1
EXHIBIT 4.5
SENIOR SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed herein to
be named) below hereby jointly and severally unconditionