants specifically listed under "-- Repurchase at the Option of Holders
- -- Asset Dispositions," "-- Certain Covenants -- Limitation on Consolidated
Debt," "-- Limitation on Restricted Payments," "-- Limitations Concerning
Distributions by Subsidiaries, Etc.," "-- Limitation on Transactions with
Affiliates and Related Persons" and "-- Unrestricted Subsidiaries" in this
Prospectus will no longer be applicable to the Senior Notes.
There can be no assurance that a Rating Event Date will occur or, if one
occurs, that the Senior Notes will continue to maintain an investment grade
rating. In addition, at no time after a Rating Event Date will the provisions
and covenants contained in the Indenture at the time of the issuance of the
applicable issue of the Senior Notes that cease to be applicable after the
Rating Event Date be reinstated.
The Indenture contains, among others, the following covenants:
LIMITATION ON CONSOLIDATED DEBT
The Company may not incur any Debt and may not permit Restricted
Subsidiaries to Incur any Debt or issue Preferred Stock unless, immediately
after giving effect to the Incurrence of such Debt or issuance of such Preferred
Stock and the receipt and application of the proceeds thereof, the Consolidated
EBITDA Coverage Ratio of the Company for the four full fiscal quarters next
preceding the Incurrence of such Debt or issuance of such Preferred Stock,
calculated on a pro forma basis as if such Debt had been Incurred or such
Preferred Stock had been issued and the proceeds thereof had been received and
so applied at the beginning of the four full fiscal quarters, would be greater
than 2.0 to 1.0.
Without regard to the foregoing limitations, the Company or any restricted
Subsidiary of the Company 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 Senior Notes and the Guarantees;
(3) 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
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<PAGE> 55
(y) 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 under "-- 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 of consolidation with the Company or another Restricted
Subsidiary) and was not issued in contemplation of such
transaction or
(B) is issued by the Company or a Restricted Subsidiary to a
seller in connection with such transaction,
in an aggregate amount for all such Debt issued pursuant to the
provisions of the Indenture described under this Clause (5) and then
outstanding does not exceed 5% of the Consolidated Total Assets of
the Company 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 to
the provisions of the Indenture described under this Clause (8) and
then outstanding, does not exceed 7.5% of the Consolidated Total
Assets of the Company at the time of such Incurrence.
LIMITATION ON RESTRICTED PAYMENTS
The Company may not, and may not permit any Restricted Subsidiary to,
directly or indirectly,
(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 the Company or any Restricted Subsidiary or to
the holders thereof in their capacity as such, excluding any
dividends or distributions
(u) to the extent payable in shares of the Capital Stock of the
Company (other than Redeemable Interests) or in options,
warrants or other rights to acquire the Capital Stock of the
Company (other than Redeemable Interests),
(v) dividends or distributions by a Restricted Subsidiary to the
Company or another Wholly Owned Restricted Subsidiary and
(w) the payment of pro rata dividends by a Restricted Subsidiary
to holders of both minority and majority interests in such
Restricted Subsidiary,
(2) 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
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<PAGE> 56
(b) any options, warrants or rights to purchase or acquire shares of
Capital Stock of the Company or any Capital Stock of or other
ownership interests in any Subsidiary or any Affiliate or Related
Person of the Company (excluding, in each case of (a) and (b), the
purchase, redemption, acquisition or retirement by any Restricted
Subsidiary of any of its Capital Stock, other ownership interests or
options, warrants or rights to purchase such Capital Stock or other
ownership interests, in each case, owned by the Company or a Wholly
Owned Restricted Subsidiary),
(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 the Company that is subordinate in right of payment
to the Senior Notes
(each of the transactions described in Clauses (1) through (4) above being a
"Restricted Payment"), if:
(1) an Event of Default, or an event that with the lapse of time or the
giving of notice, or both, would constitute an Event of Default,
shall have occurred and be continuing; or
(2) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the most recently ended four full
fiscal quarter period for which internal financial statements are
available immediately preceding the date of such Restricted Payment,
not have been permitted to Incur at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage Ratio test set forth in
the first paragraph under "-- Limitation on Consolidated Debt"
above; or
(3) upon giving effect to such Restricted Payment, the aggregate of all
Restricted Payments (excluding Restricted Payments permitted by
Clauses (1), (2), (3), (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 the Company's most
recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted
Payment;
(b) 100% of the aggregate net cash proceeds from the issuance and
sale to Allied of Capital Stock (other than Redeemable
Interests) of the Company and options, warrants or other
rights to acquire Capital Stock (other than Redeemable
Interests and Debt convertible into Capital Stock) of the
Company and the principal amount of Debt and Redeemable
Interests of the Company that has been converted into Capital
Stock (other than Redeemable Interests) of the Company after
the date of the 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 the Indenture from an
Unrestricted Subsidiary of the Company; and
(d) $300 million.
The foregoing covenant will not be violated by reason of
(1) the payment of any dividend within 60 days after declaration thereof
if at the declaration date such payment would have complied with the
foregoing covenant;
(2) any refinancing or refunding of Debt permitted if such refinancing
or refunding is permitted pursuant to clause (vii) of the second
paragraph under "-- Limitation on Consolidated Debt" above;
(3) 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
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<PAGE> 57
net cash proceeds of, the substantially concurrent issuance or sale
(other than to a Restricted Subsidiary of the Company) of Capital
Stock (other than Redeemable Interests) of the Company; provided
that the amount of any such net cash proceeds that are utilized for
any such purchase, redemption or other acquisition or retirement for
value shall be excluded from clause (3)(b) in the foregoing
paragraph;
(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 the Company.
(5) the Refinancing Transactions;
(6) the repurchase of any subordinated Debt at a purchase price not
greater than 101% of the principal amount of such subordinated Debt
in the event of a Change of Control pursuant to a provision similar
to the "-- Repurchase at the Option of Holders -- Change of
Control" covenant; provided that prior to such repurchase the
Company has made the Change of Control Offer as provided in such
covenant with respect to the Senior Notes and repurchased all Senior
Notes validly tendered for repayment in connection with such Change
of Control Offer;
(7) the purchase or redemption of any Debt from Net Available Proceeds
to the extent permitted under "-- Repurchase at the Option of
Holders -- Asset Dispositions"; and
(8) payments pursuant to the Intercompany Agreements.
Upon the designation of any Restricted Subsidiary as an Unrestricted
Subsidiary, an amount equal to the greater of the book value and the fair market
value of all assets of such Restricted Subsidiary at the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available prior to such designation will be deemed to be a Restricted Payment at
the time of such resignation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from such
designation) permitted under provisions described in the second preceding
paragraph.
LIMITATIONS CONCERNING DISTRIBUTIONS BY SUBSIDIARIES, ETC.
The Company may not, and may not permit any Restricted Subsidiary to,
suffer to exist any consensual encumbrance or restriction on the ability of such
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 the Company or
any other Restricted Subsidiary;
(2) to make loans or advances to the Company or any other Restricted
Subsidiary; or
(3) to sell, lease or transfer any of its property or assets to the
Company or any Wholly Owned Restricted Subsidiary, except, in any
such case, any encumbrance or restriction:
(a) pursuant to the Senior Notes, the Indenture, the Senior
Guarantees or any other agreement in effect on the date of the
Indenture,
(b) pursuant to the Bank Agreement, including any Guarantees of or
Liens securing the Debt Incurred thereunder,
(c) pursuant to an agreement relating to any Debt Incurred by such
Subsidiary prior to the date on which such Subsidiary was
acquired by the Company and outstanding on such date and not
incurred in anticipation of becoming a Subsidiary,
(d) pursuant to an agreement which has been entered into for the
pending sale or disposition of all or substantially all of the
Capital Stock, other ownership interests or assets of such
Subsidiary, provided that such restriction terminates upon
consummation or abandonment of such disposition and upon
termination of such agreement,
(e) pursuant to customary non-assignment provisions in leases and
other agreements entered into in the ordinary course of
business,
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(f) restrictions contained in any security agreement (including a
capital lease) securing Debt permitted to be Incurred under
the Indenture that impose restrictions of the nature described
in Clause (3) above on the property subject to the Lien of
such security agreement,
(g) pursuant to an agreement effecting a renewal, extension,
refinancing or refunding of Debt incurred pursuant to an
agreement referred to in Clause (a), (b) or (f) above;
provided, however, that the provisions relating to such
encumbrance or restriction contained in such renewal,
extension, refinancing or refunding agreement are no more
restrictive in any material respect than the provisions
contained in the agreement it replaces, as determined in good
faith by the Board of Directors; or
(h) such encumbrance or restriction is the result of applicable
corporate law or regulation relating to the payment of
dividends or distributions.
LIMITATION ON LIENS
Allied may not, and the Company may not, and may not permit any of its
Restricted Subsidiaries to, create, Incur, assume or otherwise cause or suffer
to exist or become effective any Lien (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired to secure Debt of
Allied, the Company or any of its Restricted Subsidiaries.
LIMITATION ON TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS
The Indenture will provide that the Company 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 or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Company (each of the foregoing, an "Affiliate
Transaction"), unless
(1) 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
(2) the Company delivers to the Trustee, with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10,000,000, either
(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 the Company or such
Restricted Subsidiary, as the case may be, of such Affiliate
Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national
standing.
Notwithstanding the foregoing, the following items shall not be deemed to
be Affiliate Transactions:
(1) 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 (a) $5,000,000 outstanding
in the aggregate at any time and (b) $2,000,000 to any one employee)
and consistent with the past practice of the Company or such
Restricted Subsidiary;
(2) loans by the Company and its Restricted Subsidiaries to employees of
Allied or any of its Subsidiaries in connection with management
incentive plans not to exceed $25,000,000 at any time outstanding;
provided that such limitation shall not apply to loans the proceeds
of which are used to purchase common stock of (a) the Company from
the Company or (b) Allied from Allied if and to the extent that
Allied utilizes the proceeds thereof to acquire Capital Stock (other
than Redeemable Interests) of the Company;
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<PAGE> 59
(3) transactions between or among the Company and/or its Restricted
Subsidiaries;
(4) 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;
(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 Senior Notes in any material respect) or any
transaction contemplated thereby;
(6) payments and transactions in connection with the Tender Offers, and
the payment of the fees and expenses with respect thereto; and
(7) Restricted Payments that are permitted by the provisions of the
Indenture described under the caption "-- Limitation on Restricted
Payments."
PROVISION OF FINANCIAL INFORMATION
Whether or not Allied is required to be subject to Section 13(a) or 15(d)
of the Exchange Act, or any successor provision thereto, the Company (or Allied
for so long as the Company is a Wholly-Owned Subsidiary of Allied) will file
with the SEC the annual reports, quarterly reports and other documents which the
Company (or Allied for so long as the Company is a Wholly-Owned Subsidiary of
Allied) would have been required to file with the SEC pursuant to such Section
13(a) or 15(d) or any successor provision thereto if the Company (or Allied for
so long as the Company is a Wholly-Owned Subsidiary of Allied) were so required,
such documents to be filed with the SEC 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
(1) within 15 days of each Required Filing Date file with the Trustee
copies of the annual reports, quarterly reports and other documents
which the Company (or Allied for so long as the Company is a
Wholly-Owned Subsidiary of Allied) filed with the 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 the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were required to comply with such Sections and
(2) if filing such documents by the Company (or Allied for so long as
the Company is a Wholly-Owned Subsidiary of Allied) with the SEC is
not permitted under the Exchange Act, promptly upon written request
supply copies of such documents to any prospective Holder.
UNRESTRICTED SUBSIDIARIES
The Company at any time may designate any Person that is a Subsidiary, or
after the date of the Indenture becomes a Subsidiary, of the Company as an
"Unrestricted Subsidiary," whereupon (and until such Person ceases to be an
Unrestricted Subsidiary) such Person and each other Person that is then or
thereafter becomes a Subsidiary of such Person will be deemed to be an
Unrestricted Subsidiary. In addition, the Company may at any time terminate the
status of any Unrestricted Subsidiary as an Unrestricted Subsidiary, whereupon
such Subsidiary and each other Subsidiary of the Company (if any) of which such
Subsidiary is a Subsidiary will be a Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a Subsidiary of
the Company from a Restricted Subsidiary to an Unrestricted Subsidiary or from
an Unrestricted Subsidiary to a Restricted Subsidiary will be effective, and no
Person may otherwise become a Restricted Subsidiary, if:
(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 under " -- Limitation on
Restricted Payments" above; or
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(2) such change or other event would otherwise result (after the giving
of notice or the lapse of time, or both) in an Event of Default.
In addition and notwithstanding the foregoing, no Restricted Subsidiary of
the Company may become an Unrestricted Subsidiary, and the status of any
Unrestricted Subsidiary as an Unrestricted Subsidiary will be deemed to have
been immediately terminated (whereupon such Subsidiary and each other Subsidiary
of the Company (if any) of which such Subsidiary is a Subsidiary will be a
Restricted Subsidiary) at any time when:
(1) 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
(2) the Company or any other Restricted Subsidiary
(a) provides credit support for, or a Guaranty of, any debt of
such Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt) or
(b) is directly or indirectly liable on any Debt of such
Subsidiary. Any termination of the status of an Unrestricted
Subsidiary as an Unrestricted Subsidiary pursuant to the
preceding sentence will be deemed to result in a breach of
this covenant in any circumstance in which the Company would
not be permitted to change the status of such Unrestricted
Subsidiary to the status of a Restricted Subsidiary pursuant
to the provision of the Indenture described under the
preceding paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company if
(1) a default thereunder (or under any instrument or agreement pursuant
to or by which such Debt is issued, secured or evidenced) or any
right that the holders thereof may have to take enforcement action
against such Subsidiary or its property or other assets, would
permit (whether or not after the giving of notice or the lapse of
time or both) the holders of any Debt of the Company or any other
Restricted Subsidiary to declare the same due and payable prior to
the date on which it otherwise would have become due and payable or
otherwise to take any enforcement action against the Company or any
such other Restricted Subsidiary or
(2) 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 will 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.
MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
The Company
(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 the Company; 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 the Company and
its Subsidiaries on a consolidated basis; unless, in each case (1),
(2) and (3) above:
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(a) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by the Company or a
Subsidiary of the Company as a result of such transaction (or
series) as having been incurred by the Company of such
Subsidiary at the time of the transaction (or series), no
Event of Default, or event that with the passing of time or
the giving of notice, or both, will constitute an Event of
Default, shall have occurred and be continuing;
(b) 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;
(c) if such transaction (or series) occurs prior to the occurrence
of a Rating Event Date, either
(x) the Company or the successor entity would, at the time
of such transaction (or series) and after giving pro
forma effect thereto as if such transaction (or series)
had occurred at the beginning of the most recently ended
four full fiscal quarter period for which internal
financial statements are available immediately preceding
the date of such transaction (or series), have been
permitted to Incur at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage Ratio test
set forth in the first paragraph under " -- Certain
Covenants -- Limitation on Consolidated Debt" above or
(y) the Consolidated EBITDA Coverage Ratio of the Company or
the successor entity for the most recently ended four
full fiscal quarter period for which internal financial
statements are available immediately preceding the date
of such transaction (or series), calculated on a pro
forma basis as if such transaction (or series) had
occurred at the beginning of such four full fiscal
quarter period, would be no less than such Consolidated
EBITDA Coverage Ratio, calculated without giving effect
to such transaction or series or any other transactions
(or series) that is subject to the provisions of the
Indenture described in this paragraph and that occurred
after the date that is twelve months before the date of
such transaction (or series).
(d) 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 the " -- Certain
Covenants -- Limitation on Liens" covenant, the Company or the
successor entity will have secured the Senior Notes as
required by such covenant; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the
Indenture.
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture:
(1) failure to pay any interest on any Senior Note issued under the
Indenture when due, continued for 30 days;
(2) failure to pay principal of, or premium, if any, on any Senior Note
issued under the Indenture when due;
(3) failure to perform or comply with the provisions described under
" -- Mergers, Consolidations and Certain Sales of Assets" or the
provisions described under " -- Repurchase at the Option of Holders
-- Asset Dispositions" and " --Change of Control";
(4) failure to perform any other covenant or warranty of the Company or
any Guarantor in such Indenture or the Senior Notes issued
thereunder, 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;
(5) 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
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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 thereto
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 the Company, the Parent Guarantor or any of its
Restricted Subsidiaries in an aggregate amount in excess of $50
million which remains unstayed, undischarged or unbonded for a
period of 60 days thereafter; and
(7) certain events of bankruptcy, insolvency or reorganization affecting
the Company, Allied or any Restricted Subsidiary of the Company.
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 Senior 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
Senior Notes or exercising any trust or power conferred on the Trustee with
respect to such issue of Senior 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 of any issue may accelerate the maturity of all such Senior Notes, and if
an Event of Default of the type described in clause (7) above occurs, the
principal of and any accrued interest on the Senior 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 of such issue
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal, have
been cured or waived as provided in the Indenture. For information as to waiver
of defaults, see " -- Modification and Waiver."
No Holder of any Senior Note of any issue will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
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 of such issue have made
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 of such issue 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 Senior Note for enforcement of payment of the
principal of (and premium, if any) or interest on such Senior Note on or after
the respective due dates expressed in such Senior 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 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 Senior Notes issued
thereunder pursuant to the provisions described above under " -- Optional
Redemption," an equivalent premium will also become and be immediately due and
payable upon the acceleration of such Senior Notes.
The Company will be required to furnish to the Trustee annually a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance. The Company will
be required to 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.
DEFEASANCE
The Indenture will provide that with respect to each issue of Senior Notes
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(A) if applicable, the Company will be discharged from any and all
obligations in respect of the Outstanding Notes of such issue or
(B) if applicable, the Company 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 such
issue of Senior Notes,
in either case (A) or (B) 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 of such issue.
With respect to clause (B) above, the obligations under the Indenture with
respect to any issue of Senior 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 clause (A) above, the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or there has been a change in law, which in the Opinion of Counsel
provides that Holders of the Senior Notes of such issue 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,
(2) with respect to clause (B) above, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the
Senior Notes of such issue 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;
(3) no Event of Default (or event that with the passing of time or the
giving of notice, or both, will constitute an Event of Default)
shall have occurred or be continuing;
(4) the Company 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
(5) certain other customary conditions precedent are satisfied.
In the event the Company omits to comply with its remaining obligations
under the Indenture and the Senior Notes of any issue after a defeasance of the
Indenture with respect to such issue of Senior Notes as described under Clause
(B) above and such Senior 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 such Senior Notes at the time of the acceleration resulting from such Event
of Default. However, the Company will remain liable in respect of such payments.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture with respect to any issue of
Senior Notes may be made by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of such issue of Outstanding
Notes with respect to any issue of Senior Notes; provided, however, that no such
modification or amendment may, without the consent of the Holder of each such
Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any such Senior Note,
(2) reduce the principal amount of (or the premium, if any), or interest
on, any such Senior Note,
(3) change the place or currency of payment of principal of, (or
premium, if any) or interest on, any such Senior Note,
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any such Senior Note,
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(5) reduce the above stated percentage of Outstanding Notes of such
issue necessary to modify or amend the Indenture,
(6) reduce the percentage of aggregate principal amount of Outstanding
Notes of such issue necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults
thereunder, 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 such issue of Senior Notes, except as
otherwise specified.
The Holders of a majority in aggregate principal amount of the Outstanding
Notes of any issue may waive compliance by the Company with certain restrictive
provisions of the Indenture with respect to such issue of Senior Notes. The
Holders of a majority in aggregate principal amount of the Outstanding Notes of
any issue may waive any past default under the Indenture with respect to such
issue of Senior Notes, except a default in the payment of principal (or premium,
if any) or interest.
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 herein 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
the Company or a Subsidiary of the Company and
(2) 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.
"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 Insurance" means Reliant Insurance Company and Indemnity
Corporation, a Vermont corporation and a Subsidiary of the Company.
"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 or any Restricted Subsidiary with, into or to another
Person in a transaction in which such Subsidiary ceases to be a Restricted
Subsidiary of such Person), of
(1) shares of Capital Stock (other than directors' qualifying shares) or
other ownership interests of a Restricted Subsidiary or
(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, to merge but excluding
in each case in Clauses (1), (2) and (3),
(a) a disposition by a Subsidiary of such Person to such Person or
a Restricted Subsidiary or by such Person to a Restricted
Subsidiary,
(b) the disposition of all or substantially all of the assets of
the Company in a manner permitted pursuant to the provisions
described above under "Mergers, Consolidations and Certain
Sales and Purchases of Assets" of the Company and
(c) any disposition that constitutes a Restricted Payment or
Permitted Investment that is permitted pursuant to the
provisions described under "Certain Covenants -- Limitation on
Restricted Payments."
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"Bank Agreement" means the Credit Agreement of the Company dated June 18,
1998, as amended, among the Company, Allied, certain lenders party thereto,
Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc., as Administrative
Agent, Credit Suisse First Boston and Goldman Sachs Credit Partners, L.P., as
Co-Syndication Agents, or any bank credit agreement that replaces, amends,
supplements, restates or renews such Credit Agreement.
"Capital Lease Obligation" of any Person means the obligation to pay rent
to other payment amounts under a lease of (or other arrangements conveying the
right to use) real or personal property of such Person which is required to be
classified and accounted for as a capital lease or a liability on a balance
sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the capitalized amount
thereof that would appear on a balance sheet of such Person in accordance with
generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"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, with respect to an issue of Senior
Notes, on any date the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term of such Senior 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 for
any issue of Senior Notes,
(1) 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
(2) 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
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(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), 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
(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 all non-cash
non-recurring gains during such period (to the extent included in
determining net operating income form such period); provided,
however, that the Consolidated Interest Expense, Consolidated Income
Tax Expense and consolidated depreciation and amortization expense
of a Consolidated Subsidiary of such Person shall be added to the
Consolidated Net Income pursuant to the foregoing only
(a) 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
(b) only to the extent that the amount specified in clause (a) 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, and
provided further, that, in the event such Person or any of its Consolidated
Subsidiaries has made acquisitions or dispositions of assets not in the ordinary
course of business (including any other acquisitions of any other Persons by
merger, consolidation or purchase of Capital Stock) during or after such period,
the computation of the Consolidated EBITDA Coverage Ratio (and for the purpose
of such computation, the calculation of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated EBITDA) shall
be made on a pro forma basis as if the acquisitions or dispositions had taken
place on the first day of such period. In determining the pro forma adjustments
to Consolidated EBITDA to be made with respect to any Acquired Business for
periods prior to the acquisition date thereof, actions taken by the Company and
its Restricted Subsidiaries prior to the first anniversary of the related
acquisition date that result in cost savings with respect to such Acquired
Business will be deemed to have been taken on the first day of the period for
which Consolidated EBITDA is being determined (with the intent that such cost
savings be effectively annualized by extrapolation from the demonstrated cost
savings since the related acquisition date).
"Consolidated Income Tax Expense" of any Person means for any period the
consolidated provision for income taxes of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles.
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"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;
(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 there shall be excluded therefrom
(1) for purposes solely of calculating Consolidated Net Income for
purposes of clause (3)(a) 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
(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
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particular period during which any Subsidiary of such person was an Unrestricted
Subsidiary, "Consolidated Subsidiaries" will exclude such Subsidiary for such
period (or portion thereof) during which it was an Unrestricted Subsidiary.
"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted Subsidiaries at such
date as determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Continuing Directors" means, as of any date of determination with respect
to any person, any member of the Board of Directors of such person who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"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 of 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 of
severally, as obligor, Guarantor or otherwise.
"Designated Noncash Consideration" means the fair market value of non-cash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Disposition that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
"Excepted Disposition" means a transfer, conveyance, sale, lease or other
disposition by the Company or any Restricted Subsidiary of any asset of the
Company or any Restricted Subsidiary the fair market value of which itself does
not exceed 2.5% of Consolidated Total Assets of the Company and which in the
aggregate with all other assets disposed of in Excepted Dispositions in any
fiscal year does not exceed 5% of Consolidated Total Assets of the Company.
"Guaranty" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Debt, or dividends or distributions on any equity
security, of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including, without limitation, any obligation of
such Person
(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,
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(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 (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guaranty by any Person
shall not include endorsements for such Person for collection or
deposit, in either case, in the ordinary course of business.
"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 (and "incurrence",
"incurred", "incurable" and "incurring" shall have meanings correlative to the
foregoing); provided that, 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 such Debt.
"Intercompany Agreements" means the Management Agreements between Allied
and the Company dated November 15, 1996.
"Interest Rate or Currency Protection Agreement" of any Person means any
interest rate protection agreement (including, without limitation, interest rate
swaps, caps, floors, collars, derivative instruments and similar agreements),
and/or other types of interest hedging agreements and any currency protection
agreement (including foreign exchange contracts, currency swap agreements or
other currency hedging arrangements).
"Investment" by any Person in any other Person means
(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 Guaranty of any
obligation of or for the account of such other Person or any direct
or indirect issuance by such Person of such a Guaranty 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
the Company or any Restricted Subsidiary means cash or readily marketable cash
equivalent received (including by way of sale or discounting of a note,
installment receivable, or other receivable, but excluding any other
consideration received in the form of assumption by the acquiree of Debt or
other obligations relating to such properties or assets or received in any other
noncash form) therefrom by such Person, net of
(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,
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(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 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.
"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
(1) Investments in the Company 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 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,
(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 (1) and (2)
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 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,
(9) 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,
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(10) 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,
(11) any Investment consisting of loans and advances by the Company or
any Restricted Subsidiary to employees, officers and directors of
the Company or Allied, in connection with management incentive plans
not to exceed $25,000,000 at any time outstanding; provided,
however, that to the extent the proceeds thereof are used to
purchase Capital Stock (other than Redeemable Interests) of
(a) the Company from the Company or
(b) Allied from Allied if Allied uses the proceeds thereof to
acquire Capital Stock (other than Redeemable Interests) of the
Company, such limitation on the amount of such Investments at
any time outstanding shall not apply with respect to such
Investments,
(12) any Investment consisting of a Permitted Interest Rate or Currency
Protection Agreement,
(13) any Investment acquired by the Company or any of its Restricted
Subsidiaries
(a) in exchange for any other Investment or accounts receivables
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,
(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 " -- Repurchase at the Option of
Holders -- Asset Dispositions,"
(15) Investments the payment for which consists exclusively of Capital
Stock (exclusive of Redeemable Interests) of the Company; and
(16) other Investments in an aggregate amount of not to exceed 15% of the
Consolidated Total Assets of the Company outstanding at any time.
"Permitted Liens" means
(1) Liens securing indebtedness under the Bank Agreement that was
permitted by the terms of the Indenture to be incurred or other Debt
allowed to be incurred under clause (1) of the covenant described
above under the caption " -- Certain Covenants -- Limitation on
Consolidated Debt";
(2) Liens incurred after the date of the indentures securing Debt of the
Company that ranks pari passu in right of payment to the Senior
Notes, if the Senior Notes are secured equally and ratably with such
Debt;
(3) Liens in favor of the Company or any Restricted Subsidiary;
(4) 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;
(5) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that
such Liens were not incurred in contemplation of such acquisition;
(6) Liens existing on the date of the Indenture;
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(7) 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;
(8) Liens securing Permitted Refinancing Debt where the Liens securing
the Permitted Refinancing Debt were permitted under the Indenture;
(9) 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;
(10) 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;
(11) 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;
(12) any attachment or judgment Lien that does not constitute an Event of
Default;
(13) Liens in favor of the Trustee for its own benefit and for the
benefit of the Holders;
(14) any interest or title of a lessor pursuant to a lease constituting a
Capital Lease Obligation;
(15) pledges or deposits made in connection with acquisition agreements
or letters of intent entered into in respect of a proposed
acquisition;
(16) Liens in favor of prior holders of leases on property acquired by
the Company or of sublessors under leases on the Company property;
(17) 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);
(18) 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, (x) to finance the cost
(including the cost of improvement or construction) of the
item, property or assets subject thereto and such Lien is
created prior to, at the time of or within three months after
the later of the acquisition, the completion of construction
or the commencement of full operation of such property or (y)
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;
(19) 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;
(20) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
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(21) 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;
(22) Liens encumbering deposits securing Debt under Permitted Interest
Rate Currency or Commodity Price Agreements;
(23) 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;
(24) any renewal of or substitution of any Liens permitted by any of the
preceding clauses, provided that the Debt secured is not increased
(other than by the amount of any premium and accrued interest, plus
customary fees, consent payments, expenses and costs related to such
renewal or substitution of Liens or the incurrence of any related
refinancing of Debt) and the Liens are not extended to any
additional assets (other than proceeds and accessions);
(25) Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $50 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or
the obtaining of advances or credit (other than trade credit
in the ordinary course of business) and
(b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the
operation of business by the Company or such Restricted
Subsidiary; and
(26) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries. This covenant does
not authorize the incurrence of any Debt not otherwise permitted by
the "Certain Covenants -- Limitation on Consolidated Debt" covenant.
"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 wining 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 by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable) or
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 Senior 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"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Related Business" means a business substantially similar to the business
engaged in by the Company and its Subsidiaries on the date of the 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 Subsidiary" means
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(1) at any date, a Subsidiary of the Company that is not an Unrestricted
Subsidiary as of such date and
(2) for any period, a Subsidiary of the Company 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.
"Subsidiary" of any Person means
(1) 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,
(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 affair thereof.
"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,
which, 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) 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, provided, that (except as
required by law) 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 the Company that is an Unrestricted
Subsidiary in accordance with the provisions of the Indenture
described under the caption "Covenants -- Unrestricted Subsidiaries"
and
(2) 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 the Indenture as described under the caption " --
Certain Covenants -- Unrestricted Subsidiaries," 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.
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
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"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,
- 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
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- 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 Senior 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 Senior Notes or to pledge the
Senior 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 Senior 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 Senior 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.
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.
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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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CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a summary of certain U.S. federal income tax consequences
and, in the case of Non-U.S. Holders, as described below, certain U.S. federal
estate tax consequences, of the acquisition, ownership and disposition of New
Senior Notes by investors that acquire New Senior 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 certain 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 Senior Notes held as capital assets which is generally, property
held for investment, and does not address holders of New Senior 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 Senior 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 Senior Notes that may be applicable to you.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER
The exchange of Old Senior Notes for New Senior 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 Senior Notes as it had in the Old Senior Notes immediately before the
exchange.
CERTAIN 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 Senior 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 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
Senior 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 Senior
Note, or purchased the Old Senior Note for which the New Senior 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 Senior Note or Old Senior 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 Senior 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 Senior Note or its
earlier disposition in a taxable transaction, the deduction of all or a portion
of the interest expense on any indebtedness incurred or continued to purchase or
carry such New Senior Note or the Old Senior Note for which the New Senior Note
was exchanged, as the case may be.
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In general, market discount will be considered to accrue ratably during the
period from the date of acquisition of the New Senior Note or Old Senior Note
for which the New Senior Note was exchanged, as the case may be, to the maturity
date of the New Senior 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 Senior 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 Senior Note or purchased the Old Senior
Note for which the New Senior Note was exchanged, as the case may be, for an
amount in excess of the amount payable at maturity of the New Senior Note, such
holder will be considered to have purchased the New Senior Note or Old Senior
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 Senior
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 Senior 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 Senior Note, and finally as a carryforward allowable against the U.S.
Holder's future interest inclusions on such New Senior 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 Senior 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 Senior Note. A U.S.
Holder's adjusted tax basis in a New Senior Note will generally equal the cost
of such New Senior Note or, in the case of a New Senior Note acquired in
exchange for an Old Senior Note in the Exchange Offer, the tax basis of such Old
Senior 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 Senior Note. Gain or loss recognized
by a U.S. Holder on the sale, exchange or retirement of a New Senior 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 Senior 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
Senior Note received in exchange for an Old Senior Note in the Exchange Offer,
the period of time that the Old Senior Note was held.
BACKUP WITHHOLDING. In general, "backup withholding" at a rate of 31% may
apply to payments of principal and interest made on a New Senior Note, and to
the proceeds of a sale or exchange of a New Senior 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.
CERTAIN 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 Senior 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 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.
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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 Senior
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 Senior 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 Senior 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 Senior 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 Senior 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
(2) the income on the New Senior 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 Senior 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
4224 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.
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In addition, a foreign corporation that is a holder of a New Senior 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 certain adjustments,
unless it qualifies for a lower rate under an applicable income tax treaty. For
this purpose, interest on a New Senior Note or gain recognized on the
disposition of a New Senior 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, 1999 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 Senior 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 Senior 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 Senior Notes.
Payments of the proceeds from a disposition by a Non-U.S. Holder of a New Senior
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, 1999, 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
Senior 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.
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 IRS.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives New Senior 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 Senior 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 Senior Notes received in
exchange for Old Senior Notes where such Old Senior 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 Senior Notes by
broker-dealers. New Senior 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 Senior 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 Senior Notes. Any
broker-dealer that resells New Senior 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 Senior Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of New Senior 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 Senior 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
Senior Notes who did not exchange their Old Senior Notes for New Senior 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 Senior Notes have been exchanged for New Senior
Notes pursuant to the terms and conditions contained herein.
VALIDITY OF THE NEW SENIOR NOTES
The validity of the New Senior 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 and the supplemental consolidated
financial statements of Allied as of December 31, 1997 and 1996 and for each of
the three years in the period ended December 31, 1997 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 with respect thereto, and are incorporated by reference in reliance upon
the authority of said firm as experts in giving said reports.
The consolidated balance sheets of American Disposal Services, Inc. as of
December 31, 1997 and 1996 and the consolidated statements of operations,
stockholders' equity and cash flows for each of the three years in the period
ended December 31, 1997 of
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American Disposal Services, Inc. incorporated by reference in this Prospectus
have been incorporated herein in reliance on the report of Ernst & Young LLP,
independent auditors, given on the authority of such firm as experts in
accounting and auditing.
The balance sheets of the Rabanco Companies and Regional Disposal Company
as of December 21, 1996 and 1995 and the statements of income and changes in
equity and cash flows for each of the two years in the period ended December 31,
1996 of the Rabanco Companies and Regional Disposal Company incorporated by
reference in this Prospectus and elsewhere in the Registration Statement have
been incorporated herein in reliance on the reports of Sweeney Conrad, P.S.,
independent auditors, given on the authority of such firm as experts in
accounting and auditing.
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[LOGO]
ALLIED WASTE NORTH
AMERICA, INC.
$225,000,000
7 3/8% SENIOR NOTES DUE 2004
$600,000,000
7 5/8% SENIOR NOTES DUE 2006
$875,000,000
7 7/8% SENIOR NOTES DUE 2009
-------------
PROSPECTUS
-------------
JANUARY , 1999
<PAGE> 85
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.
NUMBER DESCRIPTION
- --------------------------------------------------------------------------------
*4.1 Indenture relating to the 1998 Senior Notes, dated as of December 23,
1998, by and among the Company and U.S. Bank Trust National
Association, as Trustee, with respect to the Notes and Exchange Notes.
*4.2 Five Year Series Supplement Indenture relating to the 1998 Five Year
Note, dated December 23, 1998, among the Company, the Guarantors and
the Trustee.
*4.3 Form of Series B Five Year Note (included in Exhibit 4.2)
*4.4 Seven Year Series Supplement Indenture relating to the 1998 Seven Year
Note, dated December 23, 1998, among the Company, the Guarantors and
the Trustee.
*4.5 Form of Series B Seven Year Note (included in Exhibit 4.4)
*4.6 Ten Year Series Supplement Indenture relating to the 1998 Ten Year
Note, dated December 23, 1998, among the Company, the Guarantors and
the Trustee.
*4.7 Form of Series B Ten Year Note (included in Exhibit 4.6)
**5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson, as to the legality
of the securities, dated January _, 1999.
*10.1 Registration Rights Agreement, dated as of December 23, 1998, by and
among the Company, the Guarantors and Donaldson, Lufkin & Jenrette
Securities Corporation, relating to the $225,000,000 7 3/8% Senior
Notes due 2004.
*10.2 Registration Rights Agreement, dated December 23, 1998, by and among
the Company, the Guarantors, and Donaldson, Lufkin & Jenrette
Securities Corporation, relating to the $600,000,000 7 5/8% Senior
Notes due 2006.
*10.3 Registration Rights Agreement, dated December 23, 1998, by and among
the Company, the Guarantors, and Donaldson, Lufkin & Jenrette
Securities Corporation, Goldman Sachs & Co, Credit Suisse First Boston,
Merrill, Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley
Dean Witter Incorporated, Bear, Stearns & Co. Inc., BT Alex. Brown,
CIBC Oppenheimer, Salomon Smith Barney Inc., relating to the
$875,000,000 7 7/8% Senior Notes due 2009.
*10.4 Purchase Agreement dated December 14, 1998, by and among the Company,
the Guarantors and Donaldson, Lufkin & Jenrette Securities Corporation,
with respect to the 1998 Senior Notes.
*12.1 Ratio of earnings to fixed charges. (Incorporated by Reference to
Exhibit 12 to Allied's Form 10-Q dated September 30, 1998.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1)
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Ernst & Young LLP.
*23.4 Consent of Sweeney Conrad PC
*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.
27.1 Restated financial data schedule for the year ended December 31, 1997.
(Incorporated by Reference to Allied's Form 8-K filed on October 29,
1998)
27.2 Restated financial data schedule for the year ended December 31, 1996.
(Incorporated by Reference to Allied's Form 8-K filed on October 29,
1998)
27.3 Restated financial data schedule for the year ended December 31, 1995.
(Incorporated by Reference to Allied's Form 8-K filed on October 29,
1998)
*99.1 Letter of Transmittal, with respect to exchange Old Senior Notes and
Exchange Notes.
*99.2 Notice of Guaranteed Delivery, with respect to Old Senior Notes and
Exchange Notes.
*99.3 Instructions to Registered Holders from Beneficial Owners, with respect
to the Old Senior Notes and Exchange Notes.
* Filed Herewith
** To be filed by Amendment.
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<PAGE> 87
(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.
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.
II-3
<PAGE> 88
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
15th day of January, 1999.
Allied Waste Industries, 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.
SIGNATURE TITLE
/s/ Thomas H. Van Weelden Chairman of the Board of Directors,
_______________________________________
President and Chief Executive Officer
Thomas H. Van Weelden (Principal Executive Officer)
/s/ Henry L. Hirvela Vice President -- Chief Financial
_______________________________________
Henry L. Hirvela Officer
(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
Director
_______________________________________
David B. Kaplan
/s/ Anthony P. Ressler Director
_______________________________________
Antony P. Ressler
II-4
<PAGE> 89
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
II-5
<PAGE> 90
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 15th day of January, 1999.
Allied Waste North America, Inc.
By: /s/ Henry L. Hirvela
-----------------------------
Henry L. Hirvela
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 January 15, 1999.
SIGNATURE TITLE
/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 -- Chief
- --------------------------------------- Financial Officer
Henry L. Hirvela (Principal Financial Officer)
/s/ James S. Eng Corporation Controller
- --------------------------------------- (Principal Accounting Officer)
James S. Eng
/s/ Steven M. Helm Director, Vice President-Legal and
- --------------------------------------- Corporate Secretary
Steven M. Helm
II-6
<PAGE> 91
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/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
II-7
<PAGE> 92
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/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
II-8
<PAGE> 93
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/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
II-9
<PAGE> 94
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Larry D. Henk Director and President
- --------------------------------------- (Principal Executive Officer)
Larry D. Henk
/s/ G. Thomas Rochford, Jr. Treasurer
- --------------------------------------- (Principal Financial Officer and
G. Thomas Rochford, Jr. Principal Accounting Officer)
/s/ Steven M. Helm Director
- ---------------------------------------
Steven M. Helm
II-10
<PAGE> 95
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Henry L. Hirvela Director and President
_______________________________________ (Principal Executive Officer)
Henry L. Hirvela
/s/ G. Thomas Rochford, Jr. Treasurer
_______________________________________ (Principal Financial Officer and
G. Thomas Rochford, Jr.
II-11
<PAGE> 96
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ James S. Eng Director and President
_______________________________________ (Principal Executive Officer)
James S. Eng
/s/ G. Thomas Rochford, Jr. Director and Treasurer
_______________________________________ (Principal Financial Officer and
G. Thomas Rochford, Jr. Principal Accounting Officer)
/s/ Donald W. Slager Director and Vice President
_______________________________________
Donald W. Slager
II-12
<PAGE> 97
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Donald W. Slager Executive Vice President
- --------------------------------------- (Principal Executive Officer)
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Treasurer
- --------------------------------------- (Principal Financial Officer and
G. Thomas Rochford, Jr. Principal Accounting Officer)
/s/ James S. Eng Managing Member
- ---------------------------------------
Allied Waste North America, Inc.
By James S. Eng
Attorney-in-fact
II-13
<PAGE> 98
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Donald W. Slager Director and President
- --------------------------------------- (Principal Executive Officer)
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Director and Treasurer
- --------------------------------------- (Principal Financial Officer and
G. Thomas Rochford, Jr. 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
II-14
<PAGE> 99
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ James S. Eng General Partner
______________________________________
Allied Waste Landfill Holdings, Inc.
By James S. Eng
Attorney-in-fact
II-15
<PAGE> 100
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Donald W. Slager President
_______________________________________ (Principal Executive Officer)
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Treasurer
_______________________________________ (Principal Financial Officer and
G. Thomas Rochford, Jr. Principal Accounting Officer)
/s/ James S. Eng Managing Member
_______________________________________
Allied Waste North America, Inc.
By James S. Eng
Attorney-in-fact
II-16
<PAGE> 101
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
K hereto.
By: /s/ Larry D. Henk
-------------------------
Larry D. Henk
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Larry D. Henk, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Larry D. Henk Director and President
- --------------------------------------- (Principal Executive Officer)
Larry D. Henk
/s/ G. Thomas Rochford, Jr. Treasurer
- --------------------------------------- (Principal Accounting Officer)
G. Thomas Rochford, Jr.
/s/ Steven M. Helm Director
- ---------------------------------------
Steven M. Helm
II-17
<PAGE> 102
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 15th day of January, 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
SIGNATURE TITLE
/s/ James S. Eng General Partner
------------------------------------
Allied Waste Landfill Holdings, Inc.
By James S. Eng
Attorney-in-fact
/s/ James S. Eng General Partner
------------------------------------
Allied Waste North America, Inc.
By James S. Eng
Attorney-in-fact
II-18
<PAGE> 103
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 15th day of January, 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 January 15, 1999.
SIGNATURE TITLE
/s/ Donald W. Slager President
- --------------------------------------- (Principal Executive Officer)
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Treasurer
- --------------------------------------- (Principal Financial Officer and
G. Thomas Rochford, Jr. Principal Accounting Officer)
/s/ James S. Eng Managing Member
- ---------------------------------------
Allied Waste North America, Inc.
By James S. Eng
Attorney-in-fact
II-19
<PAGE> 104
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
N hereto.
By: Liberty Waste Services
of Illinois, L.L.C
Managing Member
By: /s/ Donald W. Slager
__________________________
Donald W. Slager
Executive Vice-President
SIGNATURE TITLE
/s/ Donald W. Slager
__________________________________________ Managing Member
Liberty Waste Services of Illinois, L.L.C.
By Donald W. Slager
Executive Vice-President
/s/ Donald W. Slager
__________________________________________ Executive Vice-President
Donald W. Slager
II-20
<PAGE> 105
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 15th day of January, 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
SIGNATURE TITLE
/s/ Donald W. Slager General Partner
- ---------------------------------------
Draw Enterprises Real Estate, Inc.
By Donald W. Slager
Executive Vice-President
II-21
<PAGE> 106
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
P hereto.
By: Liberty Waste Services Limited, L.L.C.
Managing Member
By: /s/ Donald W. Slager
________________________________________
Donald W. Slager
President
SIGNATURE TITLE
/s/ Donald W. Slager
_______________________________________ Managing Member
Liberty Waste Services Limited, L.L.C.
By Donald W. Slager
President
/s/ Donald W. Slager
_______________________________________ Executive Vice-President
Donald W. Slager
II-22
<PAGE> 107
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 15th day of January, 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
President
SIGNATURE TITLE
/s/ Donald W. Slager Managing Member
- --------------------------------------------
American Disposal Services of Illinois, Inc.
By Donald W. Slager
President
/s/ Donald W. Slager President
- --------------------------------------------
Donald W. Slager
II-23
<PAGE> 108
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 15th day of January, 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
SIGNATURE TITLE
/s/ Donald W. Slager General Partner
- ---------------------------------------
Rabanco Recycling, Inc.
By Donald W. Slager
Executive Vice-President
II-24
<PAGE> 109
SIGNATURE TITLE
/s/ Donald W. Slager
_______________________________________ General Partner
Paper Fibers, Inc.
By Donald W. Slager
Executive Vice-President
II-25
<PAGE> 110
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
S 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 January 15, 1999.
SIGNATURE TITLE
/s/ Donald W. Slager Director and Executive Vice-President
------------------------------------ (Principal Executive Officer)
Donald W. Slager
/s/ G. Thomas Rochford, Jr. Director and Treasurer
------------------------------------ (Principal Financial Officer and
G. Thomas Rochford, Jr. Principal Accounting Officer)
/s/ James S. Eng Director
------------------------------------
James S. Eng
II-26
<PAGE> 111
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 15th day of January, 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
SIGNATURE TITLE
/s/ Donald W. Slager Managing Member
- ---------------------------------------
ECDC Holdings, Inc.
By Donald W. Slager
Executive Vice-President
/s/ Donald W. Slager Executive Vice-President
- ---------------------------------------
Donald W. Slager
II-27
<PAGE> 112
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 15th day of January, 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
SIGNATURE TITLE
/s/ Donald W. Slager Managing Member
- ---------------------------------------
Allied Waste Systems, Inc.
By Donald W. Slager
President
/s/ Donald W. Slager Executive Vice-President
- ---------------------------------------
Donald W. Slager
II-28
<PAGE> 113
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
V hereto.
By: Rabanco Recycling, Inc.
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
SIGNATURE TITLE
/s/ Donald W. Slager General Partner
------------------------------------
Rabanco, Recycling, Inc.
By Donald W. Slager
Executive Vice-President
/s/ Donald W. Slager General Partner
------------------------------------
Rabanco, Ltd.
By Donald W. Slager
Executive Vice-President
II-29
<PAGE> 114
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
W hereto.
By: United Waste Control Corp.
General Partner
By: /s/ Donald W. Slager
------------------------------
Donald W. Slager
Executive Vice-President
SIGNATURE TITLE
/s/ Donald W. Slager General Partner
- -----------------------------------
United Waste Control Corp.
By Donald W. Slager
Executive Vice-President
II-30
<PAGE> 115
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 15th day of January, 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
SIGNATURE TITLE
/s/ Donald W. Slager General Partner
------------------------------------
Rabanco Recycling, Inc.
By Donald W. Slager
Executive Vice-President
/s/ Donald W. Slager General Partner
- ------------------------------------
Paper Fibers, Inc.
By Donald W. Slager
Executive Vice-President
/s/ Donald W. Slager General Partner
------------------------------------
CCAI, Inc.
By Donald W. Slager
Executive Vice-President
/s/ Donald W. Slager General Partner
------------------------------------
SSWI, Inc.
By Donald W. Slager
Executive Vice-President
II-31
<PAGE> 116
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 15th day of January, 1999.
On behalf of each Subsidiary
Guarantor listed on Schedule
Y hereto.
By: WJR Environmental, Inc.
General Partner
By: /s/ Donald W. Slager
------------------------------
Donald W. Slager
Executive Vice-President
SIGNATURE TITLE
/s/ Donald W. Slager General Partner
- -----------------------------------
WJR Environmental, Inc.
By Donald W. Slager
Executive Vice-President
II-32
<PAGE> 117
EXHIBIT INDEX
NUMBER DESCRIPTION
*4.1 Indenture relating to the 1998 Senior Notes, dated as of December 23,
1998, by and among the Company and U.S. Bank Trust National
Association, as Trustee, with respect to the Notes and Exchange
Notes.
*4.2 Five Year Series Supplement Indenture relating to the 1998 Five Year
Note, dated December 23, 1998, among the Company, the Guarantors and
the Trustee.
*4.3 Form of Series B Five Year Note (included in Exhibit 4.2)
*4.4 Seven Year Series Supplement Indenture relating to the 1998 Seven
Year Note, dated December 23, 1998, among the Company, the Guarantors
and the Trustee.
*4.5 Form of Series B Seven Year Note (included in Exhibit 4.4)
*4.6 Ten Year Series Supplement Indenture relating to the 1998 Ten Year
Note, dated December 23, 1998, among the Company, the Guarantors and
the Trustee.
*4.7 Form of Series B Ten Year Note (included in Exhibit 4.6)
**5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson, as to the
legality of the securities, dated January _, 1999.
*10.1 Registration Rights Agreement, dated as of December 23, 1998, by and
among the Company, the Guarantors and Donaldson, Lufkin & Jenrette
Securities Corporation, relating to the $225,000,000 7 3/8% Senior
Notes due 2004.
*10.2 Registration Rights Agreement, dated December 23, 1998, by and among
the Company, the Guarantors, and Donaldson, Lufkin & Jenrette
Securities Corporation, relating to the $600,000,000 7 5/8% Senior
Notes due 2006.
*10.3 Registration Rights Agreement, dated December 23, 1998, by and among
the Company, the Guarantors, and Donaldson, Lufkin & Jenrette
Securities Corporation, Goldman Sachs & Co, Credit Suisse First
Boston, Merrill, Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley Dean Witter Incorporated, Bear, Stearns & Co. Inc., BT Alex.
Brown, CIBC Oppenheimer, Salomon Smith Barney Inc., relating to the
$875,000,000 7 7/8% Senior Notes due 2009.
*10.4 Purchase Agreement dated December 14, 1998, by and among the Company,
the Guarantors and Donaldson, Lufkin & Jenrette Securities
Corporation, with respect to the 1998 Senior Notes.
12.1 Ratio of earnings to fixed charges. (Incorporated by Reference to
Exhibit 12 to Allied's Form 10-Q dated September 30, 1998.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1)
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Ernst & Young LLP.
*23.4 Consent of Sweeney Conrad PC
*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.
27.1 Restated financial data schedule for the year ended December 31,
1997. (Incorporated by Reference to Allied's Form 8-K filed on
October 29, 1998)
27.2 Restated financial data schedule for the year ended December 31,
1996. (Incorporated by Reference to Allied's Form 8-K filed on
October 29, 1998)
27.3 Restated financial data schedule for the year ended December 31,
1995. (Incorporated by Reference to Allied's Form 8-K filed on
October 29, 1998)
*99.1 Letter of Transmittal, with respect to exchange Old Senior Notes and
Exchange Notes.
*99.2 Notice of Guaranteed Delivery, with respect to Old Senior Notes and
Exchange Notes.
*99.3 Instructions to Registered Holders from Beneficial Owners, with
respect to the Old Senior Notes and Exchange Notes.
* 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
SENIOR INDENTURE
Dated as of December 23, 1998
Providing for Issuance of
Senior Debt Securities in Series
===========================================================
<PAGE> 2
Reconciliation and tie between Senior Indenture, dated as of December 23, 1998
(the "Indenture") and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
- ------------------- ---------
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
(d)(3)...................................................TIA
(e)......................................................TIA
316(a)(last sentence)..........................................1.1
(a)(1)(A)................................................5.2; 5.8
- i -
<PAGE> 3
(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
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....................................................1
Section 1.1. Definitions...............................................................................1
Section 1.2. Compliance Certificates and Opinions.....................................................14
Section 1.3. Form of Documents Delivered to Trustee...................................................15
Section 1.4. Acts of Holders..........................................................................15
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors........................................18
Section 1.6. Notice to Holders; Waiver................................................................18
Section 1.7. Headings and Table of Contents...........................................................19
Section 1.8. Successor and Assigns....................................................................19
Section 1.9. Separability.............................................................................19
Section 1.10. Benefits of Indenture....................................................................19
Section 1.11. Incorporators, Officers and Directors of the Company Exempt from
Individual Liability................................................................20
Section 1.12. Governing Law; Conflict with Trust Indenture Act.........................................20
Section 1.13. Legal Holidays...........................................................................20
Section 1.14. Moneys of Different Currencies to Be Segregated..........................................21
Section 1.15. Independence of Agreements...............................................................21
Section 1.16. Counterparts.............................................................................21
ARTICLE 2
Security and Senior Guarantee Forms.......................................................................21
Section 2.1. Forms Generally..........................................................................21
Section 2.2. Form of Trustee's Certificate of Authentication..........................................22
Section 2.3 Form of Senior Guarantee.................................................................22
Section 2.4. Global Securities........................................................................26
Section 2.5. Form of Legend for Global Securities.....................................................27
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
ARTICLE 3
The Securities............................................................................................27
Section 3.1. Amount Unlimited; Issuable in Series.....................................................27
Section 3.2. Denominations............................................................................32
Section 3.3. Execution, Authentication, Delivery and Dating...........................................32
Section 3.4. Temporary Securities.....................................................................36
Section 3.5. Registration, Transfer and Exchange......................................................37
Section 3.6. Replacement Securities...................................................................42
Section 3.7. Payment of Interest; Interest Rights Preserved...........................................43
Section 3.8. Persons Deemed Owners....................................................................46
Section 3.9. Cancellation.............................................................................47
Section 3.10. Computation of Interest.................................................................47
Section 3.11. CUSIP Numbers...........................................................................47
Section 3.12. Currency and Manner of Payment in Respect of Securities.................................48
ARTICLE 4
Satisfaction, Discharge and Defeasance....................................................................48
Section 4.1. Termination of Company's Obligations Under the Indenture.................................48
Section 4.2. Application of Trust Funds...............................................................49
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Agreement Defeasance..................................................50
Section 4.4. Defeasance and Discharge.................................................................50
Section 4.5. Agreement Defeasance.....................................................................51
Section 4.6. Conditions to Defeasance or Agreement Defeasance.........................................51
Section 4.7. Deposited Money and U.S. Government Obligations to Be Held in Trust......................53
Section 4.8. Repayment to Company.....................................................................54
Section 4.9. Indemnity for Government Obligations.....................................................54
Section 4.10. Reinstatement............................................................................54
ARTICLE 5
Defaults and Remedies.....................................................................................55
</TABLE>
- ii -
<PAGE> 6
<TABLE>
<S> <C>
Section 5.1. Events of Default........................................................................55
Section 5.2. Acceleration; Rescission and Annulment...................................................57
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee..........................58
Section 5.4. Trustee May File Proofs of Claim.........................................................59
Section 5.5. Trustee May Enforce Claims Without Possession of Securities..............................59
Section 5.6. Delay or Omission Not Waiver.............................................................60
Section 5.7. Waiver of Past Defaults..................................................................60
Section 5.8. Control by Majority......................................................................60
Section 5.9. Limitation on Suits by Holders...........................................................60
Section 5.10. Rights of Holders to Receive Payment....................................................61
Section 5.11. Application of Money Collected..........................................................62
Section 5.12. Restoration of Rights and Remedies......................................................62
Section 5.13. Rights and Remedies Cumulative..........................................................63
Section 5.14. Undertaking for Costs...................................................................63
Section 5.15. Waiver of Stay, Extension or Usury Laws.................................................63
ARTICLE 6
The Trustee...............................................................................................64
Section 6.1. Certain Duties and Responsibilities......................................................64
Section 6.2. Notice of Defaults.......................................................................64
Section 6.3. Certain Rights of Trustee................................................................64
Section 6.4. Not Responsible for Recitals or Issuance of Securities...................................65
Section 6.5. May Hold Securities......................................................................66
Section 6.6. Money Held in Trust......................................................................66
Section 6.7. Compensation and Reimbursement...........................................................66
Section 6.8. Conflicting Interests....................................................................66
Section 6.9. Corporate Trustee Required; Eligibility..................................................67
Section 6.10. Resignation and Removal; Appointment of Successor.......................................67
Section 6.11. Acceptance of Appointment by Successor..................................................69
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.............................70
Section 6.13. Preferential Collection of Claims Against Company.......................................70
Section 6.14. Appointment of Authenticating Agent.....................................................70
ARTICLE 7
Consolidation, Merger or Sale of Assets by the Company....................................................72
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
Section 7.1. Consolidation, Merger or Sale of Assets Permitted..........................................72
Section 7.2. Successor Substituted......................................................................73
ARTICLE 8
Supplemental Indentures...................................................................................74
Section 8.1. Supplemental Indentures Without Consent of Holders.......................................74
Section 8.2. Supplemental Indentures With Consent of Holders..........................................75
Section 8.3. Compliance with Trust Indenture Act......................................................77
Section 8.4. Execution of Supplemental Indentures.....................................................77
Section 8.5. Effect of Supplemental Indentures........................................................77
Section 8.6. Reference in Securities to Supplemental Indentures.......................................77
Section 8.7. Notice of Supplemental Indentures........................................................77
ARTICLE 9
Agreements................................................................................................78
Section 9.1. Payment of Principal, Premium, if any, and Interest......................................78
Section 9.2. Maintenance of Office or Agency..........................................................78
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money.......................80
Section 9.4. Corporate Existence......................................................................81
Section 9.5. Annual Review Certificate................................................................81
Section 9.6. Maintenance of Properties................................................................82
Section 9.7. Payments of Taxes and Other Claims.......................................................82
Section 9.8. Waiver of Certain Agreements.............................................................82
ARTICLE 10
Holders' Lists and Reports by Trustee and Company.........................................................83
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders...............................83
Section 10.2. Preservation of Information, Communications to Holders..................................83
Section 10.3. Reports by Trustee......................................................................84
Section 10.4. Reports by the Company and the Guarantors...............................................84
</TABLE>
- iv -
<PAGE> 8
<TABLE>
<S> <C>
ARTICLE 11
Redemption................................................................................................84
Section 11.1. Applicability of Article................................................................84
Section 11.2. Election to Redeem; Notice to Trustee...................................................84
Section 11.3. Selection of Securities to Be Redeemed..................................................85
Section 11.4. Notice of Redemption....................................................................86
Section 11.5. Deposit of Redemption Price.............................................................87
Section 11.6. Securities Payable on Redemption Date...................................................87
Section 11.7. Securities Redeemed in Part.............................................................88
ARTICLE 12
Sinking Funds.............................................................................................89
Section 12.1. Applicability of Article................................................................89
Section 12.2. Satisfaction of Sinking Fund Payments with Securities...................................89
Section 12.3. Redemption of Securities for Sinking Fund...............................................89
ARTICLE 13
Meetings of Holders of Securities.........................................................................90
Section 13.1. Purposes for Which Meetings May Be Called...............................................90
Section 13.2. Call, Notice and Place of Meetings......................................................90
Section 13.3. Persons Entitled to Vote at Meetings....................................................90
Section 13.4. Quorum; Action..........................................................................91
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings.....................92
Section 13.6. Counting Votes and Recording Action of Meetings.........................................93
ARTICLE 14
Conversion or Exchange of Securities......................................................................93
Section 14.1. Applicability of Article................................................................93
Section 14.2. Exercise of Conversion or Exchange Privilege............................................94
Section 14.3. No Fractional Equity Securities.........................................................95
</TABLE>
- v -
<PAGE> 9
<TABLE>
<S> <C>
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger.....................96
Section 14.5. Notice of Certain Corporate Actions.....................................................97
Section 14.6. Reservation of Equity Securities........................................................98
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange....................................98
Section 14.8. Duties of Trustee Regarding Conversion or Exchange......................................98
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange..................................99
ARTICLE 15
Senior Guarantee .........................................................................................99
Section 15.1. Senior Guarantee........................................................................99
Section 15.2. Execution and Delivery of Senior Guarantees............................................102
Section 15.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms..........................103
Section 15.4. Release of Guarantors..................................................................103
Section 15.5. Additional Guarantors..................................................................104
ARTICLE 16
Jurisdiction and Consent to Service of Process...........................................................104
Section 16.1. Jurisdiction and Consent to Service of Process..........................................104
</TABLE>
- vi -
<PAGE> 10
SENIOR INDENTURE (the "Indenture"), dated as of December 23,
1998, 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 unsubordinated 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 Senior 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 Senior
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:
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:
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(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 specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified 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 basis, by Allied of the due and punctual payment of principal, premium,
if any, and interest on the Securities, as provided pursuant to Article 16.
"Allied Subsidiary Guarantee" means the unconditional
guarantee, on a senior 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 Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
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"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
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capitalized amount thereof that would appear on a balance sheet of such Person
in accordance with generally accepted accounting principles.
"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.
"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.
"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.
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"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 the payment of
such Debt, (ii) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed" "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements 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,
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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 (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing), provided that, 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.
"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
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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.
"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 herein, or in any
Security or Senior 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.
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"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 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
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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.
"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.
"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
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<PAGE> 20
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 by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
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.
"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.
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"Senior Guarantees" means the Allied Guarantee, the Subsidiary
Guarantees and the Allied Subsidiary Guarantee .
"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.
"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 of 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 (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 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 15.
"Subsidiary Guarantors", as of any time, means each and all of
the Restricted Subsidiaries at such time, other than Reliant Insurance Company,
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, which, in either case (x) or
(y), 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 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 depository receipt, provided that (except as
required by law) 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
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<PAGE> 23
Owned Restricted Subsidiaries or by the Company and one or more Wholly Owned
Restricted Subsidiaries.
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
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;
(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
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<PAGE> 24
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.
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
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<PAGE> 25
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 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
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<PAGE> 26
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 mailed to a
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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 Senior 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 Senior 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, 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
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<PAGE> 29
coupon appertaining thereto, or for any claim based thereon or otherwise in
respect 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 SENIOR 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 Senior 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.
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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 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 SENIOR GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series and the
interest coupons, if any, to be attached thereto and the Senior 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 Senior Guarantees to be
endorsed thereon, as the case may be, as evidenced by their execution of the
Securities and interest coupons, if any, or Senior Guarantees to be endorsed
thereon, as the case may be. If temporary Securities and Senior 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 Senior 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 Senior 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.
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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 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 Senior 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 Senior Guarantee.
SENIOR GUARANTEE
For value received, each of the Guarantors named (or deemed herein to
be named) below hereby jointly and severally unconditionally guarantees, on a
senior basis to the Holder of the Security upon which this Senior 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 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.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or
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<PAGE> 32
enforceability of such Security or the Indenture, the absence of any action to
enforce the 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 thereof 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 Senior 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 Senior 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 Senior 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
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<PAGE> 33
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 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 Senior
Guarantee or of the Indenture shall alter or impair (i) the Senior 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 Senior 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 Senior 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 Senior 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
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 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
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<PAGE> 34
permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
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 Senior Guarantee.
The Guarantors or any particular Guarantor shall be released from this
Senior 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 Senior Guarantee which are defined in the
Indenture referred to in the Security upon which this Senior Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Senior Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this Senior
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
Reference is made to Article Fifteen of the Indenture for further
provisions with respect to this Senior Guarantee.
THIS SENIOR GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 35
IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
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]
Attest:
_________________________
[Secretary]
[Assistant Secretary]
Each of the Subsidiary Guarantors
Listed on Schedule I to the
Indenture, As Guarantor of
the Securities
By:*/ _________________________
[Officer]
Attest:*
_________________________
[Secretary]
[Assistant Secretary]
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
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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<PAGE> 36
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 Global 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.
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.
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(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;
(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
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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 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;
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(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 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 Senior
Guarantees applicable to such series and the event or events upon which the
Senior Guarantees may be released for such Senior Guarantees.
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(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 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.
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(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.
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.
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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 Senior
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 Senior Guarantees endorsed thereon, and
the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities with such Senior 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 Senior 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 and 3.1, in authenticating such Securities with the Senior
Guarantees endorsed thereon and accepting the additional responsibilities under
this Indenture in relation to such Securities with the Senior 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 Senior 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 with
Senior Guarantees endorsed thereon have been, or, in the case of Securities
of a series with Senior 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
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such terms have been, or, in the case of Securities of a series with
Senior 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 Senior 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 Senior 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
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 Senior 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.
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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 Senior 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 Senior 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 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 Senior
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
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Depositary and the Trustee with regard to Global Securities with Senior
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 Senior
Guarantees 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
Senior 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
Senior 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.
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 Senior 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 Senior 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 Senior Guarantees may determine, as conclusively evidenced
by their execution of such Securities and interest coupons, if any, and such
Senior Guarantees. In the case of Securities of any series, such temporary
Securities may be Global Securities, representing all or a portion of the
Outstanding Securities of such series.
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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 Senior 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 Senior 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. 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 Senior
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.
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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 Senior 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 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
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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.
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 Senior Guarantees endorsed thereon of such series of like tenor,
shall authenticate and deliver, Securities with Senior Guarantees endorsed
thereon of such series of like tenor in certificated form, in authorized
denominations and in an aggregate principal amount equal
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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 Senior Guarantees endorsed thereon of such series
of like tenor, shall authenticate and deliver, Securities with Senior 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 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 Senior 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 Senior Guarantees
endorsed thereon of like tenor in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of certificated Securities delivered to Holders
thereof.
Upon the exchange of a Global Security with Senior Guarantees endorsed
thereon for Securities with Senior Guarantees endorsed thereon in certificated
form, such Global Security with Senior 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 Senior Guarantees endorsed thereon in certificated
form issued in exchange for a Global Security with Senior 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 Senior
Guarantees endorsed thereon, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall
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deliver such Securities with Senior Guarantees endorsed thereon to the Persons
in whose names such Securities with Senior 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 Senior Guarantees endorsed thereon which the Holder making
the exchange is entitled to receive.
All Securities with Senior Guarantees endorsed thereon issued upon any
registration of transfer or upon any exchange of Securities with Senior
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 Senior 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 Senior Guarantees
endorsed thereon for a period beginning at the opening of business 15 days
before any selection for 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 Senior 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 Senior 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.
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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 Senior
Guarantees endorsed thereon, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with Senior 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 Senior Guarantees endorsed thereon, if such Holder's
claim appertains to a Registered Security with Senior Guarantees endorsed
thereon, or a replacement Bearer Security with Senior 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.
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 Senior 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.
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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 Senior 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.
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
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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 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
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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 of a series 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 a Stated
Maturity or by declaration of 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).
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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 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 Senior Guarantees endorsed thereon, shall
be promptly cancelled by it. The Company may at any
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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 Senior 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 Senior 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.
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
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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
(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,
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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 Section 3.1 with respect to any series
of Securities, shall be applicable to the Securities and any interest coupons
appertaining thereto.
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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
Senior 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 and (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"), and such Securities and any interest coupons appertaining thereto
shall thereafter be deemed to be not
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"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. 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 Securities
and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have
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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) 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).
(f) 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).
(g) 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.
(h) 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.
(i) The Company has delivered to the Trustee an Opinion of
Counsel to the
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effect that such defeasance or agreement defeasance shall not result in the
trust arising from such deposit or the Trustee 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.
(j) 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).
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.
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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 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 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 at its Maturity; 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
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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 by which there may be secured or evidenced, any Debt of the
Company, any Guarantor or any Restricted Subsidiary with a principal 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) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered 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 the entry of such
judgment or judgments; 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 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
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(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 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
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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
(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
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(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.
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.
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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 Senior 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 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,
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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 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.
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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.
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
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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 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
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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 Senior 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.
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
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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 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
Senior 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
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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 Senior 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 Senior 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 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
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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 May 15, 1997 between Allied and the Trustee relating to
the Allied's 11.30% Senior Discount Notes Due 2007, (ii) the Indenture dated as
of December 1, 1996 by and among the Company, Allied, as guarantor, the
Subsidiary Guarantors named therein and the Trustee relating to the Company's 10
1/4% Senior Subordinated Notes due 2006, or (iii) 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. 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 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:
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(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 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
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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 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
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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 Senior 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).
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 Senior 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
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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 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
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Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities with the Senior 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, 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
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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.
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 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
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(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 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
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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.
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 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 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);
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(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; or
(e) 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 Section 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.
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
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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.
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
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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 Senior 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 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
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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.
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
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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 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.
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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.
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,
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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;
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
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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 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.
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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 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.
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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;
(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;
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(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.
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
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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 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 Senior Guarantee of each Guarantor executed by each such Guarantor
and endorsed thereon) of the same series, having the same form, terms
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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.
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
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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
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
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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.
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.
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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 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
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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 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
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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 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
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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 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
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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 the Holder of Bearer Securities as provided in
1.6.
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:
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(a) Allied shall declare a dividend (or any other distribution) on
any class of such Equity Securities (i) payable 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 agent, a copy of such notice
shall also forthwith be filed by Allied and the Company with the Trustee.
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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.
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
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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
SENIOR GUARANTEE
Section 15.1. Senior 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 senior 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 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
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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 Senior 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 Senior 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 Guarantee), 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 Senior 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 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 Senior Guarantee or Security or of the Indenture
shall alter or impair (i) the Senior Guarantee of any Guarantor, which is
absolute and
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<PAGE> 108
unconditional, of the due and punctual payment of the principal of, premium, if
any, and interest on the Security upon which such Senior 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 Senior 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, on account of the
Subsidiary Guarantees) pursuant to the provisions of its Senior 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 Senior 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 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.
No officer, director, employer or incorporator, past, present or
future, of any Guarantor, as such, shall have any personal liability under any
Senior Guarantee by reason of his, her or its status as such officer, director,
employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required to pay
any amounts on account of the Securities pursuant to its Senior 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
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<PAGE> 109
of (A) the aggregate amount payable by the Subsidiary Guarantors on account of
the Securities pursuant to their Senior Guarantees times (B) the proportion
(expressed as a fraction) that such Subsidiary Guarantor's net worth at the date
enforcement of its Senior 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 Senior 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 Senior 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 Senior Guarantee.
Section 15.2. Execution and Delivery of Senior Guarantees. The
Senior Guarantees to be endorsed on the Securities shall include the terms of
the Senior Guarantee set forth in Section 15.1 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 Senior 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 Senior 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, Treasurer or Vice Presidents, attested by its Secretary or
Assistant Secretary. The signature of any or all of these officers on the Senior
Guarantee may be manual or facsimile and may be pursuant to a duly executed
power of attorney.
A Senior 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 Senior Guarantee is endorsed or did not hold such offices at the date
of such Senior Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Senior
Guarantee endorsed thereon on behalf of the Guarantors. Each of the Guarantors
hereby jointly and severally agrees that its Senior Guarantee set forth in
Section 15.1 shall remain in full force and effect notwithstanding any failure
to endorse a Senior Guarantee on any Security.
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<PAGE> 110
Section 15.3. 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 15.4. 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 15.3, 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 15.3, 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 15. Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 15 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 15.
(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 Senior
Guarantees endorsed on the Securities and under this Article 15.
(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 15.
(d) The Guarantors shall be released from all of their obligations
under the Senior Guarantees endorsed on the Securities of any series and under
this Section 15 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 15.5. 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 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
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<PAGE> 111
(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 16
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 16.1. 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
Senior 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 16 shall affect any right that any
Holder or the Trustee may otherwise have to bring any action or proceeding
relating to the Securities, the Senior 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
Senior 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 manner permitted by law.
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<PAGE> 112
--------------------
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.
-103-
<PAGE> 113
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:
Attest:
/s/ Jeremy Apker
- ----------------------------------
Name: Jeremy Apker
Title:
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 14 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:
Attest:
/s/ Steven M. Helm
- ----------------------------------
Name: Steven M. Helm
Title:
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<PAGE> 114
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:
Attest*:
/s/ Jeremy Apker
- --------------------------
Name: Jeremy Apker
Title:
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> 115
SCHEDULE I
Subsidiary Guarantors
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- -----------------------------------------------------------------------------
<S> <C>
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc. New York
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste North America, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc. Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Transportation, Inc. Delaware
Americal Co. Michigan
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Transfer Company, Inc. New York
</TABLE>
A-1
<PAGE> 116
Delta Container Corporation California
Delta Paper Stock Co. California
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen Delaware
Draw Acquisition Company Twenty Two Delaware
Draw Acquisition Company Twenty Three Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
Ellis County Landfill TX, LLC Delaware
Ellis County Landfill TX, L.P. Delaware
Ellis Scott Landfill MO, LLC Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc. New York
Environmental Development Corporation Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc. New York
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
Evergreen Scavenger Service, Inc. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp. Delaware
Georgia Recycling Services, Inc. Delaware
Golden Eagle Disposals, Inc. New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc. Delaware
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
A-3
<PAGE> 117
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc. Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP Delaware
MCM Sanitation, Inc. New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc. Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
A-4
<PAGE> 118
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, L.L.C. Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibres Company Washington
Paper Fibers, Inc. Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC Delaware
Pine Hill Farms Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc. New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc. New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
A-5
<PAGE> 119
Southeast Landfill, LLC Delaware
Southwest Waste, Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc. New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc. Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation New York
A-6
<PAGE> 1
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 23, 1998 (this
"First 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 December 23, 1998 (the "Indenture"), to
provide for the issuance by the Company from time to time of debt securities
evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company
has authorized the issuance of $300,000,000 of its 7 3/8% Series A Senior Notes
Due 2004 (the "Series A Five-Year Notes") and $300,000,000 of its 7 3/8% Series
B Senior Notes Due 2004 (the "Series B Five-Year Notes," and together with the
Series A Five-Year Notes, the "Five-Year Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on
the signature page thereof entered into a Registration Rights Agreement dated as
of the date hereof (as such agreement may be amended, modified or supplemented
from time to time, the "Registration Rights Agreement") which contemplates (i)
the registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Series B Five-Year Notes and (ii) the consummation of an
Exchange Offer (defined below) whereby the Series A Five-Year Notes may be
exchanged for Series B Five-Year Notes; and
WHEREAS, the Company desires to establish the terms of the Five-Year
Notes in accordance with Section 3.1 of the Indenture and to establish the form
of the Five-Year Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
SECTION 1.01. TERMS OF FIVE-YEAR NOTES. The following terms relating to
the Five-Year Notes are hereby established:
(1) The Series A Five-Year Notes shall constitute a series of
Securities having the title "7 3/8% Series A Senior Notes Due 2004." The Series
B Five-Year Notes shall constitute a series of Securities having the title
"7 3/8% Series B Senior Notes Due 2004."
(2) The aggregate principal amount of the Series A Five-Year Notes that
may be authenticated and delivered under the Indenture (except for Series A
Five-Year Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Series A Five-Year Notes pursuant to
Sections 3.4, 3.5, 3.6, 8.6 or 11.7 of the Indenture or any Securities that,
pursuant to Section 3.3, are deemed never to have been authenticated or
delivered thereunder) shall be up to $300,000,000. The aggregate principal
amount of the Series B Five-Year Notes that may be authenticated and delivered
under the Indenture (except for Series B Five-Year Notes authenticated and
delivered upon registration of transfer of or in exchange for or in lieu of,
other Series B Five-Year Notes pursuant to Sections 3.4,
<PAGE> 2
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 $300,000,000.
(3) The entire outstanding principal of the Five-Year Notes shall be
payable on January 1, 2004 (the "Stated Maturity Date").
(4) The rate at which the Five-Year Notes shall bear interest shall be
7 3/8%; (a) with respect to the Series A Five-Year Notes, interest shall accrue
from the date hereof; (b) with respect to the Series B Five-Year Notes, the date
from which interest shall accrue shall be the date on which interest was most
recently paid on the Series A Five-Year Notes, or if there has been no Interest
Payment Date relating to the Series A Five-Year Notes prior to the issuance of
the Series B Five-Year Notes, interest shall accrue from the date hereof; (c)
the Interest Payment Dates for the Five-Year Notes on which interest will be
payable shall be January 1 and July 1 of each year, beginning July 1, 1999; the
Regular Record Dates for the interest payable on the Five-Year Notes on any
Interest Payment Date shall be December 15 with respect to the January 1
Interest Payment Date and June 15 with respect to the July 1 Interest Payment
Date; (d) interest on overdue principal and premium, if any, from time to time,
shall be at a rate of 2% per annum in excess of the rate then in effect;
interest on overdue installments of interest and Special Interest, if any, from
time to time, shall be at the same rate, to the extent lawful; and the basis
upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(5) The place where the principal of (and premium, if any) and
interest, including, Special Interest, if any, with respect to and interest on
the Five-Year Notes shall be payable and Five-Year Notes may be surrendered for
the registration of transfer or exchange shall be the Corporate Trust Office of
the Trustee which, as of this writing, is located at 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
Five-Year Notes and the Indenture may be served shall be the Corporate Trust
Office of the Trustee. In addition, payment of interest (including any Special
Interest) on any Five-Year Note may, at the option of the Company, be made by
check mailed to the address of the Person in whose name the Five-Year Note is
registered at the close of business on the Regular Payment Date; provided,
however, that all payments of principal, and premium (including Special
Interest, if any), if any, and interest on the Five-Year Notes to Holders of
which have given wire instructions to the Company or the Paying Agent at least
10 Business Days prior to the applicable payment date shall be made by wire
transfer to an account maintained by such Holder entitled thereto as specified
by such Holder in the instructions.
(6) The Five-Year Notes may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a redemption price (the
"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).
(7) Except as set forth in this First Supplemental Indenture, the
Five-Year Notes shall not be redeemable at the option of any Holder thereof,
upon the occurrence of any particular circumstances or otherwise. The Five-Year
Notes will not have the benefit of any sinking fund.
(8) The Five-Year Notes shall be issuable in denominations of $1,000.
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(9) Payments of the principal of, Special Interest, if any, with
respect to and interest on the Five-Year Notes shall be made in U.S. Dollars,
and the Five-Year Notes shall be denominated in U.S. Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued
interest, if any, on the Five-Year Notes shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Article 5 of the Indenture.
(12) The Five-Year Notes will be payable on the Stated Maturity Date in
an amount equal to the principal amount thereof, Special Interest, if any, plus
any accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth
in the Indenture with respect to the Five-Year Notes, which shall be effective
only for so long as any of the Five-Year Notes are Outstanding:
(a) Asset Dispositions.
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition unless: (i) the Company (or
such Restricted Subsidiary, as the case may be) receives consideration
at the time of such disposition at least equal to the fair market value
of the shares or the assets disposed of, as determined in good faith by
the Board of Directors for any transaction (or series of transactions)
involving in excess of $10 million and not involving the sale of
equipment or other assets specifically contemplated by the Company's
capital expenditure budget previously approved by the Board of
Directors; (ii) at least 75% of the consideration received by the
Company (or such Restricted Subsidiary) consists of (u) cash or readily
marketable cash equivalents, (v) the assumption of Debt or other
liabilities reflected on the consolidated balance sheet of the Company
and its Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities
subordinate in right of payment to the Five-Year Notes) and release
from all liability on such Debt or other liabilities assumed, (w)
assets used in, or stock or other ownership interests in a Person that
upon the consummation of such Asset Disposition becomes a Restricted
Subsidiary and will be principally engaged in, the business of the
Company or any of its Restricted Subsidiaries as such business is
conducted immediately prior to such Asset Disposition, (x) any
securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are
contemporaneously (subject to ordinary settlement periods) converted by
the Company or such Restricted Subsidiary into cash or Cash Equivalents
(to the extent of cash and Cash Equivalents received), (y) any
Designated Noncash Consideration received pursuant to this clause (y)
that is at the time outstanding, not to exceed 15% of Consolidated
Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated
Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value), or (z) any combination
thereof; and (iii) 100% of the Net Available Proceeds from such Asset
Disposition (including from the sale of any marketable cash equivalents
received therein) are applied by the Company or a Restricted Subsidiary
(A) first, within one year from the later of the date of such Asset
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<PAGE> 4
Disposition or the receipt of such Net Available Proceeds, to Debt of
the Company or its Restricted Subsidiaries then outstanding under the
Bank Agreement which would require such application or which would
prohibit payments pursuant to Clause (B) following; (B) second, to the
extent Net Available Proceeds are not required to be applied as
specified in Clause (A), to purchases on a pro rata basis of
Outstanding Senior Notes of each issue pursuant to an Offer to Purchase
(to the extent such an offer is not prohibited by the terms of the Bank
Agreement then in effect) at a purchase price equal to 100% of their
principal amount plus accrued interest to the date of purchase (subject
to the rights of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior
to the purchase date); and (C) third, to the extent of any remaining
Net Available Proceeds following completion of such Offer to Purchase,
to any other use as determined by the Company which is not otherwise
prohibited by the Indenture and provided further that the 75%
limitation referred to in clause (ii) above will not apply to any Asset
Disposition if the consideration received therefrom, as determined in
good faith by the Company's Board of Directors, is equal to or greater
than what the after-tax proceeds would have been had the Asset
Disposition complied with the aforementioned 75% limitation.
Notwithstanding the foregoing, the Company shall not be required
to comply with the provisions described in Clause (iii) of the
preceding paragraph (i) if the Net Available Proceeds less any amounts
("Reinvested Amounts") are invested or committed to be invested within
one year from the later of the date of the related Asset Disposition or
the receipt of such Net Available Proceeds in assets that will be used
in the business of the Company or any of its Restricted Subsidiaries as
such business is conducted prior to such Asset Disposition (determined
by the Board of Directors in good faith) or (ii) to the extent the
Company elects to redeem the Senior Notes of any series with the Net
Available Proceeds pursuant to any of the provisions of paragraph 5(b)
of the Senior Notes.
Notwithstanding the foregoing, the Company shall not be required
to comply with the requirements described in Clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted
Disposition.
The Company shall mail the Offer Document for an Offer to
Purchase required pursuant to this subsection 13(a) within 30 days
after the date which is one year after the later of the date of
consummation of the Asset Disposition referred to in this subsection
13(a) or the receipt of the Net Available Proceeds from such Asset
Disposition. The aggregate principal amount of the Five-Year Notes to
be offered to be purchased pursuant to the Offer to Purchase shall
equal the Net Available Proceeds required to be made available therefor
pursuant to Clause (iii)(B) of this subsection 13(a) (rounded down to
the next lowest integral multiple of $1,000). Each Holder shall be
entitled to tender all or any portion of the Five-Year Notes owned by
such Holder pursuant to the Offer to Purchase, subject to the
requirement that any portion of a Five-Year Note tendered must be
tendered in an integral multiple of $1,000 principal amount.
(b) Change of Control.
Within 30 days following the date the Company becomes aware of
the consummation of a transaction that results in a Change of Control
(as defined below), the Company shall commence an Offer to Purchase all
Outstanding Notes, at a purchase price
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<PAGE> 5
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 First Supplemental Indenture, (i) so
long as the Company is a Subsidiary of Allied, (a) any Person, or any
Persons (other than a Permitted Allied Successor, as defined below),
acting together that would constitute a "Group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, together with any
Affiliates or Related Persons thereof (other than any employee stock
ownership plan), beneficially own 50% or more of the total voting power
of all classes of Voting Stock of Allied, (b) any Person or Group,
together with any Affiliates or Related Persons thereof, succeeds in
having sufficient of its nominees who have not been approved by the
Continuing Directors elected to the Board of Directors of Allied such
that such nominees, when added to any existing director remaining on
the Board of Directors of Allied after such election who is an
Affiliate or Related Person of such Person or Group, shall constitute a
majority of the Board of Directors of Allied or (c) there occurs any
transaction or series of related transactions (other than a merger,
consolidation or other transaction with a Related Business in which the
shareholders of Allied immediately prior to such transaction (or
series) receive (I) solely Voting Stock of Allied (or its successor or
parent, as the case may be), (II) cash, securities and other property
in an amount which could be paid by the Company as a Restricted Payment
under this First Supplemental Indenture after giving pro forma effect
to such transaction, or (III) a combination thereof), and the
beneficial owners of the Voting Stock of Allied immediately prior to
such transaction (or series) do not, immediately after such transaction
(or series), beneficially own Voting Stock representing more than 50%
of the total voting power of all classes of Voting Stock of Allied (or
in the case of a transaction (or series) in which another entity
becomes a successor to, or parent of, Allied, of the successor or
parent entity) and (ii) if the Company is not a Subsidiary of Allied,
(a) any Person, or any Persons (other than a Permitted Company
Successor, as defined below), acting together that would constitute a
"Group" (a "Group") for purposes of Section 13(d) of the Exchange Act,
together with any Affiliates or Related Persons thereof (other than any
employee stock ownership plan) beneficially own 50% or more of the
total voting power of all classes of Voting Stock of the Company, (b)
any Person or Group, together with any Affiliates or Related Persons
thereof, succeeds in having sufficient of its nominees who have not
been approved by the Continuing Directors elected to the Board of
Directors of the Company such that such nominees, when added to any
existing director remaining on the Board of Directors of the Company
after such election who is an Affiliate or Related Person of such
Person or Group, shall constitute a majority of the Board of Directors
of the Company or, (c) there occurs any transaction or series of
related transactions (other than a merger, consolidation or other
transaction with a Related Business in which the shareholders of the
Company immediately prior to such transaction (or series) receive (I)
solely Voting Stock of the Company (or its successor or parent, as the
case may be), (II) cash, securities and other property in an amount
which could be paid by the Company as a Restricted Payment under the
Indenture after giving pro forma effect to such transaction or (III) a
combination thereof), and the beneficial owners of the Voting Stock of
the Company immediately prior to such transaction (or series) do not,
immediately after such transaction (or series), beneficially own Voting
Stock representing more than 50% of the total voting power of all
classes of Voting Stock
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<PAGE> 6
of the Company (or in the case of a transaction (or series) in which
another entity becomes a successor to the Company, of the successor
entity).
A "Permitted Allied Successor" means an issuer, other than
Allied, of Voting Securities issued to the shareholders of Allied in a
merger, consolidation or other transaction permitted by clause (i)(c)
of the definition of Change of Control. A "Permitted Company Successor"
means an issuer, other than the Company, of Voting Securities issued to
the shareholders of the Company in a merger, consolidation or other
transaction permitted by clause (ii)(c) of the definition of Change of
Control.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Five-Year Notes resulting from a
Change of Control.
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment
Five-Year Notes or portions thereof tendered pursuant to the Offer to
Purchase, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided
in Section 9.3 of the Indenture) money sufficient to pay the Purchase
Price of all Five-Year Notes or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee all Five-Year Notes so
accepted together with an Officers' Certificate stating the Five-Year
Notes or portions thereof accepted for payment by the Company. The
Paying Agent (or the Company if so acting) shall promptly mail or
deliver to Holders of Five-Year Notes so accepted payment in an amount
equal to the Purchase Price for each $1,000 of Five-Year Notes so
accepted, and the Company shall promptly execute a new Five-Year Note
or Five-Year Notes equal in principal amount to any unpurchased portion
of the Five-Year Note surrendered as requested by the Holder, and the
Guarantors shall promptly execute their Senior Guarantees to be
endorsed thereon, and thereafter the Trustee shall promptly
authenticate and mail or deliver to such Holders such new Five-Year
Note or Five-Year Notes. Any Five-Year Note not accepted for payment
shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Offer
to Purchase on or as soon as practicable after the Purchase Date.
(c) Changes in Covenants when Senior Notes rated Investment
Grade.
Following the first date upon which any issue of the Senior
Notes are rated the following: (i) Baa3 or better by Moody's Investors
Service, Inc. ("Moody's") and BB+ or better by Standard & Poor's
Ratings Group ("S&P"); or (ii) BBB- or better by S&P and Ba1 or better
by Moody's (a "Rating Event") (or, in any case, if such person ceases
to rate the Senior Notes for reasons outside of the control of the
Company, the equivalent investment grade credit rating from any other
"nationally recognized statistical rating organization" (within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by
the Company as a replacement agency) (the "Rating Event Date") (and
provided no Event of Default or event that with notice or the passage
of time would constitute an Event of Default shall exist on the Rating
Event Date), the covenants specifically listed under subsections 13(a),
13(d), 13(e), 13(f), 13(h) and 13(j) of this
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Section 1.01 of this First Supplemental Indenture shall no longer be
applicable to the Five-Year Notes.
(d) Limitation on Consolidated Debt.
The Company shall not incur any Debt and shall not permit
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock
unless, immediately after giving effect to the Incurrence of such Debt
or issuance of such Preferred Stock and the receipt and application of
the proceeds thereof, the Consolidated EBITDA Coverage Ratio of the
Company for the four full fiscal quarters next preceding the Incurrence
of such Debt or issuance of such Preferred Stock, calculated on a pro
forma basis as if such Debt had been Incurred or such Preferred Stock
had been issued and the proceeds thereof had been received and so
applied at the beginning of the four full fiscal quarters, would be
greater than 2.0 to 1.0.
Without regard to the foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate
principal amount at any one time outstanding not to exceed the
amount permitted to be borrowed thereunder;
(ii) Debt evidenced by the Senior Notes and the
Guarantees;
(iii) Debt owed by the Company to any Restricted
Subsidiary or Debt owed by a Restricted Subsidiary to the
Company or to a Restricted Subsidiary; provided, however, that
in the event that either (x) the Company or the Restricted
Subsidiary to which such Debt is owed transfers or otherwise
disposes of such Debt to a Person other than the Company or
another Restricted Subsidiary or (y) such Restricted Subsidiary
ceases to be a Restricted Subsidiary, the provisions of this
Clause (iii) shall no longer be applicable to such Debt and such
Debt shall be deemed to have been incurred at the time of such
transfer or other disposition or at the time such Restricted
Subsidiary ceases to be a Restricted Subsidiary;
(iv) Debt outstanding on the date of this First
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 First Supplemental Indenture), which Debt (A) was issued
by a Person prior to the time such Person becomes a Restricted
Subsidiary in such transaction (including by way of merger of
consolidation with the Company or another Restricted Subsidiary)
and was not issued in contemplation of such transaction or (B)
is issued by the Company or a Restricted Subsidiary to a seller
in connection with such transaction, in an aggregate amount for
all such Debt issued pursuant to the provisions of this First
Supplemental Indenture described under this Clause (v) and then
outstanding does not exceed 5% of the Consolidated Total Assets
of the Company at the time of such Incurrence;
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(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.
(e) Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend,
or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of the Capital Stock of the Company
or any Restricted Subsidiary or to the holders thereof in their
capacity as such (excluding any dividends or distributions (u) to the
extent payable in shares of the Capital Stock of the Company (other
than Redeemable Interests) or in options, warrants or other rights to
acquire the Capital Stock of the Company (other than Redeemable
Interests), (v) dividends or distributions by a Restricted Subsidiary
to the Company or another Wholly Owned Restricted Subsidiary and (w)
the payment of pro rata dividends by a Restricted Subsidiary to holders
of both minority and majority interests in such Restricted Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for value (a) any
Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the
Company or (b) any options, warrants or rights to purchase or acquire
shares of Capital Stock of the Company or any Capital Stock of or other
ownership interests in any Subsidiary or any Affiliate or Related
Person of the Company (excluding, in each case of (a) and (b), the
purchase, redemption, acquisition or retirement by any Restricted
Subsidiary of any of its Capital Stock, other ownership interests or
options, warrants or rights to purchase such Capital Stock or other
ownership interests, in each case, owned by the Company or a Wholly
Owned Restricted Subsidiary), (iii) make any Investment that is not a
Permitted Investment or (iv) redeem, defease, repurchase, retire or
otherwise acquire or retire for value prior to any scheduled maturity,
repayment or sinking fund payment, Debt of the Company that is
subordinate in right of payment to the Five-Year Notes (each of the
transactions described in Clauses (i) through (iv) being a "Restricted
Payment"), if:
(1) an Event of Default, or an event that with the
lapse of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing; or
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<PAGE> 9
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the most
recently ended four full fiscal quarter period for which
internal financial statements are available immediately
preceding the date of such Restricted Payment, not have been
permitted to Incur at least $1.00 of additional Debt pursuant to
the Consolidated EBITDA Coverage Ratio test set forth in the
first paragraph under subsection 13(d) of this Section 1.01 of
this First Supplemental Indenture; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted
Payments permitted by Clauses (ii), (iii), (iv), (v) and (vii)
of the next succeeding paragraph) from the date of the Indenture
(the amount so expended, if other than in cash, determined in
good faith by the Board of Directors) exceeds the sum, without
duplication, of: (a) 50% of the aggregate Consolidated Net
Income (or, in case Consolidated Net Income shall be 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 First Supplemental
Indenture to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at
the time of such Restricted Payment; (b) 100% of the aggregate
net cash proceeds from the issuance and sale to Allied of
Capital Stock (other than Redeemable Interests) of the Company
and options, warrants or other rights to acquire Capital Stock
(other than Redeemable Interests and Debt convertible into
Capital Stock) of the Company and the principal amount of Debt
and Redeemable Interests of the Company that has been converted
into Capital Stock (other than Redeemable Interests) of the
Company after the date of the First 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 First Supplemental Indenture from an Unrestricted
Subsidiary of the Company; and (d) $300 million.
The foregoing covenant shall not be violated by reason of
(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment
would have complied with the foregoing covenant;
(ii) any refinancing or refunding of Debt permitted if
such refinancing or refunding is permitted pursuant to clause
(vii) of the second paragraph under subsection 13(d) of this
Section 1.01 of this First Supplemental Indenture;
(iii) the purchase, redemption or other acquisition or
retirement for value of any Debt or Capital Stock of the Company
or any options, warrants or rights to purchase or acquire shares
of Capital Stock of the Company in exchange for, or out of the
net cash proceeds of, the substantially concurrent issuance or
sale (other than to a Restricted Subsidiary of the Company) of
Capital Stock (other than Redeemable Interests) of the Company;
provided that the amount of any such net cash proceeds
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<PAGE> 10
that are utilized for any such purchase, redemption or other
acquisition or retirement for value shall be excluded from
Clause (3)(b) of the foregoing paragraph of this subsection
13(e);
(iv) the repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of
principal of any subordinated Debt or Capital Stock through the
issuance of new subordinated Debt or Capital Stock of the
Company.
(v) the Refinancing Transactions;
(vi) the repurchase of any subordinated Debt at a
purchase price not greater than 101% of the principal amount of
such subordinated Debt in the event of a Change of Control
pursuant to a provision similar to the provision contained in
subsection 13(b) of this Section 1.01 of this First Supplemental
Indenture; provided that prior to such repurchase the Company
has made the Change of Control Offer the ("Change of Control
Offer") as provided in such covenant with respect to the
Five-Year Notes and repurchased all Five-Year Notes validly
tendered for repayment in connection with such Change of Control
Offer;
(vii) the purchase or redemption of any Debt from Net
Available Proceeds to the extent permitted under subsection
13(a) of this Section 1.01 of this First Supplemental Indenture;
and
(viii) payments pursuant to the Intercompany
Agreements.
Upon the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary, an amount equal to the greater of the book
value and the fair market value of all assets of such Restricted
Subsidiary at the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available prior to
such designation shall be deemed to be a Restricted Payment at the time
of such designation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from
such designation) permitted under this subsection 13(e) of this First
Supplemental Indenture.
(f) Limitations Concerning Distributions by Subsidiaries, Etc.
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or
restriction on the ability of such Restricted Subsidiary (i) to pay,
directly or indirectly, dividends or make any other distributions in
respect to its Capital Stock or other ownership interests or pay any
Debt or other obligation owed to the Company or any other Restricted
Subsidiary; (ii) to make loans or advances to the Company or any other
Restricted Subsidiary; or (iii) to sell, lease or transfer any of its
property or assets to the Company or any Wholly Owned Restricted
Subsidiary, except, in any such case, any encumbrance or restriction:
(a) pursuant to the Senior Notes, the Indenture (including each of the
First, Second and Third Supplemental Indentures), the Senior Guarantees
or any other agreement in effect on the date of this First Supplemental
Indenture, (b) pursuant to the Bank Agreement, including any Guarantees
of or Liens securing the Debt Incurred thereunder, (c) pursuant to an
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<PAGE> 11
agreement relating to any Debt Incurred by such Subsidiary prior to the
date on which such Subsidiary was acquired by the Company and
outstanding on such date and not incurred in anticipation of becoming a
Subsidiary, (d) pursuant to an agreement which has been entered into
for the pending sale or disposition of all or substantially all of the
Capital Stock, other ownership interests or assets of such Subsidiary,
provided that such restriction terminates upon consummation or
abandonment of such disposition and upon termination of such agreement,
(e) pursuant to customary non-assignment provisions in leases and other
agreements entered into in the ordinary course of business, (f)
restrictions contained in any security agreement (including a capital
lease) securing Debt permitted to be Incurred under the Indenture that
impose restrictions of the nature described in Clause (iii) above on
the property subject to the Lien of such security agreement, (g)
pursuant to an agreement effecting a renewal, extension, refinancing or
refunding of Debt incurred pursuant to an agreement referred to in
Clause (a), (b) or (f) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in such renewal,
extension, refinancing or refunding agreement are no more restrictive
in any material respect than the provisions contained in the agreement
it replaces, as determined in good faith by the Board of Directors; or
(h) such encumbrance or restriction is the result of applicable
corporate law or regulation relating to the payment of dividends or
distributions.
(g) Limitation on Liens.
Allied shall not, and the Company shall not, and shall not
permit any of its Restricted Subsidiaries to, create, Incur, assume or
otherwise cause or suffer to exist or become effective any Lien (other
than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired to secure Debt of Allied, the Company or any of
its Restricted Subsidiaries.
(h) Limitation on Transactions with Affiliates and Related
Persons.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend
any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company
(each of the foregoing, an "Affiliate Transaction"), unless (a) such
Affiliate Transaction is on terms that are no less favorable to the
Company or such Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (b) the Company delivers to the
Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$10,000,000, either (i) a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (a) above and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors or (ii) an opinion as to the fairness
to the Company or such Restricted Subsidiary, as the case may be, of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
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Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions: (a) customary directors' fees,
indemnification or similar arrangements or any employment agreement or
other compensation plan or arrangement entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business
(including ordinary course loans to employees not to exceed (i)
$5,000,000 outstanding in the aggregate at any time and (ii) $2,000,000
to any one employee) and consistent with the past practice of the
Company or such Restricted Subsidiary; (b) loans by the Company and its
Restricted Subsidiaries to employees of Allied or any of its
Subsidiaries in connection with management incentive plans not to
exceed $25,000,000 at any time outstanding; provided that such
limitation shall not apply to loans the proceeds of which are used to
purchase common stock of (i) the Company from the Company or (ii)
Allied from Allied if and to the extent that Allied utilizes the
proceeds thereof to acquire Capital Stock (other than Redeemable
Interests) of the Company; (c) transactions between or among the
Company and/or its Restricted Subsidiaries; (d) payments of customary
fees by the Company or any of its Restricted Subsidiaries to investment
banking firms and financial advisors made for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which are approved by a
majority of the Board of Directors in good faith; (e) any agreement as
in effect on the date of this First Supplemental Indenture or any
amendment thereto (so long as such amendment is not disadvantageous to
the Holders of the Five-Year Notes in any material respect) or any
transaction contemplated thereby; (f) payments and transactions in
connection with the Tender Offers, and the payment of the fees and
expenses with respect thereto; and (g) Restricted Payments that are
permitted by the provisions of subsection 13(e) of this Section 1.01 of
this First Supplemental Indenture.
(i) Provision of Financial Information.
Whether or not Allied is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) shall file with the Commission the annual
reports, quarterly reports and other documents which the Company (or
Allied for so long as the Company is a Wholly-Owned Subsidiary of
Allied) would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if
the Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were so required, such documents to be filed with
the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file
such documents if the Company were so required. The Company shall also
in any event (a) within 15 days of each Required Filing Date file with
the Trustee copies of the annual reports, quarterly reports and other
documents which the Company (or Allied for so long as the Company is a
Wholly-Owned Subsidiary of Allied) filed with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provisions thereto or
would have been required to file with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provisions thereto if the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were required to comply with such Sections and
(b) if filing such documents by the Company (or Allied for so long as
the Company is a Wholly-Owned Subsidiary of Allied) with the Commission
is not permitted under the Exchange Act, promptly upon written request
supply copies of such documents to any prospective Holder.
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<PAGE> 13
(j) Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a
Subsidiary, or after the date of this First Supplemental Indenture
becomes a Subsidiary, of the Company as an "Unrestricted Subsidiary,"
whereupon (and until such Person ceases to be an Unrestricted
Subsidiary) such Person and each other Person that is then or
thereafter becomes a Subsidiary of such Person shall be deemed to be an
Unrestricted Subsidiary. In addition, the Company may at any time
terminate the status of any Unrestricted Subsidiary as an Unrestricted
Subsidiary, whereupon such Subsidiary and each other Subsidiary of the
Company (if any) of which such Subsidiary is a Subsidiary shall be a
Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an
Unrestricted Subsidiary or from an Unrestricted Subsidiary to a
Restricted Subsidiary will be effective, and no Person may otherwise
become a Restricted Subsidiary, if:
(i) in the case of any change in status of a Restricted
Subsidiary to an Unrestricted Subsidiary, the Restricted Payment
resulting from such change would violate the provisions of
subsection 13(e) of this Section 1.01 of this First Supplemental
Indenture; or
(ii) such change or other event would otherwise result
(after the giving of notice or the lapse of time, or both) in an
Event of Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and
the status of any Unrestricted Subsidiary as an Unrestricted Subsidiary
will be deemed to have been immediately terminated (whereupon such
Subsidiary and each other Subsidiary of the Company (if any) of which
such Subsidiary is a Subsidiary will be a Restricted Subsidiary) at any
time when:
(i) such Subsidiary (A) has outstanding Debt that is
Unpermitted Debt (as defined below) or (B) owns or holds any
Capital Stock of or other ownership interests in, or a Lien on
any property or other assets of, the Company or any of its
Restricted Subsidiaries; or
(ii) the Company or any other Restricted Subsidiary (A)
provides credit support for, or a Guaranty of, any debt of such
Subsidiary (including any undertaking, agreement or instrument
evidencing such Debt) or (B) is directly or indirectly liable on
any Debt of such Subsidiary. Any termination of the status of an
Unrestricted Subsidiary as an Unrestricted Subsidiary pursuant
to the preceding sentence will be deemed to result in a breach
of this covenant in any circumstance in which the Company would
not be permitted to change the status of such Unrestricted
Subsidiary to the status of a Restricted Subsidiary pursuant to
the preceding paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company
if (x) a default thereunder (or under any instrument or
agreement pursuant to or by which such Debt
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<PAGE> 14
is issued, secured or evidenced) or any right that the holders
thereof may have to take enforcement action against such
Subsidiary or its property or other assets, would permit
(whether or not after the giving of notice or the lapse of
time or both) the holders of any Debt of the Company or any
other Restricted Subsidiary to declare the same due and
payable prior to the date on which it otherwise would have
become due and payable or otherwise to take any enforcement
action against the Company or any such other Restricted
Subsidiary or (y) such Debt is secured by a Lien on any
property or other assets of the Company and any of its other
Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company shall
be deemed to be a Restricted Subsidiary at all times when it is
a Subsidiary of the Company that is not an Unrestricted
Subsidiary. Each Person that is or becomes a Wholly Owned
Subsidiary of the Company shall be deemed to be a Wholly Owned
Restricted Subsidiary at all times when it is a Wholly Owned
Subsidiary of the Company that is not an Unrestricted
Subsidiary.
(14) (a) In addition to the Events of Default set forth in Section 5.1
of the Indenture, the Five-Year Notes shall include the following additional
Event of Default designated as clause (j) of such Section, which shall be deemed
an Event of Default under Section 5.1 of the Indenture:
"(j) failure to perform or comply with the provisions of Section
7.1 of the Indenture (as superseded by subsection 15 of Section 1.01
hereof) or the provisions of subsections 13(a) and 13(b) of this
Section 1.01 of this First 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 Five-Year Notes pursuant to Article 11 of the Indenture and
paragraph 5(b) of the Five-Year Notes, then, upon acceleration of the
Five-Year Notes, an equivalent premium shall also become and be
immediately due and payable, to the extent permitted by law, anything
in the Indenture or in the Five-Year Notes to the contrary
notwithstanding."
(15) Section 7.1 of the Indenture is hereby superseded by the following
in respect of the Five-Year Notes:
The Company (i) may not consolidate with or merge into any Person; (ii)
may not permit any Person other than a Restricted Subsidiary to consolidate with
or merge into the Company; and (iii) may not, directly or indirectly, in one or
a series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless, in each case of (i), (ii) and
(iii) above:
(1) immediately before and after giving effect to such
transaction (or series) and treating any Debt Incurred by the Company
or a Subsidiary of the Company as a result of such transaction (or
series) as having been incurred by the Company of such Subsidiary at
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<PAGE> 15
the time of the transaction (or series), no Event of Default, or event
that with the passing of time or the giving of notice, or both, will
constitute an Event of Default, shall have occurred and be continuing;
(2) in a transaction (or series) in which the Company does not
survive or in which the Company transfers, conveys, sells, leases or
otherwise disposes of all or substantially all of its properties and
assets, the successor entity is a corporation, partnership, limited
liability company or trust and is organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and expressly assumes, by a supplemental Indenture
executed and delivered to the Trustee in form satisfactory to the
Trustee, all the Company's obligations under the Indenture;
(3) if such transaction (or series) occurs prior to the
occurrence of a Rating Event Date, either (x) the Company or the
successor entity would, at the time of such transaction (or series) and
after giving pro forma effect thereto as if such transaction (or
series) had occurred at the beginning of the most recently ended four
full fiscal quarter period for which internal financial statements are
available immediately preceding the date of such transaction (or
series), have been permitted to Incur at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage Ratio test set forth in
the first paragraph under subsection 13(d) of 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 the
Indenture described in this paragraph and that occurred after the date
that is twelve months before the date of such transaction (or series);
(4) if, as a result of any such transaction, property or assets
of the Company or any Restricted Subsidiary of the Company would become
subject to a Lien prohibited by subsection 13(g) of this Section 1.01,
the Company or the successor entity will have secured the Five-Year
Notes as required by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease
or other disposition and such supplemental indenture comply with this
First Supplemental Indenture and that all conditions precedent to the
consummation of such transaction under this Section 7.1 have been met."
(16) Section 8.1 of the Indenture is hereby supplemented by adding the
following as subsection (m) thereof in respect of the Five-Year Notes:
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<PAGE> 16
"(m) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this First Supplemental
Indenture as of the date hereof";
(17) Section 15.4 of the Indenture is hereby supplemented to include
the following as clause (d) of such Section in respect of the Five-Year Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations
under, the Bank Agreement, such Guarantor shall be released from all of
its obligations under its Senior Guarantee endorsed on the Securities
and under this Article 15."
(18) The Five-Year Notes shall not be issuable as Bearer Securities.
(19) Interest on any Five-Year Note shall be payable only to the Person
in whose name that Five-Year Note (or one or more predecessor Five-Year Notes
thereof) is registered at the close of business on the Regular Record Date for
such interest.
(20) Article 4 of the Indenture shall be applicable to the Five-Year
Notes.
(21) The Five-Year Notes shall not be issuable in definitive form
except under the circumstances described in Section 2.1 of the Indenture.
(22) The Five-Year Notes shall not be subordinated to any other debt of
the Company, and shall constitute senior unsecured obligations of the Company.
(23) For all purposes, the Series A Five-Year Notes and the Series B
Five-Year Notes shall be treated as one series of Securities under the
Indenture.
SECTION 1.02. FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form
of Five-Year Note representing the Company's Five-Year Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a
specimen certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a
specimen certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a
specimen certificate form acquiring institutional accredited investor.
(5) The form of Senior 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 Five-Year Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Five-Year Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Five-Year Note shall be dated the date of its
authentication. The Five-Year Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Five-Year Notes shall
constitute, and are hereby expressly made, a part of this First Supplemental
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this First Supplemental Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Five-Year Note conflicts with the express provisions of this First
Supplemental Indenture, the provisions of this First Supplemental Indenture
shall govern and be controlling.
(b) Global Notes. Five-Year Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Five-Year Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Five-Year Notes as shall be specified therein and each shall provide
that it shall represent the aggregate principal amount of outstanding Five-Year
Notes from time to time endorsed thereon and that the aggregate principal amount
of outstanding Five-Year Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Five-Year Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.02 of this First 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 Five-Year Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
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<PAGE> 18
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) there shall have occurred and be
continuing a Default or an Event of Default under the Indenture with respect to
the Senior Notes. Upon the occurrence of either of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names as the
Participants and Indirect Participants and the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 3.6 and 3.4 of the Indenture. Every Five-Year Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.02 or Section 3.6 or 3.4 of the
Indenture, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Five-Year Note other
than as provided in this Section 2.02(a), however, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.02(b), (c)
or (f) of this First 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 First
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 First 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
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exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.02(f) of this First
Supplemental Indenture, the requirements of this Section 2.02(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this First
Supplemental Indenture and the Five-Year Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.02(h) of this
First 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 an 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;
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<PAGE> 20
(C) such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this First 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;
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<PAGE> 21
(C) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.02(h) of this First 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 Five-Year Notes are so registered. Any Restricted
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.02(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions
on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-
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dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(2) if the Holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this First 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 First 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 First
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
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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 Five-Year Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.02(c)(iii) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Five-Year Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Five-Year Note for a beneficial
interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the 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,
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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 Five-Year Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the applicable
Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Five-Year Notes for a
beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Five-Year Notes to a Person
who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this First 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.
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(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Five-Year Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Global Notes.
If any such exchange or transfer from an Unrestricted Definitive
Note or a Restricted Definitive Note, as the case may be, to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 3.3 of the Indenture,
the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of
Unrestricted Definitive Notes or Restricted Definitive Notes, as the
case may be, so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.02(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.02(e).
(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:
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(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Five-Year Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Five-Year Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
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 First
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
Five-Year Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the applicable Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
3.3, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange
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in an Exchange Offer. Concurrently with the issuance of such Five-Year Notes,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company shall execute
and the Trustee shall authenticate and deliver to the Persons designated by the
Holders of Restricted Definitive Notes so accepted Unrestricted Definitive Notes
in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this First Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this First
Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Five-Year Notes
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED THIS
NOTE IN 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 THE COMPANY OR ANY OF
ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF NOTES LESS THAN $250,000, AN OPINION OF
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COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.02 (and all Five-Year Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 3.5 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
3.9 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note 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
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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 Five-Year
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note, such other Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.4, 8.6 and 11.7 of the
Indenture and subsections 13(a) and 13(b) of Section 1.01 of this First
Supplemental Indenture).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Five-Year Note selected for redemption in
whole or in part, except the unredeemed portion of any Five-Year 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 Five-Year Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Five-Year Notes for redemption under Section 11.3 of the
Indenture and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Five-Year Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Five-Year Note being redeemed in part or (C) to register
the transfer of or to exchange a Five-Year Note between a record date
and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Five-Year Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Five-Year Note is registered as
the absolute owner of such Five-Year Note for the purpose of receiving
payment of principal of and interest on such Five-Year Notes and for
all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
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(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 3.3 of the
Indenture.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.02
to effect a registration of transfer or exchange may be submitted by
facsimile.
ARTICLE III.
DEFINITIONS
Section 3.03. ADDITIONAL DEFINITIONS. In addition to the definitions
set forth in Article I of the Indenture, the Five-Year Notes shall include the
following additional definitions, which, in the event of a conflict with the
definition of terms in the Indenture, shall control:
"144A Global Note" means a global note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Five-Year
Notes sold in reliance on Rule 144A.
"Acquired Business" means (a) any Person at least a majority of
the capital stock or other ownership interests of which is acquired
after the date hereof by the Company or a Subsidiary of the Company and
(b) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by the Company or a Subsidiary of
the Company.
"Additional Notes" means up to $75 million aggregate principal
amount of Five-Year Notes (other than the Initial Notes) issued under
the Indenture, as supplemented by this First Supplemental Indenture, in
accordance with Section 3.3 of the Indenture and subsection 13(d) of
Section 1.01 of this First Supplemental Indenture, as part of the same
series as the Initial Notes.
"Allied Insurance" means Reliant Insurance Company and
Indemnity Corporation, a Vermont corporation and a Subsidiary of the
Company.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear and Cedel that apply to
such transfer or exchange.
"Asset Disposition" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or
other disposition by the Company or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any Restricted
Subsidiary with, into or to another Person in a transaction in which
such Subsidiary ceases to be a Restricted Subsidiary of such Person),
of (i) shares of Capital Stock (other than directors' qualifying
shares) or other ownership interests of a Restricted Subsidiary or (ii)
the property or assets of such Person or any Restricted Subsidiary
representing a division or line or business or (iii) other assets or
rights of such Person or any Restricted Subsidiary outside of the
ordinary course of business, but excluding in each case in Clauses (i),
(ii) and (iii), (x) a disposition by a Subsidiary of such Person to
such Person or a Restricted Subsidiary or by such Person to a
Restricted Subsidiary, (y) the
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disposition of all or substantially all of the assets of the Company in
a manner permitted pursuant to the provisions of Article 7 of the
Indenture (as superseded by subsection 15 of Section 1.01 hereof) of
the Company and (z) any disposition that constitutes a Restricted
Payment or Permitted Investment that is permitted pursuant to the
provisions of subsection 13(e) of Section 1.01 of this First
Supplemental Indenture.
"Bank Agreement" means the Credit Agreement of the Company dated
June 18, 1998, as amended, among the Company, Allied, certain lenders
party thereto, Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc.,
as Administrative Agent, Credit Suisse First Boston and Goldman Sachs
Credit Partners, L.P., as Co-Syndication Agents, or any bank credit
agreement that replaces, amends, supplements, restates or renews such
Credit Agreement.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other
arrangements conveying the right to use) real or personal property of
such Person which is required to be classified and accounted for as a
capital lease or a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment
of a penalty. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on a balance sheet of such
Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities either issued directly or fully guaranteed or insured by the
government of the United States of America or any agency or
instrumentality thereof having maturities of not more than one year,
(iii) time deposits and certificates of deposit, demand deposits and
banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million, (iv) demand deposits made in the
ordinary course of business and consistent with the Company's customary
cash management policy in any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof, (v) insured deposits issued by commercial banks of the type
described in Clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those
satisfying the provisions of Clauses (i) through (iii) above, (vii)
repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified
in Clause (iii) above and (viii) commercial paper (other than
commercial paper issued by an Affiliate or Related Person) rated A-1 or
the equivalent
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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 Five-Year
Notes on such date that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues
of corporate debt securities of a maturity comparable to the remaining
term of such Five-Year 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 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
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required to monitor the actual cash disbursements only for those
non-cash charges that exceed $1,000,000 individually or that exceed
$10,000,000 in the aggregate in any fiscal year); plus (vi) all cash
charges attributable to the execution, delivery and performance of the
Indenture (including the First, Second and Third Supplemental
Indentures) or the Bank Agreement; plus (vii) all non-recurring cash
charges related to acquisitions and financings (including amendments
thereto); and minus all non-cash non-recurring gains during such period
(to the extent included in determining net operating income from such
period); provided, however, that the Consolidated Interest Expense,
Consolidated Income Tax Expense and consolidated depreciation and
amortization expense of a Consolidated Subsidiary of such Person shall
be added to the Consolidated Net Income pursuant to the foregoing (x)
only to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that
the amount specified in Clause (x) is not subject to restrictions that
prevent the payment of dividends or the making of distributions of such
Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such
period to (ii) the sum of (A) Consolidated Interest Expense of such
Person for such period; plus (B) the annual interest expense (including
the amortization of debt discount) with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no
longer be outstanding as a result of the transaction with respect to
which the Consolidated EBITDA Coverage Ratio is being calculated, to
the extent included within Clause (ii)(A); provided, however, that in
making such computation, the Consolidated Interest Expense of such
Person attributable to interest on any Debt bearing a floating interest
rate shall be computed on a pro forma basis as if the rate in effect on
the date of computation had been the applicable rate for the entire
period, and provided further, that, in the event such Person or any of
its Consolidated Subsidiaries has made acquisitions or dispositions of
assets not in the ordinary course of business (including any other
acquisitions of any other Persons by merger, consolidation or purchase
of Capital Stock) during or after such period, the computation of the
Consolidated EBITDA Coverage Ratio (and for the purpose of such
computation, the calculation of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated
EBITDA) shall be made on a pro forma basis as if the acquisitions or
dispositions had taken place on the first day of such period. In
determining the pro forma adjustments to Consolidated EBITDA to be made
with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Company and its
Restricted Subsidiaries prior to the first anniversary of the related
acquisition date that result in cost savings with respect to such
Acquired Business will be deemed to have been taken on the first day of
the period for which Consolidated EBITDA is being determined (with the
intent that such cost savings be effectively annualized by
extrapolation from the demonstrated cost savings since the related
acquisition date).
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and
its Consolidated Subsidiaries for such period determined in accordance
with generally accepted accounting principles.
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"Consolidated Interest Expense" of any Person means for any
period the consolidated interest expense included in a consolidated
income statement (net of interest income) of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles, including without limitation
or duplication (or, to the extent not so included, with the addition
of), (i) the portion of any rental obligation in respect of any Capital
Lease Obligation allocable to interest expense in accordance with
generally accepted accounting principles; (ii) the amortization of Debt
discounts; (iii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities; (iv) the net amount
due and payable (or minus the net amount receivable), with respect to
any interest rate swap or similar agreement or foreign currency hedge,
exchange or similar agreement; (v) any Preferred Stock dividends
declared and paid or payable in cash; and (v) any interest capitalized
in accordance with generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles; provided that there shall be excluded
therefrom (a) for purposes solely of calculating Consolidated Net
Income for purposes of clause (3)(a) of the first paragraph of
subsection 13(e) of Section 1.01 of this First 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 thereof) 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 who:
(1) was a member of such Board of Directors on the
Issue Date; or
(2) was nominated for election or elected to such Board
of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Custodian" means the Trustee, as custodian with respect to the
Five-Year Notes in global form, or any successor entity thereto.
"Definitive Note" means a certificated Five-Year Note registered
in the name of the Holder thereof and issued in accordance with Section
2.02 of this First Supplemental Indenture, substantially in the form of
Exhibit A hereto except that such Five-Year Note shall not bear the
Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Five-Year Notes issuable
or issued in whole or in part in global form, the Person specified in
Section 3.1(b) of the Indenture as the Depositary with respect to the
Five-Year Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this First Supplemental Indenture.
"Designated Noncash Consideration" means the fair market value
of non-cash consideration received by the Company or one of its
Restricted Subsidiaries in connection with an Asset Disposition that is
so designated as Designated Noncash Consideration pursuant to an
Officers' Certificate, setting forth the basis of such valuation,
executed by the principal executive officer and the principal financial
officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash
Consideration.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Excepted Disposition" means a transfer, conveyance, sale, lease
or other disposition by the Company or any Restricted Subsidiary of any
asset of the Company or any Restricted Subsidiary the fair market value
of which itself does not exceed 2.5% of Consolidated Total Assets of
the Company and which in the aggregate with all other assets disposed
of in Excepted Dispositions in any fiscal year does not exceed 5% of
Consolidated Total Assets of the Company.
"Exchange Notes" means the Five-Year Notes issued in the
Exchange Offer pursuant to Section 2.02(f) of this First Supplemental
Indenture.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
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<PAGE> 36
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Five-Year Notes" has the meaning assigned to it in the preamble
to this Indenture Supplement. The Initial Notes and the Additional
Notes shall be treated as a single class for all purposes under the
Indenture, as modified, supplemented and superseded by this First
Supplemental Indenture.
"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 First 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 First
Supplemental Indenture.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Debt, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have
meanings correlative to the foregoing); provided, however, that the
Guaranty by any Person shall not include endorsements for such Person
for collection or deposit, in either case, in the ordinary course of
business.
"Holder" means a Person in whose name a Five-Year Note is
registered.
"IAI Global Note" means a Global Note bearing the Private
Placement Legend and held by an Institutional Accredited Investor.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means the first $225,000,000 aggregate principal
amount of Five-Year Notes issued under this First Supplemental
Indenture on the date hereof.
"Initial Purchasers" means, with respect to the Five-Year
Notes, Donaldson, Lufkin & Jenrette Securities Corporation, Goldman,
Sachs & Co., Credit Suisse First Boston
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Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, Bear, Stearns & Co. Inc., BT Alex. Brown
Incorporated, CIBC Oppenheimer Corp. and Salomon Smith Barney Inc.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who are not also QIBs.
"Intercompany Agreements" means the Management Agreements
between Allied and the Company dated November 15, 1996.
"Interest Rate or Currency Protection Agreement" of any Person
means any interest rate protection agreement (including, without
limitation, interest rate swaps, caps, floors, collars, derivative
instruments and similar agreements), and/or other types of interest
hedging agreements and any currency protection agreement (including
foreign exchange contracts, currency swap agreements or other currency
hedging arrangements).
"Investment" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or
capital contribution to or for the account of such other Person (by
means of any transfer of cash or other property to any Person or any
payment for property or services for the account or use of any Person,
or otherwise), (ii) any direct or indirect purchase or other
acquisition of any Capital Stock, bond, note, debenture or other debt
or equity security or evidence of Debt, or any other ownership
interest, issued by such other Person, whether or not such acquisition
is from such or any other Person, (iii) any direct or indirect payment
by such Person on a Guaranty of any obligation of or for the account of
such other Person or any direct or indirect issuance by such Person of
such a Guaranty or (iv) any other investment of cash or other property
by such Person in or for the account of such other Person.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Five-Year Notes
for use by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title
exception, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Net Available Proceeds" from any Asset Disposition by any
Person that is the Company or any Restricted Subsidiary means cash or
readily marketable cash equivalent received (including by way of sale
or discounting of a note, installment receivable, or other receivable,
but excluding any other consideration received in the form of
assumption by the acquiree of Debt or other obligations relating to
such properties or assets or received in any other noncash form)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes required to be
accrued as a liability as a consequence of such Asset Disposition, (ii)
all payments made by such Person or its
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Restricted Subsidiaries on any Debt that is secured by such assets in
accordance with the terms of any Lien upon or with respect to such
assets or that must, by the terms of such Debt or such Lien, or in
order to obtain a necessary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) amounts provided as a reserve by such Person or its
Restricted Subsidiaries, in accordance with generally accepted
accounting principles, against liabilities under any indemnification
obligations to the buyer in such Asset Disposition (except to the
extent and at the time any such amounts are released from any such
reserve, such amounts shall constitute Net Available Proceeds) and (iv)
all distributions and other payments made to minority interest holders
in Restricted Subsidiaries of such Person or joint ventures as a result
of such Asset Disposition.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offer Document" has the meaning specified in the definition
of "Offer to Purchase."
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase."
"Offer to Purchase" means an offer, set forth in the Offer
Document sent by the Company by first class mail, postage prepaid, to
each Holder at his address appearing in the Five-Year Note Register on
the date of the Offer Document, to purchase up to the principal amount
of Five-Year Notes specified in such Offer Document at the purchase
price (the "Purchase Price") specified in such Offer Document (as
determined pursuant to this First 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 Five-Year Notes within five
Business Days after the Offer Expiration Date. The Offer Document shall
be mailed by the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company. The Offer Document shall
contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual
and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" required to
be filed with the Trustee pursuant to subsection 13(i) of Section 1.01
of this First Supplemental Indenture (which requirements may be
satisfied by delivery of such documents together with the Offer
Document), and (ii) any other information required by applicable law to
be included therein. The Offer Document shall contain all instructions
and materials necessary to enable such Holder to tender Securities
pursuant to the Offer to Purchase. The Offer Document shall also state:
(1) the Section of this First Supplemental Indenture pursuant
to which the Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
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(3) the aggregate principal amount of the Outstanding Five-Year
Notes offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined as required by this First Supplemental Indenture)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Five-Year Notes accepted for payment (as
specified pursuant to this First Supplemental Indenture);
(5) that the Holder may tender all or any portion of the
Five-Year Notes registered in the name of such Holder and that any
portion of a Five-Year Note tendered must be tendered in an integral
multiple of $1,000 principal amount;
(6) the place or places where Five-Year Notes are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that interest on any Five-Year Note not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the purchase price will become due
and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date;
(9) that each Holder electing to tender a Five-Year Note
pursuant to the Offer to Purchase will be required to surrender such
Five-Year Note at the place or places specified in the Offer Document
prior to the close of business on the Offer Expiration Date (such
Five-Year 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 authorized in writing and bearing
appropriate signature guarantees);
(10) that Holders will be entitled to withdraw all or any
portion of Five-Year Notes tendered if the Company (or its Paying
Agent) receives, not later than the close of business on the Offer
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Five-Year Note the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Five-Year Notes in an aggregate principal
amount less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Five-Year Notes and (b) if Five-Year Notes in an
aggregate principal amount in excess of the Purchase Amount are
tendered and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Five-Year Notes having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deem appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be
purchased); and
(12) that in the case of any Holder whose Five-Year Note is
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the
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<PAGE> 40
Holder of such Five-Year Note without service charge, a new Five-Year
Note or Five-Year Notes, of any authorized denomination as requested by
such Holder, in an aggregate amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer Document for such Offer to Purchase.
"pari passu" when used with respect to the ranking of any debt
of any Person in relation to other Debt of such Person means that each
such Debt (a) either (i) is not subordinated in right of payment to any
other Debt of such Person or (ii) is subordinate in right of payment to
the same Debt of such Person as is the other Debt and is so subordinate
to the same extent and (b) is not subordinate in right of payment to
the other Debt or to any Debt of such Person as to which the other Debt
is not so subordinate.
"Participant" means, with respect to the Depositary, Euroclear
or Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include Euroclear
and Cedel).
"Permitted Interest Rate or Currency Protection Agreement" of
any Person means any Interest Rate or Currency Protection Agreement
entered into with one or more financial institutions in the ordinary
course of business that is designed to protect such Person against
fluctuations in interest rates or currency exchange rates with respect
to Debt incurred and which shall have a notional amount no greater than
the payments due with respect to the Debt being hedged thereby.
"Permitted Investment" means (i) Investments in the Company or
any Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States of America
or any agency or instrumentality thereof having maturities of not more
than one year, (iii) time deposits and certificates of deposit, demand
deposits and banker's acceptances having maturities of not more than
one year from the date of deposit, of any domestic commercial bank
having capital and surplus in excess of $500 million, (iv) demand
deposits made in the ordinary course of business and consistent with
the Company's customary cash management policy in any domestic office
of any commercial bank organized under the laws of the United States of
America or any State thereof, (v) insured deposits issued by commercial
banks of the type described in Clause (iv) above, (vi) mutual funds
whose investment guidelines restrict such funds' investments primarily
to those satisfying the provisions of Clauses (i) through (iii) above,
(vii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified
in Clause (iii) above, (viii) commercial paper (other than commercial
paper issued by an Affiliate or Related Person) rated A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or P-1 or the
equivalent thereof by 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
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<PAGE> 41
ordinary course of business, (xi) any Investment consisting of loans
and advances by the Company or any Restricted Subsidiary to employees,
officers and directors of the Company or Allied, in connection with
management incentive plans not to exceed $25,000,000 at any time
outstanding; provided, however, that to the extent the proceeds thereof
are used to purchase Capital Stock (other than Redeemable Interests) of
(i) the Company from the Company or (ii) Allied from Allied if Allied
uses the proceeds thereof to acquire Capital Stock (other than
Redeemable Interests) of the Company, such limitation on the amount of
such Investments at any time outstanding shall not apply with respect
to such Investments, (xii) any Investment consisting of a Permitted
Interest Rate or Currency Protection Agreement, (xiii) any Investment
acquired by the Company or any of its Restricted Subsidiaries (A) in
exchange for any other Investment or accounts receivable held by the
Company or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of
the issuer of such other Investment or accounts receivable or (B) as a
result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer
of title with respect to any secured Investment in default, (xiv) any
Investment that constitutes part of the consideration from any Asset
Disposition made pursuant to, and in compliance with, subsection 13(a)
of Section 1.01 of this First Supplemental Indenture, (xv) Investments
the payment for which consists exclusively of Capital Stock (exclusive
of Redeemable Interests) of the Company, and (xvi) other Investments in
an aggregate amount not to exceed 15% of the Consolidated Total Assets
of the Company outstanding at any time.
"Permitted Liens" means (i) Liens securing indebtedness under
the Bank Agreement that was permitted by the terms of the Indenture to
be incurred or other Debt allowed to be incurred under clause (i) of
subsection 13(d) of Section 1.01 of this First Supplemental Indenture;
(ii) Liens incurred after the date of the indentures securing Debt of
the Company that ranks pari passu in right of payment to the Five-Year
Notes, if the Five-Year Notes are secured equally and ratably with such
Debt; (iii) Liens in favor of the Company or any Restricted Subsidiary;
(iv) Liens on property of, or shares of Stock or evidences of Debt of,
a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the
Company, provided that such Liens were not incurred in contemplation of
such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or any
Restricted Subsidiary; (v) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the
Company, provided that such Liens were not incurred in contemplation of
such acquisition; (vi) Liens existing on the date of the First
Supplemental Indenture; (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are
being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP
shall have been made therefor; (viii) Liens securing Permitted
Refinancing Debt where the Liens securing the Permitted Refinancing
Debt were permitted under the Indenture; (ix) landlords', carriers',
warehousemen's, mechanics', materialmen's, repairmen's or the like
Liens arising by contract or statute in the ordinary course of business
and with respect to amounts which are not yet delinquent or are being
contested in good faith by appropriate proceedings; (x) pledges or
deposits made in the ordinary course of business (A) in connection with
leases, performance bonds and similar obligations, or (B) in connection
with workers' compensation, unemployment
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insurance and other social security legislation; (xi) easements,
rights-of-way, restrictions, minor defects or irregularities in title
and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (xii) any attachment or judgment
Lien that does not constitute an Event of Default; (xiii) Liens in
favor of the Trustee for its own benefit and for the benefit of the
Holders; (xiv) any interest or title of a lessor pursuant to a lease
constituting a Capital Lease Obligation; (xv) pledges or deposits made
in connection with acquisition agreements or letters of intent entered
into in respect of a proposed acquisition; (xvi) Liens in favor of
prior holders of leases on property acquired by the Company or of
sublessors under leases on the Company property; (xvii) Liens incurred
or deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, banker's acceptances, surety and
appeal bonds, government contracts, performance and return-of-money
bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment
of borrowed money); (xviii) Liens (including extensions and renewals
thereof) upon real or personal property acquired after the date of the
First Supplemental Indenture; provided that (a) any such Lien is
created solely for the purpose of securing Debt incurred, in accordance
with subsection 13(d) of Section 1.01 of this First Supplemental
Indenture (1) to finance the cost (including the cost of improvement or
construction) of the item, property or assets subject thereto and such
Lien is created prior to, at the time of or within three months after
the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Debt previously so secured, (b) the principal amount of the Debt
secured by such Lien does not exceed 100% of such cost and (c) any such
Lien shall not extend to or cover any property or asset other than such
item of property or assets and any improvements on such item; (xix)
leases or subleases granted to others that do not materially interfere
with the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xx) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xxi) Liens on
property of, or on shares of stock or Debt of, any Person existing at
the time such Person becomes, or becomes a part of, any Restricted
Subsidiary, provided that such Liens do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other
than the property or assets acquired; (xxii) Liens encumbering deposits
securing Debt under Permitted Interest Rate Currency or Commodity Price
Agreements; (xxiii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business in accordance with the past practices
of the Company and its Restricted Subsidiaries; (xxiv) any renewal of
or substitution of any Liens permitted by any of the preceding clauses,
provided that the Debt secured is not increased (other than by the
amount of any premium and accrued interest, plus customary fees,
consent payments, expenses and costs related to such renewal or
substitution of Liens or the incurrence of any related refinancing of
Debt) and the Liens are not extended to any additional assets (other
than proceeds and accessions); (xxv) Liens incurred in the ordinary
course of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $50 million at
any one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do
not in the aggregate materially detract from the value of the property
or materially impair the use thereof in the operation of business by
the Company or such Restricted Subsidiary; and (xxvi) Liens on assets
of Unrestricted
42
<PAGE> 43
Subsidiaries that secure Non-Recourse Debt of Unrestricted
Subsidiaries. This covenant does not authorize the incurrence of any
Debt not otherwise permitted by subsection 13(d) of Section 1.01 of
this First Supplemental Indenture.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends
or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.02(g)(i) to be placed on all Five-Year Notes issued under this First
Supplemental Indenture except where otherwise permitted by the
provisions of this First 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 Five-Year
Notes within five Business Days after the Offer Expiration Date.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Reference Treasury Dealer", means 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.
"Refinancing Transactions" means the application of the proceeds
from the issuance and sale of the Five-Year Notes as described in the
Offering Memorandum of the Company dated December 14, 1998 relating to
the Senior Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement for the Five-Year Notes, dated as of December 23, 1998, by
and among the Company and the other parties named on the signature
pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Company
and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such
Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a global Five-Year Note bearing
the Private Placement Legend and deposited with or on behalf of the
Depositary and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of
the Five-Year Notes initially sold in reliance on Rule 903 of
Regulation S.
"Related Business" means a business substantially similar to the
business engaged in by the Company and its Subsidiaries on the date of
this First Supplemental Indenture.
43
<PAGE> 44
"Related Person" of any Person means, without limitation, any
other Person owning (a) 5% or more of the outstanding Common Stock of
such Person or (b) 5% or more of the Voting Stock of such Person.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Second Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $700,000,000 of the Company's 7 5/8 Senior Notes
due 2006.
"Senior Notes" means the Company's Five-Year Notes, its 7 5/8%
Senior Notes due 2006 issued pursuant to the Company's Second
Supplemental Indenture and the 7 7/8% Senior Notes due 2009 issued
pursuant to the Third Supplemental Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Interest" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Tender Offers" means the tender offers commenced by the Company
on November 24, 1998 to purchase for cash all of its outstanding 10.25%
Senior Subordinated Notes due 2006 and all of the outstanding 11.30%
Senior Discount Notes due 2007 of Allied.
"Third Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $1,000,000,000 of the Company's 77/8 Senior Notes
due 2009.
"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.
44
<PAGE> 45
"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 Five-Year
Note substantially in the form of Exhibit A attached hereto that bears
the Global Note Legend and that has the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that is deposited
with or on behalf of and registered in the name of the Depositary,
representing a series of Five-Year Notes that do not bear the Private
Placement Legend.
"Unrestricted Subsidiary" means (i) Allied Insurance unless
Allied Insurance shall have been designated a Restricted Subsidiary in
accordance with the provisions of subsection (j) of Section 1.01
hereof, (ii) at any date, a Subsidiary of the Company that is an
Unrestricted Subsidiary in accordance with the provisions of subsection
13(j) of Section 1.01 hereof and (iii) for any period, a Subsidiary of
the Company that for any portion of such period is an Unrestricted
Subsidiary in accordance with the provisions of subsection 13(j) of
Section 1.01 hereof provided that such term shall mean such Subsidiary
only for such portion of such period.
"Voting Stock" of any Person means Capital Stock of such Person
that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
45
<PAGE> 46
ARTICLE IV.
MISCELLANEOUS
Section 4.01. Definitions. Capitalized terms used but not defined in
this First 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 First Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture and this First 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 First Supplemental Indenture).
Section 4.03. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First 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 First Supplemental Indenture, the
Indenture and the Five-Year Notes shall be governed by and construed in
accordance with the law of the State of New York without giving effect to any
provisions thereof relating to conflicts of law.
Section 4.05. Separability. In case any provision in this First
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 First 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.
46
<PAGE> 47
IN WITNESS WHEREOF, the parties hereto have caused this First
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
Attest:
/s/ Jenny Apker
- ----------------------------
Name: Jenny Apker
Title: Assistant Secretary
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 15 of the Indenture
and as Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under the Subsidiary
Guarantees
By:/s/ G. Thomas Rochford, Jr.
------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
Attest:
/s/ illegible
- -----------------------------
Name:
Title:
<PAGE> 48
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
Attest*:
/s/ Jenny Apker
- ------------------------
Name: Jenny Apker
Title: Assistant Secretary
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
<PAGE> 49
EXHIBIT A
[Face of Note]
CUSIP/CINS ____________
7 3/8% SERIES A SENIOR NOTES DUE 2004
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of
Dollars on January 1, 2004.
Interest Payment Dates: January 1 and July 1, commencing July 1, 1999
Record Dates: December 15 and June 15
Dated: December 23, 1998
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
A-1
<PAGE> 50
EXHIBIT A
[Back of Note]
7 3/8% SERIES A SENIOR NOTES DUE 2004
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Note Legend, if applicable, pursuant to the
provision of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 7 3/8% per annum from the date hereof until maturity and shall pay the
Special Interest, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and Special
Interest semi-annually in arrears on January 1 and July 1 of each year beginning
July 1, 1999, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 1, 1999. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 2% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest, if any, from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360 day year of
twelve 30 day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the December 15 or June
15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 3.7(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
A-2
<PAGE> 51
EXHIBIT A
Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of December 23, 1998, as amended by the First Supplemental Indenture dated as of
December 23, 1998 (together, the "Indenture"), each among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa 77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the indenture shall govern and be controlling. The Notes are obligations of the
Company limited to $300.0 million in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to the final
maturity of such Notes.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, the Company may redeem Notes at any time, 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 applicable Note Register, in amounts of $1,000
or an integral multiple of $1,000, at a Redemption Price equal to the greater of
(i) 100% of their principal amount or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to
maturity on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Yield plus 50 basis points, plus in each case
accrued but unpaid interest (including Special Interest) to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date).
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. The Indenture provides that, subject
to certain conditions, if (i) certain Net Available Proceeds are available to
the Company as a result of Asset Dispositions or (ii) a Change of Control
occurs, the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Securities.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.
A-3
<PAGE> 52
EXHIBIT A
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the Guarantors and
the rights of the Holders of the Securities under the Indenture at any time by
the Company, the Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes when the same
becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise, (iii) failure by the Company to comply
with subsections 13(a), 13(d) or 13(e) of Section 1.01 of the First Supplemental
Indenture or Article 7 of the Indenture (as superseded by Subsection 15 of
Section 1.01 of the First Supplemental Indenture); (iv) failure by the Company
for 60 days after notice to the Company or the Holders of at least 10% in
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class to comply with certain other agreements in
the Indenture and the Notes; (v) default under certain other agreements relating
to Debt of the Company which default results in the acceleration of such Debt
prior to its express maturity; (vi) certain final judgments for the payment of
money that remain undischarged for a period of 60 days; and (vii) certain events
of bankruptcy or insolvency with respect to the Company or any of its Material
Subsidiaries. If any Event of Default (other than an Event of Default of the
type described in clause (vii) above) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice; provided, however, that after such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in aggregate
principal amount of Outstanding Notes of such issue may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal, have been cured or waived
as provided in the Indenture. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
A-4
<PAGE> 53
EXHIBIT A
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement relating to the Notes dated as of December 23, 1998, among the
Company, the Guarantors and the parties named on the signature pages thereof or,
in the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have the rights set forth in one or more
registration rights agreements, if any, between the Company and the other
parties thereto, relating to rights given by the Company to the purchasers of
any Additional Notes (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, AZ 85260
Attention: Treasurer
A-5
<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:
-------------------------------
A-6
<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 First 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
First Supplemental Indenture, state the amount you elect to have purchased:
$--------------
Date:
---------------------------
Your Signature:
-------------------------------
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No.:
-----------------------
Signature Guarantee:
------------------
A-7
<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 Signature of
Amount of decrease Amount of increase in this Global Note authorized officer
in Principal Amount Principal Amount of following such of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease (or increase) Custodian
---------------- ------------------- ---------------- ---------------------- -------------------
<S> <C> <C> <C> <C>
</TABLE>
A-8
<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: 7 3/8% Senior Notes due 2004
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that First Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / /CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. / /CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the
B-1
<PAGE> 58
EXHIBIT B
Securities Act, (iii) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION
OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
B-2
<PAGE> 59
EXHIBIT B
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
Dated:
--------------------------
B-3
<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.
B-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: 7 3/8% Senior Notes due 2004
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that First Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
<PAGE> 62
EXHIBIT C
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
<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:
-------------------
C-3
<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: 7 3/8% Senior Notes due 2004
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that First Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
<PAGE> 65
EXHIBIT D
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
--------------------------------------
[Insert Name of Accredited Investor]
By:
----------------------------------
Name:
Title:
Dated:
--------------------
D-2
<PAGE> 66
SCHEDULE I
Subsidiary Guarantors
---------------------
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- ---------------------------------------------------- -------------------------
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc. New York
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc. Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Transportation, Inc. Delaware
Americal Co. Michigan
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Transfer Company, Inc. New York
Anderson Regional Landfill, LLC Delaware
Anson County Landfill NC, LLC Delaware
A-1
<PAGE> 67
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation Delaware
AWIN Leasing Company, Inc. Delaware
AWIN Management, Inc. Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC Delaware
Brunswick Waste Management Facility, LLC Delaware
Butler County Landfill, LLC Delaware
Camelot Landfill TX, LP Delaware
CC Landfill, Inc. Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc. New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp. New York
Crow Landfill TX, LLC Delaware
Crow Landfill TX, L.P. Delaware
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C. Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
A-2
<PAGE> 68
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen Delaware
Draw Acquisition Company Twenty Two Delaware
Draw Acquisition Company Twenty Three Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
Ellis County Landfill TX, LLC Delaware
Ellis County Landfill TX, L.P. Delaware
Ellis Scott Landfill MO, LLC Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc. New York
Environmental Development Corporation Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc. New York
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
Evergreen Scavenger Service, Inc. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp. Delaware
Georgia Recycling Services, Inc. Delaware
Golden Eagle Disposals, Inc. New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc. Delaware
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
A-3
<PAGE> 69
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc. Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP Delaware
MCM Sanitation, Inc. New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc. Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
A-4
<PAGE> 70
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, L.L.C. Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibers, Inc. Washington
Paper Fibres Company Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC Delaware
Pine Hill Farms Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc. New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc. New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC Delaware
Southwest Waste, Inc. Missouri
A-5
<PAGE> 71
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc. New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc. Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation New York
A-6
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Exhibit 4.4
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of December 23, 1998 (this
"Second 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 December 23, 1998 (the "Indenture"), to
provide for the issuance by the Company from time to time of debt securities
evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company
has authorized the issuance of $700,000,000 of its 7 5/8% Series A Senior Notes
Due 2006 (the "Series A Seven-Year Notes") and $700,000,000 of its 7 5/8% Series
B Senior Notes Due 2006 (the "Series B Seven-Year Notes," and together with the
Series A Seven-Year Notes, the "Seven-Year Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on
the signature page thereof entered into a Registration Rights Agreement dated as
of the date hereof (as such agreement may be amended, modified or supplemented
from time to time, the "Registration Rights Agreement") which contemplates (i)
the registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Series B Seven-Year Notes and (ii) the consummation of an
Exchange Offer (defined below) whereby the Series A Seven-Year Notes may be
exchanged for Series B Seven-Year Notes; and
WHEREAS, the Company desires to establish the terms of the Seven-Year
Notes in accordance with Section 3.1 of the Indenture and to establish the form
of the Seven-Year Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
SECTION 1.01. TERMS OF SEVEN-YEAR NOTES. The following terms relating
to the Seven-Year Notes are hereby established:
(1) The Series A Seven-Year Notes shall constitute a series of
Securities having the title "7 5/8% Series A Senior Notes Due 2006." The Series
B Seven-Year Notes shall constitute a series of Securities having the title
"7 5/8% Series B Senior Notes Due 2006."
(2) The aggregate principal amount of the Series A Seven-Year Notes
that may be authenticated and delivered under the Indenture (except for Series A
Seven-Year Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Series A Seven-Year Notes pursuant to
Sections 3.4, 3.5, 3.6, 8.6 or 11.7 of the Indenture or any Securities that,
pursuant to Section 3.3, are deemed never to have been authenticated or
delivered thereunder) shall be up to $700,000,000. The aggregate principal
amount of the Series B Seven-Year Notes that may be authenticated and delivered
under the Indenture (except for Series B Seven-Year Notes authenticated and
delivered upon registration of transfer of or in exchange for or in lieu of,
other Series B Seven-Year Notes pursuant to Sections 3.4, 3.5, 3.6, 8.6 or 11.7
of the Indenture or any Securities that, pursuant to
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Section 3.3, are deemed never to have been authenticated or delivered
thereunder) shall be up to $700,000,000.
(3) The entire outstanding principal of the Seven-Year Notes shall be
payable on January 1, 2006 (the "Stated Maturity Date").
(4) The rate at which the Seven-Year Notes shall bear interest shall be
7 5/8%; (a) with respect to the Series A Seven-Year Notes, interest shall accrue
from the date hereof; (b) with respect to the Series B Seven-Year Notes, the
date from which interest shall accrue shall be the date on which interest was
most recently paid on the Series A Seven-Year Notes, or if there has been no
Interest Payment Date relating to the Series A Seven-Year Notes prior to the
issuance of the Series B Seven-Year Notes, interest shall accrue from the date
hereof; (c) the Interest Payment Dates for the Seven-Year Notes on which
interest will be payable shall be January 1 and July 1 of each year, beginning
July 1, 1999; the Regular Record Dates for the interest payable on the
Seven-Year Notes on any Interest Payment Date shall be December 15 with respect
to the January 1 Interest Payment Date and June 15 with respect to the July 1
Interest Payment Date; (d) interest on overdue principal and premium, if any,
from time to time, shall be at a rate of 2% per annum in excess of the rate then
in effect; interest on overdue installments of interest and Special Interest, if
any, from time to time, shall be at the same rate, to the extent lawful; and the
basis upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(5) The place where the principal of (and premium, if any) and
interest, including, Special Interest, if any, with respect to and interest on
the Seven-Year Notes shall be payable and Seven-Year Notes may be surrendered
for the registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee which, as of this writing, is located at 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
Seven-Year Notes and the Indenture may be served shall be the Corporate Trust
Office of the Trustee. In addition, payment of interest (including any Special
Interest) on any Seven-Year Note may, at the option of the Company, be made by
check mailed to the address of the Person in whose name the Seven-Year Note is
registered at the close of business on the Regular Payment Date; provided,
however, that all payments of principal, and premium (including Special
Interest, if any), if any, and interest on the Seven-Year Notes to Holders of
which have given wire instructions to the Company or the Paying Agent at least
10 Business Days prior to the applicable payment date shall be made by wire
transfer to an account maintained by such Holder entitled thereto as specified
by such Holder in the instructions.
(6) The Seven-Year Notes may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a redemption price (the
"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).
(7) Except as set forth in this Second Supplemental Indenture, the
Seven-Year Notes shall not be redeemable at the option of any Holder thereof,
upon the occurrence of any particular circumstances or otherwise. The Seven-Year
Notes will not have the benefit of any sinking fund.
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(8) The Seven-Year Notes shall be issuable in denominations of $1,000.
(9) Payments of the principal of, Special Interest, if any, with
respect to and interest on the Seven-Year Notes shall be made in U.S. Dollars,
and the Seven-Year Notes shall be denominated in U.S.
Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued
interest, if any, on the Seven-Year Notes shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Article 5 of the Indenture.
(12) The Seven-Year Notes will be payable on the Stated Maturity Date
in an amount equal to the principal amount thereof, Special Interest, if any,
plus any accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth
in the Indenture with respect to the Seven-Year Notes, which shall be effective
only for so long as any of the Seven-Year Notes are Outstanding:
(a) Asset Dispositions.
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition unless: (i) the Company (or
such Restricted Subsidiary, as the case may be) receives consideration
at the time of such disposition at least equal to the fair market value
of the shares or the assets disposed of, as determined in good faith by
the Board of Directors for any transaction (or series of transactions)
involving in excess of $10 million and not involving the sale of
equipment or other assets specifically contemplated by the Company's
capital expenditure budget previously approved by the Board of
Directors; (ii) at least 75% of the consideration received by the
Company (or such Restricted Subsidiary) consists of (u) cash or readily
marketable cash equivalents, (v) the assumption of Debt or other
liabilities reflected on the consolidated balance sheet of the Company
and its Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities
subordinate in right of payment to the Seven-Year Notes) and release
from all liability on such Debt or other liabilities assumed, (w) assets
used in, or stock or other ownership interests in a Person that upon the
consummation of such Asset Disposition becomes a Restricted Subsidiary
and will be principally engaged in, the business of the Company or any
of its Restricted Subsidiaries as such business is conducted immediately
prior to such Asset Disposition, (x) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary
from such transferee that are contemporaneously (subject to ordinary
settlement periods) converted by the Company or such Restricted
Subsidiary into cash or Cash Equivalents (to the extent of cash and Cash
Equivalents received), (y) any Designated Noncash Consideration received
pursuant to this clause (y) that is at the time outstanding, not to
exceed 15% of Consolidated Total Assets at the time of the receipt of
such Designated Noncash Consideration (with the fair market value of
each item of Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value), or
(z) any combination thereof; and (iii) 100% of the Net Available
Proceeds from such Asset Disposition (including from the sale of any
marketable cash
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equivalents received therein) are applied by the Company or a Restricted
Subsidiary (A) first, within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available Proceeds, to Debt
of the Company or its Restricted Subsidiaries then outstanding under the
Bank Agreement which would require such application or which would
prohibit payments pursuant to Clause (B) following; (B) second, to the
extent Net Available Proceeds are not required to be applied as
specified in Clause (A), to purchases on a pro rata basis of Outstanding
Senior Notes of each issue pursuant to an Offer to Purchase (to the
extent such an offer is not prohibited by the terms of the Bank
Agreement then in effect) at a purchase price equal to 100% of their
principal amount plus accrued interest to the date of purchase (subject
to the rights of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior
to the purchase date); and (C) third, to the extent of any remaining Net
Available Proceeds following completion of such Offer to Purchase, to
any other use as determined by the Company which is not otherwise
prohibited by the Indenture and provided further that the 75% limitation
referred to in clause (ii) above will not apply to any Asset Disposition
if the consideration received therefrom, as determined in good faith by
the Company's Board of Directors, is equal to or greater than what the
after-tax proceeds would have been had the Asset Disposition complied
with the aforementioned 75% limitation.
Notwithstanding the foregoing, the Company shall not be required
to comply with the provisions described in Clause (iii) of the preceding
paragraph (i) if the Net Available Proceeds less any amounts
("Reinvested Amounts") are invested or committed to be invested within
one year from the later of the date of the related Asset Disposition or
the receipt of such Net Available Proceeds in assets that will be used
in the business of the Company or any of its Restricted Subsidiaries as
such business is conducted prior to such Asset Disposition (determined
by the Board of Directors in good faith) or (ii) to the extent the
Company elects to redeem the Senior Notes of any series with the Net
Available Proceeds pursuant to any of the provisions of paragraph 5(b)
of the Senior Notes.
Notwithstanding the foregoing, the Company shall not be required
to comply with the requirements described in Clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted Disposition.
The Company shall mail the Offer Document for an Offer to
Purchase required pursuant to this subsection 13(a) within 30 days after
the date which is one year after the later of the date of consummation
of the Asset Disposition referred to in this subsection 13(a) or the
receipt of the Net Available Proceeds from such Asset Disposition. The
aggregate principal amount of the Seven-Year Notes to be offered to be
purchased pursuant to the Offer to Purchase shall equal the Net
Available Proceeds required to be made available therefor pursuant to
Clause (iii)(B) of this subsection 13(a) (rounded down to the next
lowest integral multiple of $1,000). Each Holder shall be entitled to
tender all or any portion of the Seven-Year Notes owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Seven-Year Note tendered must be tendered in an integral
multiple of $1,000 principal amount.
(b) Change of Control.
Within 30 days following the date the Company becomes aware of
the consummation of a transaction that results in a Change of Control
(as defined below), the
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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 Second Supplemental Indenture, (i) so
long as the Company is a Subsidiary of Allied, (a) any Person, or any
Persons (other than a Permitted Allied Successor, as defined below),
acting together that would constitute a "Group" (a "Group") for purposes
of Section 13(d) of the Exchange Act, together with any Affiliates or
Related Persons thereof (other than any employee stock ownership plan),
beneficially own 50% or more of the total voting power of all classes of
Voting Stock of Allied, (b) any Person or Group, together with any
Affiliates or Related Persons thereof, succeeds in having sufficient of
its nominees who have not been approved by the Continuing Directors
elected to the Board of Directors of Allied such that such nominees,
when added to any existing director remaining on the Board of Directors
of Allied after such election who is an Affiliate or Related Person of
such Person or Group, shall constitute a majority of the Board of
Directors of Allied or (c) there occurs any transaction or series of
related transactions (other than a merger, consolidation or other
transaction with a Related Business in which the shareholders of Allied
immediately prior to such transaction (or series) receive (I) solely
Voting Stock of Allied (or its successor or parent, as the case may be),
(II) cash, securities and other property in an amount which could be
paid by the Company as a Restricted Payment under this Second
Supplemental Indenture after giving pro forma effect to such
transaction, or (III) a combination thereof), and the beneficial owners
of the Voting Stock of Allied immediately prior to such transaction (or
series) do not, immediately after such transaction (or series),
beneficially own Voting Stock representing more than 50% of the total
voting power of all classes of Voting Stock of Allied (or in the case of
a transaction (or series) in which another entity becomes a successor
to, or parent of, Allied, of the successor or parent entity) and (ii) if
the Company is not a Subsidiary of Allied, (a) any Person, or any
Persons (other than a Permitted Company Successor, as defined below),
acting together that would constitute a "Group" (a "Group") for purposes
of Section 13(d) of the Exchange Act, together with any Affiliates or
Related Persons thereof (other than any employee stock ownership plan)
beneficially own 50% or more of the total voting power of all classes of
Voting Stock of the Company, (b) any Person or Group, together with any
Affiliates or Related Persons thereof, succeeds in having sufficient of
its nominees who have not been approved by the Continuing Directors
elected to the Board of Directors of the Company such that such
nominees, when added to any existing director remaining on the Board of
Directors of the Company after such election who is an Affiliate or
Related Person of such Person or Group, shall constitute a majority of
the Board of Directors of the Company or, (c) there occurs any
transaction or series of related transactions (other than a merger,
consolidation or other transaction with a Related Business in which the
shareholders of the Company immediately prior to such transaction (or
series) receive (I) solely Voting Stock of the Company (or its successor
or parent, as the case may be), (II) cash, securities and other property
in an amount which could be paid by the Company as a Restricted Payment
under the Indenture after giving pro forma effect to such transaction or
(III) a combination thereof), and the beneficial owners of the Voting
Stock of the Company immediately prior to such transaction (or series)
do not, immediately after such transaction (or series), beneficially own
Voting Stock representing more than 50% of the total voting power of all
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classes of Voting Stock of the Company (or in the case of a transaction
(or series) in which another entity becomes a successor to the Company,
of the successor entity).
A "Permitted Allied Successor" means an issuer, other than
Allied, of Voting Securities issued to the shareholders of Allied in a
merger, consolidation or other transaction permitted by clause (i)(c) of
the definition of Change of Control. A "Permitted Company Successor"
means an issuer, other than the Company, of Voting Securities issued to
the shareholders of the Company in a merger, consolidation or other
transaction permitted by clause (ii)(c) of the definition of Change of
Control.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Seven-Year Notes resulting from a
Change of Control.
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment
Seven-Year Notes or portions thereof tendered pursuant to the Offer to
Purchase, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided
in Section 9.3 of the Indenture) money sufficient to pay the Purchase
Price of all Seven-Year Notes or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee all Seven-Year Notes so
accepted together with an Officers' Certificate stating the Seven-Year
Notes or portions thereof accepted for payment by the Company. The
Paying Agent (or the Company if so acting) shall promptly mail or
deliver to Holders of Seven-Year Notes so accepted payment in an amount
equal to the Purchase Price for each $1,000 of Seven-Year Notes so
accepted, and the Company shall promptly execute a new Seven-Year Note
or Seven-Year Notes equal in principal amount to any unpurchased portion
of the Seven-Year Note surrendered as requested by the Holder, and the
Guarantors shall promptly execute their Senior Guarantees to be endorsed
thereon, and thereafter the Trustee shall promptly authenticate and mail
or deliver to such Holders such new Seven-Year Note or Seven-Year Notes.
Any Seven-Year Note not accepted for payment shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Purchase Date.
(c) Changes in Covenants when Senior Notes rated Investment
Grade.
Following the first date upon which any issue of the Senior
Notes are rated the following: (i) Baa3 or better by Moody's Investors
Service, Inc. ("Moody's") and BB+ or better by Standard & Poor's Ratings
Group ("S&P"); or (ii) BBB- or better by S&P and Ba1 or better by
Moody's (a "Rating Event") (or, in any case, if such person ceases to
rate the Senior Notes for reasons outside of the control of the Company,
the equivalent investment grade credit rating from any other "nationally
recognized statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Company as a
replacement agency) (the "Rating Event Date") (and provided no Event of
Default or event that with notice or the passage of time would
constitute an Event of Default shall exist on the Rating Event Date),
the covenants specifically listed under subsections 13(a), 13(d), 13(e),
13(f), 13(h) and 13(j) of this
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Section 1.01 of this Second Supplemental Indenture shall no longer be
applicable to the Seven-Year Notes.
(d) Limitation on Consolidated Debt.
The Company shall not incur any Debt and shall not permit
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock
unless, immediately after giving effect to the Incurrence of such Debt
or issuance of such Preferred Stock and the receipt and application of
the proceeds thereof, the Consolidated EBITDA Coverage Ratio of the
Company for the four full fiscal quarters next preceding the Incurrence
of such Debt or issuance of such Preferred Stock, calculated on a pro
forma basis as if such Debt had been Incurred or such Preferred Stock
had been issued and the proceeds thereof had been received and so
applied at the beginning of the four full fiscal quarters, would be
greater than 2.0 to 1.0.
Without regard to the foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate
principal amount at any one time outstanding not to exceed the
amount permitted to be borrowed thereunder;
(ii) Debt evidenced by the Senior Notes and the
Guarantees;
(iii) Debt owed by the Company to any Restricted
Subsidiary or Debt owed by a Restricted Subsidiary to the
Company or to a Restricted Subsidiary; provided, however, that
in the event that either (x) the Company or the Restricted
Subsidiary to which such Debt is owed transfers or otherwise
disposes of such Debt to a Person other than the Company or
another Restricted Subsidiary or (y) such Restricted Subsidiary
ceases to be a Restricted Subsidiary, the provisions of this
Clause (iii) shall no longer be applicable to such Debt and such
Debt shall be deemed to have been incurred at the time of such
transfer or other disposition or at the time such Restricted
Subsidiary ceases to be a Restricted Subsidiary;
(iv) Debt outstanding on the date of this Second
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
Second Supplemental Indenture (as superseded by subsection 15 of
Section 1.01 of this Second Supplemental Indenture), which Debt
(A) was issued by a Person prior to the time such Person becomes
a Restricted Subsidiary in such transaction (including by way of
merger of consolidation with the Company or another Restricted
Subsidiary) and was not issued in contemplation of such
transaction or (B) is issued by the Company or a Restricted
Subsidiary to a seller in connection with such transaction, in
an aggregate amount for all such Debt issued pursuant to the
provisions of this Second Supplemental Indenture described under
this Clause (v) and then outstanding does not exceed 5% of the
Consolidated Total Assets of the Company at the time of such
Incurrence;
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(vi) Debt consisting of Permitted Interest Rate or
Currency Protection Agreements;
(viii) 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.
(e) Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend,
or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of the Capital Stock of the Company
or any Restricted Subsidiary or to the holders thereof in their capacity
as such (excluding any dividends or distributions (u) to the extent
payable in shares of the Capital Stock of the Company (other than
Redeemable Interests) or in options, warrants or other rights to acquire
the Capital Stock of the Company (other than Redeemable Interests), (v)
dividends or distributions by a Restricted Subsidiary to the Company or
another Wholly Owned Restricted Subsidiary and (w) the payment of pro
rata dividends by a Restricted Subsidiary to holders of both minority
and majority interests in such Restricted Subsidiary), (ii) purchase,
redeem or otherwise acquire or retire for value (a) any Capital Stock of
the Company or any Capital Stock of or other ownership interests in any
Subsidiary or any Affiliate or Related Person of the Company or (b) any
options, warrants or rights to purchase or acquire shares of Capital
Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the
Company (excluding, in each case of (a) and (b), the purchase,
redemption, acquisition or retirement by any Restricted Subsidiary of
any of its Capital Stock, other ownership interests or options, warrants
or rights to purchase such Capital Stock or other ownership interests,
in each case, owned by the Company or a Wholly Owned Restricted
Subsidiary), (iii) make any Investment that is not a Permitted
Investment or (iv) redeem, defease, repurchase, retire or otherwise
acquire or retire for value prior to any scheduled maturity, repayment
or sinking fund payment, Debt of the Company that is subordinate in
right of payment to the Seven-Year Notes (each of the transactions
described in Clauses (i) through (iv) being a "Restricted Payment"), if:
(1) an Event of Default, or an event that with the
lapse of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing; or
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(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the most
recently ended four full fiscal quarter period for which
internal financial statements are available immediately
preceding the date of such Restricted Payment, not have been
permitted to Incur at least $1.00 of additional Debt pursuant to
the Consolidated EBITDA Coverage Ratio test set forth in the
first paragraph under subsection 13(d) of this Section 1.01 of
this Second Supplemental Indenture; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted
Payments permitted by Clauses (ii), (iii), (iv), (v) and (vii)
of the next succeeding paragraph) from the date of the Indenture
(the amount so expended, if other than in cash, determined in
good faith by the Board of Directors) exceeds the sum, without
duplication, of: (a) 50% of the aggregate Consolidated Net
Income (or, in case Consolidated Net Income shall be 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 Second Supplemental
Indenture to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at
the time of such Restricted Payment; (b) 100% of the aggregate
net cash proceeds from the issuance and sale to Allied of
Capital Stock (other than Redeemable Interests) of the Company
and options, warrants or other rights to acquire Capital Stock
(other than Redeemable Interests and Debt convertible into
Capital Stock) of the Company and the principal amount of Debt
and Redeemable Interests of the Company that has been converted
into Capital Stock (other than Redeemable Interests) of the
Company after the date of the Second 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 Second Supplemental Indenture from an Unrestricted
Subsidiary of the Company; and (d) $300 million.
The foregoing covenant shall not be violated by reason of
(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment
would have complied with the foregoing covenant;
(ii) any refinancing or refunding of Debt permitted if
such refinancing or refunding is permitted pursuant to clause
(vii) of the second paragraph under subsection 13(d) of this
Section 1.01 of this Second Supplemental Indenture;
(iii) the purchase, redemption or other acquisition or
retirement for value of any Debt or Capital Stock of the Company
or any options, warrants or rights to purchase or acquire shares
of Capital Stock of the Company in exchange for, or out of the
net cash proceeds of, the substantially concurrent issuance or
sale (other than to a Restricted Subsidiary of the Company) of
Capital Stock (other than Redeemable Interests) of the Company;
provided that the amount of any such net cash proceeds
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that are utilized for any such purchase, redemption or other
acquisition or retirement for value shall be excluded from
Clause (3)(b) of the foregoing paragraph of this subsection
13(e);
(iv) the repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of
principal of any subordinated Debt or Capital Stock through the
issuance of new subordinated Debt or Capital Stock of the
Company.
(v) the Refinancing Transactions;
(vi) the repurchase of any subordinated Debt at a
purchase price not greater than 101% of the principal amount of
such subordinated Debt in the event of a Change of Control
pursuant to a provision similar to the provision contained in
subsection 13(b) of Section 1.01 of this Second Supplemental
Indenture; provided that prior to such repurchase the Company
has made the Change of Control Offer the ("Change of Control
Offer") as provided in such covenant with respect to the
Seven-Year Notes and repurchased all Seven-Year Notes validly
tendered for repayment in connection with such Change of Control
Offer;
(vii) the purchase or redemption of any Debt from Net
Available Proceeds to the extent permitted under subsection
13(a) of Section 1.01 of this Second Supplemental Indenture; and
(viii) payments pursuant to the Intercompany
Agreements.
Upon the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary, an amount equal to the greater of the book
value and the fair market value of all assets of such Restricted
Subsidiary at the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available prior to
such designation shall be deemed to be a Restricted Payment at the time
of such resignation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from
such designation) permitted under this subsection 13(e) of Section 1.01
of this Second Supplemental Indenture.
(f) Limitations Concerning Distributions by Subsidiaries, Etc.
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or restriction
on the ability of such Restricted Subsidiary (i) to pay, directly or
indirectly, dividends or make any other distributions in respect to its
Capital Stock or other ownership interests or pay any Debt or other
obligation owed to the Company or any other Restricted Subsidiary; (ii)
to make loans or advances to the Company or any other Restricted
Subsidiary; or (iii) to sell, lease or transfer any of its property or
assets to the Company or any Wholly Owned Restricted Subsidiary, except,
in any such case, any encumbrance or restriction: (a) pursuant to the
Senior Notes, the Indenture including each of the First, Second and
Third Supplemental Indentures, the Senior Guarantees or any other
agreement in effect on the date of this Second Supplemental Indenture,
(b) pursuant to the Bank Agreement, including any Guarantees of or Liens
securing the Debt Incurred thereunder, (c) pursuant to an agreement
relating to any Debt
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Incurred by such Subsidiary prior to the date on which such Subsidiary
was acquired by the Company and outstanding on such date and not
incurred in anticipation of becoming a Subsidiary, (d) pursuant to an
agreement which has been entered into for the pending sale or
disposition of all or substantially all of the Capital Stock, other
ownership interests or assets of such Subsidiary, provided that such
restriction terminates upon consummation or abandonment of such
disposition and upon termination of such agreement, (e) pursuant to
customary non-assignment provisions in leases and other agreements
entered into in the ordinary course of business, (f) restrictions
contained in any security agreement (including a capital lease) securing
Debt permitted to be Incurred under the Indenture that impose
restrictions of the nature described in Clause (iii) above on the
property subject to the Lien of such security agreement, (g) pursuant to
an agreement effecting a renewal, extension, refinancing or refunding of
Debt incurred pursuant to an agreement referred to in Clause (a), (b) or
(f) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in such renewal, extension,
refinancing or refunding agreement are no more restrictive in any
material respect than the provisions contained in the agreement it
replaces, as determined in good faith by the Board of Directors; or (h)
such encumbrance or restriction is the result of applicable corporate
law or regulation relating to the payment of dividends or distributions.
(g) Limitation on Liens.
Allied shall not, and the Company shall not, and shall not
permit any of its Restricted Subsidiaries to, create, Incur, assume or
otherwise cause or suffer to exist or become effective any Lien (other
than Permitted Liens) upon any of their property or assets, now owned or
hereafter acquired to secure Debt of Allied, the Company or any of its
Restricted Subsidiaries.
(h) Limitation on Transactions with Affiliates and Related
Persons.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company
(each of the foregoing, an "Affiliate Transaction"), unless (a) such
Affiliate Transaction is on terms that are no less favorable to the
Company or such Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (b) the Company delivers to the
Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$10,000,000, either (i) a resolution of the Board of Directors set forth
in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (a) above and that such Affiliate Transaction has
been approved by a majority of the disinterested members of the Board of
Directors or (ii) an opinion as to the fairness to the Company or such
Restricted Subsidiary, as the case may be, of such Affiliate Transaction
from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions: (a) customary directors' fees,
indemnification or similar arrangements or any employment agreement or
other compensation plan or arrangement
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entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business (including ordinary course loans to
employees not to exceed (i) $5,000,000 outstanding in the aggregate at
any time and (ii) $2,000,000 to any one employee) and consistent with
the past practice of the Company or such Restricted Subsidiary; (b)
loans by the Company and its Restricted Subsidiaries to employees of
Allied or any of its Subsidiaries in connection with management
incentive plans not to exceed $25,000,000 at any time outstanding;
provided that such limitation shall not apply to loans the proceeds of
which are used to purchase common stock of (i) the Company from the
Company or (ii) Allied from Allied if and to the extent that Allied
utilizes the proceeds thereof to acquire Capital Stock (other than
Redeemable Interests) of the Company; (c) transactions between or among
the Company and/or its Restricted Subsidiaries; (d) payments of
customary fees by the Company or any of its Restricted Subsidiaries to
investment banking firms and financial advisors made for any financial
advisory, financing, underwriting or placement services or in respect of
other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which are approved by a
majority of the Board of Directors in good faith; (e) any agreement as
in effect on the date of this Second Supplemental Indenture or any
amendment thereto (so long as such amendment is not disadvantageous to
the Holders of the Seven-Year Notes in any material respect) or any
transaction contemplated thereby; (f) payments and transactions in
connection with the Tender Offers, and the payment of the fees and
expenses with respect thereto; and (g) Restricted Payments that are
permitted by the provisions of subsection 13(e) of Section 1.01 of this
Second Supplemental Indenture.
(i) Provision of Financial Information.
Whether or not Allied is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) shall file with the Commission the annual reports,
quarterly reports and other documents which the Company (or Allied for
so long as the Company is a Wholly-Owned Subsidiary of Allied) would
have been required to file with the Commission pursuant to such Section
13(a) or 15(d) or any successor provision thereto if the Company (or
Allied for so long as the Company is a Wholly-Owned Subsidiary of
Allied) were so required, such documents to be filed with the Commission
on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if
the Company were so required. The Company shall also in any event (a)
within 15 days of each Required Filing Date file with the Trustee copies
of the annual reports, quarterly reports and other documents which the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) filed with the Commission pursuant to such Section
13(a) or 15(d) or any successor provisions thereto or would have been
required to file with the Commission pursuant to such Section 13(a) or
15(d) or any successor provisions thereto if the Company (or Allied for
so long as the Company is a Wholly-Owned Subsidiary of Allied) were
required to comply with such Sections and (b) if filing such documents
by the Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) with the Commission is not permitted under the
Exchange Act, promptly upon written request supply copies of such
documents to any prospective Holder.
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(j) Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a
Subsidiary, or after the date of this Second Supplemental Indenture
becomes a Subsidiary, of the Company as an "Unrestricted Subsidiary,"
whereupon (and until such Person ceases to be an Unrestricted
Subsidiary) such Person and each other Person that is then or thereafter
becomes a Subsidiary of such Person shall be deemed to be an
Unrestricted Subsidiary. In addition, the Company may at any time
terminate the status of any Unrestricted Subsidiary as an Unrestricted
Subsidiary, whereupon such Subsidiary and each other Subsidiary of the
Company (if any) of which such Subsidiary is a Subsidiary shall be a
Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an
Unrestricted Subsidiary or from an Unrestricted Subsidiary to a
Restricted Subsidiary will be effective, and no Person may otherwise
become a Restricted Subsidiary, if:
(i) in the case of any change in status of a Restricted
Subsidiary to an Unrestricted Subsidiary, the Restricted Payment
resulting from such change, would violate the provisions of
subsection 13(e) of Section 1.01 of this Second Supplemental
Indenture; or
(ii) such change or other event would otherwise result
(after the giving of notice or the lapse of time, or both) in an
Event of Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and the
status of any Unrestricted Subsidiary as an Unrestricted Subsidiary will
be deemed to have been immediately terminated (whereupon such Subsidiary
and each other Subsidiary of the Company (if any) of which such
Subsidiary is a Subsidiary will be a Restricted Subsidiary) at any time
when:
(i) such Subsidiary (A) has outstanding Debt that is
Unpermitted Debt (as defined below) or (B) owns or holds any
Capital Stock of or other ownership interests in, or a Lien on
any property or other assets of, the Company or any of its
Restricted Subsidiaries; or
(ii) the Company or any other Restricted Subsidiary (A)
provides credit support for, or a Guaranty of, any debt of such
Subsidiary (including any undertaking, agreement or instrument
evidencing such Debt) or (B) is directly or indirectly liable on
any Debt of such Subsidiary. Any termination of the status of an
Unrestricted Subsidiary as an Unrestricted Subsidiary pursuant
to the preceding sentence will be deemed to result in a breach
of this covenant in any circumstance in which the Company would
not be permitted to change the status of such Unrestricted
Subsidiary to the status of a Restricted Subsidiary pursuant to
the preceding paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company
if (x) a default thereunder (or under any instrument or
agreement pursuant to or by which such Debt is issued, secured
or evidenced) or any right that the holders thereof may have to
take enforcement action against such Subsidiary or its property
or other assets,
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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 Seven-Year Notes shall include the following additional
Event of Default designated as clause (j) of such Section, which shall be deemed
an Event of Default under Section 5.1 of the Indenture:
"(j) failure to perform or comply with the provisions of Section
7.1 of the Indenture (as superseded by subsection 15 of Section 1.01
hereof) or the provisions of subsection 13(a) and subsection 13(b) of
Section 1.01 of this Second 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 Seven-Year Notes pursuant to Article 11 of the Indenture and
paragraph 5(b) of the Seven-Year Notes, then, upon acceleration of the
Seven-Year Notes, an equivalent premium shall also become and be
immediately due and payable, to the extent permitted by law, anything in
the Indenture or in the Seven-Year Notes to the contrary
notwithstanding."
(15) Section 7.1 of the Indenture is hereby superseded by the following
in respect of the Seven-Year Notes:
The Company (i) may not consolidate with or merge into any Person; (ii)
may not permit any Person other than a Restricted Subsidiary to consolidate with
or merge into the Company; and (iii) may not, directly or indirectly, in one or
a series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless, in each case of (i), (ii) and
(iii) above:
(1) immediately before and after giving effect to such
transaction (or series) and treating any Debt Incurred by the Company or
a Subsidiary of the Company as a result of such transaction (or series)
as having been incurred by the Company of such Subsidiary at the time of
the transaction (or series), no Event of Default, or event that with the
passing
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of time or the giving of notice, or both, will constitute an Event of
Default, shall have occurred and be continuing;
(2) in a transaction (or series) in which the Company does not
survive or in which the Company transfers, conveys, sells, leases or
otherwise disposes of all or substantially all of its properties and
assets, the successor entity is a corporation, partnership, limited
liability company or trust and is organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and expressly assumes, by a supplemental Indenture
executed and delivered to the Trustee in form satisfactory to the
Trustee, all the Company's obligations under the Indenture;
(3) if such transaction (or series) occurs prior to the
occurrence of a Rating Event Date, either (x) the Company or the
successor entity would, at the time of such transaction (or series) and
after giving pro forma effect thereto as if such transaction (or series)
had occurred at the beginning of the most recently ended four full
fiscal quarter period for which internal financial statements are
available immediately preceding the date of such transaction (or
series), have been permitted to Incur at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage Ratio test set forth in the
first paragraph under subsection 13(d) of this Section 1.01 or (y) the
Consolidated EBITDA Coverage Ratio of the Company or the successor
entity for the most recently ended four full fiscal quarter period for
which internal financial statements are available immediately preceding
the date of such transaction (or series), calculated on a pro forma
basis as if such transaction (or series) had occurred at the beginning
of such four full fiscal quarter period, would be no less than such
Consolidated EBITDA Coverage Ratio, calculated without giving effect to
such transaction or series or any other transactions (or series) that is
subject to the provisions of the Indenture described in this paragraph
and that occurred after the date that is twelve months before the date
of such transaction (or series).
(4) if, as a result of any such transaction, property or assets
of the Company or any Restricted Subsidiary of the Company would become
subject to a Lien prohibited by subsection 13(g) of this Section 1.01,
the Company or the successor entity will have secured the Seven-Year
Notes as required by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease
or other disposition and such supplemental indenture comply with this
Second Supplemental Indenture and that all conditions precedent to the
consummation of such transaction under this Section 7.1 have been met."
(16) Section 8.1 of the Indenture is hereby supplemented by adding the
following as subsection (m) thereof in respect of the Seven-Year Notes:
(m) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Second Supplemental
Indenture as of the date hereof;
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(17) Section 15.4 of the Indenture is hereby supplemented to include
the following as clause (d) of such Section in respect of the Seven-Year Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations
under, the Bank Agreement, such Guarantor shall be released from all of
its obligations under its Senior Guarantee endorsed on the Securities
and under this Article 15."
(18) The Seven-Year Notes shall not be issuable as Bearer Securities.
(19) Interest on any Seven-Year Note shall be payable only to the
Person in whose name that Seven-Year Note (or one or more predecessor Seven-Year
Notes thereof) is registered at the close of business on the Regular Record Date
for such interest.
(20) Article 4 of the Indenture shall be applicable to the Seven-Year
Notes.
(21) The Seven-Year Notes shall not be issuable in definitive form
except under the circumstances described in Section 2.1 of the Indenture.
(22) The Seven-Year Notes shall not be subordinated to any other debt
of the Company, and shall constitute senior unsecured obligations of the
Company.
(23) For all purposes, the Series A Seven-Year Notes and the Series B
Seven-Year Notes shall be treated as one series of Securities under the
Indenture.
SECTION 1.02. FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form
of Seven-Year Note representing the Company's Seven-Year Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a
specimen certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a
specimen certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a
specimen certificate from acquiring institutional accredited investor.
(5) The form of Senior Guarantee shall be as set forth in Section 2.3
of the Indenture.
ARTICLE II.
TRANSFER AND EXCHANGE
SECTION 2.01. GENERAL. Sections 2.4, 3.2 and 3.3 of the Indenture are
hereby modified and superseded as follows in respect of the Seven-Year Notes:
(a) General. The Seven-Year Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Seven-Year Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Seven-Year Note
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shall be dated the date of its authentication. The Seven-Year Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Seven-Year Notes shall
constitute, and are hereby expressly made, a part of this Second Supplemental
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Second Supplemental Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent any
provision of any Seven-Year Note conflicts with the express provisions of this
Second Supplemental Indenture, the provisions of this Second Supplemental
Indenture shall govern and be controlling.
(b) Global Notes. Seven-Year Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Seven-Year Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Seven-Year Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Seven-Year Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Seven-Year Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Seven-Year
Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.02 of this Second 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 Seven-Year Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) there shall have occured and be
continuing a Default or an Event of Default under the Indenture with respect to
the Senior Notes. Upon the occurrence of either of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names as the
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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 Seven-Year Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.02 or Section 3.6 or 3.4 of the
Indenture, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Seven-Year Note
other than as provided in this Section 2.02(a), however, beneficial interests in
a Global Note may be transferred and exchanged as provided in Section 2.02(b),
(c) or (f) of this Second 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
Second 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 Second 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 Second
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
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satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Second
Supplemental Indenture and the Seven-Year Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.02(h) of this
Second 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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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 Second 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;
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<PAGE> 21
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to
Section 2.02(h) of this Second 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 Restrictive 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 Seven-Year
Notes are so registered. Any Restricted Definitive Note issued
in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.02(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
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<PAGE> 22
(C) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Second Supplemental Indenture herein
and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 3.3 of the Indenture, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.02(b)(ii) of this Second 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 Second
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 Seven-Year Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.02(c)(iii) shall not bear the Private Placement
Legend.
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(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 Seven-Year Note for a beneficial interest in
a Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by
the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Seven-Year Note for a beneficial
interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the 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 Seven-Year Note for
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<PAGE> 24
a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note only
if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant
to an Exchange Offer Registration Statement in accordance with
the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes
to exchange such Seven-Year Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes
to transfer such Seven-Year Notes to a Person who shall
take delivery thereof in the form of a beneficial interest
in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Second 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 Seven-Year Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note
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<PAGE> 25
and increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Notes.
If any such exchange or transfer from an Unrestricted
Definitive Note or a Restricted Definitive Note, as the case may be, to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 3.3 of the Indenture,
the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of
Unrestricted Definitive Notes or Restricted Definitive Notes, as the
case may be so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.02(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.02(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person
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<PAGE> 26
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Seven-Year Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Seven-Year Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
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 Second
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
Seven-Year Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the applicable Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
3.3, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Seven-Year Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Notes to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Restricted Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
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(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Second Supplemental
Indenture unless specifically stated otherwise in the applicable provisions of
this Second Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Seven-Year Notes
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OR REGULATION D UNDER THE SECURITIES ACT) (AN
"IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO
AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY
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<PAGE> 28
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.02 (and all Seven-Year Notes issued in
exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 3.5 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
3.9 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note 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 Seven-Year Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement
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<PAGE> 29
shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.4, 8.6 and 11.7 of the
Indenture and subsections 13(a) and 13(b) of Section 1.01 of this
Second Supplemental Indenture).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Seven-Year Note selected for redemption in
whole or in part, except the unredeemed portion of any Seven-Year 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 Seven-Year Notes during a
period beginning at the opening of business 15 days before the day of
any selection of Seven-Year Notes for redemption under Section 11.3 of
the Indenture and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any
Seven-Year Note so selected for redemption in whole or in part, except
the unredeemed portion of any Seven-Year Note being redeemed in part or
(C) to register the transfer of or to exchange a Seven-Year Note
between a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Seven-Year Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Seven-Year Note is
registered as the absolute owner of such Seven-Year Note for the
purpose of receiving payment of principal of and interest on such
Seven-Year Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 3.3 of
the Indenture.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.02 to effect a registration of transfer or exchange may be
submitted by facsimile.
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ARTICLE III.
DEFINITIONS
SECTION 3.01. ADDITIONAL DEFINITIONS. In addition to the definitions
set forth in Article I of the Indenture, the Seven-Year Notes shall include the
following additional definitions, which, in the event of a conflict with the
definition of terms in the Indenture, shall control:
"144A Global Note" means a global note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Seven-Year
Notes sold in reliance on Rule 144A.
"Acquired Business" means (a) any Person at least a majority of
the capital stock or other ownership interests of which is acquired
after the date hereof by the Company or a Subsidiary of the Company and
(b) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by the Company or a Subsidiary of
the Company.
"Additional Notes" means up to $100 million aggregate principal
amount of Seven-Year Notes (other than the Initial Notes) issued under
the Indenture, as supplemented by this Second Supplemental Indenture, in
accordance with Section 3.3 of the Indenture and subsection 13(d) of
Section 1.01 of this Second Supplemental Indenture, as part of the same
series as the Initial Notes.
"Allied Insurance" means Reliant Insurance Company and Indemnity
Corporation, a Vermont corporation and a Subsidiary of the Company.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear and Cedel that apply to such
transfer or exchange.
"Asset Disposition" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or
other disposition by the Company or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any Restricted
Subsidiary with, into or to another Person in a transaction in which
such Subsidiary ceases to be a Restricted Subsidiary of such Person), of
(i) shares of Capital Stock (other than directors' qualifying shares) or
other ownership interests of a Restricted Subsidiary or (ii) the
property or assets of such Person or any Restricted Subsidiary
representing a division or line or business or (iii) other assets or
rights of such Person or any Restricted Subsidiary outside of the
ordinary course of business, but excluding in each case in Clauses (i),
(ii) and (iii), (x) a disposition by a Subsidiary of such Person to such
Person or a Restricted Subsidiary or by such Person to a Restricted
Subsidiary, (y) the disposition of all or substantially all of the
assets of the Company in a manner permitted pursuant to the provisions
of Article 7 of the Indenture (as superseded by subsection 15 of Section
1.01 hereof) of the Company and (z) any disposition that constitutes a
Restricted Payment or Permitted Investment that is permitted pursuant to
the provisions of subsection 13(e) of Section 1.01 of this Second
Supplemental Indenture.
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"Bank Agreement" means the Credit Agreement of the Company dated
June 18, 1998, as amended, among the Company, Allied, certain lenders
party thereto, Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc.,
as Administrative Agent, Credit Suisse First Boston and Goldman Sachs
Credit Partners, L.P., as Co-Syndication Agents, or any bank credit
agreement that replaces, amends, supplements, restates or renews such
Credit Agreement.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other
arrangements conveying the right to use) real or personal property of
such Person which is required to be classified and accounted for as a
capital lease or a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of
a penalty. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on a balance sheet of such
Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities either issued directly or fully guaranteed or insured by the
government of the United States of America or any agency or
instrumentality thereof having maturities of not more than one year,
(iii) time deposits and certificates of deposit, demand deposits and
banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million, (iv) demand deposits made in the
ordinary course of business and consistent with the Company's customary
cash management policy in any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof, (v) insured deposits issued by commercial banks of the type
described in Clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those
satisfying the provisions of Clauses (i) through (iii) above, (vii)
repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified in
Clause (iii) above and (viii) commercial paper (other than commercial
paper issued by an Affiliate or Related Person) rated A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or P-1 or the
equivalent thereof by Moody's Investors Services, Inc., and in each case
maturing within 360 days.
"Cedel" means Cedel Bank, SA.
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"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 Seven-Year Notes on
such date that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of a maturity comparable to the remaining term
of such Seven-Year 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 deemed non-cash
charges until the period during which cash disbursements attributable to
such charges are made, at which point such charges shall be deemed cash
charges; provided that, for purposes of this clause (y), the Company
shall be required to monitor the actual cash disbursements only for
those non-cash charges that exceed $1,000,000 individually or that
exceed $10,000,000 in the aggregate in any fiscal year); plus (vi) all
cash charges attributable to the execution, delivery and performance of
the Indenture (including the First, Second, and Third Supplemental
Indentures) or the Bank Agreement; plus (vii) all non-recurring cash
charges related to acquisitions and financings
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(including amendments thereto); and minus all non-cash non-recurring
gains during such period (to the extent included in determining net
operating income from such period); provided, however, that the
Consolidated Interest Expense, Consolidated Income Tax Expense and
consolidated depreciation and amortization expense of a Consolidated
Subsidiary of such Person shall be added to the Consolidated Net Income
pursuant to the foregoing (x) only to the extent and in the same
proportion that the Consolidated Net Income of such Consolidated
Subsidiary was included in calculating the Consolidated Net Income of
such Person and (y) only to the extent that the amount specified in
Clause (x) is not subject to restrictions that prevent the payment of
dividends or the making of distributions of such Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such
period to (ii) the sum of (A) Consolidated Interest Expense of such
Person for such period; plus (B) the annual interest expense (including
the amortization of debt discount) with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no longer
be outstanding as a result of the transaction with respect to which the
Consolidated EBITDA Coverage Ratio is being calculated, to the extent
included within Clause (ii)(A); provided, however, that in making such
computation, the Consolidated Interest Expense of such Person
attributable to interest on any Debt bearing a floating interest rate
shall be computed on a pro forma basis as if the rate in effect on the
date of computation had been the applicable rate for the entire period,
and provided further, that, in the event such Person or any of its
Consolidated Subsidiaries has made acquisitions or dispositions of
assets not in the ordinary course of business (including any other
acquisitions of any other Persons by merger, consolidation or purchase
of Capital Stock) during or after such period, the computation of the
Consolidated EBITDA Coverage Ratio (and for the purpose of such
computation, the calculation of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated
EBITDA) shall be made on a pro forma basis as if the acquisitions or
dispositions had taken place on the first day of such period. In
determining the pro forma adjustments to Consolidated EBITDA to be made
with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Company and its
Restricted Subsidiaries prior to the first anniversary of the related
acquisition date that result in cost savings with respect to such
Acquired Business will be deemed to have been taken on the first day of
the period for which Consolidated EBITDA is being determined (with the
intent that such cost savings be effectively annualized by extrapolation
from the demonstrated cost savings since the related acquisition date).
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and
its Consolidated Subsidiaries for such period determined in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" of any Person means for any
period the consolidated interest expense included in a consolidated
income statement (net of interest income) of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles, including without limitation
or duplication (or, to the extent not so included, with the addition
of), (i) the portion of any rental
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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 (vi) any interest capitalized in accordance with
generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles; provided that there shall be excluded
therefrom (a) for purposes solely of calculating Consolidated Net Income
for purposes of clause (3)(a) of the first paragraph of subsection 13(e)
of Section 1.01 of this Second 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 thereof) during which it was an Unrestricted
Subsidiary.
"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted Subsidiaries
at such date as determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Continuing Directors" means, as of any date of determination
with respect to any Person, any member of the Board of Directors of such
Person who:
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(1) was a member of such Board of Directors on the
Issue Date; or
(2) was nominated for election or elected to such Board
of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Custodian" means the Trustee, as custodian with respect to the
Seven-Year Notes in global form, or any successor entity thereto.
"Definitive Note" means a certificated Seven-Year Note
registered in the name of the Holder thereof and issued in accordance
with Section 2.02 of this Second Supplemental Indenture, substantially
in the form of Exhibit A hereto except that such Seven-Year Note shall
not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Seven-Year Notes
issuable or issued in whole or in part in global form, the Person
specified in Section 3.1(b) of the Indenture as the Depositary with
respect to the Seven-Year Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Second Supplemental Indenture.
"Designated Noncash Consideration" means the fair market value
of non-cash consideration received by the Company or one of its
Restricted Subsidiaries in connection with an Asset Disposition that is
so designated as Designated Noncash Consideration pursuant to an
Officers' Certificate, setting forth the basis of such valuation,
executed by the principal executive officer and the principal financial
officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash
Consideration.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Excepted Disposition" means a transfer, conveyance, sale, lease
or other disposition by the Company or any Restricted Subsidiary of any
asset of the Company or any Restricted Subsidiary the fair market value
of which itself does not exceed 2.5% of Consolidated Total Assets of the
Company and which in the aggregate with all other assets disposed of in
Excepted Dispositions in any fiscal year does not exceed 5% of
Consolidated Total Assets of the Company.
"Exchange Notes" means the Seven-Year Notes issued in the
Exchange Offer pursuant to Section 2.02(f) of this Second Supplemental
Indenture.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"First Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $300,000,000 of the Company's 7 3/8 Senior Notes
due 2004.
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"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 Second 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 Second Supplemental
Indenture.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or
to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Debt, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Debt
(and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by
any Person shall not include endorsements for such Person for collection
or deposit, in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Seven-Year Note is
registered.
"IAI Global Notes" means a Global Note bearing the Private
Placement Legend and held by an Institutional Accredited Investor.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means the first $600,000,000 aggregate principal
amount of Seven-Year Notes issued under this Second Supplemental
Indenture on the date hereof.
"Initial Purchasers" means, with respect to the Seven-Year
Notes, Donaldson, Lufkin & Jenrette Securities Corporation, Goldman,
Sachs & Co., Credit Suisse First Boston Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated,
Bear, Stearns & Co. Inc., BT Alex. Brown Incorporated, CIBC Oppenheimer
Corp. and Salomon Smith Barney 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.
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"Intercompany Agreements" means the Management Agreements
between Allied and the Company dated November 15, 1996.
"Interest Rate or Currency Protection Agreement" of any Person
means any interest rate protection agreement (including, without
limitation, interest rate swaps, caps, floors, collars, derivative
instruments and similar agreements), and/or other types of interest
hedging agreements and any currency protection agreement (including
foreign exchange contracts, currency swap agreements or other currency
hedging arrangements).
"Investment" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or capital
contribution to or for the account of such other Person (by means of any
transfer of cash or other property to any Person or any payment for
property or services for the account or use of any Person, or
otherwise), (ii) any direct or indirect purchase or other acquisition of
any Capital Stock, bond, note, debenture or other debt or equity
security or evidence of Debt, or any other ownership interest, issued by
such other Person, whether or not such acquisition is from such or any
other Person, (iii) any direct or indirect payment by such Person on a
Guaranty of any obligation of or for the account of such other Person or
any direct or indirect issuance by such Person of such a Guaranty or
(iv) any other investment of cash or other property by such Person in or
for the account of such other Person.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Seven-Year Notes
for use by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title
exception, encumbrance, preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic
effect as any of the foregoing).
"Net Available Proceeds" from any Asset Disposition by any
Person that is the Company or any Restricted Subsidiary means cash or
readily marketable cash equivalent received (including by way of sale or
discounting of a note, installment receivable, or other receivable, but
excluding any other consideration received in the form of assumption by
the acquiree of Debt or other obligations relating to such properties or
assets or received in any other noncash form) therefrom by such Person,
net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses Incurred and all federal, state, provincial,
foreign and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such
Person or its Restricted Subsidiaries on any Debt that is secured by
such assets in accordance with the terms of any Lien upon or with
respect to such assets or that must, by the terms of such Debt or such
Lien, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from
such Asset Disposition, (iii) amounts provided as a reserve by such
Person or its Restricted Subsidiaries, in accordance with generally
accepted accounting principles, against liabilities under any
indemnification obligations to the buyer in such Asset Disposition
(except to the extent and at the time any such amounts are released from
any such reserve, such amounts shall constitute Net Available Proceeds)
and (iv) all
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distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person or joint ventures as a result of
such Asset Disposition.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offer Document" has the meaning specified in the definition of
"Offer to Purchase."
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase."
"Offer to Purchase" means an offer, set forth in the Offer
Document sent by the Company by first class mail, postage prepaid, to
each Holder at his address appearing in the Seven-Year Note Register on
the date of the Offer Document, to purchase up to the principal amount
of Seven-Year Notes specified in such Offer Document at the purchase
price (the "Purchase Price") specified in such Offer Document (as
determined pursuant to this Second 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 Seven-Year Notes within five Business
Days after the Offer Expiration Date. The Offer Document shall be mailed
by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company. The Offer Document shall contain
information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to
make an informed decision with respect to the Offer to Purchase (which
at a minimum will include (i) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" required to be filed with
the Trustee pursuant to subsection 13(i) of Section 1.01 of this Second
Supplemental Indenture (which requirements may be satisfied by delivery
of such documents together with the Offer Document), and (ii) any other
information required by applicable law to be included therein. The Offer
Document shall contain all instructions and materials necessary to
enable such Holder to tender Securities pursuant to the Offer to
Purchase. The Offer Document shall also state:
(1) the Section of this Second 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 Seven-Year
Notes offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined as required by this Second Supplemental Indenture)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Seven-Year Notes accepted for payment (as
specified pursuant to this Second Supplemental Indenture);
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(5) that the Holder may tender all or any portion of the
Seven-Year Notes registered in the name of such Holder and that any
portion of a Seven-Year Note tendered must be tendered in an integral
multiple of $1,000 principal amount;
(6) the place or places where Seven-Year Notes are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that interest on any Seven-Year Note not tendered or
tendered but not purchased by the Company pursuant to the Offer to
Purchase will continue to accrue;
(8) that on the Purchase Date the purchase price will become due
and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Seven-Year Note
pursuant to the Offer to Purchase will be required to surrender such
Seven-Year Note at the place or places specified in the Offer Document
prior to the close of business on the Offer Expiration Date (such
Seven-Year 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 Seven-Year Notes tendered if the Company (or its Paying
Agent) receives, not later than the close of business on the Offer
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Seven-Year Note the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Seven-Year Notes in an aggregate principal
amount less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Seven-Year Notes and (b) if Seven-Year Notes in an
aggregate principal amount in excess of the Purchase Amount are tendered
and not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Seven-Year Notes having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as may be
deemed 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 Seven-Year Note is
purchased only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Seven-Year Note without
service charge, a new Seven-Year Note or Seven-Year Notes, of any
authorized denomination as requested by such Holder, in an aggregate
amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer Document for such Offer to Purchase.
"pari passu" when used with respect to the ranking of any debt
of any Person in relation to other Debt of such Person means that each
such Debt (a) either (i) is not
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subordinated in right of payment to any other Debt of such Person or
(ii) is subordinate in right of payment to the same Debt of such Person
as is the other Debt and is so subordinate to the same extent and (b) is
not subordinate in right of payment to the other Debt or to any Debt of
such Person as to which the other Debt is not so subordinate.
"Participant" means, with respect to the Depositary, Euroclear
or Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include Euroclear
and Cedel).
"Permitted Interest Rate or Currency Protection Agreement" of
any Person means any Interest Rate or Currency Protection Agreement
entered into with one or more financial institutions in the ordinary
course of business that is designed to protect such Person against
fluctuations in interest rates or currency exchange rates with respect
to Debt incurred and which shall have a notional amount no greater than
the payments due with respect to the Debt being hedged thereby.
"Permitted Investment" means (i) Investments in the Company or
any Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States of America
or any agency or instrumentality thereof having maturities of not more
than one year, (iii) time deposits and certificates of deposit, demand
deposits and banker's acceptances having maturities of not more than one
year from the date of deposit, of any domestic commercial bank having
capital and surplus in excess of $500 million, (iv) demand deposits made
in the ordinary course of business and consistent with the Company's
customary cash management policy in any domestic office of any
commercial bank organized under the laws of the United States of America
or any State thereof, (v) insured deposits issued by commercial banks of
the type described in Clause (iv) above, (vi) mutual funds whose
investment guidelines restrict such funds' investments primarily to
those satisfying the provisions of Clauses (i) through (iii) above,
(vii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified in
Clause (iii) above, (viii) commercial paper (other than commercial paper
issued by an Affiliate or Related Person) rated A-1 or the equivalent
thereof by Standard & Poor's Ratings Group or P-1 or the equivalent
thereof by Moody's Investors Services, Inc., and in each case maturing
within 360 days, (ix) receivables owing to the Company or a Restricted
Subsidiary of the Company if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary
trade terms and extensions of trade credit in the ordinary course of
business, (x) any Investment consisting of loans and advances to
employees of the Company or any Restricted Subsidiary for travel,
entertainment, relocation or other expenses in the ordinary course of
business, (xi) any Investment consisting of loans and advances by the
Company or any Restricted Subsidiary to employees, officers and
directors of the Company or Allied, in connection with management
incentive plans not to exceed $25,000,000 at any time outstanding;
provided, however, that to the extent the proceeds thereof are used to
purchase Capital Stock (other than Redeemable Interests) of (i) the
Company from the Company or (ii) Allied from Allied if Allied uses the
proceeds thereof to acquire Capital Stock (other than Redeemable
Interests) of the Company, such limitation on the amount of such
Investments at any time outstanding shall not apply with respect to such
Investments, (xii) any Investment consisting of a Permitted Interest
Rate or Currency Protection Agreement,
40
<PAGE> 41
(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 Second Supplemental Indenture,
(xv) Investments the payment for which consists exclusively of Capital
Stock (exclusive of Redeemable Interests) of the Company and (xvi) other
Investments in an aggregate amount not to exceed 15% of the Consolidated
Total Assets of the Company outstanding at any time.
"Permitted Liens" means (i) Liens securing indebtedness under
the Bank Agreement that was permitted by the terms of the Indenture to
be incurred or other Debt allowed to be incurred under clause (i) of
subsection 13(d) of Section 1.01 of this Second Supplemental Indenture;
(ii) Liens incurred after the date of the indentures securing Debt of
the Company that ranks pari passu in right of payment to the Seven-Year
Notes, if the Seven-Year Notes are secured equally and ratably with such
Debt; (iii) Liens in favor of the Company or any Restricted Subsidiary;
(iv) Liens on property of, or shares of Stock or evidences of Debt of, a
Person existing at the time such Person is merged into or consolidated
with the Company or any Restricted Subsidiary of the Company, provided
that such Liens were not incurred in contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or any Restricted
Subsidiary; (v) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were not incurred in contemplation of such
acquisition; (vi) Liens existing on the date of the Second Supplemental
Indenture; (vii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens securing Permitted Refinancing Debt where the Liens
securing the Permitted Refinancing Debt were permitted under the
Indenture; (ix) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or the like Liens arising by contract or
statute in the ordinary course of business and with respect to amounts
which are not yet delinquent or are being contested in good faith by
appropriate proceedings; (x) pledges or deposits made in the ordinary
course of business (A) in connection with leases, performance bonds and
similar obligations, or (B) in connection with workers' compensation,
unemployment insurance and other social security legislation; (xi)
easements, rights-of-way, restrictions, minor defects or irregularities
in title and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (xii) any attachment or judgment
Lien that does not constitute an Event of Default; (xiii) Liens in favor
of the Trustee for its own benefit and for the benefit of the Holders;
(xiv) any interest or title of a lessor pursuant to a lease constituting
a Capital Lease Obligation; (xv) pledges or deposits made in connection
with acquisition agreements or letters of intent entered into in respect
of a proposed acquisition; (xvi) Liens in favor of prior holders of
leases on property acquired by the Company or of sublessors under leases
on the Company property; (xvii) Liens incurred or
41
<PAGE> 42
deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, banker's acceptances, surety and
appeal bonds, government contracts, performance and return-of-money
bonds and other obligations of a similar nature incurred in the ordinary
course of business (exclusive of obligations for the payment of borrowed
money); (xviii) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the date of the Second
Supplemental Indenture; provided that (a) any such Lien is created
solely for the purpose of securing Debt incurred, in accordance with
subsection 13(d) of Section 1.01 of this Second Supplemental Indenture
(1) to finance the cost (including the cost of improvement or
construction) of the item, property or assets subject thereto and such
Lien is created prior to, at the time of or within three months after
the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Debt previously so secured, (b) the principal amount of the Debt secured
by such Lien does not exceed 100% of such cost and (c) any such Lien
shall not extend to or cover any property or asset other than such item
of property or assets and any improvements on such item; (xix) leases or
subleases granted to others that do not materially interfere with the
ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xx) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xxi) Liens on
property of, or on shares of stock or Debt of, any Person existing at
the time such Person becomes, or becomes a part of, any Restricted
Subsidiary, provided that such Liens do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other
than the property or assets acquired; (xxii) Liens encumbering deposits
securing Debt under Permitted Interest Rate Currency or Commodity Price
Agreements; (xxiii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business in accordance with the past practices of the
Company and its Restricted Subsidiaries; (xxiv) any renewal of or
substitution of any Liens permitted by any of the preceding clauses,
provided that the Debt secured is not increased (other than by the
amount of any premium and accrued interest, plus customary fees, consent
payments, expenses and costs related to such renewal or substitution of
Liens or the incurrence of any related refinancing of Debt) and the
Liens are not extended to any additional assets (other than proceeds and
accessions); (xxv) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $50 million at any one time outstanding
and that (a) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Restricted
Subsidiary; and (xxvi) Liens on assets of Unrestricted Subsidiaries that
secure Non-Recourse Debt of Unrestricted Subsidiaries. This covenant
does not authorize the incurrence of any Debt not otherwise permitted by
subsection 13(d) of Section 1.01 of this Second Supplemental Indenture.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends or
as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
42
<PAGE> 43
"Private Placement Legend" means the legend set forth in Section
2.02(g)(i) to be placed on all Seven-Year Notes issued under this Second
Supplemental Indenture except where otherwise permitted by the
provisions of this Second 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
Seven-Year Notes within five Business Days after the Offer Expiration
Date.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Reference Treasury Dealer", means 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.
"Refinancing Transactions" means the application of the proceeds
from the issuance and sale of the Seven-Year Notes as described in the
Offering Memorandum of the Company dated December 14, 1998 relating to
the Senior Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement for the Seven-Year Notes, dated as of December 23, 1998, by
and among the Company and the other parties named on the signature pages
thereof, as such agreement may be amended, modified or supplemented from
time to time and, with respect to any Additional Notes, one or more
registration rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented
from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under
the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a global Seven-Year Note
bearing the Private Placement Legend and deposited with or on behalf of
the Depositary and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal
amount of the Seven-Year Notes initially sold in reliance on Rule 903 of
Regulation S.
"Related Business" means a business substantially similar to the
business engaged in by the Company and its Subsidiaries on the date of
this Second 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.
43
<PAGE> 44
"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 Notes" means the Company's Seven-Year Notes, its 7 3/8%
Senior Notes due 2004 issued pursuant to the Company's First
Supplemental Indenture and the 7 7/8% Senior Notes due 2009 issued
pursuant to the Third Supplemental Indenture.
"Seven-Year Notes" has the meaning assigned to it in the
preamble to this Indenture Supplement. The Initial Notes and the
Additional Notes shall be treated as a single class for all purposes
under the Indenture, modified, supplemental and superseded by this
Second Supplemental Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Interest" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Tender Offers" means the tender offers commenced by the Company
on November 24, 1998 to purchase for cash all of its outstanding 10.25%
Senior Subordinated Notes due 2006 and all of the outstanding 11.30%
Senior Discount Notes due 2007 of Allied.
"Third Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $1,000,000,000 of the Company's 7 7/8 Senior Notes
due 2009.
"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 Seven-Year
Note substantially in the form of Exhibit A attached hereto that bears
the Global Note Legend and that has the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that is deposited
with or on behalf of and registered in the name of the Depositary,
representing a series of Seven-Year Notes that do not bear the Private
Placement Legend.
44
<PAGE> 45
"Unrestricted Subsidiary" means (i) Allied Insurance unless
Allied Insurance shall have been designated a Restricted Subsidiary in
accordance with the provisions of subsection (j) of Section 1.01 hereof,
(ii) at any date, a Subsidiary of the Company that is an Unrestricted
Subsidiary in accordance with the provisions of Subsection 13(j) of
Section 1.01 of hereof and (iii) for any period, a Subsidiary of the
Company that for any portion of such period is an Unrestricted
Subsidiary in accordance with the provisions of Subsection 13(j) of
Section 1.01 of hereof provided that such term shall mean such
Subsidiary only for such portion of such period.
"Voting Stock" of any Person means Capital Stock of such Person
that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. DEFINITIONS. Capitalized terms used but not defined in
this Second 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 Second Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture and this Second 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 Second Supplemental Indenture).
SECTION 4.03. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Second 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 Second Supplemental Indenture, the
Indenture and the Seven-Year Notes shall be governed by and construed in
accordance with the law of the State of New York without giving effect to any
provisions thereof relating to conflicts of law.
SECTION 4.05. SEPARABILITY. In case any provision in this Second
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 Second 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.
45
<PAGE> 46
IN WITNESS WHEREOF, the parties hereto have caused this Second
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
Attest:
/s/ Jenny Apker
- --------------------------
Name: Jenny Apker
Title: Assistant Secretary
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 15 of the Indenture
and as Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under the Subsidiary
Guarantees
By: /s/ G. Thomas Rochford, Jr.
--------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
Attest:
/s/ Steven M. Helm
- ---------------------------
Name:
Title:
<PAGE> 47
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
Attest*:
/s/ Jenny Apker
- ---------------------------
Name: Jenny Apker
Title: Assistant Secretary
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.
<PAGE> 48
EXHIBIT A
[Face of Note]
________________________________________________________________________________
CUSIP/CINS ____________
7 5/8% SERIES A SENIOR NOTES DUE 2006
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on January 1, 2006.
Interest Payment Dates: January 1 and July 1, commencing July 1, 1999
Record Dates: December 15 and June 15
Dated: December 23, 1998
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
A-1
<PAGE> 49
EXHIBIT A
[Back of Note]
7 5/8% SERIES A SENIOR NOTES DUE 2006
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Note Legend, if applicable, pursuant to the
provision of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 7 5/8% per annum from the date hereof until maturity and shall pay the
Special Interest, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and Special
Interest semi-annually in arrears on January 1 and July 1 of each year,
beginning July 1, 1999, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 1, 1999. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 2% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest, if any, from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360 day year of
twelve 30 day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the December 15 or June
15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 3.7(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 may be made by check mailed to
the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Special Interest
on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent at least
10 Business Days prior to the applicable payment date. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying
A-2
<PAGE> 50
EXHIBIT A
Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of December 23, 1998, as amended by the Second Supplemental Indenture dated as
of December 23, 1998 (together, the "Indenture"), each among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa 77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the indenture shall govern and be controlling. The Notes are obligations of the
Company limited to $300.0 million in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to the final
maturity of such Notes.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, the Company may redeem Notes at any time, 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 applicable Note Register, in amounts of $1,000
or an integral multiple of $1,000, at a Redemption Price equal to the greater of
(i) 100% of their principal amount or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to
maturity on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Yield plus 50 basis points, plus in each case
accrued but unpaid interest (including Special Interest) to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date).
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. The Indenture provides that, subject
to certain conditions, if (i) certain Net Available Proceeds are available to
the Company as a result of Asset Dispositions or (ii) a Change of Control
occurs, the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Securities.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.
A-3
<PAGE> 51
EXHIBIT A
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the Guarantors and
the rights of the Holders of the Securities under the Indenture at any time by
the Company, the Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes when the same
becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise, (iii) failure by the Company to comply
with Sections 13(a), 13(d) or 13(e) of the Second Supplemental Indenture or
Article 7 of the Indenture (as superseded by subsection 15 of Section 1.01 of
the Second Supplemental Indenture); (iv) failure by the Company for 60 days
after notice to the Company or the Holders of at least 10% in principal amount
of the Notes (including Additional Notes, if any) then outstanding voting as a
single class to comply with certain other agreements in the Indenture and the
Notes; (v) default under certain other agreements relating to Debt of the
Company which default results in the acceleration of such Debt prior to its
express maturity; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Material
Subsidiaries. If any Event of Default (other than an Event of Default of the
type described in clause (vii) above) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice; provided, however, that after such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in aggregate
principal amount of Outstanding Notes of such issue may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal, have been cured or waived
as provided in the Indenture. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
A-4
<PAGE> 52
EXHIBIT A
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement relating to the Notes dated as of December 23, 1998, among the
Company, the Guarantors and the parties named on the signature pages thereof or,
in the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have the rights set forth in one or more
registration rights agreements, if any, between the Company and the other
parties thereto, relating to rights given by the Company to the purchasers of
any Additional Notes (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, AZ 85260
Attention: Treasurer
A-5
<PAGE> 53
EXHIBIT A
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _____________________________
Your Signature: ________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee: ____________________________
A-6
<PAGE> 54
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 Second Supplemental
Indenture, check the appropriate box below:
/ / Subsection 13(a) / / Subsection 13(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 13(a) or subsection 13(b) of Section 1.01 of the
Second Supplemental Indenture, state the amount you elect to have purchased:
$________________
Date: _______________________
Your Signature: ________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.: _________________
Signature Guarantee: ________________________
A-7
<PAGE> 55
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>
A-8
<PAGE> 56
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: 7 5/8% Senior Notes due 2006
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Second Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of
B-1
<PAGE> 57
EXHIBIT B
Regulation S under the Securities Act, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act and
(iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
B-2
<PAGE> 58
EXHIBIT B
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
__________________________________________
[Insert Name of Transferor]
By: ______________________________________
Name:
Title:
Dated: _______________________
B-3
<PAGE> 59
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP____________ ), or
(ii) / / Regulation S Global Note (CUSIP ____________), or
(iii) / / IAI Global Note (CUSIP_____________ ); or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP_____________ ), or
(ii) / / Regulation S Global Note (CUSIP____________ ), or
(iii) / / IAI Global Note (CUSIP____________ ); or
(iv) / / Unrestricted Global Note (CUSIP___________ ); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
<PAGE> 60
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: 7 5/8% Senior Notes due 2006
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Second Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
<PAGE> 61
EXHIBIT C
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
<PAGE> 62
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
___________________________________
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated: __________________________
C-3
<PAGE> 63
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: 7 5/8% Senior Notes due 2006
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Second Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
<PAGE> 64
EXHIBIT D
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_____________________________________
[Insert Name of Accredited Investor]
By: __________________________________
Name:
Title:
Dated: ___________________________
D-2
<PAGE> 65
SCHEDULE I
Subsidiary Guarantors
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- --------------------------------------------------------------------------------
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc. New York
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc. Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Transportation, Inc. Delaware
Americal Co. Michigan
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Transfer Company, Inc. New York
Anderson Regional Landfill, LLC Delaware
Anson County Landfill NC, LLC Delaware
A-1
<PAGE> 66
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation Delaware
AWIN Leasing Company, Inc. Delaware
AWIN Management, Inc. Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC Delaware
Brunswick Waste Management Facility, LLC Delaware
Butler County Landfill, LLC Delaware
Camelot Landfill TX, LP Delaware
CC Landfill, Inc. Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc. New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp. New York
Crow Landfill TX, LLC Delaware
Crow Landfill TX, L.P. Delaware
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C. Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
A-2
<PAGE> 67
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen Delaware
Draw Acquisition Company Twenty Two Delaware
Draw Acquisition Company Twenty Three Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
Ellis County Landfill TX, LLC Delaware
Ellis County Landfill TX, L.P. Delaware
Ellis Scott Landfill MO, LLC Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc. New York
Environmental Development Corporation Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc. New York
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
Evergreen Scavenger Service, Inc. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp. Delaware
Georgia Recycling Services, Inc. Delaware
Golden Eagle Disposals, Inc. New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc. Delaware
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
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<PAGE> 68
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc. Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP Delaware
MCM Sanitation, Inc. New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc. Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
A-4
<PAGE> 69
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, L.L.C. Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibers, Inc. Washington
Paper Fibres Company Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC Delaware
Pine Hill Farms Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc. New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc. New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC Delaware
Southwest Waste, Inc. Missouri
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SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc. New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc. Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation New York
A-6
<PAGE> 1
Exhibit 4.6
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of December 23, 1998 (this
"Third Supplemental Indenture"), among ALLIED WASTE NORTH AMERICA, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), having its principal office at 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 December 23, 1998 (the "Indenture"), to
provide for the issuance by the Company from time to time of debt securities
evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company
has authorized the issuance of $1,000,000,000 of its 7 7/8% Series A Senior
Notes Due 2009 (the "Series A Ten-Year Notes") and $1,000,000,000 of its 7 7/8%
Series B Senior Notes Due 2009 (the "Series B Ten-Year Notes," and together with
the Series A Ten-Year Notes, the "Ten-Year Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on
the signature page thereof entered into a Registration Rights Agreement dated as
of the date hereof (as such agreement may be amended, modified or supplemented
from time to time, the "Registration Rights Agreement") which contemplates (i)
the registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Series B Ten-Year Notes and (ii) the consummation of an Exchange
Offer (defined below) whereby the Series A Ten-Year Notes may be exchanged for
Series B Ten-Year Notes; and
WHEREAS, the Company desires to establish the terms of the Ten-Year
Notes in accordance with Section 3.1 of the Indenture and to establish the form
of the Ten-Year Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
SECTION 1.01. TERMS OF TEN-YEAR NOTES. The following terms relating to
the Ten-Year Notes are hereby established:
(1) The Series A Ten-Year Notes shall constitute a series of Securities
having the title "7 7/8% Series A Senior Notes Due 2009." The Series B Ten-Year
Notes shall constitute a series of Securities having the title "7 7/8% Series B
Senior Notes Due 2009."
(2) The aggregate principal amount of the Series A Ten-Year Notes that
may be authenticated and delivered under the Indenture (except for Series A
Ten-Year Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Series A Ten-Year Notes pursuant to
Sections 3.4, 3.5, 3.6, 8.6 or 11.7 of the Indenture or any Securities that,
pursuant to Section 3.3, are deemed never to have been authenticated or
delivered thereunder) shall be up to $1,000,000,000. The aggregate principal
amount of the Series B Ten-Year Notes that may be authenticated and delivered
under the Indenture (except for Series B Ten-Year Notes authenticated and
delivered upon registration of transfer of or in exchange for or in lieu of,
other Series B Ten-Year Notes pursuant to Sections 3.4, 3.5,
<PAGE> 2
3.6, 8.6 or 11.7 of the Indenture or any Securities that, pursuant to Section
3.3, are deemed never to have been authenticated or delivered thereunder) shall
be up to $1,000,000,000.
(3) The entire outstanding principal of the Ten-Year Notes shall be
payable on January 1, 2009 (the "Stated Maturity Date").
(4) The rate at which the Ten-Year Notes shall bear interest shall be
7 7/8%; (a) with respect to the Series A Ten-Year Notes, interest shall accrue
from the date hereof; (b) with respect to the Series B Ten-Year Notes, the date
from which interest shall accrue shall be the date on which interest was most
recently paid on the Series A Ten-Year Notes, or if there has been no Interest
Payment Date relating to the Series A Ten-Year Notes prior to the issuance of
the Series B Ten-Year Notes, interest shall accrue from the date hereof; (c) the
Interest Payment Dates for the Ten-Year Notes on which interest will be payable
shall be January 1 and July 1 of each year, beginning July 1, 1999; the Regular
Record Dates for the interest payable on the Ten-Year Notes on any Interest
Payment Date shall be December 15 with respect to the January 1 Interest Payment
Date and June 15 with respect to the July 1 Interest Payment Date; (d) interest
on overdue principal and premium, if any, from time to time, shall be at a rate
of 2% per annum in excess of the rate then in effect; interest on overdue
installments of interest and Special Interest, if any, from time to time, shall
be at the same rate, to the extent lawful; and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve 30-day
months.
(5) The place where the principal of (and premium, if any) and
interest, including, Special Interest, if any, with respect to and interest on
the Ten-Year Notes shall be payable and Ten-Year Notes may be surrendered for
the registration of transfer or exchange shall be the Corporate Trust Office of
the Trustee which, as of this writing, is located at 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 Ten-Year Notes
and the Indenture may be served shall be the Corporate Trust Office of the
Trustee. In addition, payment of interest (including any Special Interest) on
any Ten-Year Note may, at the option of the Company, be made by check mailed to
the address of the Person in whose name the Ten-Year Note is registered at the
close of business on the Regular Payment Date; provided, however, that all
payments of principal, and premium (including Special Interest, if any), if any,
and interest on the Ten-Year Notes to Holders of which have given wire
instructions to the Company or the Paying Agent at least 10 Business Days prior
to the applicable payment date shall be made by wire transfer to an account
maintained by such Holder entitled thereto as specified by such Holder in the
instructions.
(6)
(A) The Ten-Year Notes will not be subject to any redemption at
the option of the Company prior to January 1, 2004 except as set forth
in the following paragraphs. On or after January 1, 2004, the Ten-Year
Notes will be subject to redemption, in whole or in part, at the option
of the Company at any time prior to maturity, upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Ten-Year Notes to be
redeemed at such Holder's address appearing in the applicable Note
Register, in amounts of $1,000 or an integral multiple of $1,000, at
the following Redemption Prices (expressed as percentages of principal
amount) plus accrued but unpaid interest (including Special Interest)
to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due
on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the twelve-month period beginning on January
1 of each of the years indicated below:
2
<PAGE> 3
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
<S> <C>
2004 ..................... 103.9375%
2005 ..................... 102.6250%
2006 ..................... 101.3125%
2007 and thereafter ...... 100.0000%
</TABLE>
(B) Prior to January 1, 2004, the Ten-Year Notes will be subject
to redemption, at the option of the Company, in whole or in part, at
any time, upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Ten-Year Notes to be redeemed at such Holder's address
appearing in the applicable Note Register, in amounts of $1,000 or an
integral multiple of $1,000, at a Redemption Price equal to the greater
of (i) 100% of their principal amount or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest
thereon discounted to maturity on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield
plus 50 basis points, plus in each case accrued but unpaid interest
(including Special Interest) to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant Regular
Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date).
(C) At any time, or from time to time, prior to January 1, 2002,
up to 33 1/3% in aggregate principal amount of the Ten-Year Notes
originally issued under the Indenture will be redeemable, at the option
of the Company, from the net proceeds of one or more Public Offerings
of Capital Stock (other than Redeemable Interests) of Allied, at a
Redemption Price equal to 107.9% of the principal amount thereof,
together with accrued but unpaid interest (including Special Interest)
to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date); provided that
the notice of redemption with respect to any such redemption is mailed
within 30 days following the closing of the corresponding Public
Offering.
(7) Except as set forth in this Third Supplemental Indenture, the
Ten-Year Notes shall not be redeemable at the option of any Holder thereof, upon
the occurrence of any particular circumstances or otherwise. The Ten-Year Notes
will not have the benefit of any sinking fund.
(8) The Ten-Year Notes shall be issuable in denominations of $1,000.
(9) Payments of the principal of, Special Interest, if any, with
respect to and interest on the Ten-Year Notes shall be made in U.S. Dollars, and
the Ten-Year Notes shall be denominated in U.S. Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued
interest, if any, on the Ten-Year Notes shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Article 5 of the Indenture.
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<PAGE> 4
(12) The Ten-Year Notes will be payable on the Stated Maturity Date in
an amount equal to the principal amount thereof, Special Interest, if any, plus
any accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth
in the Indenture with respect to the Ten-Year Notes, which shall be effective
only for so long as any of the Ten-Year Notes are Outstanding:
(a) Asset Dispositions.
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition unless: (i) the Company (or
such Restricted Subsidiary, as the case may be) receives consideration
at the time of such disposition at least equal to the fair market value
of the shares or the assets disposed of, as determined in good faith by
the Board of Directors for any transaction (or series of transactions)
involving in excess of $10 million and not involving the sale of
equipment or other assets specifically contemplated by the Company's
capital expenditure budget previously approved by the Board of
Directors; (ii) at least 75% of the consideration received by the
Company (or such Restricted Subsidiary) consists of (u) cash or readily
marketable cash equivalents, (v) the assumption of Debt or other
liabilities reflected on the consolidated balance sheet of the Company
and its Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities
subordinate in right of payment to the Ten-Year Notes) and release from
all liability on such Debt or other liabilities assumed, (w) assets
used in, or stock or other ownership interests in a Person that upon
the consummation of such Asset Disposition becomes a Restricted
Subsidiary and will be principally engaged in, the business of the
Company or any of its Restricted Subsidiaries as such business is
conducted immediately prior to such Asset Disposition, (x) any
securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are
contemporaneously (subject to ordinary settlement periods) converted by
the Company or such Restricted Subsidiary into cash or Cash Equivalents
(to the extent of cash and Cash Equivalents received), (y) any
Designated Noncash Consideration received pursuant to this clause (y)
that is at the time outstanding, not to exceed 15% of Consolidated
Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated
Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value), or (z) any combination
thereof; and (iii) 100% of the Net Available Proceeds from such Asset
Disposition (including from the sale of any marketable cash equivalents
received therein) are applied by the Company or a Restricted Subsidiary
(A) first, within one year from the later of the date of such Asset
Disposition or the receipt of such Net Available Proceeds, to Debt of
the Company or its Restricted Subsidiaries then outstanding under the
Bank Agreement which would require such application or which would
prohibit payments pursuant to Clause (B) following; (B) second, to the
extent Net Available Proceeds are not required to be applied as
specified in Clause (A), to purchases on a pro rata basis of
Outstanding Senior Notes of each issue pursuant to an Offer to Purchase
(to the extent such an offer is not prohibited by the terms of the Bank
Agreement then in effect) at a purchase price equal to 100% of their
principal amount plus accrued interest to the date of purchase (subject
to the rights of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior
to the purchase date); and (C) third, to the extent of any remaining
Net Available Proceeds
4
<PAGE> 5
following completion of such Offer to Purchase, to any other use as
determined by the Company which is not otherwise prohibited by the
Indenture and provided further that the 75% limitation referred to in
clause (ii) above will not apply to any Asset Disposition if the
consideration received therefrom, as determined in good faith by the
Company's Board of Directors, is equal to or greater than what the
after-tax proceeds would have been had the Asset Disposition complied
with the aforementioned 75% limitation.
Notwithstanding the foregoing, the Company shall not be required
to comply with the provisions described in Clause (iii) of the
preceding paragraph (i) if the Net Available Proceeds less any amounts
("Reinvested Amounts") are invested or committed to be invested within
one year from the later of the date of the related Asset Disposition or
the receipt of such Net Available Proceeds in assets that will be used
in the business of the Company or any of its Restricted Subsidiaries as
such business is conducted prior to such Asset Disposition (determined
by the Board of Directors in good faith) or (ii) to the extent the
Company elects to redeem the Senior Notes of any series with the Net
Available Proceeds pursuant to any of the provisions of paragraph 5(b)
of the Senior Notes.
Notwithstanding the foregoing, the Company shall not be required
to comply with the requirements described in Clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted
Disposition.
The Company shall mail the Offer Document for an Offer to Purchase
required pursuant to this subsection 13(a) within 30 days after the
date which is one year after the later of the date of consummation of
the Asset Disposition referred to in this subsection 13(a) or the
receipt of the Net Available Proceeds from such Asset Disposition. The
aggregate principal amount of the Ten-Year Notes to be offered to be
purchased pursuant to the Offer to Purchase shall equal the Net
Available Proceeds required to be made available therefor pursuant to
Clause (iii)(B) of this subsection 13(a) (rounded down to the next
lowest integral multiple of $1,000). Each Holder shall be entitled to
tender all or any portion of the Ten-Year Notes owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Ten-Year Note tendered must be tendered in an integral
multiple of $1,000 principal amount.
(b) Change of Control.
Within 30 days following the date the Company becomes aware of the
consummation of a transaction that results in a Change of Control (as
defined below), the Company shall commence an Offer to Purchase all
Outstanding Notes, at a purchase price equal to 101% of their aggregate
principal amount plus accrued interest, if any, to the date of purchase
(subject to the rights of Holders of record on the relevant Regular
Record Date to receive interest due on an Interest Payment Date that is
on or prior to the date of purchase).
A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Third Supplemental Indenture, (i) so
long as the Company is a Subsidiary of Allied, (a) any Person, or any
Persons (other than a Permitted Allied Successor, as defined below),
acting together that would constitute a "Group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, together with any
Affiliates or Related Persons thereof (other than any employee stock
ownership plan), beneficially own 50% or more of the total
5
<PAGE> 6
voting power of all classes of Voting Stock of Allied, (b) any Person
or Group, together with any Affiliates or Related Persons thereof,
succeeds in having sufficient of its nominees who have not been
approved by the Continuing Directors elected to the Board of Directors
of Allied such that such nominees, when added to any existing director
remaining on the Board of Directors of Allied after such election who
is an Affiliate or Related Person of such Person or Group, shall
constitute a majority of the Board of Directors of Allied or (c) there
occurs any transaction or series of related transactions (other than a
merger, consolidation or other transaction with a Related Business in
which the shareholders of Allied immediately prior to such transaction
(or series) receive (I) solely Voting Stock of Allied (or its successor
or parent, as the case may be), (II) cash, securities and other
property in an amount which could be paid by the Company as a
Restricted Payment under this Third Supplemental Indenture after giving
pro forma effect to such transaction, or (III) a combination thereof),
and the beneficial owners of the Voting Stock of Allied immediately
prior to such transaction (or series) do not, immediately after such
transaction (or series), beneficially own Voting Stock representing
more than 50% of the total voting power of all classes of Voting Stock
of Allied (or in the case of a transaction (or series) in which another
entity becomes a successor to, or parent of, Allied, of the successor
or parent entity) and (ii) if the Company is not a Subsidiary of
Allied, (a) any Person, or any Persons (other than a Permitted Company
Successor, as defined below), acting together that would constitute a
"Group" (a "Group") for purposes of Section 13(d) of the Exchange Act,
together with any Affiliates or Related Persons thereof (other than any
employee stock ownership plan) beneficially own 50% or more of the
total voting power of all classes of Voting Stock of the Company, (b)
any Person or Group, together with any Affiliates or Related Persons
thereof, succeeds in having sufficient of its nominees who have not
been approved by the Continuing Directors elected to the Board of
Directors of the Company such that such nominees, when added to any
existing director remaining on the Board of Directors of the Company
after such election who is an Affiliate or Related Person of such
Person or Group, shall constitute a majority of the Board of Directors
of the Company or, (c) there occurs any transaction or series of
related transactions (other than a merger, consolidation or other
transaction with a Related Business in which the shareholders of the
Company immediately prior to such transaction (or series) receive (I)
solely Voting Stock of the Company (or its successor or parent, as the
case may be), (II) cash, securities and other property in an amount
which could be paid by the Company as a Restricted Payment under the
Indenture after giving pro forma effect to such transaction or (III) a
combination thereof), and the beneficial owners of the Voting Stock of
the Company immediately prior to such transaction (or series) do not,
immediately after such transaction (or series), beneficially own Voting
Stock representing more than 50% of the total voting power of all
classes of Voting Stock of the Company (or in the case of a transaction
(or series) in which another entity becomes a successor to the Company,
of the successor entity).
A "Permitted Allied Successor" means an issuer, other than Allied,
of Voting Securities issued to the shareholders of Allied in a merger,
consolidation or other transaction permitted by clause (i)(c) of the
definition of Change of Control. A "Permitted Company Successor" means
an issuer, other than the Company, of Voting Securities issued to the
shareholders of the Company in a merger, consolidation or other
transaction permitted by clause (ii)(c) of the definition of Change of
Control.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder to the extent such
6
<PAGE> 7
laws and regulations are applicable in connection with the repurchase
of the Ten-Year Notes resulting from a Change of Control.
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment
Ten-Year Notes or portions thereof tendered pursuant to the Offer to
Purchase, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided
in Section 9.3 of the Indenture) money sufficient to pay the Purchase
Price of all Ten-Year Notes or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee all Ten-Year Notes so
accepted together with an Officers' Certificate stating the Ten-Year
Notes or portions thereof accepted for payment by the Company. The
Paying Agent (or the Company if so acting) shall promptly mail or
deliver to Holders of Ten-Year Notes so accepted payment in an amount
equal to the Purchase Price for each $1,000 of Ten-Year Notes so
accepted, and the Company shall promptly execute a new Ten-Year Note or
Ten-Year Notes equal in principal amount to any unpurchased portion of
the Ten-Year Note surrendered as requested by the Holder, and the
Guarantors shall promptly execute their Senior Guarantees to be
endorsed thereon, and thereafter the Trustee shall promptly
authenticate and mail or deliver to such Holders such new Ten-Year Note
or Ten-Year Notes. Any Ten-Year Note not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Offer to Purchase on
or as soon as practicable after the Purchase Date.
(c) Changes in Covenants when Senior Notes rated Investment Grade.
Following the first date upon which any issue of the Senior Notes
are rated the following: (i) Baa3 or better by Moody's Investors
Service, Inc. ("Moody's") and BB+ or better by Standard & Poor's
Ratings Group ("S&P"); or (ii) BBB- or better by S&P and Ba1 or better
by Moody's (a "Rating Event") (or, in any case, if such person ceases
to rate the Senior Notes for reasons outside of the control of the
Company, the equivalent investment grade credit rating from any other
"nationally recognized statistical rating organization" (within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by
the Company as a replacement agency) (the "Rating Event Date") (and
provided no Event of Default or event that with notice or the passage
of time would constitute an Event of Default shall exist on the Rating
Event Date), the covenants specifically listed under subsections 13(a),
13(d), 13(e), 13(f), 13(h) and 13(j) of this Section 1.01 of this Third
Supplemental Indenture shall no longer be applicable to the Ten-Year
Notes.
(d) Limitation on Consolidated Debt.
The Company shall not incur any Debt and shall not permit
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock
unless, immediately after giving effect to the Incurrence of such Debt
or issuance of such Preferred Stock and the receipt and application of
the proceeds thereof, the Consolidated EBITDA Coverage Ratio of the
Company for the four full fiscal quarters next preceding the Incurrence
of such Debt or issuance of such Preferred Stock, calculated on a pro
forma basis as if such Debt had been Incurred or such Preferred Stock
had been issued and the proceeds thereof had been received and so
applied at the beginning of the four full fiscal quarters, would be
greater than 2.0 to 1.0.
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<PAGE> 8
Without regard to the foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate principal
amount at any one time outstanding not to exceed the amount
permitted to be borrowed thereunder;
(ii) Debt evidenced by the Senior Notes and the Guarantees;
(iii) Debt owed by the Company to any Restricted Subsidiary
or Debt owed by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary; provided, however, that in the event that
either (x) the Company or the Restricted Subsidiary to which such
Debt is owed transfers or otherwise disposes of such Debt to a
Person other than the Company or another Restricted Subsidiary or
(y) such Restricted Subsidiary ceases to be a Restricted
Subsidiary, the provisions of this Clause (iii) shall no longer be
applicable to such Debt and such Debt shall be deemed to have been
incurred at the time of such transfer or other disposition or at
the time such Restricted Subsidiary ceases to be a Restricted
Subsidiary;
(iv) Debt outstanding on the date of this Third Supplemental
Indenture;
(v) Debt incurred in connection with an acquisition, merger
or consolidation transaction permitted under the provisions of the
Indenture described under Section 7.1 of the Indenture (as
superseded by subsection 15 of Section 1.01 of this Third
Supplemental Indenture), which Debt (A) was issued by a Person
prior to the time such Person becomes a Restricted Subsidiary in
such transaction (including by way of merger of consolidation with
the Company or another Restricted Subsidiary) and was not issued
in contemplation of such transaction or (B) is issued by the
Company or a Restricted Subsidiary to a seller in connection with
such transaction, in an aggregate amount for all such Debt issued
pursuant to the provisions of this Third Supplemental Indenture
described under this Clause (v) and then outstanding does not
exceed 5% of the Consolidated Total Assets of the Company at the
time of such Incurrence;
(vi) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(vii) Debt Incurred to renew, extend, refinance or refund any
outstanding Debt permitted in the preceding paragraph or in
Clauses (i) through (v) above or Incurred pursuant to this clause
(vii); provided, however, that such Debt does not exceed the
principal amount of Debt so renewed, extended, refinanced or
refunded (plus the amount of any premium and accrued interest,
plus customary fees, consent payments, expenses and costs relating
to the Debt so renewed, extended, refinanced or refunded); and
(viii) Debt not otherwise permitted to be Incurred pursuant
to clauses (i) through (vii) above, which, in aggregate amount,
together with the aggregate amount of all other Debt previously
Incurred pursuant to the provisions of this
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<PAGE> 9
Clause (viii) and then outstanding, does not exceed 7.5% of the
Consolidated Total Assets of the Company at the time of such
Incurrence.
(e) Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend,
or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of the Capital Stock of the Company
or any Restricted Subsidiary or to the holders thereof in their
capacity as such (excluding any dividends or distributions (u) to the
extent payable in shares of the Capital Stock of the Company (other
than Redeemable Interests) or in options, warrants or other rights to
acquire the Capital Stock of the Company (other than Redeemable
Interests), (v) dividends or distributions by a Restricted Subsidiary
to the Company or another Wholly Owned Restricted Subsidiary and (w)
the payment of pro rata dividends by a Restricted Subsidiary to holders
of both minority and majority interests in such Restricted Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for value (a) any
Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the
Company or (b) any options, warrants or rights to purchase or acquire
shares of Capital Stock of the Company or any Capital Stock of or other
ownership interests in any Subsidiary or any Affiliate or Related
Person of the Company (excluding, in each case of (a) and (b), the
purchase, redemption, acquisition or retirement by any Restricted
Subsidiary of any of its Capital Stock, other ownership interests or
options, warrants or rights to purchase such Capital Stock or other
ownership interests, in each case, owned by the Company or a Wholly
Owned Restricted Subsidiary), (iii) make any Investment that is not a
Permitted Investment or (iv) redeem, defease, repurchase, retire or
otherwise acquire or retire for value prior to any scheduled maturity,
repayment or sinking fund payment, Debt of the Company that is
subordinate in right of payment to the Ten-Year Notes (each of the
transactions described in Clauses (i) through (iv) being a "Restricted
Payment"), if:
(1) an Event of Default, or an event that with the lapse of
time or the giving of notice, or both, would constitute an Event
of Default, shall have occurred and be continuing; or
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the most recently ended
four full fiscal quarter period for which internal financial
statements are available immediately preceding the date of such
Restricted Payment, not have been permitted to Incur at least
$1.00 of additional Debt pursuant to the Consolidated EBITDA
Coverage Ratio test set forth in the first paragraph under
subsection 13(d) of this Section 1.01 of this Third Supplemental
Indenture; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted
Payments permitted by Clauses (ii), (iii), (iv), (v) and (vii) of
the next succeeding paragraph) from the date of the Indenture (the
amount so expended, if other than in cash, determined in good
faith by the Board of Directors) exceeds the sum, without
duplication, of: (a) 50% of the aggregate Consolidated Net Income
(or, in case Consolidated Net Income shall be
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<PAGE> 10
negative, less 100% of such deficit) for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the date of the Third Supplemental Indenture to
the end of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the time of
such Restricted Payment; (b) 100% of the aggregate net cash
proceeds from the issuance and sale to Allied of Capital Stock
(other than Redeemable Interests) of the Company and options,
warrants or other rights to acquire Capital Stock (other than
Redeemable Interests and Debt convertible into Capital Stock) of
the Company and the principal amount of Debt and Redeemable
Interests of the Company that has been converted into Capital
Stock (other than Redeemable Interests) of the Company after the
date of the Third Supplemental Indenture, provided that any such
net proceeds received by the Company from an employee stock
ownership plan financed by loans from the Company or a Subsidiary
of the Company shall be included only to the extent such loans
have been repaid with cash on or prior to the date of
determination; (c) 50% of any dividends received by the Company or
a Wholly Owned Restricted Subsidiary after the date of this Third
Supplemental Indenture from an Unrestricted Subsidiary of the
Company; and (d) $300 million.
The foregoing covenant shall not be violated by reason of
(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment would
have complied with the foregoing covenant;
(ii) any refinancing or refunding of Debt permitted if such
refinancing or refunding is permitted pursuant to clause (vii) of
the second paragraph under subsection 13(d) of this Section 1.01
of this Third Supplemental Indenture;
(iii) the purchase, redemption or other acquisition or
retirement for value of any Debt or Capital Stock of the Company
or any options, warrants or rights to purchase or acquire shares
of Capital Stock of the Company in exchange for, or out of the net
cash proceeds of, the substantially concurrent issuance or sale
(other than to a Restricted Subsidiary of the Company) of Capital
Stock (other than Redeemable Interests) of the Company; provided
that the amount of any such net cash proceeds that are utilized
for any such purchase, redemption or other acquisition or
retirement for value shall be excluded from Clause (3)(b) of the
foregoing paragraph of this subsection 13(e);
(iv) the repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value or payment of principal of
any subordinated Debt or Capital Stock through the issuance of new
subordinated Debt or Capital Stock of the Company.
(v) the Refinancing Transactions;
(vi) the repurchase of any subordinated Debt at a purchase
price not greater than 101% of the principal amount of such
subordinated Debt in the event of a Change of Control pursuant to
a provision similar to the provision contained in subsection 13(b)
of Section 1.01 of this Third Supplemental Indenture; provided
that
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<PAGE> 11
prior to such repurchase the Company has made the Change of
Control Offer the ("Change of Control Offer") as provided in such
covenant with respect to the Ten-Year Notes and repurchased all
Ten-Year Notes validly tendered for repayment in connection with
such Change of Control Offer;
(vii) the purchase or redemption of any Debt from Net
Available Proceeds to the extent permitted under subsection 13(a)
of Section 1.01 of this Third Supplemental Indenture; and
(viii) payments pursuant to the Intercompany Agreements.
Upon the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary, an amount equal to the greater of the book
value and the fair market value of all assets of such Restricted
Subsidiary at the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available prior to
such designation shall be deemed to be a Restricted Payment at the time
of such resignation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from
such designation) permitted under this subsection 13(e) of Section 1.01
of this Third Supplemental Indenture.
(f) Limitations Concerning Distributions by Subsidiaries, Etc.
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or
restriction on the ability of such Restricted Subsidiary (i) to pay,
directly or indirectly, dividends or make any other distributions in
respect to its Capital Stock or other ownership interests or pay any
Debt or other obligation owed to the Company or any other Restricted
Subsidiary; (ii) to make loans or advances to the Company or any other
Restricted Subsidiary; or (iii) to sell, lease or transfer any of its
property or assets to the Company or any Wholly Owned Restricted
Subsidiary, except, in any such case, any encumbrance or restriction:
(a) pursuant to the Senior Notes, the Indenture (including each of the
First, Second and Third Supplemental Indentures), the Senior Guarantees
or any other agreement in effect on the date of this Third Supplemental
Indenture, (b) pursuant to the Bank Agreement, including any Guarantees
of or Liens securing the Debt Incurred thereunder, (c) pursuant to an
agreement relating to any Debt Incurred by such Subsidiary prior to the
date on which such Subsidiary was acquired by the Company and
outstanding on such date and not incurred in anticipation of becoming a
Subsidiary, (d) pursuant to an agreement which has been entered into
for the pending sale or disposition of all or substantially all of the
Capital Stock, other ownership interests or assets of such Subsidiary,
provided that such restriction terminates upon consummation or
abandonment of such disposition and upon termination of such agreement,
(e) pursuant to customary non-assignment provisions in leases and other
agreements entered into in the ordinary course of business, (f)
restrictions contained in any security agreement (including a capital
lease) securing Debt permitted to be Incurred under the Indenture that
impose restrictions of the nature described in Clause (iii) above on
the property subject to the Lien of such security agreement, (g)
pursuant to an agreement effecting a renewal, extension, refinancing or
refunding of Debt incurred pursuant to an agreement referred to in
Clause (a), (b) or (f) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in such renewal,
extension, refinancing or refunding agreement are no more restrictive
in any material respect than the provisions contained in the agreement
it
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<PAGE> 12
replaces, as determined in good faith by the Board of Directors; or (h)
such encumbrance or restriction is the result of applicable corporate
law or regulation relating to the payment of dividends or
distributions.
(g) Limitation on Liens.
Allied shall not, and the Company shall not, and shall not permit
any of its Restricted Subsidiaries to, create, Incur, assume or
otherwise cause or suffer to exist or become effective any Lien (other
than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired to secure Debt of Allied, the Company or any of
its Restricted Subsidiaries.
(h) Limitation on Transactions with Affiliates and Related
Persons.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company
(each of the foregoing, an "Affiliate Transaction"), unless (a) such
Affiliate Transaction is on terms that are no less favorable to the
Company or such Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (b) the Company delivers to the
Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$10,000,000, either (i) a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (a) above and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors or (ii) an opinion as to the fairness
to the Company or such Restricted Subsidiary, as the case may be, of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions: (a) customary directors' fees,
indemnification or similar arrangements or any employment agreement or
other compensation plan or arrangement entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business
(including ordinary course loans to employees not to exceed (i)
$5,000,000 outstanding in the aggregate at any time and (ii) $2,000,000
to any one employee) and consistent with the past practice of the
Company or such Restricted Subsidiary; (b) loans by the Company and its
Restricted Subsidiaries to employees of Allied or any of its
Subsidiaries in connection with management incentive plans not to
exceed $25,000,000 at any time outstanding; provided that such
limitation shall not apply to loans the proceeds of which are used to
purchase common stock of (i) the Company from the Company or (ii)
Allied from Allied if and to the extent that Allied utilizes the
proceeds thereof to acquire Capital Stock (other than Redeemable
Interests) of the Company; (c) transactions between or among the
Company and/or its Restricted Subsidiaries; (d) payments of customary
fees by the Company or any of its Restricted Subsidiaries to investment
banking firms and financial advisors made for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which are approved by a
majority of the
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<PAGE> 13
Board of Directors in good faith; (e) any agreement as in effect on the
date of this Third Supplemental Indenture or any amendment thereto (so
long as such amendment is not disadvantageous to the Holders of the
Ten-Year Notes in any material respect) or any transaction contemplated
thereby; (f) payments and transactions in connection with the Tender
Offers, and the payment of the fees and expenses with respect thereto;
and (g) Restricted Payments that are permitted by the provisions of
subsection 13(e) of Section 1.01 of this Third Supplemental Indenture.
(i) Provision of Financial Information.
Whether or not Allied is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) shall file with the Commission the annual
reports, quarterly reports and other documents which the Company (or
Allied for so long as the Company is a Wholly-Owned Subsidiary of
Allied) would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if
the Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were so required, such documents to be filed with
the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file
such documents if the Company were so required. The Company shall also
in any event (a) within 15 days of each Required Filing Date file with
the Trustee copies of the annual reports, quarterly reports and other
documents which the Company (or Allied for so long as the Company is a
Wholly-Owned Subsidiary of Allied) filed with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provisions thereto or
would have been required to file with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provisions thereto if the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were required to comply with such Sections and
(b) if filing such documents by the Company (or Allied for so long as
the Company is a Wholly-Owned Subsidiary of Allied) with the Commission
is not permitted under the Exchange Act, promptly upon written request
supply copies of such documents to any prospective Holder.
(j) Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a
Subsidiary, or after the date of this Third Supplemental Indenture
becomes a Subsidiary, of the Company as an "Unrestricted Subsidiary,"
whereupon (and until such Person ceases to be an Unrestricted
Subsidiary) such Person and each other Person that is then or
thereafter becomes a Subsidiary of such Person shall be deemed to be an
Unrestricted Subsidiary. In addition, the Company may at any time
terminate the status of any Unrestricted Subsidiary as an Unrestricted
Subsidiary, whereupon such Subsidiary and each other Subsidiary of the
Company (if any) of which such Subsidiary is a Subsidiary shall be a
Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an
Unrestricted Subsidiary or from an Unrestricted Subsidiary to a
Restricted Subsidiary will be effective, and no Person may otherwise
become a Restricted Subsidiary, if:
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<PAGE> 14
(i) in the case of any change in status of a Restricted
Subsidiary to an Unrestricted Subsidiary, the Restricted Payment
resulting from such change, would violate the provisions of
subsection 13(e) of Section 1.01 of this Third Supplemental
Indenture; or
(ii) such change or other event would otherwise result (after
the giving of notice or the lapse of time, or both) in an Event of
Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and
the status of any Unrestricted Subsidiary as an Unrestricted Subsidiary
will be deemed to have been immediately terminated (whereupon such
Subsidiary and each other Subsidiary of the Company (if any) of which
such Subsidiary is a Subsidiary will be a Restricted Subsidiary) at any
time when:
(i) such Subsidiary (A) has outstanding Debt that is
Unpermitted Debt (as defined below) or (B) owns or holds any
Capital Stock of or other ownership interests in, or a Lien on any
property or other assets of, the Company or any of its Restricted
Subsidiaries; or
(ii) the Company or any other Restricted Subsidiary (A)
provides credit support for, or a Guaranty of, any debt of such
Subsidiary (including any undertaking, agreement or instrument
evidencing such Debt) or (B) is directly or indirectly liable on
any Debt of such Subsidiary. Any termination of the status of an
Unrestricted Subsidiary as an Unrestricted Subsidiary pursuant to
the preceding sentence will be deemed to result in a breach of
this covenant in any circumstance in which the Company would not
be permitted to change the status of such Unrestricted Subsidiary
to the status of a Restricted Subsidiary pursuant to the preceding
paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company
if (x) a default thereunder (or under any instrument or agreement
pursuant to or by which such Debt is issued, secured or evidenced)
or any right that the holders thereof may have to take enforcement
action against such Subsidiary or its property or other assets,
would permit (whether or not after the giving of notice or the
lapse of time or both) the holders of any Debt of the Company or
any other Restricted Subsidiary to declare the same due and
payable prior to the date on which it otherwise would have become
due and payable or otherwise to take any enforcement action
against the Company or any such other Restricted Subsidiary or (y)
such Debt is secured by a Lien on any property or other assets of
the Company and any of its other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company shall
be deemed to be a Restricted Subsidiary at all times when it is a
Subsidiary of the Company that is not an Unrestricted Subsidiary.
Each Person that is or becomes a Wholly Owned Subsidiary of the
Company shall be deemed to be a Wholly Owned Restricted Subsidiary
at all times when it is a Wholly Owned Subsidiary of the Company
that is not an Unrestricted Subsidiary.
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<PAGE> 15
(14) (a) In addition to the Events of Default set forth in Section 5.1
of the Indenture, the Ten-Year Notes shall include the following additional
Event of Default designated as clause (j) of such Section, which shall be deemed
an Event of Default under Section 5.1 of the Indenture:
"(j) failure to perform or comply with the provisions of Section
7.1 of the Indenture (as superseded by subsection 15 of Section 1.01
hereof) or the provisions of subsection 13(a) and subsection 13(b) of
Section 1.01 of this Third Supplemental Indenture"
(b) In addition, Section 5.1 of the Indenture is further
supplemented by adding the following paragraph thereto:
"If an Event of Default occurs at any time by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of
the Company with the intention of avoiding payment of the premium that
the Company would have had to pay if the Company then had elected to
redeem the Ten-Year Notes pursuant to Article 11 of the Indenture and
paragraph 5(b) of the Ten-Year Notes, then, upon acceleration of the
Ten-Year Notes, an equivalent premium shall also become and be
immediately due and payable, to the extent permitted by law, anything
in the Indenture or in the Ten-Year Notes to the contrary
notwithstanding."
(15) Section 7.1 of the Indenture is hereby superseded by the following
in respect of the Ten-Year Notes:
The Company (i) may not consolidate with or merge into any Person; (ii)
may not permit any Person other than a Restricted Subsidiary to consolidate with
or merge into the Company; and (iii) may not, directly or indirectly, in one or
a series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless, in each case of (i), (ii) and
(iii) above:
(1) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by the Company or a
Subsidiary of the Company as a result of such transaction (or series)
as having been incurred by the Company of such Subsidiary at the time
of the transaction (or series), no Event of Default, or event that with
the passing of time or the giving of notice, or both, will constitute
an Event of Default, shall have occurred and be continuing;
(2) in a transaction (or series) in which the Company does not
survive or in which the Company transfers, conveys, sells, leases or
otherwise disposes of all or substantially all of its properties and
assets, the successor entity is a corporation, partnership, limited
liability company or trust and is organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and expressly assumes, by a supplemental Indenture
executed and delivered to the Trustee in form satisfactory to the
Trustee, all the Company's obligations under the Indenture;
(3) if such transaction (or series) occurs prior to the occurrence
of a Rating Event Date, either (x) the Company or the successor entity
would, at the time of such transaction (or series) and after giving pro
forma effect thereto as if such transaction (or series) had occurred at
the beginning of the most recently ended four full fiscal quarter
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<PAGE> 16
period for which internal financial statements are available
immediately preceding the date of such transaction (or series), have
been permitted to Incur at least $1.00 of additional Debt pursuant to
the Consolidated EBITDA Coverage Ratio test set forth in the first
paragraph under subsection 13(d) of this Section 1.01 or (y) the
Consolidated EBITDA Coverage Ratio of the Company or the successor
entity for the most recently ended four full fiscal quarter period for
which internal financial statements are available immediately preceding
the date of such transaction (or series), calculated on a pro forma
basis as if such transaction (or series) had occurred at the beginning
of such four full fiscal quarter period, would be no less than such
Consolidated EBITDA Coverage Ratio, calculated without giving effect to
such transaction or series or any other transactions (or series) that
is subject to the provisions of the Indenture described in this
paragraph and that occurred after the date that is twelve months before
the date of such transaction (or series).
(4) if, as a result of any such transaction, property or assets of
the Company or any Restricted Subsidiary of the Company would become
subject to a Lien prohibited by subsection 13(g) of this Section 1.01,
the Company or the successor entity will have secured the Ten-Year
Notes as required by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease
or other disposition and such supplemental indenture comply with this
Third Supplemental Indenture and that all conditions precedent to the
consummation of such transaction under this Section 7.1 have been met."
(16) Section 8.1 of the Indenture is hereby supplemented by adding the
following as subsection (m) thereof in respect of the Ten-Year Notes:
(m) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Third Supplemental Indenture as
of the date hereof;
(17) Section 15.4 of the Indenture is hereby supplemented to include
the following as clause (d) of such Section in respect of the Ten-Year Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations
under, the Bank Agreement, such Guarantor shall be released from all of
its obligations under its Senior Guarantee endorsed on the Securities
and under this Article 15."
(18) The Ten-Year Notes shall not be issuable as Bearer Securities.
(19) Interest on any Ten-Year Note shall be payable only to the Person
in whose name that Ten-Year Note (or one or more predecessor Ten-Year Notes
thereof) is registered at the close of business on the Regular Record Date for
such interest.
(20) Article 4 of the Indenture shall be applicable to the Ten-Year
Notes.
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(21) The Ten-Year Notes shall not be issuable in definitive form except
under the circumstances described in Section 2.1 of the Indenture.
(22) The Ten-Year Notes shall not be subordinated to any other debt of
the Company, and shall constitute senior unsecured obligations of the Company.
(23) For all purposes, the Series A Ten-Year Notes and the Series B
Ten-Year Notes shall be treated as one series of Securities under the Indenture.
SECTION 1.02. FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form
of Ten-Year Note representing the Company's Ten-Year Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a
specimen certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a
specimen certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a
specimen certificate from acquiring institutional accredited investor.
(5) The form of Senior Guarantee shall be as set forth in Section 2.3
of the Indenture.
ARTICLE II.
TRANSFER AND EXCHANGE
Section 2.01. General. Sections 2.4, 3.2 and 3.3 of the Indenture are
hereby modified and superseded as follows in respect of the Ten-Year Notes:
(a) General. The Ten-Year Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Ten-Year Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Ten-Year Note shall be dated the date of its
authentication. The Ten-Year Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Ten-Year Notes shall
constitute, and are hereby expressly made, a part of this Third Supplemental
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Third Supplemental Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Ten-Year Note conflicts with the express provisions of this Third
Supplemental Indenture, the provisions of this Third Supplemental Indenture
shall govern and be controlling.
(b) Global Notes. Ten-Year Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Ten-Year Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Ten-Year Notes as shall be specified therein and each shall
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provide that it shall represent the aggregate principal amount of outstanding
Ten-Year Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Ten-Year Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Ten-Year
Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.02 of this Third Supplemental Indenture.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel Bank.
Section 2.02. Registration, Transfer and Exchange. Section 3.5 of the
Indenture is hereby modified and superseded in its entirety as follows in
respect of the Ten-Year Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) there shall have occurred and be
continuing a Default or an Event of Default under the Indenture with respect to
the Senior Notes. Upon the occurrence of either of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names as the
Participants and Indirect Participants and the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 3.6 and 3.4 of the Indenture. Every Ten-Year Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.02 or Section 3.6 or 3.4 of the
Indenture, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Ten-Year Note other
than as provided in this Section 2.02(a), however, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.02(b), (c)
or (f) of this Third Supplemental Indenture.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this Third
Supplemental Indenture and the Applicable Procedures. Beneficial interests in
the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth in this Third Supplemental Indenture to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery
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thereof in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests
in the Regulation S Global Note may not be made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.02(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.02(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B)(1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.02(f) of this Third
Supplemental Indenture, the requirements of this Section 2.02(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Third
Supplemental Indenture and the Ten-Year Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.02(h) of this
Third Supplemental Indenture.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.02(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
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<PAGE> 20
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by
any Holder thereof for a beneficial interest in an Unrestricted Global
Note or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the exchange
or transfer complies with the requirements of Section 2.02(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
an Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Third Supplemental Indenture and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an
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<PAGE> 21
Authentication Order in accordance with Section 3.3 of the Indenture, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.02(h) of this Third Supplemental Indenture, and
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<PAGE> 22
the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Restricted
Definitive Note in the appropriate principal amount. Any Restricted
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.02(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Ten-Year
Notes are so registered. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.02(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is
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<PAGE> 23
in compliance with the Securities Act and that the restrictions on
transfer contained in this Third Supplemental Indenture herein and in
the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.02(b)(ii) of this Third Supplemental Indenture, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.02(h) of this Third
Supplemental Indenture, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.02(c)(iii) shall be registered in such name or names
and in such authorized denomination or denominations as the Holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Ten-Year Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.02(c)(iii) shall not bear the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Ten-Year Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Ten-Year Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the
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<PAGE> 24
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Ten-Year Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
an Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
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<PAGE> 25
(1) if the Holder of such Definitive Notes proposes to
exchange such Ten-Year Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Ten-Year Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Third Supplemental Indenture and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.02(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Ten-Year Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Global Notes.
If any such exchange or transfer from an Unrestricted Definitive
Note or a Restricted Definitive Note, as the case may be, to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 3.3 of the Indenture,
the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of
Unrestricted Definitive Notes or Restricted Definitive Notes, as the
case may be, so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.02(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.02(e).
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(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant
to an Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Ten-Year Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Ten-Year Notes to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
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<PAGE> 27
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained in this Third Supplemental
Indenture and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Ten-Year Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the applicable Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
3.3, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Ten-Year Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Notes to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Restricted Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Third Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this Third
Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Ten-Year Notes
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN
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AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OR
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION
S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.02 (and all Ten-Year Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
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(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I)
THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.5
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.9 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Ten-Year Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to subsections 3.4, 8.6 and 11.7 of
Section 1.01 of the Indenture and subsections 13(a) and 13(b) of
Section 1.01 of this Third Supplemental Indenture).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Ten-Year Note selected for redemption in whole or in
part, except the unredeemed portion of any Ten-Year Note being redeemed
in part.
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(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits of the Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Ten-Year Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Ten-Year Notes for redemption under Section 11.3 of the
Indenture and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Ten-Year Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Ten-Year Note being redeemed in part or (C) to register
the transfer of or to exchange a Ten-Year Note between a record date
and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Ten-Year Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Ten-Year Note is registered as
the absolute owner of such Ten-Year Note for the purpose of receiving
payment of principal of and interest on such Ten-Year Notes and for all
other purposes, and none of the Trustee, any Agent or the Company shall
be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 3.3 of the
Indenture.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.02
to effect a registration of transfer or exchange may be submitted by
facsimile.
ARTICLE III.
DEFINITIONS
Section 3.03. ADDITIONAL DEFINITIONS. In addition to the definitions
set forth in Article I of the Indenture, the Ten-Year Notes shall include the
following additional definitions, which, in the event of a conflict with the
definition of terms in the Indenture, shall control:
"144A Global Note" means a global note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Ten-Year
Notes sold in reliance on Rule 144A.
"Acquired Business" means (a) any Person at least a majority of
the capital stock or other ownership interests of which is acquired
after the date hereof by the Company or a Subsidiary of the Company and
(b) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by the Company or a Subsidiary of
the Company.
"Additional Notes" means up to $125 million aggregate principal
amount of Ten-Year Notes (other than the Initial Notes) issued under
the Indenture, as supplemented by
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this Third Supplemental Indenture, in accordance with Section 3.3 of
the Indenture and subsection 13(d) of Section 1.01 of this Third
Supplemental Indenture, as part of the same series as the Initial
Notes.
"Allied Insurance" means Reliant Insurance Company and Indemnity
Corporation, a Vermont corporation and a Subsidiary of the Company.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear and Cedel that apply to
such transfer or exchange.
"Asset Disposition" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or
other disposition by the Company or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any Restricted
Subsidiary with, into or to another Person in a transaction in which
such Subsidiary ceases to be a Restricted Subsidiary of such Person),
of (i) shares of Capital Stock (other than directors' qualifying
shares) or other ownership interests of a Restricted Subsidiary or (ii)
the property or assets of such Person or any Restricted Subsidiary
representing a division or line or business or (iii) other assets or
rights of such Person or any Restricted Subsidiary outside of the
ordinary course of business, but excluding in each case in Clauses (i),
(ii) and (iii), (x) a disposition by a Subsidiary of such Person to
such Person or a Restricted Subsidiary or by such Person to a
Restricted Subsidiary, (y) the disposition of all or substantially all
of the assets of the Company in a manner permitted pursuant to the
provisions of Article 7 of the Indenture as superseded by subsection 15
of Section 1.01 hereof of the Company and (z) any disposition that
constitutes a Restricted Payment or Permitted Investment that is
permitted pursuant to the provisions of subsection 13(e) of Section
1.01 of this Third Supplemental Indenture.
"Bank Agreement" means the Credit Agreement of the Company dated
June 18, 1998, as amended, among the Company, Allied, certain lenders
party thereto, Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc.,
as Administrative Agent, Credit Suisse First Boston and Goldman Sachs
Credit Partners, L.P., as Co-Syndication Agents, or any bank credit
agreement that replaces, amends, supplements, restates or renews such
Credit Agreement.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other
arrangements conveying the right to use) real or personal property of
such Person which is required to be classified and accounted for as a
capital lease or a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment
of a penalty. The principal amount of such obligation shall be the
capitalized amount thereof that would
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appear on a balance sheet of such Person in accordance with generally
accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate
stock or other equity participations, including partnership interests,
whether general or limited, of such Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities either issued directly or fully guaranteed or insured by the
government of the United States of America or any agency or
instrumentality thereof having maturities of not more than one year,
(iii) time deposits and certificates of deposit, demand deposits and
banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million, (iv) demand deposits made in the
ordinary course of business and consistent with the Company's customary
cash management policy in any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof, (v) insured deposits issued by commercial banks of the type
described in Clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those
satisfying the provisions of Clauses (i) through (iii) above, (vii)
repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified
in Clause (iii) above and (viii) commercial paper (other than
commercial paper issued by an Affiliate or Related Person) rated A-1 or
the equivalent thereof by Standard & Poor's Ratings Group or P-1 or the
equivalent thereof by 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 Ten-Year
Notes on such date that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues
of corporate debt securities of a maturity comparable to the remaining
term of such Ten-Year Notes on such date. "Independent Investment
Banker" means 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
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release) is not published or does not contain such prices on such
business day. (A) the average of the Reference Treasury Dealer
Quotations for such Redemption Date after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third
Business Day preceding such Redemption Date.
"Consolidated EBITDA" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of
(without duplication) (i) Consolidated Interest Expense of such Person
for such period; plus (ii) Consolidated Income Tax Expense of such
Person for such period; plus (iii) the consolidated depreciation and
amortization expense deducted in determining the Consolidated Net
Income of such Person for such period; plus (iv) the aggregate amount
of letter of credit fees accrued during such period; plus (v) all
non-cash or non-recurring charges during such period, including charges
for costs related to acquisitions (it being understood that (x)
non-cash non-recurring charges shall not include accruals for closure
and post-closure liabilities and (y) charges shall be deemed non-cash
charges until the period during which cash disbursements attributable
to such charges are made, at which point such charges shall be deemed
cash charges; provided that, for purposes of this clause (y), the
Company shall be required to monitor the actual cash disbursements only
for those non-cash charges that exceed $1,000,000 individually or that
exceed $10,000,000 in the aggregate in any fiscal year); plus (vi) all
cash charges attributable to the execution, delivery and performance of
the Indenture (including the First, Second and Third Supplemental
Indentures) or the Bank Agreement; plus (vii) all non-recurring cash
charges related to acquisitions and financings (including amendments
thereto); and minus all non-cash non-recurring gains during such period
(to the extent included in determining net operating income from such
period); provided, however, that the Consolidated Interest Expense,
Consolidated Income Tax Expense and consolidated depreciation and
amortization expense of a Consolidated Subsidiary of such Person shall
be added to the Consolidated Net Income pursuant to the foregoing (x)
only to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that
the amount specified in Clause (x) is not subject to restrictions that
prevent the payment of dividends or the making of distributions of such
Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such
period to (ii) the sum of (A) Consolidated Interest Expense of such
Person for such period; plus (B) the annual interest expense (including
the amortization of debt discount) with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no
longer be outstanding as a result of the transaction with respect to
which the Consolidated EBITDA Coverage Ratio is being calculated, to
the extent included within Clause (ii)(A); provided, however, that in
making such computation, the Consolidated
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Interest Expense of such Person attributable to interest on any Debt
bearing a floating interest rate shall be computed on a pro forma basis
as if the rate in effect on the date of computation had been the
applicable rate for the entire period, and provided further, that, in
the event such Person or any of its Consolidated Subsidiaries has made
acquisitions or dispositions of assets not in the ordinary course of
business (including any other acquisitions of any other Persons by
merger, consolidation or purchase of Capital Stock) during or after
such period, the computation of the Consolidated EBITDA Coverage Ratio
(and for the purpose of such computation, the calculation of
Consolidated Net Income, Consolidated Interest Expense, Consolidated
Income Tax Expense and Consolidated EBITDA) shall be made on a pro
forma basis as if the acquisitions or dispositions had taken place on
the first day of such period. In determining the pro forma adjustments
to Consolidated EBITDA to be made with respect to any Acquired Business
for periods prior to the acquisition date thereof, actions taken by the
Company and its Restricted Subsidiaries prior to the first anniversary
of the related acquisition date that result in cost savings with
respect to such Acquired Business will be deemed to have been taken on
the first day of the period for which Consolidated EBITDA is being
determined (with the intent that such cost savings be effectively
annualized by extrapolation from the demonstrated cost savings since
the related acquisition date).
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and
its Consolidated Subsidiaries for such period determined in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" of any Person means for any period
the consolidated interest expense included in a consolidated income
statement (net of interest income) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of),
(i) the portion of any rental obligation in respect of any Capital
Lease Obligation allocable to interest expense in accordance with
generally accepted accounting principles; (ii) the amortization of Debt
discounts; (iii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities; (iv) the net amount
due and payable (or minus the net amount receivable), with respect to
any interest rate swap or similar agreement or foreign currency hedge,
exchange or similar agreement; (v) any Preferred Stock dividends
declared and paid or payable in cash; and (v) any interest capitalized
in accordance with generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles; provided that there shall be excluded
therefrom (a) for purposes solely of calculating Consolidated Net
Income for purposes of clause (3)(a) of the first paragraph of
subsection 13(e) of Section 1.01 of this Third Supplemental Indenture
the net income (or loss) of any Person acquired by such Person or a
Subsidiary of such Person in a pooling-of-interests transaction for any
period prior to the date of such transaction, to the extent such net
income was distributed to shareholders of such Person or used to
purchase equity securities of such Person prior to the date of such
transaction, (b) the net income (but not net loss) of any Consolidated
Subsidiary of such Person that is subject to restrictions that prevent
the payment of dividends or the making of distributions to such Person
to the extent of such restrictions,
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(c) the net income (or loss) of any Person that is not a Consolidated
Subsidiary of such Person except to the extent of the amount of
dividends or other distributions actually paid to such Person by such
other Person during such period, (d) gains or losses on asset
dispositions by such Person or its Consolidated Subsidiaries, (e) any
net income (loss) of a Consolidated Subsidiary that is attributable to
a minority interest in such Consolidated Subsidiary, (f) all
extraordinary gains and extraordinary losses that involve a present or
future cash payment, (g) all non-cash non-recurring charges during such
period, including charges for acquisition related costs (it being
understood that (A) non-cash recurring charges shall not include
accruals for closure and post closure liabilities and (B) charges,
other than charges for the accruals referred to in (A) above, shall be
deemed non-cash charges until the period that cash disbursements
attributable to such charges are made, at which point such charges
shall be deemed cash charges) and (h) the tax effect of any of the
items described in Clauses (a) through (g) above.
"Consolidated Subsidiaries" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's
financial statements in accordance with generally accepted accounting
principles; provided, however, that, for any particular period during
which any Subsidiary of such Person was an Unrestricted Subsidiary,
"Consolidated Subsidiaries" will exclude such Subsidiary for such
period (or portion thereof) during which it was an Unrestricted
Subsidiary.
"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted
Subsidiaries at such date as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Continuing Directors" means, as of any date of determination with
respect to any Person, any member of the Board of Directors of such
Person who:
(1) was a member of such Board of Directors on the Issue
Date; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Custodian" means the Trustee, as custodian with respect to the
Ten-Year Notes in global form, or any successor entity thereto.
"Definitive Note" means a certificated Ten-Year Note registered in
the name of the Holder thereof and issued in accordance with Section
2.02 of this Third Supplemental Indenture, substantially in the form of
Exhibit A hereto except that such Ten-Year Note shall not bear the
Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Ten-Year Notes issuable or
issued in whole or in part in global form, the Person specified in
Section 3.1(b) of the Indenture as the Depositary with respect to the
Ten-Year Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Third Supplemental Indenture.
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"Designated Noncash Consideration" means the fair market value of
non-cash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so
designated as Designated Noncash Consideration pursuant to an Officers'
Certificate, setting forth the basis of such valuation, executed by the
principal executive officer and the principal financial officer of the
Company, less the amount of cash or Cash Equivalents received in
connection with a sale of such Designated Noncash Consideration.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Excepted Disposition" means a transfer, conveyance, sale, lease
or other disposition by the Company or any Restricted Subsidiary of any
asset of the Company or any Restricted Subsidiary the fair market value
of which itself does not exceed 2.5% of Consolidated Total Assets of
the Company and which in the aggregate with all other assets disposed
of in Excepted Dispositions in any fiscal year does not exceed 5% of
Consolidated Total Assets of the Company.
"Exchange Notes" means the Ten-Year Notes issued in the Exchange
Offer pursuant to Section 2.02(f) of this Third Supplemental Indenture.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"First Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $300,000,000 of the Company's 7 3/8 Senior Notes
due 2004.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect
on the date hereof.
"Global Note Legend" means the legend set forth in Section
2.02(g)(ii), which is required to be placed on all Global Notes issued
under this Third Supplemental Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes,
substantially in the form of Exhibit A hereto issued in accordance with
Section 2.01, 2.02(b)(iv), 2.02(d)(ii) or 2.02(f) of this Third
Supplemental Indenture.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to
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advance or supply funds for the purchase of) any security for the
payment of such Debt, (ii) to purchase property, securities or services
for the purpose of assuring the holder of such Debt of the payment of
such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Debt (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing); provided, however, that the Guaranty by any Person shall
not include endorsements for such Person for collection or deposit, in
either case, in the ordinary course of business.
"Holder" means a Person in whose name a Ten-Year Note is
registered.
"IAI Global Note" means a Global Note bearing Private Placement
Legend and held by an Institutional Accredited Investor.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means the first $875,000,000 aggregate principal
amount of Ten-Year Notes issued under this Third Supplemental Indenture
on the date hereof.
"Initial Purchasers" means, with respect to the Ten-Year Notes,
Donaldson, Lufkin & Jenrette Securities Corporation, Goldman, Sachs &
Co., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., BT Alex. Brown Incorporated, CIBC Oppenheimer Corp.
and Salomon Smith Barney Inc.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who are not also QIBs.
"Intercompany Agreements" means the Management Agreements between
Allied and the Company dated November 15, 1996.
"Interest Rate or Currency Protection Agreement" of any Person
means any interest rate protection agreement (including, without
limitation, interest rate swaps, caps, floors, collars, derivative
instruments and similar agreements), and/or other types of interest
hedging agreements and any currency protection agreement (including
foreign exchange contracts, currency swap agreements or other currency
hedging arrangements).
"Investment" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or
capital contribution to or for the account of such other Person (by
means of any transfer of cash or other property to any Person or any
payment for property or services for the account or use of any Person,
or otherwise), (ii) any direct or indirect purchase or other
acquisition of any Capital Stock, bond, note, debenture or other debt
or equity security or evidence of Debt, or any other ownership
interest, issued by such other Person, whether or not such acquisition
is from such or any other Person, (iii) any direct or indirect payment
by such Person on a Guaranty of any obligation of or for the account of
such other Person or any direct or indirect issuance by
37
<PAGE> 38
such Person of such a Guaranty or (iv) any other investment of cash or
other property by such Person in or for the account of such other
Person.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Ten-Year Notes
for use by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title
exception, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Net Available Proceeds" from any Asset Disposition by any Person
that is the Company or any Restricted Subsidiary means cash or readily
marketable cash equivalent received (including by way of sale or
discounting of a note, installment receivable, or other receivable, but
excluding any other consideration received in the form of assumption by
the acquiree of Debt or other obligations relating to such properties
or assets or received in any other noncash form) therefrom by such
Person, net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments
made by such Person or its Restricted Subsidiaries on any Debt that is
secured by such assets in accordance with the terms of any Lien upon or
with respect to such assets or that must, by the terms of such Debt or
such Lien, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from
such Asset Disposition, (iii) amounts provided as a reserve by such
Person or its Restricted Subsidiaries, in accordance with generally
accepted accounting principles, against liabilities under any
indemnification obligations to the buyer in such Asset Disposition
(except to the extent and at the time any such amounts are released
from any such reserve, such amounts shall constitute Net Available
Proceeds) and (iv) all distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person or
joint ventures as a result of such Asset Disposition.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offer Document" has the meaning specified in the definition of
"Offer to Purchase."
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase."
"Offer to Purchase" means an offer, set forth in the Offer
Document sent by the Company by first class mail, postage prepaid, to
each Holder at his address appearing in the Ten-Year Note Register on
the date of the Offer Document, to purchase up to the principal amount
of Ten-Year Notes specified in such Offer Document at the purchase
price (the "Purchase Price") specified in such Offer Document (as
determined pursuant to this Third Supplemental Indenture). Unless
otherwise required by applicable law, the Offer Document shall specify
the Offer Expiration Date of the Offer to Purchase which shall be,
38
<PAGE> 39
subject to any contrary requirements of applicable law, not less than
30 days or more than 60 days after the date of such Offer Document and
the Purchase Date for the purchase of Ten-Year Notes within five
Business Days after the Offer Expiration Date. The Offer Document shall
be mailed by the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company. The Offer Document shall
contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual
and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" required to
be filed with the Trustee pursuant to subsection 13(i) of Section 1.01
of this Third Supplemental Indenture (which requirements may be
satisfied by delivery of such documents together with the Offer
Document), and (ii) any other information required by applicable law to
be included therein. The Offer Document shall contain all instructions
and materials necessary to enable such Holder to tender Securities
pursuant to the Offer to Purchase. The Offer Document shall also state:
(1) the Section of this Third Supplemental Indenture pursuant to
which the Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Ten-Year
Notes offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined as required by this Third Supplemental Indenture)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Ten-Year Notes accepted for payment (as
specified pursuant to this Third Supplemental Indenture);
(5) that the Holder may tender all or any portion of the Ten-Year
Notes registered in the name of such Holder and that any portion of a
Ten-Year Note tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Ten-Year Notes are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Ten-Year Note not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the purchase price will become due
and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date;
(9) that each Holder electing to tender a Ten-Year Note pursuant
to the Offer to Purchase will be required to surrender such Ten-Year
Note at the place or places specified in the Offer Document prior to
the close of business on the Offer Expiration Date (such Ten-Year Note
being, if the Company or the Trustee so requires, duly endorsed by, or
39
<PAGE> 40
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorize in writing and bearing appropriate signature
guarantees);
(10) that Holders will be entitled to withdraw all or any portion
of Ten-Year Notes tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Offer Expiration
Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Ten-Year Note the
Holder tendered and a statement that such Holder is withdrawing all or
a portion of his tender;
(11) that (a) if Ten-Year Notes in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Ten-Year Notes and (b) if Ten-Year Notes in an aggregate
principal amount in excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
Ten-Year Notes having an aggregate principal amount equal to the
Purchase Amount on a pro rata basis (with such adjustments as may be
deem appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Ten-Year Note is
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Ten-Year Note
without service charge, a new Ten-Year Note or Ten-Year Notes, of any
authorized denomination as requested by such Holder, in an aggregate
amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer Document for such Offer to Purchase.
"pari passu" when used with respect to the ranking of any debt of
any Person in relation to other Debt of such Person means that each
such Debt (a) either (i) is not subordinated in right of payment to any
other Debt of such Person or (ii) is subordinate in right of payment to
the same Debt of such Person as is the other Debt and is so subordinate
to the same extent and (b) is not subordinate in right of payment to
the other Debt or to any Debt of such Person as to which the other Debt
is not so subordinate.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include Euroclear
and Cedel).
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered
into with one or more financial institutions in the ordinary course of
business that is designed to protect such Person against fluctuations
in interest rates or currency exchange rates with respect to Debt
incurred and which shall have a notional amount no greater than the
payments due with respect to the Debt being hedged thereby.
"Permitted Investment" means (i) Investments in the Company or any
Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States
40
<PAGE> 41
of America or any agency or instrumentality thereof having maturities
of not more than one year, (iii) time deposits and certificates of
deposit, demand deposits and banker's acceptances having maturities of
not more than one year from the date of deposit, of any domestic
commercial bank having capital and surplus in excess of $500 million,
(iv) demand deposits made in the ordinary course of business and
consistent with the Company's customary cash management policy in any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof, (v) insured deposits
issued by commercial banks of the type described in Clause (iv) above,
(vi) mutual funds whose investment guidelines restrict such funds'
investments primarily to those satisfying the provisions of Clauses (i)
through (iii) above, (vii) repurchase obligations with a term of not
more than 90 days for underlying securities of the types described in
Clauses (ii) and (iii) above entered into with any bank meeting the
qualifications specified in Clause (iii) above, (viii) commercial paper
(other than commercial paper issued by an Affiliate or Related Person)
rated A-1 or the equivalent thereof by Standard & Poor's Ratings Group
or P-1 or the equivalent thereof by Moody's Investors Services, Inc.,
and in each case maturing within 360 days, (ix) receivables owing to
the Company or a Restricted Subsidiary of the Company if created or
acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms and extensions
of trade credit in the ordinary course of business, (x) any Investment
consisting of loans and advances to employees of the Company or any
Restricted Subsidiary for travel, entertainment, relocation or other
expenses in the ordinary course of business, (xi) any Investment
consisting of loans and advances by the Company or any Restricted
Subsidiary to employees, officers and directors of the Company or
Allied, in connection with management incentive plans not to exceed
$25,000,000 at any time outstanding; provided, however, that to the
extent the proceeds thereof are used to purchase Capital Stock (other
than Redeemable Interests) of (i) the Company from the Company or (ii)
Allied from Allied if Allied uses the proceeds thereof to acquire
Capital Stock (other than Redeemable Interests) of the Company, such
limitation on the amount of such Investments at any time outstanding
shall not apply with respect to such Investments, (xii) any Investment
consisting of a Permitted Interest Rate or Currency Protection
Agreement, (xiii) any Investment acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or
accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure
by the Company or any of its Restricted Subsidiaries with respect to
any secured Investment or other transfer of title with respect to any
secured Investment in default, (xiv) any Investment that constitutes
part of the consideration from any Asset Disposition made pursuant to,
and in compliance with, subsection 13(a) of Section 1.01 of this Third
Supplemental Indenture, (xv) Investments the payment for which consists
exclusively of Capital Stock (exclusive of Redeemable Interests) of the
Company, and (xvi) other Investments in an aggregate amount not to
exceed 15% of the Consolidated Total Assets of the Company outstanding
at any time.
"Permitted Liens" means (i) Liens securing indebtedness under the
Bank Agreement that was permitted by the terms of the Indenture to be
incurred or other Debt allowed to be incurred under clause (i) of
subsection 13(d) of Section 1.01 of this Third Supplemental Indenture;
(ii) Liens incurred after the date of the indentures securing Debt of
the Company that ranks pari passu in right of payment to the Ten-Year
Notes, if the Ten-Year Notes are secured equally and ratably with such
Debt; (iii) Liens in favor of the Company or any
41
<PAGE> 42
Restricted Subsidiary; (iv) Liens on property of, or shares of Stock or
evidences of Debt of, a Person existing at the time such Person is
merged into or consolidated with the Company or any Restricted
Subsidiary of the Company, provided that such Liens were not incurred
in contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated
with the Company or any Restricted Subsidiary; (v) Liens on property
existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were not
incurred in contemplation of such acquisition; (vi) Liens existing on
the date of the Third Supplemental Indenture; (vii) Liens for taxes,
assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that
any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (viii) Liens
securing Permitted Refinancing Debt where the Liens securing the
Permitted Refinancing Debt were permitted under the Indenture; (ix)
landlords', carriers', warehousemen's, mechanics', materialmen's,
repairmen's or the like Liens arising by contract or statute in the
ordinary course of business and with respect to amounts which are not
yet delinquent or are being contested in good faith by appropriate
proceedings; (x) pledges or deposits made in the ordinary course of
business (A) in connection with leases, performance bonds and similar
obligations, or (B) in connection with workers' compensation,
unemployment insurance and other social security legislation; (xi)
easements, rights-of-way, restrictions, minor defects or irregularities
in title and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (xii) any attachment or judgment
Lien that does not constitute an Event of Default; (xiii) Liens in
favor of the Trustee for its own benefit and for the benefit of the
Holders; (xiv) any interest or title of a lessor pursuant to a lease
constituting a Capital Lease Obligation; (xv) pledges or deposits made
in connection with acquisition agreements or letters of intent entered
into in respect of a proposed acquisition; (xvi) Liens in favor of
prior holders of leases on property acquired by the Company or of
sublessors under leases on the Company property; (xvii) Liens incurred
or deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, banker's acceptances, surety and
appeal bonds, government contracts, performance and return-of-money
bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment
of borrowed money); (xviii) Liens (including extensions and renewals
thereof) upon real or personal property acquired after the date of the
Third Supplemental Indenture; provided that (a) any such Lien is
created solely for the purpose of securing Debt incurred, in accordance
with subsection 13(d) of Section 1.01 of this Third Supplemental
Indenture (1) to finance the cost (including the cost of improvement or
construction) of the item, property or assets subject thereto and such
Lien is created prior to, at the time of or within three months after
the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Debt previously so secured, (b) the principal amount of the Debt
secured by such Lien does not exceed 100% of such cost and (c) any such
Lien shall not extend to or cover any property or asset other than such
item of property or assets and any improvements on such item; (xix)
leases or subleases granted to others that do not materially interfere
with the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xx) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xxi) Liens on
property of, or on shares of stock or Debt of, any Person existing at
the time such Person becomes, or
42
<PAGE> 43
becomes a part of, any Restricted Subsidiary, provided that such Liens
do not extend to or cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets acquired;
(xxii) Liens encumbering deposits securing Debt under Permitted
Interest Rate Currency or Commodity Price Agreements; (xxiii) Liens
arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of
business in accordance with the past practices of the Company and its
Restricted Subsidiaries; (xxiv) any renewal of or substitution of any
Liens permitted by any of the preceding clauses, provided that the Debt
secured is not increased (other than by the amount of any premium and
accrued interest, plus customary fees, consent payments, expenses and
costs related to such renewal or substitution of Liens or the
incurrence of any related refinancing of Debt) and the Liens are not
extended to any additional assets (other than proceeds and accessions);
(xxv) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $50 million at any one time outstanding and that (a)
are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Restricted
Subsidiary; and (xxvi) Liens on assets of Unrestricted Subsidiaries
that secure Non-Recourse Debt of Unrestricted Subsidiaries. This
covenant does not authorize the incurrence of any Debt not otherwise
permitted by subsection 13(d) of Section 1.01 of this Third
Supplemental Indenture.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends or as to
the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.02(g)(i) to be placed on all Ten-Year Notes issued under this Third
Supplemental Indenture except where otherwise permitted by the
provisions of this Third Supplemental Indenture.
"Public Offering" means any underwritten public offering of Common
Stock pursuant to a registration statement filed under the Securities
Act.
"Purchase Date" means a settlement for the purchase of Ten-Year
Notes within five Business Days after the Offer Expiration Date.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Reference Treasury Dealer", means 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.
"Refinancing Transactions" means the application of the proceeds
from the issuance and sale of the Ten-Year Notes as described in the
Offering Memorandum of the Company dated December 14, 1998 relating to
the Senior Notes.
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<PAGE> 44
"Registration Rights Agreement" means the Registration Rights
Agreement for the Ten-Year Notes, dated as of December 23, 1998, by and
among the Company and the other parties named on the signature pages
thereof, as such agreement may be amended, modified or supplemented
from time to time and, with respect to any Additional Notes, one or
more registration rights agreements between the Company and the other
parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company
to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a global Ten-Year Note bearing
the Private Placement Legend and deposited with or on behalf of the
Depositary and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of
the Ten-Year Notes initially sold in reliance on Rule 903 of Regulation
S.
"Related Business" means a business substantially similar to the
business engaged in by the Company and its Subsidiaries on the date of
this Third Supplemental Indenture.
"Related Person" of any Person means, without limitation, any
other Person owning (a) 5% or more of the outstanding Common Stock of
such Person or (b) 5% or more of the Voting Stock of such Person.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the 40-day restricted period as defined
in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Second Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $700,000,000 of the Company's 7 5/8 Senior Notes
due 2006.
"Senior Notes" means the Company's Ten-Year Notes, its 7 3/8%
Senior Notes due 2004 issued pursuant to the First Supplemental
Indenture and its 7 5/8% Senior Notes due 2006 issued pursuant to the
Company's Second Supplemental Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
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<PAGE> 45
"Special Interest" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Tender Offers" means the tender offers commenced by the Company
on November 24, 1998 to purchase for cash all of its outstanding 10.25%
Senior Subordinated Notes due 2006 and all of the outstanding 11.30%
Senior Discount Notes due 2007 of Allied.
"Ten-Year Notes" has the meaning assigned to it in the preamble to
this Indenture Supplement. The Initial Notes and the Additional Notes
shall be treated as a single class for all purposes under the
Indenture, as amended, modified, supplemented and superseded by this
Third Supplemental Indenture.
"Treasury Yield" means with respect to any Redemption Date, the
rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent global Ten-Year Note
substantially in the form of Exhibit A attached hereto that bears the
Global Note Legend and that has the "Schedule of Exchanges of Interests
in the Global Note" attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing a
series of Ten-Year Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) Allied Insurance unless Allied
Insurance shall have been designated a Restricted Subsidiary in
accordance with the provisions of subsection 13(j) of Section 1.01
hereof, (ii) at any date, a Subsidiary of the Company that is an
Unrestricted Subsidiary in accordance with the provisions of subsection
13(j) of Section 1.01 hereof and (iii) for any period, a Subsidiary of
the Company that for any portion of such period is an Unrestricted
Subsidiary in accordance with the provisions of subsection 13(j) of
Section 1.01 hereof provided that such term shall mean such Subsidiary
only for such portion of such period.
"Voting Stock" of any Person means Capital Stock of such Person
that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
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<PAGE> 46
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. DEFINITIONS. Capitalized terms used but not defined in
this Third Supplemental Indenture shall have the meanings ascribed thereto in
the Indenture.
SECTION 4.02. CONFIRMATION OF INDENTURE. The Indenture, as modified,
supplemented and superseded by this Third Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture and this Third Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
(References herein to the Indenture shall be deemed to be to the Indenture, as
modified, supplemented and superseded by this Third Supplemental Indenture.)
SECTION 4.03. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Third Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
SECTION 4.04. GOVERNING LAW. This Third Supplemental Indenture, the
Indenture and the Ten-Year Notes shall be governed by and construed in
accordance with the law of the State of New York without giving effect to any
provisions thereof relating to conflicts of law.
SECTION 4.05. SEPARABILITY. In case any provision in this Third
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 4.06. COUNTERPARTS. This Third Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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<PAGE> 47
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Thomas Rochford, Jr.
-------------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
Attest:
/s/ Jenny Apker
- -----------------------------
Name: Jenny Apker
Title: Assistant Secretary
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 15 of the Indenture
and as Guarantor of the Securities and as
Guarantor of the obligations of the Subsidiary
Guarantors under the Subsidiary Guarantees
By: /s/ G. Thomas Rochford, Jr.
-------------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
Attest:
/s/ illegible
- -----------------------------
Name:
Title:
<PAGE> 48
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
Attest*:
/s/ Jenny Apker
- -----------------------------
Name: Jenny Apker
Title: Assistant Secretary
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.
<PAGE> 49
EXHIBIT A
[Face of Note]
________________________________________________________________________________
CUSIP/CINS ____________
___7 7/8% SERIES A SENIOR NOTES DUE 2009
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of____________________________________________________________
Dollars on January 1, 2009.
Interest Payment Dates: January 1 and July 1, commencing July 1, 1999
Record Dates: December 15 and June 15
Dated: December 23, 1998
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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EXHIBIT A
[Back of Note]
7 7/8% SERIES A SENIOR NOTES DUE 2009
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Note Legend, if applicable, pursuant to the
provision of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 7 7/8% per annum from the date hereof until maturity and shall pay the
Special Interest, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and Special
Interest semi-annually in arrears on January 1 and July 1 of each year beginning
July 1, 1999, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 1, 1999. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 2% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest, if any, from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360 day year of
twelve 30 day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the December 15 or June
15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 3.7 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and Special Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Special Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium and Special
Interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent at
least 10 Business Days prior to the applicable payment date. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying
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EXHIBIT A
Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of December 23, 1998, as amended by the Third Supplemental Indenture dated as of
December 23, 1998 (together, the "Indenture"), each among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa 77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the indenture shall govern and be controlling. The Notes are
obligations of the Company limited to $300.0 million in aggregate principal
amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5,
the Company shall not have the option to redeem the Notes prior to the
final maturity of such Notes.
(b) (1) The Ten-Year Notes will not be subject to any redemption
at the option of the Company prior to January 1, 2004 except as set
forth in the following paragraphs. On or after January 1, 2004, the
Ten-Year Notes will be subject to redemption, in whole or in part, at
the option of the Company at any time prior to maturity, upon not less
than 30 nor more than 60 days' notice mailed to each Holder of Ten-Year
Notes to be redeemed at such Holder's address appearing in the
applicable Note Register, in amounts of $1,000 or an integral multiple
of $1,000, at the following Redemption Prices (expressed as percentages
of principal amount) plus accrued but unpaid interest (including
Special Interest) to but excluding the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to
receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the twelve-month period
beginning on January 1 of each of the years indicated below:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
<S> <C>
2004 .............. 103.9375%
2005 .............. 102.6250%
2006 .............. 101.3125%
2007 and thereafter 100.0000%
</TABLE>
(2) Prior to January 1, 2004, the Ten-Year Notes will be subject
to redemption, at the option of the Company, in whole or in part, at
any time, upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Ten-Year Notes to be redeemed at such Holder's address
appearing in the applicable Note Register, in amounts of $1,000 or an
integral multiple of $1,000, at a Redemption Price equal to the greater
of (i) 100% of their principal amount or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest
thereon discounted to maturity on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield
plus 50 basis points, plus in each case accrued but unpaid interest
(including Special Interest) to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant
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EXHIBIT A
Regular Record Date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date).
(3) At any time, or from time to time, prior to January 1, 2002,
up to 33 1/3% in aggregate principal amount of the Ten-Year Notes
originally issued under the Indenture will be redeemable, at the option
of the Company, from the net proceeds of one or more Public Offerings
of Capital Stock (other than Redeemable Interests) of Allied, at a
Redemption Price equal to 107.9% of the principal amount thereof,
together with accrued but unpaid interest (including Special Interest)
to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date); provided that
the notice of redemption with respect to any such redemption is mailed
within 30 days following the closing of the corresponding Public
Offering.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. The Indenture provides that, subject
to certain conditions, if (i) certain Net Available Proceeds are available to
the Company as a result of Asset Dispositions or (ii) a Change of Control
occurs, the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Securities.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the Guarantors and
the rights of the Holders of the Securities under the Indenture at any time by
the Company, the Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time.
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EXHIBIT A
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes when the same
becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise, (iii) failure by the Company to comply
with Sections 13(a), 13(d) or 13(e) of the Third Supplemental Indenture or
Article 7 of the Indenture (as superseded by subsection 15 of Section 1.01 of
the Third Supplemental Indenture); (iv) failure by the Company for 60 days after
notice to the Company or the Holders of at least 10% in principal amount of the
Notes (including Additional Notes, if any) then outstanding voting as a single
class to comply with certain other agreements in the Indenture and the Notes;
(v) default under certain other agreements relating to Debt of the Company which
default results in the acceleration of such Debt prior to its express maturity;
(vi) certain final judgments for the payment of money that remain undischarged
for a period of 60 days; and (vii) certain events of bankruptcy or insolvency
with respect to the Company or any of its Material Subsidiaries. If any Event of
Default (other than an Event of Default of the type described in clause (vii)
above) occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable without further action or notice; provided,
however, that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of
Outstanding Notes of such issue may, under certain circumstances, rescind and
annul such acceleration if all Events of Default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the Indenture.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=
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EXHIBIT A
joint tenants with right of survivorship and not as tenants in common), CUST
(=Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement relating to the Notes dated as of December 23, 1998, among the
Company, the Guarantors and the parties named on the signature pages thereof or,
in the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have the rights set forth in one or more
registration rights agreements, if any, between the Company and the other
parties thereto, relating to rights given by the Company to the purchasers of
any Additional Notes (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, AZ 85260
Attention: Treasurer
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EXHIBIT A
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:___________________
Your Signature:_______________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:___________________
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EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to subsection 13(a) or 13(b) of Section 1.01 of the Third Supplemental
Indenture, check the appropriate box below:
/ / Subsection 13(a) / / Subsection 13(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 13(a) or subsection 13(b) of Section 1.01 of the
Third Supplemental Indenture, state the amount you elect to have purchased:
$______________
Date:___________________
Your Signature:_______________________________
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:_______________________
Signature Guarantee:___________________
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<PAGE> 57
EXHIBIT A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
<TABLE>
Principal Amount of
Amount of decrease in Amount of increase in this Global Note Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee or
Date of Exchange this Global Note this Global Note decrease (or increase) Note Custodian
---------------- --------------------- --------------------- ---------------------- -----------------------
<S> <C> <C> <C> <C>
</TABLE>
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<PAGE> 58
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: 7 7/8% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Third Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the
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EXHIBIT B
Securities Act, (iii) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
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EXHIBIT B
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:_______________________
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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.
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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: 7 7/8% Senior Notes due 2009
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Third Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
<PAGE> 63
EXHIBIT C
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
<PAGE> 64
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:_______________________
C-3
<PAGE> 65
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: 7 7/8% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Third Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
<PAGE> 66
EXHIBIT D
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_________________________________________
[Insert Name of Accredited Investor]
By:______________________________________
Name:
Title:
Dated:_______________________
D-2
<PAGE> 67
SCHEDULE I
Subsidiary Guarantors
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- --------------------------------------------------------------------------------
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc. New York
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc. Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Transportation, Inc. Delaware
Americal Co. Michigan
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Transfer Company, Inc. New York
Anderson Regional Landfill, LLC Delaware
Anson County Landfill NC, LLC Delaware
A-1
<PAGE> 68
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation Delaware
AWIN Leasing Company, Inc. Delaware
AWIN Management, Inc. Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC Delaware
Brunswick Waste Management Facility, LLC Delaware
Butler County Landfill, LLC Delaware
Camelot Landfill TX, LP Delaware
CC Landfill, Inc. Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc. New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp. New York
Crow Landfill TX, LLC Delaware
Crow Landfill TX, L.P. Delaware
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C. Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
A-2
<PAGE> 69
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen Delaware
Draw Acquisition Company Twenty Two Delaware
Draw Acquisition Company Twenty Three Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
Ellis County Landfill TX, LLC Delaware
Ellis County Landfill TX, L.P. Delaware
Ellis Scott Landfill MO, LLC Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc. New York
Environmental Development Corporation Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc. New York
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
Evergreen Scavenger Service, Inc. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp. Delaware
Georgia Recycling Services, Inc. Delaware
Golden Eagle Disposals, Inc. New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc. Delaware
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
A-3
<PAGE> 70
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc. Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP Delaware
MCM Sanitation, Inc. New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc. Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
A-4
<PAGE> 71
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, L.L.C. Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibers, Inc. Washington
Paper Fibres Company Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC Delaware
Pine Hill Farms Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc. New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc. New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC Delaware
Southwest Waste, Inc. Missouri
A-5
<PAGE> 72
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc. New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc. Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation New York
A-6
<PAGE> 1
Exhibit 10.1
EXECUTION COPY
ALLIED WASTE NORTH AMERICA, INC.
$225,000,000
7 3/8% SENIOR NOTES DUE 2004
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 23, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BEAR STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
CIBC OPPENHEIMER CORP.
SALOMON SMITH BARNEY INC.
<PAGE> 2
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of December 23, 1998, by and among Allied Waste North America, Inc., a
Delaware corporation (the "COMPANY"), by each of the entities listed on Schedule
A hereto (each, a "GUARANTOR" and collectively, the "GUARANTORS"), and
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), Goldman, Sachs &
Co., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc.,
BT Alex. Brown Incorporated, CIBC Oppenheimer Corp. and Salomon Smith Barney
Inc. (each an "INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"),
each of whom has agreed to purchase the Company's 7 3/8% Series A Notes due 2004
(the "SERIES A NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated December
14, 1998, (the "PURCHASE AGREEMENT"), by and among the Company, the Guarantors
and the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Series A Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers under the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture Supplement, (the "INDENTURE
SUPPLEMENT") dated December 23, 1998 to the Indenture dated December 23, 1998,
among the Company, the Guarantors and U.S. Bank and Trust, N.A., as Trustee,
(the "TRUSTEE") relating to the Series A Notes and the Series B Notes (the "BASE
INDENTURE" and, together with the Indenture Supplement, the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the City of
New York, or in the city of the corporate trust office of the Trustee, on which
banks are authorized to close.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: As defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for purposes of
this Agreement upon the occurrence of (a) the filing and effectiveness under the
Act of the Exchange Offer Registration Statement relating to the Series B Notes
to be issued in the Exchange Offer, (b) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer open for
a period not less than the period required pursuant to Section 3(b) hereof and
(c) the delivery by the Company to the Registrar under the Indenture of Series B
1
<PAGE> 3
Notes in the same aggregate principal amount as the aggregate principal amount
of Series A Notes tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
ELECTING HOLDER: Any holder of Series A Notes that has supplied the
information requested by the Company in accordance with Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers propose to
sell the Series A Notes (i) to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, or (ii) outside the United States in
reliance upon Regulation S under the Securities Act to non-U.S. persons.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Series B Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) which is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
2
<PAGE> 4
SERIES B NOTES: The Company's 7 3/8% Series B Senior Notes due 2004 to be
issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in
effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Note, until the earliest
to occur of (i) the date on which such Series A Note is exchanged in the
Exchange Offer for a Series B Note which is entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (iii) the date on which
such Series A Note is distributed to the public pursuant to Rule 144 under the
Act and each (B) Series B Note held by a Broker Dealer until the date on which
such Series B Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company and the Guarantors shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 90 days after the Closing
Date (such 90th day being the "FILING DEADLINE"), (ii) use its best efforts to
cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the Closing
Date (such 180th day being the "EFFECTIVENESS DEADLINE"), (iii) in connection
with the foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Series B Notes to be offered
in exchange for the Series A Notes that are Transfer Restricted Securities and
(ii) resales of Series B Notes by Broker-Dealers that tendered into the Exchange
Offer Series A Notes that such Broker-Dealer acquired for its own account as a
3
<PAGE> 5
result of market making activities or other trading activities (other than
Series A Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their respective best efforts
to cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 30 days. The Company and the Guarantors shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. No securities
other than the Series B Notes shall be included in the Exchange Offer
Registration Statement. The Company and the Guarantors shall use their
respective best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 45 days thereafter (such 45th day
being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Notes received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Series B Notes by Broker-Dealers, the Company and the Guarantors agree to use
their respective best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 6(a) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of 90
days from the Consummation Deadline. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
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<PAGE> 6
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Company and the Guarantors have complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, then the Company and the Guarantors shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i) the
date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a)(ii) above,
(such earlier date, the "FILING DEADLINE"), a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "SHELF REGISTRATION STATEMENT")), relating to
all Transfer Restricted Securities, and
(y) use their respective best efforts to cause such Shelf Registration
Statement to become effective on or prior to 120 days after the Filing Deadline
for the Shelf Registration Statement (such 120th day, the "EFFECTIVENESS
DEADLINE").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use their respective best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act or such shorter period that will
terminate when all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are eligible for resale under Rule 144(k) of the Act.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a
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<PAGE> 7
request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to Special Interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. SPECIAL INTEREST
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated on or prior to the Consummation Deadline or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective (except as specifically
permitted herein) or fail to be usable 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 (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT" and each period during which a Registration Default has
occurred and is continuing, a "REGISTRATION DEFAULT PERIOD"), then the Company
and the Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Securities affected thereby liquidated damages as special
interest ("SPECIAL INTEREST") in an amount which shall accrue at a per annum
rate of 0.25% for the first 90 days of the Registration Default Period, at a per
annum rate of 0.50% for the second 90 days of the Registration Default Period,
at a per annum rate of 0.75% for the third 90 days of the Registration Default
Period and at a per annum rate of 1.0% thereafter for the remaining portion of
the Registration Default Period. Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above,
or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
Special Interest payable with respect to the Transfer Restricted Securities as a
result of such clause (i), (ii), (iii) or (iv), or (5) once the Transfer
Restricted Securities are eligible for resale under Rule 144(k) of the Act, as
applicable, shall cease (at which time the interest rate shall be restored to
its initial rate).
All accrued Special Interest shall be paid to the Holders entitled thereto,
in the manner provided for the payment of interest in the Indenture, on each
Interest Payment Date, as more fully set forth in the Indenture and the Notes.
Notwithstanding the fact that any securities for which Special Interest is due
cease to be Transfer Restricted Securities, all obligations of the Company and
the Guarantors to pay Special Interest with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.
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<PAGE> 8
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantors shall (x) use their respective best
efforts to effect such exchange and to permit the resale of Series B Notes by
Broker-Dealers that tendered in the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (y) comply with
all of the following provisions:
(i) If, following the date hereof there has been announced a change in
Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and the Guarantors hereby agree to seek
a no-action letter or other favorable decision from the Commission allowing
the Company and the Guarantors to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Company and the Guarantors hereby agree
to pursue the issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to effect a
change of Commission policy. In connection with the foregoing, the Company
and the Guarantors hereby agree to take all such other reasonable actions
as may be requested by the Commission or otherwise required in connection
with the issuance of such decision, including without limitation (A)
participating in telephonic conferences with the Commission, (B) delivering
to the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company,
(B) it 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 the Series B Notes to be issued in the Exchange Offer and
(C) it is acquiring the Series B Notes in its ordinary course of business.
As a condition to its participation in the Exchange Offer, each Holder
using the Exchange Offer to participate in a distribution of the Series B
Notes shall acknowledge and agree that, if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes acquired
directly from the Company or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement, rely on the
position of the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above),
7
<PAGE> 9
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall, if requested by the staff
of the Commission, provide a supplemental letter to the Commission (A)
stating that the Company and the Guarantors are registering the Exchange
Offer in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and
Co., Inc. (available June 5, 1991) as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has entered into
any arrangement or understanding with any Person to distribute the Series B
Notes to be received in the Exchange Offer and that, to the best of the
Company's and each Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(iv) to cause the Indenture to be qualified under the TIA not later
than the effective date of the Registration Statement and in connection
therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be
qualified in accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so qualified
in a timely manner.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, the Company and the Guarantors shall (i) comply with all the
provisions of Section 6(c) below and use their respective best efforts to effect
such registration to permit the sale of the Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof
(as indicated in the information furnished to the Company pursuant to Section
4(b) hereof), and pursuant thereto the Company and the Guarantors will prepare
and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof within the time periods
and otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Series A
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Notes having an aggregate principal amount equal to the
aggregate principal amount of Series A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for cancellation; the
Company shall register Series B Notes on the Shelf Registration Statement for
this purpose and issue the
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<PAGE> 10
Series B Notes to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall designate.
(c) General Shelf Provisions. In connection with any Shelf Registration
Statement and any related Prospectus required by this Agreement, the Company and
the Guarantors shall:
(i) use their respective best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the Guarantors shall
file promptly an appropriate amendment to such Registration Statement
curing such defect, and, if Commission review is required, use their
respective best efforts to cause such amendment to be declared effective as
soon as practicable. Notwithstanding the foregoing, the Company may suspend
the offering and sales under the Exchange Offer Registration Statement
subsequent to the Consummation of the Exchange Offer or the Shelf
Registration Statement for up to 60 days in each year during which such
Exchange Offer Registration Statement is required to be effective and
usable hereunder subsequent to the Consummation of the Exchange Offer or
such Shelf Registration Statement is required to be effective and usable
hereunder (measured from the date of effectiveness of such Shelf
Registration Statement to successive anniversaries thereof) if (A) either
(y)(I) the Company shall be engaged in a material acquisition or
disposition and (II)(aa) such acquisition or disposition is required to be
disclosed in the Exchange Offer Registration Statement or the Shelf
Registration Statement, the related Prospectus or any amendment or
supplement thereto, or the failure by the Company to disclose such
transaction in the Exchange Offer Registration Statement or the Shelf
Registration Statement or related Prospectus, or any amendment or
supplement thereto, as then amended or supplemented, would cause such
Exchange Offer Registration Statement or Shelf Registration Statement,
Prospectus or amendment or supplement thereto, to contain an untrue
statement of material fact or omit to state a material fact necessary in
order to make the statement therein not misleading, in light of the
circumstances under which they were made, (bb) information regarding the
existence of such acquisition or disposition has not then been publicly
disclosed by or on behalf of the Company and (cc) a majority of the Board
of Directors of the Company determines in the exercise of its good faith
judgment that disclosure of such acquisition or disposition would not be in
the best interest of the Company or would have a material adverse effect on
the consummation of such acquisition or disposition or (z) a majority of
the Board of Directors of the Company determines in the exercise of its
good faith judgment that compliance with the disclosure obligations set
forth in this Section 6(c)(i) would otherwise have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and (B) the
Company notifies the Holders within two business days after such Board of
Directors makes the relevant determination set forth in clause (A);
provided, however, that in each such case the applicable period specified
in Section 3 (subsequent to the Consummation of the Exchange Offer) and
Section 4 hereof during which the applicable Exchange Offer Registration
Statement or Shelf Registration
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<PAGE> 11
Statement is required to be kept effective and usable shall be extended by
the number of days during which such effectiveness was suspended pursuant
to the foregoing and Special Interest shall not apply during any period the
Company is permitted to suspend offerings and sales under this sentence;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such Holder,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company and the Guarantors shall use their respective best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make
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<PAGE> 12
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(v) furnish to each Holder, who shall certify to the Company that they
have a present intention to sell Transfer Restricted Securities in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders in connection with such
sale, if any, for a period of at least five Business Days, and the Company
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Holders shall reasonably object within five Business Days after the receipt
thereof;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Holder in connection with such
exchange or sale, if any, make the Company's and the Guarantors'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably
request;
(vii) make available, at reasonable times, for inspection by each
Holder and any attorney or accountant retained by such Holders who shall
certify to the Company that they have a current intention to sell the
Transfer Restricted Securities, all financial and other records, pertinent
corporate documents of the Company and the Guarantors and cause the
Company's and the Guarantors' officers, directors and employees to supply
all information reasonably requested by any such Holder, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior
to its effectiveness, in the reasonable judgment of counsel for the
Company, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records designated by the Company in
writing as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), or (B) such person shall be
required, or shall deem it advisable, so to disclose such information
pursuant to the subpoena or order of any court or other governmental agency
or body having jurisdiction over the matter (subject to the requirement of
such order, and only after such person shall have given the Company prompt
prior written notice thereof), or (C) such information is required to be
set forth in such registration statement or the prospectus included therein
or in an amendment to such registration statement or an amendment or
supplement to such prospectus in order that such registration statement,
prospectus, amendment or supplement, as the case may be, does not contain
an untrue statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
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<PAGE> 13
(viii) if requested by any Holders in connection with such exchange or
sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such exchange or sale,
without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including, at the
request of such Holder, all documents incorporated by reference therein and
all exhibits (including, at the request of such Holder, exhibits
incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company and
the Guarantors hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each selling Holder
in connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) upon the request of any Holder, enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any applicable Registration Statement contemplated
by this Agreement as may be reasonably requested by any Holder in
connection with any sale or resale pursuant to any applicable Registration
Statement. In such connection, the Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in the case of paragraphs
(2) and (3), use its best efforts to cause to be furnished) to each Holder:
upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf of the
Company and each Guarantor by (x) the President or any Vice President
and (y) a principal financial or accounting officer of the Company and
such Guarantor, confirming, as of the date thereof, the matters set
forth in Sections 6(y), 9(a) and 9(b) of the Purchase Agreement and
such other similar matters as such Holder may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company and the
Guarantors covering matters similar to those set forth in Exhibit A of
the Purchase Agreement and such other matters as such Holder may
reasonably request, including the last
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<PAGE> 14
paragraph of Exhibit A relating to the Registration Statement or the
Exchange Offer Registration Statement, as the case may be; and
(3) a customary comfort letter, dated the date of Consummation of
the Exchange Offer, or as of the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the Company's
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section 9(g) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with the matters
covered in clause (A) above and with any customary conditions contained
in any agreement entered into by the Company and the Guarantors pursuant
to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that neither the Company nor any Guarantor shall be
required to register or qualify as a foreign corporation where it is not
now so qualified but for the requirements of this clause (xii) or to take
any action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject,
or make any changes to their respective certificates of incorporation or
by-laws or any agreement between the Company and its stockholders or the
Guarantors and their stockholders;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale
of Transfer Restricted Securities;
(xiv) use their respective best efforts to cause the disposition of
the Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not
later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Trustee under the Indenture
with printed certificates for the Transfer
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<PAGE> 15
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use their respective best efforts to comply with
all applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xviii) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing
14
<PAGE> 16
fees and expenses; (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Series B Notes to be issued in the
Exchange Offer and printing of Prospectuses), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company, the
Guarantors and the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Series B Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance). Notwithstanding the foregoing, the Holders of Transfer
Restricted Securities being registered shall pay all agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Transfer Restricted Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Series B Notes or registered Series A Notes, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as (x) such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Holders furnished
in writing to the Company by any of the Holders or (y) such losses, claims,
damages, liabilities or judgments are caused by any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Final Offering Memorandum, as
so amended or supplemented.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Act or
15
<PAGE> 17
Section 20 of the Exchange Act) the Company, or the Guarantors to the same
extent as the foregoing indemnity from the Company and the Guarantors set forth
in section (a) above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder expressly for use in
any Registration Statement. In case any action or proceeding shall be brought
against the Company, the Guarantors or any of their directors or officers or any
such controlling person in respect of which indemnity may be sought against a
Holder of Transfer Restricted Securities, such Holder shall have the rights and
duties given the Company and the Guarantors pursuant to this Section 8; and the
Company and the Guarantors, such directors or officers or such controlling
person shall have the right and duties given to each Holder pursuant to this
Section 8. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such reasonable fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by a
majority of the Holders, in the case of the parties indemnified pursuant to
Section 8(a), and by the Company and Guarantors, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be
obligated to indemnify and hold harmless any indemnified party from and against
any losses, claims, damages, liabilities and judgments by reason of any
settlement
16
<PAGE> 18
of any action effected without the indemnifying party's written consent. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, from their sale
of Transfer Restricted Securities or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company and the Guarantors, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or such Guarantor, on the one hand, or by the Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and each Holder agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid
17
<PAGE> 19
by such Holder for such Transfer Restricted Securities and (ii) the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(c) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
SECTION 9. UNDERWRITTEN OFFERING
(a) Selection of Underwriters. If any of the Transfer Restricted Securities
covered by the Shelf Registration Statement are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by the Company.
(b) Participation by Holders. Each holder of Transfer Restricted Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, under writing agreements and other documents reasonably
required under the terms of such underwriting arrangements.
SECTION 10. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the Company or such Guarantor (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that any
failure by the Company and the Guarantors to comply with their respective
obligations under Sections 3 and 4 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
Company's and the Guarantor's obligations under Sections 3 and 4 hereof. The
Company and the Guarantors further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
18
<PAGE> 20
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor will,
on or after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. Neither the
Company nor any Guarantor has previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's and the
Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Guarantors:
15880 North Greenway-Hayden
Loop, Suite 100
Scottsdale, Arizona 85260
Telecopier No.: (602) 627-2703
Attention: Steve Helm, Esq.
19
<PAGE> 21
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Telecopier No.: (212) 859-8586
Attention: David C. Golay
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and
20
<PAGE> 22
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
21
<PAGE> 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Thomas Rochford, Jr.
----------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
By: /s/ G. Thomas Rochford, Jr.
----------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ G. Thomas Rochford, Jr.
----------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written by
Donaldson, Lufkin & Jenrette Securities Corporation on
behalf of the Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ William J. R. Wilson
----------------------------------------
Name: William J. R. Wilson
Title: Vice President
<PAGE> 24
SCHEDULE A
GUARANTORS
Parent Guarantor
<TABLE>
<CAPTION>
NAME OF PARENT GUARANTOR STATE OF ORGANIZATION
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
Allied Waste Industries, Inc. Delaware
</TABLE>
Subsidiary Guarantors
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C.* Delaware
Allied Nova Scotia, Inc.* Delaware
Allied Services, LLC* Delaware
Allied Waste Company, Inc.* Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc.* New York
Allied Waste Landfill Holdings, Inc.* Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc.* New York
Allied Waste of New Jersey, LLC* Delaware
Allied Waste Rural Sanitation, Inc.* Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc.* Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc.* Delaware
Allied Waste Transportation, Inc.* Delaware
Americal Co. Michigan
American Disposal Services, Inc.* Delaware
American Disposal Services of Illinois, Inc.* Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc.* Delaware
</TABLE>
A-1
<PAGE> 25
<TABLE>
<S> <C>
American Disposal Services of West Virginia, Inc.* Delaware
American Disposal Transfer Services of Illinois, Inc.* Delaware
American Transfer Company, Inc.* New York
Anderson Regional Landfill, LLC* Delaware
Anson County Landfill NC, LLC* Delaware
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation* Delaware
AWIN Leasing Company, Inc.* Delaware
AWIN Management, Inc.* Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC* Delaware
Brunswick Waste Management Facility, LLC* Delaware
Butler County Landfill, LLC* Delaware
Camelot Landfill TX, LP* Delaware
CC Landfill, Inc.* Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc.* New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc.* Delaware
County Disposal (Ohio), Inc.* Delaware
County Landfill, Inc.* Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp.* New York
Crow Landfill TX, LLC* Delaware
Crow Landfill TX, L.P.* Delaware
</TABLE>
A-2
<PAGE> 26
<TABLE>
<S> <C>
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C.* Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen* Delaware
Draw Acquisition Company Twenty Two* Delaware
Draw Acquisition Company Twenty Three* Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc.* Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc.* Delaware
Ellis County Landfill TX, LLC* Delaware
Ellis County Landfill TX, L.P.* Delaware
Ellis Scott Landfill MO, LLC* Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc.* New York
Environmental Development Corporation* Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc.* New York
Envotech-Illinois, L.L.C.* Delaware
Environtech, Inc.* Delaware
Evergreen Scavenger Service, Inc.* Delaware
Evergreen Scavenger Service, L.L.C.* Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP* Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp.* Delaware
Georgia Recycling Services, Inc.* Delaware
Golden Eagle Disposals, Inc.* New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc.* Delaware
</TABLE>
A-3
<PAGE> 27
<TABLE>
<S> <C>
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC* Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC* Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc.* Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC* Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC* Delaware
Liberty Waste Holdings, Inc.* Delaware
Liberty Waste Services Limited, L.L.C.* Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C.* Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP* Delaware
MCM Sanitation, Inc.* New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc.* Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC* Delaware
Northeast Sanitary Landfill, Inc. South Carolina
</TABLE>
A-4
<PAGE> 28
<TABLE>
<S> <C>
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc.* Delaware
Packerton Land Company, L.L.C.* Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibres Company Washington
Paper Fibers, Inc. Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC* Delaware
Pine Hill Farms Landfill TX, LP* Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP* Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc.* New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc.* New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD* New York
</TABLE>
A-5
<PAGE> 29
<TABLE>
<S> <C>
Show-Me Landfill, LLC* Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC* Delaware
Southwest Waste, Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc.* Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc.* New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP* Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc.* New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc.* Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation* New York
</TABLE>
A-6
<PAGE> 1
Exhibit 10.2
EXECUTION COPY
ALLIED WASTE NORTH AMERICA, INC.
-----------------------------
$600,000,000
7 5/8% SENIOR NOTES DUE 2006
-----------------------------
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 23, 1998
-----------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BEAR STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
CIBC OPPENHEIMER CORP.
SALOMON SMITH BARNEY INC.
<PAGE> 2
This Registration Rights Agreement (this "AGREEMENT") is made and entered into
as of December 23, 1998, by and among Allied Waste North America, Inc., a
Delaware corporation (the "COMPANY"), by each of the entities listed on Schedule
A hereto (each, a "GUARANTOR" and collectively, the "GUARANTORS"), and
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), Goldman, Sachs &
Co., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc.,
BT Alex. Brown Incorporated, CIBC Oppenheimer Corp. and Salomon Smith Barney
Inc. (each an "INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"),
each of whom has agreed to purchase the Company's 75/8% Series A Notes due 2006
(the "SERIES A NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 14, 1998, (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers under
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture Supplement, (the
"INDENTURE SUPPLEMENT") dated December 23, 1998 to the Indenture dated December
23, 1998, among the Company, the Guarantors and U.S. Bank and Trust, N.A., as
Trustee, (the "TRUSTEE") relating to the Series A Notes and the Series B Notes
(the "BASE INDENTURE" and, together with the Indenture Supplement, the
"INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: As defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Series B
1
<PAGE> 3
Notes in the same aggregate principal amount as the aggregate principal amount
of Series A Notes tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
ELECTING HOLDER: Any holder of Series A Notes that has supplied the
information requested by the Company in accordance with Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Series A Notes (i) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, or (ii) outside the
United States in reliance upon Regulation S under the Securities Act to non-U.S.
persons.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Series B Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) which
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
2
<PAGE> 4
SERIES B NOTES: The Company's 7 5/8% Series B Senior Notes due 2006 to
be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Note, until the
earliest to occur of (i) the date on which such Series A Note is exchanged in
the Exchange Offer for a Series B Note which is entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (iii) the date on which
such Series A Note is distributed to the public pursuant to Rule 144 under the
Act and each (B) Series B Note held by a Broker Dealer until the date on which
such Series B Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company and the Guarantors shall (i) cause the Exchange
Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90 days after the
Closing Date (such 90th day being the "FILING DEADLINE"), (ii) use its best
efforts to cause such Exchange Offer Registration Statement to become effective
at the earliest possible time, but in no event later than 180 days after the
Closing Date (such 180th day being the "EFFECTIVENESS DEADLINE"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Series B Notes to be offered
in exchange for the Series A Notes that are Transfer Restricted Securities and
(ii) resales of Series B Notes by Broker-Dealers that tendered into the Exchange
Offer Series A Notes that such Broker-Dealer acquired for its own account as a
3
<PAGE> 5
result of market making activities or other trading activities (other than
Series A Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their respective best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 30 days. The Company and the Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Series B Notes shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors shall use their
respective best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 45 days thereafter (such 45th day
being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Notes received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Series B Notes by Broker-Dealers, the Company and the Guarantors agree to use
their respective best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 6(a) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of 90
days from the Consummation Deadline. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
4
<PAGE> 6
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Company and the Guarantors have complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, then the Company and the Guarantors shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a)(ii) above,
(such earlier date, the "FILING DEADLINE"), a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "SHELF REGISTRATION STATEMENT")), relating to
all Transfer Restricted Securities, and
(y) use their respective best efforts to cause such Shelf Registration
Statement to become effective on or prior to 120 days after the Filing Deadline
for the Shelf Registration Statement (such 120th day, the "EFFECTIVENESS
DEADLINE").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) above), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above;
provided that, in such event, the Company shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use their respective best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act or such shorter period that will
terminate when all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are eligible for resale under Rule 144(k) of the Act.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request
5
<PAGE> 7
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to Special Interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. SPECIAL INTEREST
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective (except as
specifically permitted herein) or fail to be usable 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 (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT" and each period during which a Registration Default has
occurred and is continuing, a "REGISTRATION DEFAULT PERIOD"), then the Company
and the Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Securities affected thereby liquidated damages as special
interest ("SPECIAL INTEREST") in an amount which shall accrue at a per annum
rate of 0.25% for the first 90 days of the Registration Default Period, at a per
annum rate of 0.50% for the second 90 days of the Registration Default Period,
at a per annum rate of 0.75% for the third 90 days of the Registration Default
Period and at a per annum rate of 1.0% thereafter for the remaining portion of
the Registration Default Period. Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above,
or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
Special Interest payable with respect to the Transfer Restricted Securities as a
result of such clause (i), (ii), (iii) or (iv), or (5) once the Transfer
Restricted Services are eligible for resale under Rule 144(k) of the Act, as
applicable, shall cease (at which time the interest rate shall be restored to
its initial rate).
All accrued Special Interest shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which Special Interest
is due cease to be Transfer Restricted Securities, all obligations of the
Company and the Guarantors to pay Special Interest with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
6
<PAGE> 8
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall (x) use their respective
best efforts to effect such exchange and to permit the resale of Series B Notes
by Broker-Dealers that tendered in the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (y) comply with
all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company and the Guarantors
hereby agree to seek a no-action letter or other favorable decision
from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Transfer Restricted Securities.
The Company and the Guarantors hereby agree to pursue the issuance of
such a decision to the Commission staff level but shall not be required
to take commercially unreasonable action to effect a change of
Commission policy. In connection with the foregoing, the Company and
the Guarantors hereby agree to take all such other reasonable actions
as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company and the
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an Affiliate of the Company, (B) it 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 the
Series B Notes to be issued in the Exchange Offer and (C) it is
acquiring the Series B Notes in its ordinary course of business. As a
condition to its participation in the Exchange Offer, each Holder using
the Exchange Offer to participate in a distribution of the Series B
Notes shall acknowledge and agree that, if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes acquired
directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan Stanley and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale
7
<PAGE> 9
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall, if
requested by the staff of the Commission, provide a supplemental letter
to the Commission (A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that
neither the Company nor any Guarantor has entered into any arrangement
or understanding with any Person to distribute the Series B Notes to be
received in the Exchange Offer and that, to the best of the Company's
and each Guarantor's information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(iv) to cause the Indenture to be qualified under the TIA not
later than the effective date of the Registration Statement and in
connection therewith, cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for such
Indenture to be qualified in accordance with the terms of the TIA; and
execute and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall (i) comply with all
the provisions of Section 6(c) below and use their respective best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof), and pursuant thereto the Company and the
Guarantors will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of
Series A Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Notes having an aggregate principal amount equal to the
aggregate principal amount of Series A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for cancellation; the
Company shall register Series B Notes on the Shelf Registration Statement for
this purpose and issue the Series B Notes to the purchaser(s) of securities
subject to the Shelf Registration Statement in the names as such purchaser(s)
shall designate.
8
<PAGE> 10
(c) General Shelf Provisions. In connection with any Shelf Registration
Statement and any related Prospectus required by this Agreement, the Company and
the Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an appropriate amendment
to such Registration Statement curing such defect, and, if Commission
review is required, use their respective best efforts to cause such
amendment to be declared effective as soon as practicable.
Notwithstanding the foregoing, the Company may suspend the offering and
sales under the Exchange Offer Registration Statement subsequent to the
Consummation of the Exchange Offer or the Shelf Registration Statement
for up to 60 days in each year during which such Exchange Offer
Registration Statement is required to be effective and usable hereunder
subsequent to the Consummation of the Exchange Offer or such Shelf
Registration Statement is required to be effective and usable hereunder
(measured from the date of effectiveness of such Shelf Registration
Statement to successive anniversaries thereof) if (A) either (y)(I) the
Company shall be engaged in a material acquisition or disposition and
(II)(aa) such acquisition or disposition is required to be disclosed in
the Exchange Offer Registration Statement or the Shelf Registration
Statement, the related Prospectus or any amendment or supplement
thereto, or the failure by the Company to disclose such transaction in
the Exchange Offer Registration Statement or the Shelf Registration
Statement or related Prospectus, or any amendment or supplement
thereto, as then amended or supplemented, would cause such Exchange
Offer Registration Statement or Shelf Registration Statement,
Prospectus or amendment or supplement thereto, to contain an untrue
statement of material fact or omit to state a material fact necessary
in order to make the statement therein not misleading, in light of the
circumstances under which they were made, (bb) information regarding
the existence of such acquisition or disposition has not then been
publicly disclosed by or on behalf of the Company and (cc) a majority
of the Board of Directors of the Company determines in the exercise of
its good faith judgment that disclosure of such acquisition or
disposition would not be in the best interest of the Company or would
have a material adverse effect on the consummation of such acquisition
or disposition or (z) a majority of the Board of Directors of the
Company determines in the exercise of its good faith judgment that
compliance with the disclosure obligations set forth in this Section
6(c)(i) would otherwise have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and (B) the Company notifies
the Holders within two business days after such Board of Directors
makes the relevant determination set forth in clause (A); provided,
however, that in each such case the applicable period specified in
Section 3 (subsequent to the Consummation of the Exchange Offer) and
Section 4 hereof during which the applicable Exchange Offer
Registration Statement or Shelf Registration Statement is required to
be kept effective and usable shall be extended by the number of days
during which such effectiveness was suspended pursuant to the foregoing
and Special Interest shall not apply during any period the Company is
permitted to suspend offerings and sales under this sentence;
9
<PAGE> 11
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the Guarantors
shall use their respective best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder, who shall certify to the Company
that they have a present intention to sell Transfer Restricted
Securities in connection with such exchange or sale, if any, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration
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Statement or Prospectus (including all documents incorporated by
reference after the initial filing of such Registration Statement),
which documents will be subject to the review and comment of such
Holders in connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Holders shall reasonably
object within five Business Days after the receipt thereof;
(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Company's and
the Guarantors' representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
Holders may reasonably request;
(vii) make available, at reasonable times, for inspection by
each Holder and any attorney or accountant retained by such Holders who
shall certify to the Company that they have a current intention to sell
the Transfer Restricted Securities, all financial and other records,
pertinent corporate documents of the Company and the Guarantors and
cause the Company's and the Guarantors' officers, directors and
employees to supply all information reasonably requested by any such
Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness, in the reasonable
judgment of counsel for the Company, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information
or records designated by the Company in writing as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required, or shall
deem it advisable, so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirement of such
order, and only after such person shall have given the Company prompt
prior written notice thereof), or (C) such information is required to
be set forth in such registration statement or the prospectus included
therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such
registration statement, prospectus, amendment or supplement, as the
case may be, does not contain an untrue statement of a material fact or
omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(viii) if requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the
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<PAGE> 13
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such exchange
or sale, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including, at the request of such Holder, all documents
incorporated by reference therein and all exhibits (including, at the
request of such Holder, exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company and the Guarantors hereby consent to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3), use its best efforts to cause to be
furnished) to each Holder: upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf of
the Company and each Guarantor by (x) the President or any
Vice President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as of
the date thereof, the matters set forth in Sections 6(y), 9(a)
and 9(b) of the Purchase Agreement and such other similar
matters as such Holder may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Guarantors covering matters similar to those
set forth in Exhibit A of the Purchase Agreement and such
other matters as such Holder may reasonably request, including
the last paragraph of Exhibit A relating to the Registration
Statement or the Exchange Offer Registration Statement, as the
case may be; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
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<PAGE> 14
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 9(g) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any
customary conditions contained in any agreement entered into by
the Company and the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that neither
the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified but for the
requirements of this clause (xii) or to take any action that would
subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject, or make
any changes to their respective certificates of incorporation or
by-laws or any agreement between the Company and its stockholders or
the Guarantors and their stockholders;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use their respective best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
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<PAGE> 15
(xvii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xviii)provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company, the Guarantors and the Holders of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Series B Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance). Notwithstanding
the foregoing, the Holders of Transfer Restricted Securities being registered
shall pay all agency fees and
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<PAGE> 16
commissions and underwriting discounts and commissions attributable to the sale
of such Transfer Restricted Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Series B Notes or registered Series A Notes, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as (x) such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Holders furnished
in writing to the Company by any of the Holders or (y) such losses, claims,
damages, liabilities or judgments are caused by any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Final Offering Memorandum, as
so amended or supplemented.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company, or the Guarantors to the same extent as the foregoing indemnity
from the Company and the Guarantors set forth in section (a) above, but only
with reference to information relating to such Holder furnished in writing to
the Company by such Holder expressly for use in any Registration Statement. In
case any action or proceeding shall be brought against the Company, the
Guarantors or any of their directors or officers or any such controlling person
in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the
Company and the Guarantors pursuant to this Section 8; and the Company and the
Guarantors, such directors or officers or such controlling person shall have the
rights and duties given to each Holder pursuant to this Section 8. In no event
shall any Holder, its directors, officers or any Person who controls such Holder
be liable or responsible for any amount in excess of the amount by which the
total amount
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<PAGE> 17
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, officers or any Person who controls
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such reasonable fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by a
majority of the Holders, in the case of the parties indemnified pursuant to
Section 8(a), and by the Company and Guarantors, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be
obligated to indemnify and hold harmless any indemnified party from and against
any losses, claims, damages, liabilities and judgments by reason of any
settlement of any action effected without the indemnifying party's written
consent. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section
8 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to
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<PAGE> 18
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or judgments (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors, on the one hand, and the Holders, on the other
hand, from their sale of Transfer Restricted Securities or (ii) if the
allocation provided by clause 8(d)(i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Company
and the Guarantors, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors,
on the one hand, and of the Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such Guarantor, on the one
hand, or by the Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and judgments referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
SECTION 9. UNDERWRITTEN OFFERING
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement are to be sold pursuant
to an underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the Company.
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<PAGE> 19
(b) Participation by Holders. Each holder of Transfer Restricted
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, under writing agreements and other documents
reasonably required under the terms of such underwriting arrangements.
SECTION 10. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which the Company or such Guarantor (i) is not subject to Section 13 or 15(d) of
the Exchange Act, to make available, upon request of any Holder, to such Holder
or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby
in a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company and the Guarantors to comply with their respective
obligations under Sections 3 and 4 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
Company's and the Guarantor's obligations under Sections 3 and 4 hereof. The
Company and the Guarantors further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer
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<PAGE> 20
Restricted Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does not
affect directly or indirectly the rights of other Holders whose Transfer
Restricted Securities are not being tendered pursuant to such Exchange Offer,
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or the Guarantors:
15880 North Greenway - Hayden
Loop, Suite 100
Scottsdale, Arizona 85260
Telecopier No.: (602) 627-2703
Attention: Steve Helm, Esq.
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Telecopier No.: (212) 859-8586
Attention: David C. Golay
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
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(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
20
<PAGE> 22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Thomas Rochford, Jr.
-----------------------------
Name:
Title:
ALLIED WASTE INDUSTRIES, INC.
By: /s/ G. Thomas Rochford, Jr.
-----------------------------
Name:
Title:
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ G. Thomas Rochford, Jr.
-----------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written by Donaldson, Lufkin & Jenrette
Securities Corporation on behalf of the
Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ William J.R. Wilson
-------------------------
Name: William J.R. Wilson
Title: Vice President
<PAGE> 23
SCHEDULE A
GUARANTORS
Parent Guarantor
NAME OF PARENT GUARANTOR STATE OF ORGANIZATION
- --------------------------------------------------------------------------------
Allied Waste Industries, Inc. Delaware
Subsidiary Guarantors
- --------------------------------------------------------------------------------
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C.* Delaware
Allied Nova Scotia, Inc.* Delaware
Allied Services, LLC* Delaware
Allied Waste Company, Inc.* Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc.* New York
Allied Waste Landfill Holdings, Inc.* Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc.* New York
Allied Waste of New Jersey, LLC* Delaware
Allied Waste Rural Sanitation, Inc.* Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc.* Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc.* Delaware
Allied Waste Transportation, Inc.* Delaware
Americal Co. Michigan
American Disposal Services, Inc.* Delaware
American Disposal Services of Illinois, Inc.* Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc.* Delaware
A-1
<PAGE> 24
American Disposal Services of West Virginia, Inc.* Delaware
American Disposal Transfer Services of Illinois, Inc.* Delaware
American Transfer Company, Inc.* New York
Anderson Regional Landfill, LLC* Delaware
Anson County Landfill NC, LLC* Delaware
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation* Delaware
AWIN Leasing Company, Inc.* Delaware
AWIN Management, Inc.* Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC* Delaware
Brunswick Waste Management Facility, LLC* Delaware
Butler County Landfill, LLC* Delaware
Camelot Landfill TX, LP* Delaware
CC Landfill, Inc.* Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc.* New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc.* Delaware
County Disposal (Ohio), Inc.* Delaware
County Landfill, Inc.* Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp.* New York
Crow Landfill TX, LLC* Delaware
Crow Landfill TX, L.P.* Delaware
A-2
<PAGE> 25
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C.* Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen* Delaware
Draw Acquisition Company Twenty Two* Delaware
Draw Acquisition Company Twenty Three* Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc.* Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc.* Delaware
Ellis County Landfill TX, LLC* Delaware
Ellis County Landfill TX, L.P.* Delaware
Ellis Scott Landfill MO, LLC* Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc.* New York
Environmental Development Corporation* Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc.* New York
Envotech-Illinois, L.L.C.* Delaware
Environtech, Inc.* Delaware
Evergreen Scavenger Service, Inc.* Delaware
Evergreen Scavenger Service, L.L.C.* Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP* Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp.* Delaware
Georgia Recycling Services, Inc.* Delaware
Golden Eagle Disposals, Inc.* New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc.* Delaware
A-3
<PAGE> 26
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC* Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC* Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc.* Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC* Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC* Delaware
Liberty Waste Holdings, Inc.* Delaware
Liberty Waste Services Limited, L.L.C.* Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C.* Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP* Delaware
MCM Sanitation, Inc.* New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc.* Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC* Delaware
Northeast Sanitary Landfill, Inc. South Carolina
A-4
<PAGE> 27
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc.* Delaware
Packerton Land Company, L.L.C.* Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibres Company Washington
Paper Fibers, Inc. Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC* Delaware
Pine Hill Farms Landfill TX, LP* Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP* Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc.* New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc.* New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD* New York
A-5
<PAGE> 28
Show-Me Landfill, LLC* Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC* Delaware
Southwest Waste, Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc.* Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc.* New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP* Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc.* New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc.* Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation* New York
A-6
<PAGE> 1
Exhibit 10.3
EXECUTION COPY
ALLIED WASTE NORTH AMERICA, INC.
-----------------------------
$875,000,000
7 7/8% SENIOR NOTES DUE 2009
-----------------------------
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 23, 1998
-----------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BEAR STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
CIBC OPPENHEIMER CORP.
SALOMON SMITH BARNEY INC.
<PAGE> 2
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of December 23, 1998, by and among Allied Waste North America,
Inc., a Delaware corporation (the "COMPANY"), by each of the entities listed on
Schedule A hereto (each, a "GUARANTOR" and collectively, the "GUARANTORS"), and
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), Goldman, Sachs &
Co., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc.,
BT Alex. Brown Incorporated, CIBC Oppenheimer Corp. and Salomon Smith Barney
Inc. (each an "INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"),
each of whom has agreed to purchase the Company's 7 7/8% Series A Notes due 2009
(the "SERIES A NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 14, 1998, (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers under
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture Supplement, (the
"INDENTURE SUPPLEMENT") dated December 23, 1998 to the Indenture dated December
23, 1998, among the Company, the Guarantors and U.S. Bank and Trust, N.A., as
Trustee, (the "TRUSTEE") relating to the Series A Notes and the Series B Notes
(the "BASE INDENTURE" and, together with the Indenture Supplement, the
"INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: As defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b)
1
<PAGE> 3
hereof and (c) the delivery by the Company to the Registrar under the Indenture
of Series B Notes in the same aggregate principal amount as the aggregate
principal amount of Series A Notes tendered by Holders thereof pursuant to the
Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
ELECTING HOLDER: Any holder of Series A Notes that has supplied the
information requested by the Company in accordance with Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Series A Notes (i) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, or (ii) outside the
United States in reliance upon Regulation S under the Securities Act to non-U.S.
persons.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Series B Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) which
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
REGULATION S: Regulation S promulgated under the Act.
2
<PAGE> 4
RULE 144: Rule 144 promulgated under the Act.
SERIES B NOTES: The Company's 7 7/8% Series B Senior Notes due 2009 to
be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Note, until the
earliest to occur of (i) the date on which such Series A Note is exchanged in
the Exchange Offer for a Series B Note which is entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (iii) the date on which
such Series A Note is distributed to the public pursuant to Rule 144 under the
Act and each (B) Series B Note held by a Broker Dealer until the date on which
such Series B Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company and the Guarantors shall (i) cause the Exchange
Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90 days after the
Closing Date (such 90th day being the "FILING DEADLINE"), (ii) use its best
efforts to cause such Exchange Offer Registration Statement to become effective
at the earliest possible time, but in no event later than 180 days after the
Closing Date (such 180th day being the "EFFECTIVENESS DEADLINE"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Series B Notes to be offered
in exchange for the Series A Notes that are Transfer Restricted Securities and
(ii) resales of Series B Notes by Broker-Dealers that tendered
3
<PAGE> 5
into the Exchange Offer Series A Notes that such Broker-Dealer acquired for its
own account as a result of market making activities or other trading activities
(other than Series A Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their respective best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 30 days. The Company and the Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Series B Notes shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors shall use their
respective best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 45 days thereafter (such 45th day
being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Notes received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Series B Notes by Broker-Dealers, the Company and the Guarantors agree to use
their respective best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 6(a) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of 90
days from the Consummation Deadline. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
4
<PAGE> 6
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Company and the Guarantors have complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, then the Company and the Guarantors shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a)(ii) above,
(such earlier date, the "FILING DEADLINE"), a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "SHELF REGISTRATION STATEMENT")), relating to
all Transfer Restricted Securities, and
(y) use their respective best efforts to cause such Shelf Registration
Statement to become effective on or prior to 120 days after the Filing Deadline
for the Shelf Registration Statement (such 120th day, the "EFFECTIVENESS
DEADLINE").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) above), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above;
provided that, in such event, the Company shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use their respective best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act or such shorter period that will
terminate when all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are eligible for resale under Rule 144(k) of the Act.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a
5
<PAGE> 7
request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to Special Interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. SPECIAL INTEREST
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective (except as
specifically permitted herein) or fail to be usable 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 (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT" and each period during which a Registration Default has
occurred and is continuing, a "REGISTRATION DEFAULT PERIOD"), then the Company
and the Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Securities affected thereby liquidated damages as special
interest ("SPECIAL INTEREST") in an amount which shall accrue at a per annum
rate of 0.25% for the first 90 days of the Registration Default Period, at a per
annum rate of 0.50% for the second 90 days of the Registration Default Period,
at a per annum rate of 0.75% for the third 90 days of the Registration Default
Period and at a per annum rate of 1.0% thereafter for the remaining portion of
the Registration Default Period. Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above,
or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
Special Interest payable with respect to the Transfer Restricted Securities as a
result of such clause (i), (ii), (iii) or (iv), or (5) once the Transfer
Restricted Securities are eligible for resale under Rule 144(k) of the Act, as
applicable, shall cease (at which time the interest rate shall be restored to
its initial rate).
All accrued Special Interest shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which Special Interest
is due cease to be Transfer Restricted Securities, all obligations of the
Company and the Guarantors to pay Special Interest with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
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<PAGE> 8
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall (x) use their respective
best efforts to effect such exchange and to permit the resale of Series B Notes
by Broker-Dealers that tendered in the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (y) comply with
all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company and the Guarantors
hereby agree to seek a no-action letter or other favorable decision
from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Transfer Restricted Securities.
The Company and the Guarantors hereby agree to pursue the issuance of
such a decision to the Commission staff level but shall not be required
to take commercially unreasonable action to effect a change of
Commission policy. In connection with the foregoing, the Company and
the Guarantors hereby agree to take all such other reasonable actions
as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company and the
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an Affiliate of the Company, (B) it 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 the
Series B Notes to be issued in the Exchange Offer and (C) it is
acquiring the Series B Notes in its ordinary course of business. As a
condition to its participation in the Exchange Offer, each Holder using
the Exchange Offer to participate in a distribution of the Series B
Notes shall acknowledge and agree that, if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes acquired
directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan Stanley and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above),
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<PAGE> 9
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable,
of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall, if
requested by the staff of the Commission, provide a supplemental letter
to the Commission (A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that
neither the Company nor any Guarantor has entered into any arrangement
or understanding with any Person to distribute the Series B Notes to be
received in the Exchange Offer and that, to the best of the Company's
and each Guarantor's information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(iv) to cause the Indenture to be qualified under the TIA not
later than the effective date of the Registration Statement and in
connection therewith, cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for such
Indenture to be qualified in accordance with the terms of the TIA; and
execute and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall (i) comply with all
the provisions of Section 6(c) below and use their respective best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof), and pursuant thereto the Company and the
Guarantors will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of
Series A Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Notes having an aggregate principal amount equal to the
aggregate principal amount of Series A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for cancellation; the
Company shall register Series B Notes on the Shelf Registration Statement for
this purpose and issue the
8
<PAGE> 10
Series B Notes to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall designate.
(c) General Shelf Provisions. In connection with any Shelf Registration
Statement and any related Prospectus required by this Agreement, the Company and
the Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an appropriate amendment
to such Registration Statement curing such defect, and, if Commission
review is required, use their respective best efforts to cause such
amendment to be declared effective as soon as practicable.
Notwithstanding the foregoing, the Company may suspend the offering and
sales under the Exchange Offer Registration Statement subsequent to the
Consummation of the Exchange Offer or the Shelf Registration Statement
for up to 60 days in each year during which such Exchange Offer
Registration Statement is required to be effective and usable hereunder
subsequent to the Consummation of the Exchange Offer or such Shelf
Registration Statement is required to be effective and usable hereunder
(measured from the date of effectiveness of such Shelf Registration
Statement to successive anniversaries thereof) if (A) either (y)(I) the
Company shall be engaged in a material acquisition or disposition and
(II)(aa) such acquisition or disposition is required to be disclosed in
the Exchange Offer Registration Statement or the Shelf Registration
Statement, the related Prospectus or any amendment or supplement
thereto, or the failure by the Company to disclose such transaction in
the Exchange Offer Registration Statement or the Shelf Registration
Statement or related Prospectus, or any amendment or supplement
thereto, as then amended or supplemented, would cause such Exchange
Offer Registration Statement or Shelf Registration Statement,
Prospectus or amendment or supplement thereto, to contain an untrue
statement of material fact or omit to state a material fact necessary
in order to make the statement therein not misleading, in light of the
circumstances under which they were made, (bb) information regarding
the existence of such acquisition or disposition has not then been
publicly disclosed by or on behalf of the Company and (cc) a majority
of the Board of Directors of the Company determines in the exercise of
its good faith judgment that disclosure of such acquisition or
disposition would not be in the best interest of the Company or would
have a material adverse effect on the consummation of such acquisition
or disposition or (z) a majority of the Board of Directors of the
Company determines in the exercise of its good faith judgment that
compliance with the disclosure obligations set forth in this Section
6(c)(i) would otherwise have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and (B) the Company notifies
the Holders within two business days after such Board of Directors
makes the relevant determination set forth in clause (A); provided,
however, that in each such case the applicable period specified in
Section 3 (subsequent to the Consummation of the Exchange Offer) and
Section 4 hereof during which the applicable Exchange Offer
Registration Statement or Shelf Registration
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<PAGE> 11
Statement is required to be kept effective and usable shall be extended
by the number of days during which such effectiveness was suspended
pursuant to the foregoing and Special Interest shall not apply during
any period the Company is permitted to suspend offerings and sales
under this sentence;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the Guarantors
shall use their respective best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make
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<PAGE> 12
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(v) furnish to each Holder, who shall certify to the Company
that they have a present intention to sell Transfer Restricted
Securities in connection with such exchange or sale, if any, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment
of such Holders in connection with such sale, if any, for a period of
at least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders shall
reasonably object within five Business Days after the receipt thereof;
(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Company's and
the Guarantors' representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
Holders may reasonably request;
(vii) make available, at reasonable times, for inspection by
each Holder and any attorney or accountant retained by such Holders who
shall certify to the Company that they have a current intention to sell
the Transfer Restricted Securities, all financial and other records,
pertinent corporate documents of the Company and the Guarantors and
cause the Company's and the Guarantors' officers, directors and
employees to supply all information reasonably requested by any such
Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness, in the reasonable
judgment of counsel for the Company, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information
or records designated by the Company in writing as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required, or shall
deem it advisable, so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirement of such
order, and only after such person shall have given the Company prompt
prior written notice thereof), or (C) such information is required to
be set forth in such registration statement or the prospectus included
therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such
registration statement, prospectus, amendment or supplement, as the
case may be, does not contain an untrue statement of a material fact or
omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
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<PAGE> 13
(viii) if requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(ix) furnish to each Holder in connection with such exchange
or sale, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including, at the request of such Holder, all documents
incorporated by reference therein and all exhibits (including, at the
request of such Holder, exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company and the Guarantors hereby consent to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3), use its best efforts to cause to be
furnished) to each Holder: upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf of
the Company and each Guarantor by (x) the President or any
Vice President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as of
the date thereof, the matters set forth in Sections 6(y), 9(a)
and 9(b) of the Purchase Agreement and such other similar
matters as such Holder may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Guarantors covering matters similar to those
set forth in Exhibit A of the Purchase Agreement and such
other matters as such Holder may reasonably request, including
the last
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<PAGE> 14
paragraph of Exhibit A relating to the Registration Statement
or the Exchange Offer Registration Statement, as the case may
be; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 9(g) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any
customary conditions contained in any agreement entered into by
the Company and the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that neither
the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified but for the
requirements of this clause (xii) or to take any action that would
subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject, or make
any changes to their respective certificates of incorporation or
by-laws or any agreement between the Company and its stockholders or
the Guarantors and their stockholders;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed certificates for the Transfer
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<PAGE> 15
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use their respective best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xviii)provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing
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<PAGE> 16
fees and expenses; (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Series B Notes to be issued in the
Exchange Offer and printing of Prospectuses), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company, the
Guarantors and the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Series B Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance). Notwithstanding the foregoing, the Holders of Transfer
Restricted Securities being registered shall pay all agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Transfer Restricted Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Series B Notes or registered Series A Notes, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as (x) such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Holders furnished
in writing to the Company by any of the Holders or (y) such losses, claims,
damages, liabilities or judgments are caused by any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Final Offering Memorandum, as
so amended or supplemented.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Act or
15
<PAGE> 17
Section 20 of the Exchange Act) the Company, or the Guarantors to the same
extent as the foregoing indemnity from the Company and the Guarantors set forth
in section (a) above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder expressly for use in
any Registration Statement. In case any action or proceeding shall be brought
against the Company, the Guarantors or any of their directors or officers or any
such controlling person in respect of which indemnity may be sought against a
Holder of Transfer Restricted Securities, such Holder shall have the rights and
duties given the Company and the Guarantors pursuant to this Section 8; and the
Company and the Guarantors, such directors or officers or such controlling
person shall have the rights and duties given to each Holder pursuant to this
Section 8. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such reasonable fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by a
majority of the Holders, in the case of the parties indemnified pursuant to
Section 8(a), and by the Company and Guarantors, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be
obligated to indemnify and hold harmless any indemnified party from and against
any losses, claims, damages, liabilities and judgments by reason of any
settlement
16
<PAGE> 18
of any action effected without the indemnifying party's written consent. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section
8 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, from their sale
of Transfer Restricted Securities or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company and the Guarantors, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or such Guarantor, on the one hand, or by the Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid
17
<PAGE> 19
by such Holder for such Transfer Restricted Securities and (ii) the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(c) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
SECTION 9. UNDERWRITTEN OFFERING
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement are to be sold pursuant
to an underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the Company.
(b) Participation by Holders. Each holder of Transfer Restricted
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, under writing agreements and other documents
reasonably required under the terms of such underwriting arrangements.
SECTION 10. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which the Company or such Guarantor (i) is not subject to Section 13 or 15(d) of
the Exchange Act, to make available, upon request of any Holder, to such Holder
or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby
in a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company and the Guarantors to comply with their respective
obligations under Sections 3 and 4 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
Company's and the Guarantor's obligations under Sections 3 and 4 hereof. The
Company and the Guarantors further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
18
<PAGE> 20
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or the Guarantors:
15880 North Greenway - Hayden
Loop, Suite 100
Scottsdale, Arizona 85260
Telecopier No.: (602) 627-2703
Attention: Steve Helm, Esq.
19
<PAGE> 21
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Telecopier No.: (212) 859-8586
Attention: David C. Golay
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and
20
<PAGE> 22
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
21
<PAGE> 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Thomas Rochford, Jr.
---------------------------------
Name:
Title:
ALLIED WASTE INDUSTRIES, INC.
By: /s/ G. Thomas Rochford, Jr.
---------------------------------
Name:
Title:
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ G. Thomas Rochford, Jr.
---------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written by Donaldson, Lufkin & Jenrette
Securities Corporation on behalf of the
Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ William J.R. Wilson
-------------------------
Name: William J.R. Wilson
Title: Vice President
<PAGE> 24
SCHEDULE A
GUARANTORS
Parent Guarantor
NAME OF PARENT GUARANTOR STATE OF ORGANIZATION
- --------------------------------------------------------------------------------
Allied Waste Industries, Inc. Delaware
Subsidiary Guarantors
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- --------------------------------------------------------------------------------
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C.* Delaware
Allied Nova Scotia, Inc.* Delaware
Allied Services, LLC* Delaware
Allied Waste Company, Inc.* Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc.* New York
Allied Waste Landfill Holdings, Inc.* Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc.* New York
Allied Waste of New Jersey, LLC* Delaware
Allied Waste Rural Sanitation, Inc.* Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc.* Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc.* Delaware
Allied Waste Transportation, Inc.* Delaware
Americal Co. Michigan
American Disposal Services, Inc.* Delaware
American Disposal Services of Illinois, Inc.* Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc.* Delaware
A-1
<PAGE> 25
American Disposal Services of West Virginia, Inc.* Delaware
American Disposal Transfer Services of Illinois, Inc.* Delaware
American Transfer Company, Inc.* New York
Anderson Regional Landfill, LLC* Delaware
Anson County Landfill NC, LLC* Delaware
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation* Delaware
AWIN Leasing Company, Inc.* Delaware
AWIN Management, Inc.* Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC* Delaware
Brunswick Waste Management Facility, LLC* Delaware
Butler County Landfill, LLC* Delaware
Camelot Landfill TX, LP* Delaware
CC Landfill, Inc.* Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc.* New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc.* Delaware
County Disposal (Ohio), Inc.* Delaware
County Landfill, Inc.* Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp.* New York
Crow Landfill TX, LLC* Delaware
Crow Landfill TX, L.P.* Delaware
A-2
<PAGE> 26
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C.* Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen* Delaware
Draw Acquisition Company Twenty Two* Delaware
Draw Acquisition Company Twenty Three* Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc.* Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc.* Delaware
Ellis County Landfill TX, LLC* Delaware
Ellis County Landfill TX, L.P.* Delaware
Ellis Scott Landfill MO, LLC* Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc.* New York
Environmental Development Corporation* Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc.* New York
Envotech-Illinois, L.L.C.* Delaware
Environtech, Inc.* Delaware
Evergreen Scavenger Service, Inc.* Delaware
Evergreen Scavenger Service, L.L.C.* Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP* Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp.* Delaware
Georgia Recycling Services, Inc.* Delaware
Golden Eagle Disposals, Inc.* New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc.* Delaware
A-3
<PAGE> 27
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC* Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC* Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc.* Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC* Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC* Delaware
Liberty Waste Holdings, Inc.* Delaware
Liberty Waste Services Limited, L.L.C.* Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C.* Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP* Delaware
MCM Sanitation, Inc.* New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc.* Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC* Delaware
Northeast Sanitary Landfill, Inc. South Carolina
A-4
<PAGE> 28
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc.* Delaware
Packerton Land Company, L.L.C.* Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibres Company Washington
Paper Fibers, Inc. Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC* Delaware
Pine Hill Farms Landfill TX, LP* Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP* Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc.* New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc.* New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD* New York
A-5
<PAGE> 29
Show-Me Landfill, LLC* Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC* Delaware
Southwest Waste, Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc.* Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc.* New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP* Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc.* New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc.* Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation* New York
A-6
<PAGE> 1
Exhibit 10.4
EXECUTION COPY
ALLIED WASTE NORTH AMERICA, INC.
EACH ENTITY LISTED ON SCHEDULE A, AS GUARANTORS
$225,000,000 7 3/8% Series A Senior Notes due 2004
$600,000,000 7 5/8% Series A Senior Notes due 2006
$875,000,000 7 7/8% Series A Senior Notes due 2009
Purchase Agreement
December 14, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
CIBC OPPENHEIMER CORP.
SALOMON SMITH BARNEY INC.
<PAGE> 2
$225,000,000 7 3/8% SERIES A SENIOR NOTES DUE 2004
$600,000,000 7 5/8% SERIES A SENIOR NOTES DUE 2006
$875,000,000 7 7/8% SERIES A SENIOR NOTES DUE 2009
OF ALLIED WASTE NORTH AMERICA, INC.
PURCHASE AGREEMENT
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
CIBC OPPENHEIMER CORP.
SALOMON SMITH BARNEY INC.
c/o Donaldson, Lufkin & Jenrette
277 Park Avenue
New York, New York 10172
Dear Sirs:
Allied Waste North America, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ") and Goldman, Sachs & Co., Credit Suisse First Boston
Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley
& Co. Incorporated, Bear, Stearns & Co. Inc., BT Alex. Brown Incorporated, CIBC
Oppenheimer Corp. and Salomon Smith Barney Inc. (each an "INITIAL PURCHASER"
and, collectively, the "INITIAL PURCHASERS") $225,000,000 in principal amount of
its 7 3/8% Series A Senior Notes due 2004 (the "FIVE YEAR SERIES A NOTES"),
$600,000,000 in principal amount of its 7 5/8% Series A Senior Notes due 2006
(the "SEVEN YEAR SERIES A NOTES"), and $875,000,000 in principal amount of its
7 7/8% Series A Senior Notes due 2009 (the "TEN YEAR SERIES A NOTES", and,
together with the Five Year Series A Notes and the Seven Year Series A Notes
(the "SERIES A NOTES"), subject to the terms and conditions set forth herein.
The Five Year Series A Notes are to be issued pursuant to a Series Supplement
(the "FIVE YEAR SERIES A SUPPLEMENT") to an indenture (the "BASE INDENTURE")
among the Company, the Guarantors (as defined below) and U.S. Bank and Trust,
N.A. (the "TRUSTEE"). The Seven Year Series A Notes are to be issued pursuant to
the provisions of a Series Supplement (the "SEVEN YEAR SERIES A SUPPLEMENT") to
the Base Indenture, to be dated as of the Closing Date (as defined below), among
the Company, the Guarantors (as defined below) and
<PAGE> 3
the Trustee. The Ten Year Series A Notes are to be issued pursuant to the
provisions of a Series Supplement to the Base Indenture (the "TEN YEAR SERIES A
SUPPLEMENT" and, collectively with the Five Year Series A Supplement, the Seven
Year Series A Supplement and the Base Indenture the "INDENTURE"), to be dated as
of the Closing Date (as defined below), among the Company, the Guarantors (as
defined below) and the Trustee. The Series A Notes and the Series B Notes (as
defined below) issuable in exchange therefor are collectively referred to herein
as the "NOTES." The Notes will be guaranteed (the "GUARANTEES") by each of the
entities listed on Schedule A, hereto (each, a "GUARANTOR" and collectively the
"GUARANTORS").
1. OFFERING MEMORANDUM. The Series A Notes will be offered and sold to
the Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Company and the Guarantors have prepared a preliminary offering memorandum,
dated December 4, 1998 (the "PRELIMINARY OFFERING MEMORANDUM") and a final
offering memorandum, dated December 14, 1998 (the "OFFERING MEMORANDUM"),
relating to the Series A Notes and the Guarantees.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indentures, the Series A Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (the "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 (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (as
defined in Rule 144A under the Act)(a "QIB"), (ii) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(as defined in Rule 501(A)(1), (2), (3) OR (7) of Regulation D under
the Act (an "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) 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, (iii) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (v) 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
2
<PAGE> 4
obtained from the Trustee) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE ACT, (vi) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (vii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained herein, the Company agrees to issue and sell to the
Initial Purchasers, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, (i) the principal amounts of Five Year
Series A Notes set forth opposite the name of such Initial Purchaser on Schedule
C hereto at a purchase price equal to 97.753% of the principal amount thereof
(the "FIVE YEAR PURCHASE PRICE"), (ii) the principal amounts of Seven Year
Series A Notes set forth opposite the name of such Initial Purchaser on Schedule
C hereto at a purchase price equal to 97.900% of the principal amount thereof
(the "SEVEN YEAR PURCHASE PRICE") and (iii) the principal amounts of Ten Year
Series A Notes set forth opposite the name of such Initial Purchaser on Schedule
C hereto at a purchase price equal to 97.726% of the principal amount thereof
(the "TEN YEAR PURCHASE PRICE", and, together with the Five Year Purchase Price
and the Seven Year Purchase Price, the "PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchasers have advised the Company
that the Initial Purchasers will make offers (the "EXEMPT RESALES") of the
Series A Notes purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchaser reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBS"), and (ii) persons permitted to purchase the
Series A Notes in offshore transactions in reliance upon Regulation S under the
Act (each, a "REGULATION S PURCHASER") (such persons specified in clauses (i)
and (ii) being referred to herein as the "ELIGIBLE PURCHASERS"). The Initial
Purchasers will offer (i) the Five Year Series A Notes to Eligible Purchasers
initially at a price equal to 99.853% of the principal amount thereof, (ii) the
Seven Year Series A Notes to Eligible Purchasers initially at a price equal to
100.00% of the principal amount thereof and (iii) the Ten Year Series A Notes to
3
<PAGE> 5
Eligible Purchasers initially at a price equal to 99.826% of the principal
amount thereof. Such prices may be changed at any time without notice.
Holders (including subsequent transferees) of the Series A Notes will have
the registration rights set forth in the registration rights agreements (the
"REGISTRATION RIGHTS AGREEMENTS"), to be dated the Closing Date, in
substantially the form of Exhibit A hereto, for so long as such Series A Notes
constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the Registration
Rights Agreements). Pursuant to the Registration Rights Agreements, the Company
and the Guarantors will agree to file with the Securities and Exchange
Commission (the "COMMISSION") under the circumstances set forth therein, (i) a
registration statement under the Act (the "FIVE YEAR SERIES B NOTE EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Company's 7 3/8% Series B Senior
Notes due 2004 (the "FIVE YEAR SERIES B NOTES"), to be offered in exchange for
the Five Year Series A Notes (such offer to exchange being referred to as the
"FIVE YEAR SERIES B EXCHANGE OFFER") and the Guarantees thereof, (ii) a
registration statement under the Act (the "SEVEN YEAR SERIES B NOTE EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Company's 7 5/8% Series B Senior
Notes due 2006 (the "SEVEN YEAR SERIES B NOTES"), to be offered in exchange for
the Seven Year Series A Notes (such offer to exchange being referred to as the
"SEVEN YEAR SERIES B EXCHANGE OFFER") and the Guarantees thereof, (iii) a
registration statement under the Act (the "TEN YEAR SERIES B NOTE EXCHANGE OFFER
REGISTRATION STATEMENT"), and together with the Seven Year Series B Note
Exchange Offer Registration Statement, the "EXCHANGE OFFER REGISTRATION
STATEMENTS") relating to the Company's 7 7/8% Series B Senior Notes due 2009
(the "TEN YEAR SERIES B NOTES", and together with the Five Year Series B Notes
and the Seven Year Series B Notes, the "SERIES B NOTES"), to be offered in
exchange for the Series A Notes (such offer to exchange being referred to as the
"TEN YEAR SERIES B NOTE EXCHANGE OFFER"), and the Guarantees thereof and, if
required (iv) a shelf registration statement for each series of Series A Notes
pursuant to Rule 415 under the Act (the "SHELF REGISTRATION STATEMENTS" and,
together with the Exchange Offer Registration Statements, the "REGISTRATION
STATEMENTS") relating to the resale by certain holders of the Series A Notes and
to use its best efforts to cause such Registration Statements to be declared and
remain effective and usable for the periods specified in the Registration Rights
Agreements and to consummate the Exchange Offers. This Agreement, the Indenture,
the Notes, the Guarantees and the Registration Rights Agreements are hereinafter
sometimes referred to collectively as the "OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the Series A
Notes shall be made at the offices of Latham & Watkins or such other location as
may be mutually acceptable. Such delivery and payment shall be made at 9:00 a.m.
New York City time, on December 23, 1998 or at such other time on the same date
or such other date as shall be agreed upon by the Initial Purchasers and the
Company in writing. The time and date of such delivery and the payment for the
Series A Notes are herein called the "CLOSING DATE."
(b) One or more of each series of the Series A Notes in definitive
global form, registered in the name of Cede & Co., as nominee of the Depository
Trust Company
4
<PAGE> 6
("DTC"), having an aggregate principal amount corresponding to the aggregate
principal amount of the Series A Notes (collectively, the "GLOBAL NOTES"), shall
be delivered by the Company to the Initial Purchasers (or as the Initial
Purchasers direct) in each case with any transfer taxes thereon duly paid by the
Company against payment by the Initial Purchasers of the Purchase Price thereof
by wire transfer in same day funds to the order of the Company. The Global Notes
shall be made available to the Initial Purchasers for inspection not later than
9:30 a.m., New York City time, on the business day immediately preceding the
Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the Company
and the Guarantors hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested
by the Initial Purchasers, confirm such advice in writing, (i) of the issuance
by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Notes for offering
or sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Preliminary
Offering Memorandum or the Offering Memorandum untrue or that requires any
additions to or changes in the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein not misleading. The Company
and the Guarantors shall use their best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of any Series A
Notes under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of any Series A Notes under
any state securities or Blue Sky laws, the Company and the Guarantors shall use
their best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchasers may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchasers'
compliance with its representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Series A
Notes are outstanding, (i) not to make any amendment or supplement to the
Offering Memorandum of which the Initial Purchasers shall not previously have
been advised or to which the Initial Purchasers shall reasonably object after
being so advised and (ii) to prepare promptly upon the reasonable request of any
of the Initial
5
<PAGE> 7
Purchasers, any amendment or supplement to the Offering Memorandum which may be
necessary or advisable in connection with such Exempt Resales or such
market-making activities.
(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Series A Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Series A Notes for offer and sale to the Initial Purchasers
and pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that neither the Company nor any Guarantor shall be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, to furnish to the
Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its security
holders or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company or any of the
Guarantors is listed and such other publicly available information concerning
the Company and/or its subsidiaries as the Initial Purchasers may reasonably
request.
(g) So long as any of the Series A Notes remain outstanding and
during any period prior to the completion of the Exchange Offers in which the
Company and the Guarantors are not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder of Series A Notes in connection with any sale thereof
and any prospective purchaser of such Series A Notes from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
6
<PAGE> 8
(h) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Series A Notes to the Initial Purchasers, including any transfer or other taxes
payable thereon, (iii) all costs of printing or producing this Agreement, the
other Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Series A Notes, (iv) all
expenses in connection with the registration or qualification of the Series A
Notes and the Guarantees for offer and sale under the securities or Blue Sky
laws of the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and reasonable fees and disbursements of counsel for
the Initial Purchasers in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Series A Notes and the Guarantees, (vi) all expenses and listing fees in
connection with the application for quotation of the Series A Notes in the
National Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the
reasonable fees and disbursements of the Trustee's counsel in connection with
the Indenture, the Notes and the Guarantees, (viii) the costs and charges of any
transfer agent, registrar and/or depositary (including DTC), (ix) any fees
charged by rating agencies for the rating of the Notes, (x) all costs and
expenses of the Exchange Offers and any Registration Statement, as set forth in
the Registration Rights Agreements, and (xi) and all other costs and expenses
incident to the performance of the obligations of the Company and the Guarantors
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that, except as specifically provided in this Section, and
Sections 8 and 11 hereof, the Initial Purchasers will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Series A Notes by them, and any advertising expenses connected with
any offers they may make.
(i) To use its best efforts to effect the inclusion of each
series of Series A Notes in PORTAL and to maintain the listing of each series of
Series A Notes on PORTAL for so long as such series of Series A Notes are
outstanding.
(j) To obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
7
<PAGE> 9
(k) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of the Company or
any Guarantor or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company or any Guarantor substantially similar to
the Notes and the Guarantees (other than (i) the Notes and the Guarantees and
(ii) commercial paper issued in the ordinary course of business), without the
prior written consent of the Initial Purchasers.
(l) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Series A Notes to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes under the Act.
(m) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes and the related Guarantees.
(n) To cause each Exchange Offer to be made in the appropriate
form to permit Series B Notes and guarantees thereof by the Guarantors
registered pursuant to the Act to be offered in exchange for the Series A Notes
and the Guarantees and to comply with all applicable federal and state
securities laws in connection with such Exchange Offer.
(o) To comply with all of its agreements set forth in the
Registration Rights Agreements.
(p) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Series A Notes and the Guarantees.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
GUARANTORS. As of the date hereof, each of the Company and the Guarantors
represents and warrants to, and agrees with, the Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
8
<PAGE> 10
(b) Each of Allied Waste Industries Inc. ("ALLIED") and its
subsidiaries has been duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in the
Preliminary Offering Memorandum and the Offering Memorandum and to own, lease
and operate its properties, and each is duly qualified and is in good standing
as a foreign corporation authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of Allied and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(c) All outstanding shares of capital stock of Allied and the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of Allied. All of the outstanding shares of
capital stock of each of the subsidiaries of Allied have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by
Allied , directly or indirectly through one or more subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature (each, a "LIEN"), except as otherwise disclosed in the Offering
Memorandum and except as to such Liens which could not reasonably be expected to
have a Material Adverse Effect, and each Subsidiary of the Company other than
Allied Insurance will be a "RESTRICTED SUBSIDIARY" within the meaning of the
Indenture.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the Company and
each of the Guarantors and, on the Closing Date, will have been validly executed
and delivered by the Company and each of the Guarantors. When the Indenture has
been duly executed and delivered by the Company and each of the Guarantors, the
Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally and (ii) general principles
of equity, including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to the
availability of equitable remedies (whether such principles are considered in a
proceeding at law or equity). On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder.
(g) The Series A Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Series A Notes
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<PAGE> 11
have been issued, executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, the Series A Notes will be entitled
to the benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to (i)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity). On the Closing Date, the Series A Notes will conform in all
material respects to the description thereof contained in the Offering
Memorandum.
(h) On the Closing Date, the Series B Notes will have been duly
authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offers and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to (i) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity).
(i) The Guarantee to be endorsed on each issue of the Series A
Notes by each Guarantor has been duly authorized by such Guarantor and, on the
Closing Date, will have been duly executed and delivered by each such Guarantor.
When the Series A Notes have been issued, executed and authenticated in
accordance with the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of
the Indenture and will be the valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity). On the Closing Date, the Guarantees to be endorsed on each issue
of the Series A Notes will conform in all material respects to the description
thereof contained in the Offering Memorandum.
(j) The Guarantee to be endorsed on each issue of the Series B
Notes by each Guarantor has been duly authorized by such Guarantor and, when
issued, will have been duly executed and delivered by each such Guarantor. When
the Series B Notes have been issued, executed and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, the Subsidiary Guarantee
of each Guarantor endorsed thereon will be entitled to the benefits of the
Indenture and will be the valid and binding obligation of such Guarantor,
10
<PAGE> 12
enforceable against such Guarantor in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity). When the Series B Notes are issued, authenticated and delivered,
the Guarantees to be endorsed on each issue of the Series B Notes will conform
in all material respects to the description thereof in the Offering Memorandum.
(k) Each of the Registration Rights Agreements has been duly
authorized by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of the
Guarantors. When each of the Registration Rights Agreements has been duly
executed and delivered, such Registration Rights Agreement will be a valid and
binding agreement of the Company and each of the Guarantors, enforceable against
the Company and each Guarantor in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally, (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity) and (iii) the qualification that rights to indemnification or
contribution may be limited by applicable law or equitable principles or
otherwise unenforceable as against public policy. On the Closing Date, each of
the Registration Rights Agreements will conform in all material respects to the
description thereof in the Offering Memorandum.
(l) Neither Allied nor any of its subsidiaries is (x) in
violation of its respective charter or by-laws or (y) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to Allied and its subsidiaries, taken as a whole, to which Allied or
any of its subsidiaries is a party or by which Allied or any of its subsidiaries
or their respective property is bound, which violation or default, in the case
of this clause (y), could reasonably be expected to have a Material Adverse
Effect.
(m) The execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and each of the Guarantors,
compliance by the Company and each of the Guarantors with all provisions hereof
and thereof and the consummation of the transactions contemplated hereby,
thereby and by the Offering Memorandum will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of Allied or any of its subsidiaries, (iii) conflict with or constitute
a breach of any of the terms or provisions of, or a default under any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to Allied and its subsidiaries, taken as a whole, to which Allied or
any
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<PAGE> 13
of its subsidiaries is a party or by which Allied or any of its subsidiaries or
their respective property is bound, or, in the case of this clause (iii), which
violation or default could reasonably be expected to have a Material Adverse
Effect, (iv) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over Allied, any of its subsidiaries or their
respective property, (v) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which Allied or any of its subsidiaries is a party or by which Allied or any of
its subsidiaries or their respective property is bound which Lien could
reasonably be expected to have a Material Adverse Effect, or (vi) result in the
termination, suspension or revocation of any Authorization (as defined below) of
Allied or any of its subsidiaries or result in any other impairment of the
rights of the holder of any such Authorization which termination, suspension or
revocation could reasonably be expected to have a Material Adverse Effect.
(n) Except as set forth in the Offering Memorandum, there are no
legal or governmental proceedings pending or threatened to which Allied or any
of its subsidiaries is or could be a party or to which any of their respective
property is or could be subject, which might result, singly or in the aggregate,
in a Material Adverse Effect.
(o) Except as set forth in the Offering Memorandum, neither
Allied nor any of its subsidiaries has violated any foreign, federal, state or
local law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(q) Each of Allied and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of Allied and its
subsidiaries is in compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would
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<PAGE> 14
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; except where
such failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction would
not, singly or in the aggregate, have a Material Adverse Effect.
(r) The accountants, Arthur Andersen LLP, that have certified
the financial statements and supporting schedules included in the Preliminary
Offering Memorandum and the Offering Memorandum are independent public
accountants with respect to the Company and the Guarantors, as required by the
Act and the Exchange Act.
(s) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of Allied and its
subsidiaries on the basis stated in the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(t) The pro forma financial data included in the Preliminary
Offering Memorandum and the Offering Memorandum have been prepared on a basis
consistent with the historical financial statements of Allied and its
subsidiaries and give effect to assumptions used in the preparation thereof on a
reasonable basis and in good faith and present fairly the historical and
proposed transactions contemplated by the Preliminary Offering Memorandum and
the Offering Memorandum.
(u) Neither Allied nor the Company is, and, after giving effect
to the offering and sale of the Series A Notes and the application of the net
proceeds thereof as described in the Offering Memorandum, neither of them will
be, an "investment company," as such term is defined in the Investment Company
Act of 1940, as amended.
(v) There are no contracts, agreements or understandings between
the Company or any Guarantor and any person granting such person the right to
require the Company or such Guarantor to include securities of the Company or
any Guarantor with the Notes and Guarantees registered pursuant to any
Registration Statement.
(w) Neither Allied nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Series A
Notes to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
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<PAGE> 15
(x) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company or any Guarantor that it is considering
imposing) any condition (financial or otherwise) on the Company's or any
Guarantor's retaining any rating assigned to the Company or any Guarantor, any
securities of the Company or any Guarantor or (ii) has indicated to the Company
or any Guarantor that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any securities of
the Company or any Guarantor.
(y) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
Allied and its subsidiaries, taken as a whole, (ii) there has not been any
material adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of Allied or any of
its subsidiaries and (iii) neither Allied nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent.
(z) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
(aa) To the knowledge of the Company, when each issue of the
Series A Notes and the Guarantees are issued and delivered pursuant to this
Agreement, neither issue of the Series A Notes nor the Guarantees will be of the
same class (within the meaning of Rule 144A under the Act) as any security of
the Company or the Guarantors that is listed on a national securities exchange
registered under Section 6 of the Exchange Act or that is quoted in a United
States automated inter-dealer quotation system.
(bb) To the knowledge of the Company, no form of general
solicitation or general advertising (as defined in Regulation D under the Act)
was used by the Company, the Guarantors or any of their respective
representatives (other than the Initial Purchasers, as to whom the Company and
the Guarantors make no representation) in connection with the offer and sale of
the Series A Notes contemplated hereby, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
No securities of the same class as either issue of the Series A Notes have been
issued and sold by the Company within the six-month period immediately prior to
the date hereof.
(cc) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the TIA.
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<PAGE> 16
(dd) The Company, the Guarantors and their respective affiliates
and all persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantors make no representation) have complied with
and will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Series A Notes outside the United States
and, in connection therewith, the Offering Memorandum will contain the
disclosure required by Rule 902(g)(2).
(ee) The Series A Notes offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions (it being understood that no representation is made as to the
actions of the Initial Purchasers).
(ff) The sale of the Series A Notes pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of the Act (it
being understood that no representation is made as to the actions of the Initial
Purchasers).
(gg) No registration under the Act of the Series A Notes or the
Guarantees is required for the sale of the Series A Notes and the Guarantees to
the Initial Purchasers as contemplated hereby or for the Exempt Resales assuming
the accuracy of the Initial Purchasers' representations and warranties and
agreements set forth in Section 7 hereof.
(hh) Each certificate signed by any officer of the Company or any
Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Company or
such Guarantor to the Initial Purchasers as to the matters covered thereby.
(ii) All indebtedness of the Company and the Guarantors that will
be repaid with the proceeds of the issuance and sale of the Series A Notes was
incurred, and the indebtedness represented by the Series A Notes is being
incurred, for proper purposes and in good faith and each of the Company and the
Guarantors was, at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Series A Notes, and
will be on the Closing Date (after giving effect to the application of the
proceeds from the issuance of the Series A Notes) solvent, and had at the time
of the incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Series A Notes and will have on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Series A Notes) sufficient capital for carrying on their respective business and
were, at the time of the incurrence of such indebtedness that will be repaid
with the proceeds of the issuance and sale of the Series A Notes, and will be on
the Closing Date (after giving effect to the application of the proceeds from
the issuance of the Series A Notes) able to pay their respective debts as they
mature.
(jj) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of any of
the Operative Documents, the issuance of the Series A Notes or the Guarantees,
or suspends the sale of the Series A Notes or the Guarantees in any jurisdiction
referred to in Section 5(e); and no injunction, restraining order or other order
or relief of any nature by a federal or state court or other tribunal of
competent jurisdiction has been
15
<PAGE> 17
issued with respect to the Company or any of its subsidiaries which would
prevent or suspend the issuance or sale of the Series A Notes or the Guarantees
in any jurisdiction referred to in Section 5(e).
The Company acknowledges that the Initial Purchasers and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and the Guarantors and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. Each of the
Initial Purchasers, severally and not jointly, represents and warrants to the
Company and the Guarantors, and agrees that:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the Series A Notes
with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling the
Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Series A Notes
only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A Notes only
from (A) Eligible Purchasers that the Initial Purchaser reasonably believes are
QIBs, and (B) Regulation S Purchasers, in each case, that agree that (x) the
Series A Notes purchased by them may be resold, pledged or otherwise transferred
within the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the Act, as in
effect on the date of the transfer of such Series A Notes, only (I) to the
Company or any of its subsidiaries, (II) 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 under the Act, (III) in an
offshore transaction (as defined in Rule 902 under the Act) meeting the
requirements of Rule 904 of the Act, (IV) in a transaction meeting the
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<PAGE> 18
requirements of Rule 144 under the Act, (V) to an Accredited Institution that,
prior to such transfer, furnishes the Trustee a signed letter containing certain
representations and agreements relating to the registration of transfer of such
Series A Note (the form of which is substantially the same as Annex A to the
Offering Memorandum) and, if such transfer is in respect of an aggregate
principal amount of Series A Notes less than $250,000, an opinion of counsel
acceptable to the Company that such transfer is in compliance with the Act, (VI)
in accordance with another exemption from the registration requirements of the
Act (and based upon an opinion of counsel acceptable to the Company) or (VII)
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 (y) they will deliver to each person to whom
such Series A Notes or an interest therein is transferred a notice substantially
to the effect of the foregoing.
(e) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Series A Notes in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Act (i) as part of its distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering of the Series A Notes pursuant hereto and the Closing Date, other than
in accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that, during
such 40-day distribution compliance period, it will not cause any advertisement
with respect to the Series A Notes (including any "tombstone" advertisement) to
be published in any newspaper or periodical or posted in any public place and
will not issue any circular relating to the Series A Notes, except such
advertisements as are permitted by and include the statements required by
Regulation S.
(f) Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Series A Notes by it to any distributor, dealer or person receiving
a selling concession, fee or other remuneration during the 40-day distribution
compliance period referred to in Rule 903(c)(2) under the Act, it will send to
such distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:
"The Series A Notes covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in transactions that
are exempt from the registration requirements of the Securities Act), and in
connection with any subsequent sale by you of the Series A Notes covered hereby
in reliance on Regulation S during the period referred to above to any
distributor, dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in Regulation S."
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<PAGE> 19
(g) Such Initial Purchaser and its affiliates or any person acting on
its or their behalf have not engaged or will not engage in any directed selling
efforts within the meaning of Regulation S with respect to the Series A Notes or
the Guarantees.
(h) The Series A Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(i) The sale of the Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Act.
Such Initial Purchaser acknowledges that the Company and the Guarantors
and, for purposes of the opinions to be delivered to each Initial Purchaser
pursuant to Section 9 hereof, counsel to the Company and the Guarantors and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and such Initial Purchaser hereby consents to such
reliance.
8. INDEMNIFICATION.
(a) The Company and each Guarantor agree, jointly and severally, to
indemnify and hold harmless each Initial Purchaser, its directors, its officers
and each person, if any, who controls such Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and judgments (including, without
limitation, any reasonable legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Offering Memorandum (or any amendment or supplement thereto), the
Preliminary Offering Memorandum or any Rule 144A Information provided by the
Company or any Guarantor to any holder or prospective purchaser of Series A
Notes pursuant to Section 5(h) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Initial Purchaser furnished in writing to the Company by such Initial
Purchaser provided that the indemnification contained in this paragraph (a)
shall not inure to the benefit of the Initial Purchasers (or to the benefit of
any person controlling the Initial Purchasers) with respect to any preliminary
Offering Memorandum on account of any such loss, claim, damage, liability or
expense arising from the sale of the Series A Notes by the Initial Purchasers to
any person if a copy of the Offering Memorandum (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) shall
not have been delivered or sent to such person and each untrue statement of a
material fact contained in, and each omission or alleged omission of a material
fact from, such Preliminary Offering Memorandum was corrected in the Final
Offering Memorandum (as so amended or supplemented) and it shall have been
determined that any Initial Purchaser and each person, if
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<PAGE> 20
any, who controls such Initial Purchaser would not have incurred such losses,
claims, damages, liabilities and expenses had the Final Offering Memorandum been
delivered or sent.
(b) The Initial Purchasers, severally and not jointly, agree to
indemnify and hold harmless the Company and the Guarantors, and their respective
directors and officers and each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors, to the same extent as the foregoing indemnity from the Company and
the Guarantors to each Initial Purchaser but only with reference to information
relating to such Initial Purchaser furnished in writing to the Company by such
Initial Purchaser expressly for use in the Preliminary Offering Memorandum or
the Offering Memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such reasonable fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation, in the case of the parties indemnified pursuant
to Section 8(a), and by the Company, in the case of parties indemnified pursuant
to Section 8(b). The indemnifying party shall not be obligated to indemnify and
hold harmless any indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
effected without the indemnified party's written consent. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment
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<PAGE> 21
with respect to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or contribution
may be or could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the
subject matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand, from the offering of the Series A Notes or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (after underwriting discounts and commissions,
but before deducting expenses) received by the Company, and the total discounts
and commissions received by the Initial Purchasers bear to the total price to
investors of the Series A Notes, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Guarantors, on the one hand, or the Initial Purchasers, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Guarantors, and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation even if the Initial Purchasers were
treated as one entity for such purpose or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchasers exceeds the amount of any
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<PAGE> 22
damages which the Initial Purchasers have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Series A Notes purchased by
each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of the
Initial Purchaser to purchase the Series A Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
(including, without limitation, the placing of any of the foregoing ratings on
credit watch with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended negative change, in the outlook for any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of Allied and its subsidiaries,
taken as a whole, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term debt of
Allied or any of its subsidiaries and (iii) neither Allied nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(c)(i),
9(c)(ii) or 9(c)(iii), in your judgment, is material and adverse and, in your
judgment, makes it
21
<PAGE> 23
impracticable to market the Series A Notes on the terms and in the manner
contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by the President and the Chief Financial Officer of the
Company and each of the Guarantors, confirming the matters set forth in Sections
6(y), 9(a) and 9(b) and stating that each of the Company and the Guarantors has
complied with all the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied on or prior to the
Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Fried, Frank, Harris, Shriver & Jacobson, counsel for the Company and
the Guarantors, to the effect set forth on Exhibit A attached hereto and an
opinion of Steven Helm, Vice President and General Counsel of the Company to the
effect set forth on Exhibit B attached hereto. In addition, you shall have
received opinions (satisfactory to you and counsel for the Initial Purchasers),
dated the Closing Date, of counsel to the Company and the Guarantors
(satisfactory to you and counsel for the Initial Purchasers) as to such matters
as you may reasonably request with respect to Guarantors organized outside the
states of New York and Delaware which are identified as Significant Subsidiaries
(within the meaning of Rule1-02 of Regulation 5-X under the Act) in an officer's
certificate addressed to you and dated the Closing Date.
The opinion of Fried, Frank, Harris, Shriver & Jacobson described in
Section 9(e) above shall be rendered to you at the request of the Company and
the Guarantors and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Latham & Watkins, counsel for the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers.
(g) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Arthur Andersen LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
financial statements and certain financial information contained in the Offering
Memorandum.
(h) Each issue of the Series A Notes shall have been approved by the
NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture, including all supplements thereto
relating to the Series A Notes, which shall have been entered into by the
Company, the Guarantors and the Trustee.
22
<PAGE> 24
(j) The Company and the Guarantors shall have executed each
Registration Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
(k) The Company's tender offer for its 10.25% Senior Subordinated
Notes due 2006 and its 11.30 Senior Discount Notes due 2007 (the "Tender Offer")
shall have been consummated on the terms and conditions set forth in the
Company's Offer to Purchase dated November 24, 1998.
(l) Neither the Company nor the Guarantors shall have failed at or
prior to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Guarantors, as the case may be, at or prior to the Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall become
effective upon the execution and delivery of this Agreement by the parties
hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the Initial
Purchasers' judgment, is material and adverse and, in the Initial Purchasers'
judgment, makes it impracticable to market the Series A Notes on the terms and
in the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of Allied and
its subsidiaries, taken as a whole, (v) the declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Initial Purchasers shall fail
or refuse to purchase the Series A Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Series
A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Series A Notes to be purchased on such
date by all Initial Purchasers, each non-defaulting Initial Purchaser shall be
obligated severally, in the proportion which the principal amount of the Series
A Notes set forth opposite its name in
23
<PAGE> 25
Schedule C bears to the aggregate principal amount of the Series A Notes which
all the non-defaulting Initial Purchasers, as the case may be, have agreed to
purchase, or in such other proportion as you may specify, to purchase the Series
A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of the Series A Notes
which any Initial Purchaser has agreed to purchase pursuant to Section 2 hereof
be increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the written consent of such
Initial Purchaser. If on the Closing Date any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase the Series A Notes and the aggregate
principal amount of the Series A Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of the Series A Notes
to be purchased by all Initial Purchasers and arrangements satisfactory to the
Initial Purchasers and the Company for purchase of such the Series A Notes are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Initial Purchaser and the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of any such Initial Purchaser under this Agreement.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company or any Guarantor,
to 15880 N. Greenway - Hayden Loop, Suite 1001, Scottsdale, AZ 85260, (602)
423-2946 and (ii) if to the Initial Purchasers, c/o Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York 10172, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations and
warranties of the Company, the Guarantors and the Initial Purchasers set forth
in or made pursuant to this Agreement shall remain operative and in full force
and effect, and will survive delivery of and payment for the Series A Notes,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Initial Purchasers, the officers or directors of the
Initial Purchasers, any person controlling the Initial Purchasers, the Company,
any Guarantor, the officers or directors of the Company or any Guarantor, or any
person controlling the Company or any Guarantor, (ii) acceptance of the Series A
Notes and payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company and each Guarantor, jointly
and severally, agree to reimburse the Initial Purchasers for all reasonable
out-of-pocket expenses (including the reasonable fees and disbursements of
counsel) incurred by them. Notwithstanding any termination of this Agreement,
the Company and the Guarantors shall be liable for all expenses which they have
agreed to pay pursuant to Section 5(i) hereof. The Company and each
24
<PAGE> 26
Guarantor also agree, jointly and severally, to reimburse the Initial Purchasers
and its officers, directors and each person, if any, who controls such Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act for any and all reasonable fees and expenses (including without
limitation the reasonable fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Guarantors, the
Initial Purchasers, the Initial Purchasers' directors and officers, any
controlling persons referred to herein, the directors of the Company and the
Guarantors and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Series A Notes from the Initial Purchasers
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
25
<PAGE> 27
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Thomas Rochford, Jr.
-----------------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
By: /s/ G. Thomas Rochford, Jr.
-----------------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ G. Thomas Rochford, Jr.
-----------------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
The foregoing Purchase Agreement is hereby confirmed and
accepted as of the date first above written by Donaldson,
Lufkin & Jenrette Securities Corporation on behalf of the
Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ William J. R. Wilson
-----------------------------------------------
Name: William J. R. Wilson
Title: Vice President
<PAGE> 28
SCHEDULE A
GUARANTORS
Parent Guarantor
<TABLE>
<CAPTION>
NAME OF PARENT GUARANTOR STATE OF ORGANIZATION
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
Allied Waste Industries, Inc. Delaware
</TABLE>
Subsidiary Guarantors
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Adrian Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C.* Delaware
Allied Nova Scotia, Inc.* Delaware
Allied Services, LLC* Delaware
Allied Waste Company, Inc.* Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc.* New York
Allied Waste Landfill Holdings, Inc.* Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc.* New York
Allied Waste of New Jersey, LLC* Delaware
Allied Waste Rural Sanitation, Inc.* Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc.* Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc.* Delaware
Allied Waste Transportation, Inc.* Delaware
Americal Co. Michigan
American Disposal Services, Inc.* Delaware
American Disposal Services of Illinois, Inc.* Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc.* Delaware
</TABLE>
A-1
<PAGE> 29
<TABLE>
<S> <C>
American Disposal Services of West Virginia, Inc.* Delaware
American Disposal Transfer Services of Illinois, Inc.* Delaware
American Transfer Company, Inc.* New York
Anderson Regional Landfill, LLC* Delaware
Anson County Landfill NC, LLC* Delaware
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation* Delaware
AWIN Leasing Company, Inc.* Delaware
AWIN Management, Inc.* Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Borrego Landfill, Inc. California
Bowers Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC* Delaware
Brunswick Waste Management Facility, LLC* Delaware
Butler County Landfill, LLC* Delaware
Camelot Landfill TX, LP* Delaware
CC Landfill, Inc.* Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Chambers Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc.* New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc.* Delaware
County Disposal (Ohio), Inc.* Delaware
County Landfill, Inc.* Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp.* New York
Crow Landfill TX, LLC* Delaware
Crow Landfill TX, L.P.* Delaware
</TABLE>
A-2
<PAGE> 30
<TABLE>
<S> <C>
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C.* Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
Denver Regional Landfill, Inc. Colorado
Dinverno, Inc. Michigan
Dinverno Recycling, Inc. Michigan
Dopheide Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen* Delaware
Draw Acquisition Company Twenty Two* Delaware
Draw Acquisition Company Twenty Three* Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Duncan Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc.* Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc.* Delaware
Ellis County Landfill TX, LLC* Delaware
Ellis County Landfill TX, L.P.* Delaware
Ellis Scott Landfill MO, LLC* Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc.* New York
Environmental Development Corporation* Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc.* New York
Envotech-Illinois, L.L.C.* Delaware
Environtech, Inc.* Delaware
Evergreen Scavenger Service, Inc.* Delaware
Evergreen Scavenger Service, L.L.C.* Delaware
Fred B. Barbara Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP* Delaware
Forward, Inc. California
G. Van Dyken Disposal Inc. Michigan
Garofalo Brothers, Inc. New Jersey
Garofalo Recycling and Transfer Station Co., Inc. New Jersey
Gary Recycling Services, Inc. Indiana
General Refuse Rolloff Corp.* Delaware
Georgia Recycling Services, Inc.* Delaware
Golden Eagle Disposals, Inc.* New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc.* Delaware
</TABLE>
A-3
<PAGE> 31
<TABLE>
<S> <C>
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC* Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Ingrum Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC* Delaware
Joe Di Rese & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Laidlaw Waste Systems (Dallas) Inc.* Delaware
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Lee County Landfill SC, LLC* Delaware
Lee County Landfill, Inc. Illinois
Lemons Landfill, LLC* Delaware
Liberty Waste Holdings, Inc.* Delaware
Liberty Waste Services Limited, L.L.C.* Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C.* Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Louis Pinto & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP* Delaware
MCM Sanitation, Inc.* New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc.* Delaware
Newton County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC* Delaware
Northeast Sanitary Landfill, Inc. South Carolina
</TABLE>
A-4
<PAGE> 32
<TABLE>
<S> <C>
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc.* Delaware
Packerton Land Company, L.L.C.* Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibres Company Washington
Paper Fibers, Inc. Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC* Delaware
Pine Hill Farms Landfill TX, LP* Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP* Delaware
Price & Sons Recycling Company Georgia
R. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
Ramona Landfill, Inc. California
RCS, Inc. Illinois
R.C. Miller Enterprises, Inc. Ohio
R.C. Miller Refuse Service, Inc. Ohio
Recycling Associates, Inc.* New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Ross Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Roxana Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc.* New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD* New York
</TABLE>
A-5
<PAGE> 33
<TABLE>
<S> <C>
Show-Me Landfill, LLC* Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC* Delaware
Southwest Waste, Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc.* Delaware
Stark Recycling Center, Inc. Ohio
Stewart Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Tom Luciano's Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc.* New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP* Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Vining Disposal Service, Inc. Massachusetts
Vinnie Monte's Waste Systems, Inc.* New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Wayne County Landfill IL, Inc.* Delaware
WJR Environmental, Inc. Washington
Williams County Landfill, Inc. Ohio
World Sanitation Corporation* New York
</TABLE>
A-6
<PAGE> 34
ANNEX A
OFFICER'S CERTIFICATE
<PAGE> 35
SCHEDULE B
SUBSIDIARIES
<PAGE> 36
SCHEDULE C
<TABLE>
<CAPTION>
Principal Amount of Principal Amount Principal Amount of
Five Year of Seven Year Ten Year Series A
Initial Purchaser Series A Notes Series A Notes Notes
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Donald, Lufkin & Jenrette
Securities Corporation............................... $ 64,282,500 $ 171,420,000 $ 249,987,500
Goldman, Sachs & Co..................................... $ 42,862,500 $ 114,300,000 $ 166,687,500
Credit Suisse First Boston Corporation.................. $ 32,152,500 $ 85,740,000 $ 125,037,500
Merrill Lynch, Pierce Fenner & Smith Incorporated....... $ 32,152,500 $ 85,740,000 $ 125,037,500
Morgan Stanley & Co. Incorporated....................... $ 10,710,000 $ 28,560,000 $ 41,650,000
Bear, Stearns & Co. Inc................................. $ 10,710,000 $ 28,560,000 $ 41,650,000
BT Alex. Brown Incorporated............................. $ 10,710,000 $ 28,560,000 $ 41,650,000
CIBC Oppenheimer Corp................................... $ 10,710,000 $ 28,560,000 $ 41,650,000
Salomon Smith Barney, Inc............................... $ 10,710,000 $ 28,560,000 $ 41,650,000
Total................................................... $ 225,000,000 $ 600,000,000 $ 875,000,000
</TABLE>
<PAGE> 37
EXHIBIT A
FORM OF OPINION OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
(i) each of the Company, Allied and its subsidiaries identified
on Schedule B attached hereto with an asterisk ("*") (Allied and each
other Guarantor, an "IDENTIFIED GUARANTOR"), is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on
its business as described in the Offering Memorandum and to own, lease
and operate its properties (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel,
and in respect of matter of fact upon certificates of officers of the
Company or the Identified Guarantors, as the case may be;
(ii) each issue of the Series A Notes has been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms subject to (x) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium
and other laws affecting creditors' rights and remedies generally and
(y) general principles of equity, including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness,
equitable defenses and limits as to the availability of equitable
remedies (whether such principles are considered in a proceeding at
law or equity);
(iii) the Guarantees of the Identified Guarantors have been duly
authorized and, when each issue of the Series A Notes is executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, each of the Guarantees of the Identified
Guarantors endorsed thereon will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Identified
Guarantors, enforceable in accordance with its terms subject to (x)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally and (y) general principles of
equity, including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness, equitable defenses and limits
as to the availability of equitable remedies (whether such principles
are considered in a proceeding at law or equity);
(iv) Assuming that (A) each of the Guarantors other than the
Identified Guarantors (the "Other Guarantors") is a corporation
validly existing under the laws of each of the Other Guarantors'
respective state of incorporation, (B) each of the Other Guarantors
has all requisite corporate power and authority to execute,
<PAGE> 38
deliver and perform its obligations under the Guarantees and (C) each
of the Guarantees of the Other Guarantors has been duly authorized,
executed and delivered by each of the Other Guarantors under the laws
of each of the Other Guarantors' respective state of incorporation,
and when each issue of the Series A Notes is executed in accordance
with the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement,
each of the Guarantees of the Other Guarantors endorsed thereon will
be entitled to the benefits of the Indenture and will be a valid and
binding obligation of each of the Other Guarantors, enforceable
against each of the Other Guarantors in accordance with its terms,
subject to (x) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally (y) general
principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equity
defenses and limits as to the availability of equitable remedies
(whether such principles are considered in a proceeding at law or
equity);
(v) the Indenture has been duly authorized, executed and
delivered by the Company and each Identified Guarantor and is a valid
and binding agreement of the Company and each Identified Guarantor,
enforceable against the Company and each Identified Guarantor in
accordance with its terms subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights
and remedies generally and (y) general principles of equity,
including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to
the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity);
(vi) Assuming that (A) each of the Other Guarantors is a
corporation validly existing under the laws of each of the Other
Guarantors' respective state of incorporation, (B) each of the Other
Guarantors has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Indenture and (C) the
Indenture has been duly authorized, executed and delivered by each of
the Other Guarantors under the laws of each of the Other Guarantors'
respective state of incorporation, the Indenture constitutes a valid
and binding agreement of each of the Other Guarantors, enforceable
against each of the Other Guarantors in accordance with its terms,
subject to (x) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally (y) general
principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equity
defenses and limits as to the availability of equitable remedies
(whether such principles are considered in a proceeding at law or
equity);
A-2
<PAGE> 39
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and the Identified Guarantors;
(viii) Each Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Identified
Guarantors and is a valid and binding agreement of the Company and
each Identified Guarantor, enforceable against the Company and each
Identified Guarantor in accordance with its terms, subject to (x)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally, (y) general principles of
equity, including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness, equitable defenses and limits
as to the availability of equitable remedies (whether such principles
are considered in a proceeding at law or equity) and (z) the
qualification that rights to indemnification or contribution may be
limited by applicable law or equitable principles or otherwise
unenforceable as against public policy;
(ix) Assuming that (A) each of the Other Guarantors is a
corporation validly existing under the laws of each of the Other
Guarantors' respective state of incorporation, (B) each of the Other
Guarantors has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights
Agreements and (C) each of the Registration Rights Agreements has been
duly authorized, executed and delivered by each of the Other
Guarantors under the laws of each of the Other Guarantors' respective
state of incorporation, enforceable against each Other Guarantor in
accordance with its terms, subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights
and remedies generally, (y) general principles of equity, including,
without limitation, standards of materiality, good faith, fair dealing
and reasonableness, equitable defenses and limits as to the
availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity) and (z) the qualification
that rights to indemnification or contribution may be limited by
applicable law or equitable principles or otherwise unenforceable as
against public policy;
(x) each issue of the Series B Notes has been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture, the Registration Rights Agreements and the Exchange
Offers, will be valid and binding obligations of the Company,
enforceable in accordance with their terms subject to (x) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights
and remedies generally and (y) general principles of equity,
including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to
the availability of equitable
A-3
<PAGE> 40
remedies (whether such principles are considered in a proceeding at
law or equity);
(xi) the description under the captions "Description of Notes"
and "Certain United States Federal Tax Consequences of an Investment
in the Senior Notes" in the Offering Memorandum, insofar as such
description constitutes a summary of the legal matters or documents
referred to therein, fairly summarizes the matters referred to
therein;
(xii) the issue and sale of the Notes and the compliance by the
Company and each of the Guarantors with all of the provisions of the
Notes, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not (except as
described in the Offering Memorandum under the caption "Summary--Tender
Offers" relating to the receipt of consents of lenders to the Senior
Credit Facility and the pending repayment (including the consent
payment) of the Discount Notes and AWNA Notes (as defined therein) as
described in "Use of Proceeds", the caption "Description of
Notes-Mergers, Consolidations and Certain Sales of Assets" and "Risk
Factors--Potential Inability to Effect Change of Control Repurchases")
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
us to which Allied or any of its subsidiaries is party or by which
Allied or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(this opinion being limited to (x) those agreements which have been
identified to us in an Officer's Certificate of the Company as being
the agreements to which the Company, Allied or any of the Company's
subsidiaries is party, or to which any of their respective businesses
or assets is subject, that are material to the financial condition or
results of operations of the Company, Allied and the Company's
subsidiaries taken as a whole and (y) in that such counsel need not
express any opinion with respect to any such conflict, breach or
violation not readily ascertainable from the face of any such
agreement, or arising under or based upon any cross-default provision
insofar as it relates to a default under an agreement not so identified
or arising under or based upon any covenant of a financial or numerical
nature or requiring computations) nor will such actions result in any
violation of the provisions of (a) the Certificate of Incorporation or
By-laws of Allied or the Company and any Identified Guarantor, (b) any
statute, rule or regulation of any governmental agency or authority of
the United States or of the State of New York or under the Delaware
General Corporation Law (the "DGCL"), and (c) any order of any court
binding upon the Company or any of its subsidiaries (this opinion being
limited to (x) those orders, judgments and decrees which have been
identified to us in an Officer's Certificate of the Company as being
all of the orders, judgments and decrees that are material to the
financial condition or results of operations of the Company, Allied and
the Company's subsidiaries taken as a whole and (y) in that such
counsel need not express an
A-4
<PAGE> 41
opinion with respect to any such violation not readily ascertainable
from the face of any such court order); nor will such actions require
any consent, approval authorization or other order of, or
qualification with, any court or governmental body or agency (except
such as may be required under the securities or Blue Sky laws of the
states);
(xiii) Neither the Company nor any Identified Guarantor is and,
after giving effect to the offering and sale of the Series A Notes and
the application of the net proceeds thereof as described in the
Offering Memorandum, will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xiv) the Indenture complies as to form in all material respects
with the requirements of the TIA, and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
It is not necessary in connection with the offer, sale and delivery of
the Series A Notes to the Initial Purchasers in the manner
contemplated by this Agreement or in connection with the Exempt
Resales to qualify the Indenture under the TIA;
(xv) no registration under the Act of the Series A Notes is
required for the sale of the Series A Notes to the Initial Purchasers
as contemplated by this Agreement or for the Exempt Resales assuming
that (i) each Initial Purchaser is a QIB or a Regulation S Purchaser,
(ii) the accuracy of, and compliance with, the Initial Purchasers'
representations and agreements contained in Section 7 of this
Agreement, (iii) the accuracy of the representations of the Company
and the Guarantors set forth in Sections 6(dd), (ee) and (ff) of this
Agreement; and
(xvi) such counsel shall state that in the course of the
preparation by the Company of the Offering Memorandum, it participated
in conferences with certain of the officers and representatives of,
and the independent public accountants for, Allied and the Company, at
which the contents of the Offering Memorandum were discussed. Between
the date of the Offering Memorandum and the time of delivery of this
opinion, such counsel shall also state that it participated in
additional conferences with certain of the officers and
representatives of, and independent public accountants for, Allied and
the Company at which the contents of the Offering Memorandum were
discussed to a limited extent. Given the limitations inherent in the
independent verification of factual matters and the character of
determinations involved in the process, such counsel need not pass
upon or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum,
except to the extent provided in paragraph (xi) above. Subject to the
foregoing and on the basis of the information gained in the
performance of the services referred to therein, including information
obtained from officers and other representatives of, and the
independent public accountants for the Company, no facts have come to
such counsel's attention that cause them to believe that the
A-5
<PAGE> 42
Offering Memorandum, as of its date, contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. Also, subject to the foregoing, no facts have come to such
counsel's attention in the course of the proceedings described in the
second sentence of this paragraph that cause them to believe that the
Offering Memorandum, as of the date and time of delivery of the
opinion, contains an untrue statement or a material fact or omits to
state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such counsel need not
express any view or belief, however, with respect to financial
statements, the notes or schedules thereto, pro forma data or other
financial information included in or omitted from the Offering
Memorandum.
A-6
<PAGE> 43
EXHIBIT B
FORM OF OPINION OF STEVEN HELM, ESQ.
(i) each of the Company and the Identified Guarantors is duly
qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of Allied have
been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(iii) all of the outstanding shares of capital stock of each of
Allied's Significant Subsidiaries (as defined in Rule 1-02 of
Regulation S-X under the Act) have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by Allied,
free and clear of any Lien except as otherwise disclosed in the
Offering Memorandum;
(iv) to the best of such counsel's knowledge, after due inquiry,
such counsel does not know of any legal or governmental proceedings
pending or threatened to which Allied or any of its subsidiaries is or
could be a party or to which any of their respective property is or
could be subject, which might result, singly or in the aggregate, in a
Material Adverse Effect.
(v) to the best of such counsel's knowledge, neither Allied nor
any of its subsidiaries has violated any Environmental Law or any
provisions of ERISA, any provisions of the Foreign Corrupt Practices
Act or the rules and regulations promulgated thereunder, except for
such violations which, singly or in the aggregate, would not have a
Material Adverse Effect;
(vi) to the best of such counsel's knowledge, each of Allied and
its subsidiaries has such Authorizations of, and has made all filings
with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a Material Adverse Effect. Each
such Authorization is valid and in full force and effect and each of
Allied and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including the receipt of any
notice from any authority or governing body) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension
or termination of
<PAGE> 44
any such Authorization or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the holder
of any such Authorization; except where such failure to be valid and
in full force and effect or to be in compliance, the occurrence of any
such event or the presence of any such restriction would not, singly
or in the aggregate, have a Material Adverse Effect; and
(vii) to the best of such counsel's knowledge after due inquiry,
there are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right
to require the Company or such Guarantor to include securities of the
Company or any Guarantor with the Notes and Guarantees registered
pursuant to any Registration Statement.
B-2
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-4 of our report dated
February 16, 1998 included in Allied Waste Industries, Inc.'s Form 10-K for the
year ended December 31, 1997, as amended by our report dated June 30, 1998,
included in Allied Waste Industries, Inc.'s Current Report on Form 8-K/A-1 filed
August 28, 1998, and of our report dated October 16, 1998, on Allied Waste
Industries, Inc.'s December 31, 1997 Supplemental Consolidated Financial
Statements included in Allied Waste Industries, Inc.'s Current Report on Form
8-K filed October 29, 1998.
/s/ Arthur Andersen LLP
Phoenix, Arizona,
January 14, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-4 of our reports dated March
21, 1997 on the Rabanco Companies and Regional Disposal Company 1996 financial
statements included in Allied Waste Industries, Inc.'s Current Report on Form
8-K filed August 27, 1998. It should be noted that we have not audited any
financial statements of Rabanco Companies and Regional Disposal Company
subsequent to December 31, 1996 or performed any audit procedures subsequent to
the date of our report.
/s/ SWEENEY CONRAD, P.S.
Bellevue, Washington
January 14, 1999
<PAGE> 1
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-4 of the Allied Waste Industries, Inc. or our report dated February 24,
1998 with respect the consolidated financial statements of American Disposal
Services, Inc. included in the Current Report on Form 8-K/A-1 dated August 27,
1998.
/s/ Ernst & Young LLP
Chicago, Illinois
January 14, 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.
ALLIED WASTE NORTH AMERICA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 88-0228636
Delaware 86-0843596
(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)
7 3/8% SERIES B SENIOR NOTES DUE 2004
7 5/8% SERIES B SENIOR NOTES DUE 2006
7 7/8% SERIES B SENIOR 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 filed in paper format pursuant to Form SE.
* Incorporated by reference to Registration Number 22-25656.
<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 14th day of January,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------
Richard H. Prokosch
Assistant Vice President
/s/ Judith M. Zuzek
- -------------------------------
Judith M. Zuzek
Assistant Secretary
<PAGE> 4
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: January 14, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
-----------------------------
Richard H. Prokosch
Assistant Vice President
<PAGE> 1
Exhibit 99.1
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON ______________, 1999
(THE "EXPIRATION DATE"), UNLESS EXTENDED
BY ALLIED WASTE NORTH AMERICA, INC.
ALLIED WASTE NORTH AMERICA, INC.
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE
ALL OUTSTANDING 7 3/8% SERIES A SENIOR NOTES DUE 2004
IN EXCHANGE FOR
7 3/8% SERIES B SENIOR NOTES DUE 2004
ALL OUTSTANDING 7 5/8% SERIES A SENIOR NOTES DUE 2006
IN EXCHANGE FOR
7 5/8% SERIES B SENIOR NOTES DUE 2006
ALL OUTSTANDING 7 7/8% SERIES A SENIOR NOTES DUE 2009
IN EXCHANGE FOR
7 7/8% SERIES B SENIOR NOTES DUE 2009
OF
ALLIED WASTE NORTH AMERICA, INC.
THE EXCHANGE OFFER WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON ___________, 1999, UNLESS EXTENDED.
AS DESCRIBED HEREIN, WITHDRAWAL RIGHTS WITH RESPECT TO THE EXCHANGE OFFER
ARE EXPECTED TO EXPIRE AT THE EXPIRATION OF THE EXCHANGE OFFER
EXCHANGE AGENT:
U.S. BANK TRUST NATIONAL ASSOCIATION
<TABLE>
<S> <C>
By Hand, Mail or Overnight Delivery: By Facsimile for Eligible Institutions:
180 East Fifth Street (651) 244-1537
St. Paul, Minnesota 55101
Attention: Specialized Finance Department Confirm by Telephone: (651) 244-4512
</TABLE>
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY AND PRINT OR TYPE ALL
RESPONSES.
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONES LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS
LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL
IS COMPLETED.
The undersigned hereby acknowledges receipt of the Prospectus dated
__________, 1999 (the "Prospectus") of Allied Waste North America, Inc. (the
"Company") and this Letter of Transmittal, which together constitute the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its 7 3/8% Series B Senior Notes due 2004, 7 5/8% Series B Senior Notes due 2006
and 7 7/8% Series B Senior Notes due 2009 (collectively, the "Exchange Notes"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement of which the Prospectus
is a part for each $1,000 principal amount of its outstanding 7 3/8% Series A
Senior Notes due 2004, 7 5/8% Series A Senior Notes due 2006 and 7 7/8% Series A
Senior Notes due 2009 (collectively, the "Old Senior Notes"). The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on [_________],
1999, unless the Company extends the Exchange Offer, in which case the term
shall mean the latest date and time to which the Exchange Offer is extended.
Following the consummation of the Exchange Offer, neither the Old Senior Notes
nor the Exchange Notes will be entitled to the contingent
<PAGE> 2
increase in interest rate provided pursuant to the Indenture and the Old Senior
Notes. Following the consummation of the Exchange Offer, holders of Old Senior
Notes and Exchange Notes will not have any further registration rights, and the
Old Senior Notes will continue to be subject to certain restrictions on
transfer. Capitalized terms used but not defined herein have the meaning given
to them in the Prospectus.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW.
2
<PAGE> 3
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
List below the Old Senior Notes to which this Letter of Transmittal
relates. If the space provided below is inadequate, the Certificate or
Registration Numbers and Principal Amounts should be listed on a separate signed
schedule affixed hereto.
DESCRIPTION OF OLD SENIOR NOTES TENDERED HEREWITH
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF AGGREGATE PRINCIPAL
REGISTERED HOLDER(S) CERTIFICATE AMOUNT REPRESENTED BY PRINCIPAL AMOUNT
(PLEASE FILL IN) NUMBER(S)* OLD NOTES TENDERED**
---------------- ---------- --------- ----------
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
TOTAL
</TABLE>
- ----------------
* Need not be completed by Book-entry Holders.
** Unless otherwise indicated, the Holder will be deemed to have tendered the
full aggregate principal amount represented by such Old Senior Notes. All
tenders must be in integral multiples of $1,000. See Instruction 2.
This Letter of Transmittal is to be used (i) if certificates of Old Senior
Notes are to be forwarded herewith, (ii) if delivery of Old Senior Notes is to
be made by book-entry transfer to an account maintained by the Exchange Agent at
The Depository Trust Company, ("DTC") pursuant to the procedures set forth in
"The Exchange Offer -- Procedures for Tendering Old Senior Notes" in the
Prospectus or (iii) tender of the Old Senior Notes is to be made according to
the guaranteed delivery procedures described in the Prospectus under the caption
"The Exchange Offer -- Guaranteed Delivery Procedures." See Instruction 1.
Delivery of documents to a book-entry transfer facility does not constitute
delivery to the Exchange Agent.
The term "Holder" with respect to the Exchange Offer means any person in
whose name Old Senior Notes are registered on the books of the Company or any
other person who has obtained a properly completed bond power from the
registered holder. The undersigned has completed, executed and delivered this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer. Holders who wish to tender their Old Senior
Notes must complete this letter in its entirety.
Holders whose Old Senior Notes are not immediately available or who cannot
deliver their Old Senior Notes and all other documents required hereby to the
Exchange Agent on or prior to the Expiration Date may tender their Old Senior
Notes according to the guaranteed delivery procedure set forth in the Prospectus
under the caption "The Exchange Offer -- Guaranteed Delivery Procedures." See
Instruction 1.
/ / CHECK HERE IF TENDERED OLD SENIOR NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:
------------------------------------------
DTC: Account Number:
----------------------------------------------------
Transaction Code Number:
------------------------------------------------
/ / CHECK HERE IF TENDERED OLD SENIOR NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s):
--------------------------------------------
3
<PAGE> 4
Name of Eligible Institution that Guaranteed Delivery:
------------------
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
--------------------------------------------------------------------
Address:
--------------------------------------------------------------------
4
<PAGE> 5
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above-described principal amount
of Old Senior Notes. Subject to, and effective upon, the acceptance for exchange
of the Old Senior Notes tendered herewith, the undersigned hereby exchanges,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to such Old Senior Notes. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that said Exchange
Agent acts as the agent of the undersigned in connection with the Exchange
Offer) to cause the Old Senior Notes to be assigned, transferred and exchanged.
The undersigned represents and warrants that it has full power and authority to
tender, exchange, assign and transfer the Old Senior Notes and to acquire
Exchange Notes issuable upon the exchange of such tendered Old Senior Notes, and
that, when the same are accepted for exchange, the Company will acquire good and
unencumbered title to the tendered Old Senior Notes, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claim. The undersigned also warrants that it will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the Company to
be necessary or desirable to complete the exchange, assignment and transfer of
tendered Old Senior Notes or to transfer ownership of such Old Senior Notes on
the account books maintained by The Depository Trust Company (the "DTC").
The undersigned acknowledges that this Offer is being made in reliance
on an interpretation by the staff of the Securities and Exchange Commission (the
"SEC") that the Exchange Notes issued pursuant to the Exchange Offer in exchange
for the Old Senior Notes may be offered for resale, resold and otherwise
transferred by holders thereof (other than broker-dealers, as set forth below,
and any such holder which is an "affiliate" of the Company within the meaning of
Rule 405 under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act provided that such Exchange
Notes are acquired in the ordinary course of such holders' business and such
holders have no arrangement or understanding with any person to participate in
the distribution of such Exchange Notes.
The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange Offer --Acceptance of Old Senior
Notes for Exchange; Delivery of New Senior Notes." The undersigned recognizes
that as a result of these conditions (which may be waived, in whole or in part,
by the Company) as more particularly set forth in the Prospectus, the Company
may not be required to exchange any of the Old Senior Notes tendered hereby and,
in such event, the Old Senior Notes not exchanged will be returned to the
undersigned at the address shown below the signature of the undersigned.
By tendering, each Holder of Old Senior Notes represents to the Company
that (i) the Exchange Notes acquired pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the person receiving such
Exchange Notes, whether or not such person is such Holder, (ii) neither the
Holder of Old Senior Notes nor any such other person is participating in,
intends to participate in or has an arrangement or understanding with any person
to participate in, the distribution of such Exchange Notes, (iii) if the Holder
is not a broker-dealer or is a broker-dealer but will not receive Exchange Notes
for its own account in exchange for Old Senior Notes, neither the Holder nor any
such other person is engaged in or intends to participate in a distribution of
the Exchange Notes and (iv) neither the Holder nor any such other person is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act. If the tendering Holder tenders Old Senior Notes with the intention of
participating, or for the purpose of participating, in the distribution of the
Exchange Notes, it acknowledges that it may not rely upon certain
interpretations by the staff of the SEC described in the Exchange Offer, and
that, in the absence of an exemption therefrom, it must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction, and any such secondary resale
transaction must be covered by an effective registration statement containing
the selling securityholder information required by Item 507 of Regulation S-K
under the Securities Act. If the tendering Holder is a broker-dealer (whether or
not it is also an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act) that will receive Exchange Notes for its own account
in exchange for Old Senior Notes, it represents that the Old Senior Notes to be
exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledges that it
will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes. By acknowledging that it will
deliver and by delivering a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes, the
undersigned is not deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The undersigned also warrants that it will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the Company to
be necessary or desirable to complete the exchange, assignment and transfer of
tendered Old Senior Notes or transfer ownership of such Old Senior Notes on the
account books maintained by a book-entry transfer facility. The undersigned
further agrees that acceptance of any tendered Old Senior Notes by the Company
and the issuance of Exchange Notes in exchange therefor shall constitute
performance in full by the Company of its obligations under the Registration
Rights Agreements(1) and that the
(1) Registration Rights Agreement, dated as of December 23, 1998, by and among
the Company, the Guarantors and Donaldson, Lufkin & Jenrette Securities
Corporation, et al., relating to the $225,000,000 7 3/8% Senior Notes due 2004.
Registration Rights Agreement, dated December 23, 1998, by and among
the Company, the Guarantors, and Donaldson, Lufkin & Jenrette Securities
Corporation, et al., relating to the $600,000,000 7 5/8% Senior Notes due 2006.
5
<PAGE> 6
Company shall have no further obligations or liabilities thereunder for the
registration of the Old Senior Notes or the Exchange Notes.
All authority herein conferred or agreed to be conferred shall survive
the death, bankruptcy or incapacity of the undersigned and every obligation of
the undersigned hereunder shall be binding upon the heirs, personal
representatives, executors, administrators, successors, assigns, trustees in
bankruptcy and other legal representatives of the undersigned. Tendered Old
Senior Notes may be withdrawn at any time prior to 5:00 p.m., New York City time
on the Expiration Date (the "Expiration Date").
Unless otherwise indicated under the caption "Special Registration and
Delivery Instructions" in this Letter of Transmittal, certificates for all
Exchange Notes delivered in exchange for tendered Old Senior Notes and any Old
Senior Notes delivered herewith but not exchanged, in each case registered in
the name of the undersigned, shall be delivered to the undersigned at the
address shown below the signature of the undersigned. If an Exchange Note is to
be issued to a person other than the person(s) signing this Letter of
Transmittal, or if the Exchange Note is to be mailed to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal at an address different than the address shown on this
Letter of Transmittal, the information requested under the appropriate caption
in this Letter of Transmittal should be provided. If Old Senior Notes are
surrendered by Holder(s) that have provided information under either the caption
entitled "Special Registration and Delivery Instructions" in this Letter of
Transmittal, signature(s) on this Letter of Transmittal must be guaranteed by an
Eligible Institution (as defined in Instruction 1).
- -------------------------------------------------------------------------------
Registration Rights Agreement, dated December 23, 1998, by and among
the Company, the Guarantors, and Donaldson, Lufkin & Jenrette Securities
Corporation, et al., relating to the $875,000,000 7 7/8% Senior Notes due 2009.
6
<PAGE> 7
_______________________________________________________________________________
TENDERING HOLDER(S) SIGN HERE
_______________________________________________________________________________
_______________________________________________________________________________
SIGNATURE(S) OF HOLDER(S)
Dated: _______________, 199_
(Must be signed by registered Holder(s) exactly as name(s) appear(s) on
certificate(s) for Old Senior Notes or by any person(s) authorized to become
registered Holder(s) by endorsements and documents transmitted herewith. If
signature by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, please set forth the full title of such person.) See Instruction 3.
Name (s):______________________________________________________________________
(PLEASE PRINT)
Capacity (full title): ________________________________________________________
Address:______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No.:___________________________________________________
TAX IDENTIFICATION NO.
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED - SEE INSTRUCTION 3)
Authorized Signature: _________________________________________________________
Name:__________________________________________________________________________
Title: _______________________________________________________________________
Address: ______________________________________________________________________
Name of Firm:__________________________________________________________________
Area Code and Telephone No.: _________________________________________________
Dated: _____________, 199_
_______________________________________________________________________________
BOX 3
TO BE COMPLETED BY ALL TENDERING HOLDERS
________________________________________________________________________________
PAYOR'S NAME: ALLIED WASTE NORTH AMERICA, INC.
<TABLE>
<S> <C> <C>
Part I - PLEASE PROVIDE YOUR TIN IN THE _______________________
BOX AT RIGHT AND CERTIFY BY SIGNING SOCIAL SECURITY NUMBER OR
AND DATING BELOW EMPLOYER IDENTIFICATION
NUMBER
SUBSTITUTE
FORM W-9
DEPARTMENT OF THE TREASURY Part 2 - Check the box if you are NOT subject
INTERNAL REVENUE SERVICE to back-up withholding under the provisions
of Section 3406 (a) (1) (C) of the Internal
Revenue Code because (1) you have not been
notified that you are subject to back-up
withholding as a result of failure to report
all interest or dividends, (2) the Internal
Revenue Service has notified you that you
are no longer subject to back-up withholding
or (3) you are exempt. / /
PAYOR'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER (TIN)
CERTIFICATE -- UNDER THE PENALTIES OF PART 3
PERJURY, I CERTIFY THAT THE INFORMATION CHECK IF
PROVIDED ON THIS FORM IS TRUE, CORRECT AWAITING TIN
AND COMPLETE.
SIGNATURE_______________ DATE __________ / /
</TABLE>
7
<PAGE> 8
BOX 4
________________________________________________________________________________
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Senior Notes in a principal amount
not tendered, or Exchange Notes are to be issued in the name of someone other
than Notes, person whose signature appears in Box 2.
Issue and deliver:
(check appropriate boxes)
/ / Old Senior Notes not tendered
/ / Exchange Notes, to:
Name __________________________________
(PLEASE TYPE OR PRINT)
Please complete the Substitute form W-9 at Box 3
Tax I.D. or Social Security Number:__________
BOX 5
_______________________________________________________________________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Senior Notes in a principal amount
not tendered, or Exchange Notes are to be delivered to someone other than the
the person whose signature appears in Box 2 or to an address other than that
shown in Box 1.
Deliver:
(check appropriate boxes)
/ / Old Senior Notes not tendered
/ / Exchange Notes, to:
Name __________________________________
(PLEASE TYPE OR PRINT)
Address________________________________
_______________________________________
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
- -- Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY
NUMBER OF -- NUMBER OF --
_________________________________________________________________________________________________________________________
<S> <C> <C> <C>
1. An individual's account The individual 8. Sole proprietorship The owner (4)
account
2. Two or more individuals The actual owner of the 9. A valid trust, The legal entity (Do not
(joint account) account or, if combined or pension furnish the identifying
estate, funds, any one trust number of the personal
of the individuals (1) representative or trustee
unless the legal entity
itself is not designated in
the account title.)(5)
3. Husband and wife (joint The actual owner of the 10. Corporate account The corporation
account) account or, if joint
funds, either person (1)
4. Custodian account of a The minor (2) 11. Religious, The organization
minor (Uniform Gift to charitable, or
Minors Act) educational
organization account
5. Adult and minor (joint The adult or, if the minor 12. Partnership account The partnership account)
account) is the only contributor, held in the name of
the minor (1) the business
6. Account in the name of The ward, minor, or 13. Association, club, or The organization
guardian or committee for incompetent person (3) other tax exempt
a designated ward, minor, organization
or incompetent person
7. a. The usual revocable The grantor-trustee (1) 14. A broker or The broker or nominee
savings trust account registered nominee
(grantor is also
trustee)
b. So-called trust The actual owner (1) 15. Account with the The public entity
account that is not a Department of
legal or valid trust Agriculture in the
under State law name of a public
entity (such as a
State or local
government, school
district, or prison)
that receives
agricultural program
payments
</TABLE>
______________
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
8
<PAGE> 9
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup with-holding on ALL payments include
the following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof.
- An international organization or any agency or instrumentality
thereof.
- A registered dealer in securities or commodities registered in the
U.S. or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described
in section 4947(a)(I).
- An entity registered at all times under the Investment Company Act of
1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section
1441.
- Payments to partnerships not engaged in a trade or business in the
U.S. and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid
in money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You
may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the
payer.
- Payments of tax-exempt interest (including exempt-interest dividends
under section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
taxpayer identification number to a payee. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If you
fail to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. -- If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Falsifying certifications
or affirmations may subject you to criminal penalties including fines and/or
imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE
INTERNAL REVENUE SERVICE.
9
<PAGE> 10
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES. Certificates
for all physically delivered Old Senior Notes, as well as a properly completed
and duly executed copy of this Letter of Transmittal or facsimile thereof, and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent at any of its addresses set forth herein on or prior to the
Expiration Date.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OLD SENIOR NOTES
AND ANY OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER AND,
EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH 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 ASSUME
DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. THIS LETTER OF
TRANSMITTAL AND THE OLD SENIOR NOTES SHOULD NOT BE SENT TO THE COMPANY. HOLDERS
MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES
OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
Holders whose Old Senior Notes are not immediately available or who cannot
deliver their Old Senior Notes and all other required documents to the Exchange
Agent on or prior to the Expiration Date may tender their Old Senior Notes
pursuant to the guaranteed delivery procedure set forth in the Prospectus under
the caption "The Exchange Offer -- Guaranteed Delivery Procedures." Pursuant to
such procedure: (i) such tender must be made by or through an Eligible
Institution (as defined in the Prospectus); (ii) on or prior to the Expiration
Date, the Exchange Agent must have received from such Eligible Institution a
letter, telegram or facsimile transmission setting forth the name and address of
the tendering Holder, the name(s) in which such Old Senior Notes are registered,
and the certificate numbers of the Old Senior Notes to be tendered; and (iii)
all tendered Old Senior Notes as well as this Letter of Transmittal and all
other documents required by this Letter of Transmittal must be received by the
Exchange Agent within three business days after the date of execution of such
letter, telex, telegram or facsimile transmissions, all as provided in the
Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery
Procedures."
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Old Senior Notes for exchange.
2. PARTIAL TENDERS; WITHDRAWALS. Tenders of Old Senior Notes will be
accepted in denominations of U.S. $1,000 and integral multiples in excess
thereof. If less than the entire principal amount of Old Senior Notes evidenced
by a submitted certificate is tendered; the tendering Holder must fill in the
principal amount tendered in the box entitled "Principal Amount Tendered." A
newly issued certificate for the principal amount of Old Senior Notes submitted
but not tendered will be sent to such Holder as soon as practicable after the
Expiration Date. All Old Senior Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Tenders of Old Senior Notes pursuant to the Exchange Offer are
irrevocable, except that Old Senior Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to 5:00 p.m., New York City time, on
the Expiration Date. To be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Exchange Agent.
Any such notice of withdrawal must specify the person named in the Letter of
Transmittal as having tendered Old Senior Notes to be withdrawn, the certificate
numbers and designation of the Old Senior Notes to be withdrawn, the principal
amount of Old Senior Notes delivered for exchange, a statement that such a
Holder is withdrawing its election to have such Old Senior Notes exchanged, and
the name of the registered Holder of such Old Senior Notes, and must be signed
by the Holder in the same manner as the original signature on the Letter of
Transmittal (including any required signature guarantees) or be accompanied by
evidence satisfactory to the Company that the person withdrawing the tender has
succeeded to the beneficial ownership of the Old Senior Notes being withdrawn.
If Old Senior Notes have been tendered pursuant to the procedure for book-entry
transfer, any notice of withdrawal must specify the name and number of the
account at the book-entry transfer facility. All questions as to the validity,
form and eligibility (including time of receipt) of such notices will be
determined by the Company, whose determination shall be final and binding on all
parties. Any Old Senior Notes so withdrawn will be deemed not to have been
validly tendered for purposes of the Exchange Offer and no Exchange Notes will
be issued with respect thereto unless the Old Senior Notes so withdrawn are
validly retendered. The Exchange Agent will return the properly withdrawn Old
Senior Notes promptly following receipt of notice of withdrawal. Properly
withdrawn Old Senior Notes may be retendered by following one of the procedures
described in the
10
<PAGE> 11
Prospectus under the caption "The Exchange Offer -- Procedures for Tendering Old
Senior Notes" at any time prior to the Expiration Date.
3. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed
by the registered Holder(s) of the Old Senior Notes tendered hereby, the
Signature must correspond with the name(s) as written on the face of
certificates without alteration, enlargement or change whatsoever.
If any of the Old Senior Notes tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Old Senior Notes registered in different names are
tendered, it will be necessary to complete, sign and submit as many separate
copies of this Letter of Transmittal as there are different registrations of Old
Senior Notes.
When this Letter of Transmittal is signed by the registered Holder or
Holders of Old Senior Notes listed and tendered hereby, no endorsements of
certificates or separate written instruments of transfer or exchange are
required.
If this Letter of Transmittal is signed by a person other than the
registered Holder or Holders of the Old Senior Notes listed, such Old Senior
Notes must be endorsed or accompanied by separate written instruments of
transfer or exchange in form satisfactory to the Company and duly executed by
the registered Holder or Holders, in either case signed exactly as the name or
names of the registered Holder or Holders appear(s) on the Old Senior Notes.
If this Letter of Transmittal, any certificates or separate written
instruments of transfer or exchange 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 so to act must be submitted.
Endorsements on certificates or signatures on separate written instruments
of transfer or exchange required by this Instruction 3 must be guaranteed by an
Eligible Institution.
Signatures on this Letter of Transmittal need not be guaranteed by an
Eligible Institution, provided the Old Senior Notes are tendered: (i) by a
registered Holder of such Old Senior Notes; or (ii) for the account of any
Eligible Institution.
4. TRANSFER TAXES. The Company shall pay all transfer taxes, if any,
applicable to the exchange of Old Senior Notes pursuant to the Exchange Offer.
If, however, certificates representing Exchange Notes, or Old Senior Notes for
principal amounts not tendered or accepted for exchange, are to be delivered to,
or are to be issued in the name of, any person other than the registered Holder
of the Old Senior Notes tendered hereby, or if a transfer tax is imposed for any
reason other than the exchange of Old Senior Notes pursuant to the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered Holder or any other person) will be payable by the tendering Holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted herewith, the amount of such transfer taxes will be billed directly to
such tendering Holder.
Except as provided in this Instruction 4, it will not be necessary for
transfer tax stamps to be affixed to the Old Senior Notes listed in this Letter
of Transmittal.
5. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive,
in whole or in part, any of the conditions to the Exchange Offer set forth in
the Prospectus.
6. MUTILATED, LOST, STOLEN OR DESTROYED OLD SENIOR NOTES. Any Holder whose
Old Senior Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated above for further instructions.
7. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent
at the address and telephone number set forth above. In addition, all questions
relating to the Exchange Offer, as well as requests for assistance or additional
copies of the Prospectus and this Letter of Transmittal, may be directed to the
Exchange Agent at the address specified in the Prospectus.
11
<PAGE> 12
8. IRREGULARITIES. All questions as to the validity, form, eligibility
(including time of receipt), and acceptance of Letters of Transmittal or Old
Senior Notes will be resolved by the Company, whose determination will be final
and binding. The Company reserves the absolute right to reject any or all
Letters of Transmittal or tenders that are not in proper form or the acceptance
of which would, in the opinion of the Company's counsel, be unlawful. The
Company also reserves the absolute right to waive any irregularities or
conditions of tender as to the particular Old Senior Notes covered by any Letter
of Transmittal or tendered pursuant to such Letter of Transmittal. None of the
Company, the Exchange Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Company's interpretation of the
terms and conditions of the Exchange Offer shall be final and binding.
9. DEFINITIONS. Capitalized terms used in this Letter of Transmittal and
not otherwise defined have the meanings given in the Prospectus.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER
WITH CERTIFICATES FOR OLD SENIOR NOTES AND ALL OTHER REQUIRED DOCUMENTS) OR A
NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR
TO 5:00 P.M., NEW YORK CITY TIME ON THE EXPIRATION DATE.
12
<PAGE> 1
Exhibit 99.2
ALLIED WASTE NORTH AMERICA, INC.
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OFFER FOR ALL OUTSTANDING
ALL OUTSTANDING 7 3/8% SERIES A SENIOR NOTES DUE 2004
IN EXCHANGE FOR
7 3/8% SERIES B SENIOR NOTES DUE 2004
ALL OUTSTANDING 7 5/8% SERIES A SENIOR NOTES DUE 2006
IN EXCHANGE FOR
7 5/8% SERIES B SENIOR NOTES DUE 2006
ALL OUTSTANDING 7 7/8% SERIES A SENIOR NOTES DUE 2009
IN EXCHANGE FOR
7 7/8% SERIES B SENIOR NOTES DUE 2009
OF
ALLIED WASTE NORTH AMERICA, INC.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON __________, 1999, UNLESS EXTENDED.
AS DESCRIBED HEREIN, WITHDRAWAL RIGHTS WITH RESPECT TO THE EXCHANGE OFFER
ARE EXPECTED TO EXPIRE AT THE EXPIRATION OF THE EXCHANGE OFFER
- --------------------------------------------------------------------------------
Registered holders of outstanding 7 3/8% Series A Senior Notes due 2004, 7 5/8%
Series A Senior Notes due 2006 and 7 7/8% Series A Senior Notes due 2009 (the
"Old Senior Notes") of Allied Waste North America, Inc. (the "Company") who wish
to tender their Old Senior Notes in exchange for a like principal amount of 7
3/8% Series B Senior Notes due 2004, 7 5/8% Series B Senior Notes due 2006 and 7
7/8% Series B Senior Notes due 2009 (the "New Senior Notes") of the Company and
whose Old Senior Notes are not immediately available or who cannot deliver their
Old Senior Notes and Letter of Transmittal (the "Letter of Transmittal") (and
any other documents required by the Letter of Transmittal) to U.S. Bank Trust
National Association (the "Exchange Agent"), on or prior to 5:00 p.m., New York
City time on _______________ (the "Expiration Date"), may use this Notice of
Guaranteed Delivery or one substantially equivalent hereto. This Notice of
Guaranteed Delivery may be delivered by hand or sent by facsimile transmission
(receipt confirmed by telephone and an original delivered by guaranteed
overnight delivery) or mail to the Exchange Agent. See "The Exchange Offer --
Guaranteed Delivery Procedures" in the Prospectus (the "Prospectus").
The Exchange Agent for the Exchange Offer is:
U.S. BANK TRUST NATIONAL ASSOCIATION
By Hand, Mail or Overnight Courier:
U.S. Bank Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Specialized Finance
Department
By Registered or Certified Mail:
By Facsimile to Eligible Institutions:
(651) 244-1537
Confirm by telephone to:
(651) 244-4512
<PAGE> 2
Delivery of this Notice of Guaranteed Delivery to an address other than as set
forth above or transmission of instructions via a facsimile transmission to a
number other than as set forth above will not constitute a valid delivery.
This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If
a signature on a Letter of Transmittal is required to be guaranteed by an
Eligible Institution, such signature guarantee must appear in the applicable
space provided on the Letter of Transmittal for Guarantee of Signatures.
Ladies and Gentlemen:
The undersigned hereby tender(s) to the Company, upon the terms and
subject to the conditions set forth in the Exchange Offer and the Letter of
Transmittal, receipt of which is hereby acknowledged, the aggregate principal
amount of Old Senior Notes set forth below pursuant to the guaranteed delivery
procedures set forth in the Prospectus.
The undersigned understands that tenders of Old Senior Notes will be
accepted only in principal amounts equal to U.S. $1,000 or integral multiples
thereof. The undersigned understands that tenders of Old Senior Notes pursuant
to the Exchange Offer may not be withdrawn after 5:00 p.m., New York City time
on the Expiration Date. Tenders of Old Senior Notes may also be withdrawn if the
Exchange Offer is terminated without any such Old Senior Notes being purchased
thereunder or as otherwise provided in the Prospectus.
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Owner(s) or
Authorized Signatory:___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Principal Amount of Old Senior Notes Tendered:
U.S. $_____7 3/8% Series A Senior Notes Due 2004
U.S. $_____7 5/8% Series A Senior Notes Due 2006
U.S. $_____7 7/8% Series A Senior Notes Due 2009
Certificate No.(s) of Old Senior Notes
(if available):_________________________________________________________________
________________________________________________________________________________
Name(s) of Registered Holder(s):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
Area Code and Telephone No.:____________________________________________________
Date:___________________________________________________________________________
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<PAGE> 3
This Notice of Guaranteed Delivery must be signed by the registered
holder(s) of Old Senior Notes exactly as its (their) name(s) appear on
certificates for Old Senior Notes or on a security position listing as the owner
of Old Senior Notes, or by person(s) authorized to become registered Holder(s)
by endorsements and documents transmitted with this Notice of Guaranteed
Delivery. If a signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or such
representative capacity, such person must provide the following information.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s): __________________________________________________________________
__________________________________________________________________
Capacity: __________________________________________________________________
Address(es): __________________________________________________________________
__________________________________________________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States or an "eligible guarantor institution" as defined by Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
hereby (a) represents that each holder of Old Senior Notes on whose behalf this
tender is being made "own(s)" the Old Senior Notes covered hereby within the
meaning of Rule 14e-4 under the Exchange Act, (b) represents that such tender of
Old Senior Notes complies with such Rule 14e-4, and (c) guarantees that, within
three business days from the date of this Notice of Guaranteed Delivery, a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof), together with certificates representing the Old Senior Notes covered
hereby in proper form for transfer and required documents, will be deposited by
the undersigned with the Exchange Agent.
THE UNDERSIGNED ACKNOWLEDGES THAT IT MUST DELIVER THE LETTER OF
TRANSMITTAL AND OLD SENIOR NOTES TENDERED HEREBY TO THE EXCHANGE AGENT WITHIN
THE TIME SET FORTH ABOVE AND THAT FAILURE TO DO SO COULD RESULT IN FINANCIAL
LOSS TO THE UNDERSIGNED.
Name of Firm:___________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
Area Code and Telephone No.:____________________________________________________
________________________________________________________________________________
Authorized Signature:___________________________________________________________
Name:___________________________________________________________________________
Title:__________________________________________________________________________
Date:___________________________________________________________________________
DO NOT SEND OLD SENIOR NOTES WITH THIS FORM. OLD SENIOR NOTES SHOULD BE SENT TO
THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER
OF TRANSMITTAL.
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<PAGE> 1
Exhibit 99.3
INSTRUCTION TO REGISTERED HOLDER
FROM BENEFICIAL OWNER
OF
7 3/8% SERIES A SENIOR NOTES DUE 2004
7 5/8% SERIES A SENIOR NOTES DUE 2006
7 7/8% SERIES A SENIOR NOTES DUE 2009
OF
ALLIED WASTE NORTH AMERICA, INC.
To Registered Holders:
The undersigned hereby acknowledges receipt of the Prospectus dated
____________, 1999 (the "Prospectus"), of Allied Waste North America, Inc. (the
"Company"), and accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Company's offer (the "Exchange
Offer") to exchange U.S. $1,000 principal amount of 7 3/8% Series B Senior Notes
due 2004, 7 5/8% Series B Senior Notes due 2006 and 7 7/8% Series B Senior Notes
due 2009 (the "New Senior Notes") of the Company for each U.S. $1,000 principal
amount of outstanding 7 3/8% Series A Senior Notes due 2004, 7 5/8% Series A
Senior Notes due 2006 and 7 7/8% Series A Senior Notes due 2009 (the "Old Senior
Notes") of the Company, respectively. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder, as to the action to be
taken by you relating to the Exchange Offer with respect to the Old Senior Notes
held by you for the account of the undersigned.
The aggregate face amount of the Old Senior Notes held by you for the
account of the undersigned is (fill in amount):
U.S.$____________ of 7 3/8% Series A Senior Notes due 2004
U.S.$____________ of 7 5/8% Series A Senior Notes due 2006
U.S.$____________ of 7 7/8% Series A Senior Notes due 2009.
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
/ / To TENDER the following Old Senior Notes held by you for the account
of the undersigned (insert principal amount of Old Senior Notes to be
tendered (if any)):
U.S.$____________ of 7 3/8% Series B Senior Notes due 2004
U.S.$____________ of 7 5/8% Series B Senior Notes due 2006
U.S.$____________ of 7 7/8% Series B Senior Notes due 2009.
/ / NOT to TENDER any Old Senior Notes held by you for the account of the
undersigned.
<PAGE> 2
If the undersigned instructs you to tender Old Senior Notes held by you for
the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
New Senior Notes acquired pursuant to the Exchange Offer are being obtained in
the ordinary course of business of the undersigned, (ii) the undersigned is not
participating in, intends to participate in or has an arrangement or
understanding with any person to participate in, the distribution of such New
Senior Notes, (iii) if the undersigned is not a broker-dealer, or is a
broker-dealer but will not receive New Senior Notes for its own account in
exchange for Old Senior Notes, the undersigned is not engaged in or intends to
participate in the distribution of such New Senior Notes and (iv) the
undersigned is not an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act of 1933, as amended (the "Securities Act"), or, if the
undersigned is an "affiliate," that the undersigned will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable. If the undersigned is a broker-dealer (whether or not it is
also an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) that will receive New Senior Notes for its own account in
exchange for Old Senior Notes, it represents that such Old Senior Notes were
acquired as a result of market-making activities or other trading activities,
and it acknowledges that it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such New Senior Notes. By
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Senior Notes, the undersigned is not deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
SIGN HERE
Name of beneficial owner(s) (please print):___________________________________
Signature(s):_________________________________________________________________
Address:______________________________________________________________________
______________________________________________________________________________
Telephone Number._____________________________________________________________
Taxpayer identification or Social Security Number_____________________________
Date:_________________________________________________________________________
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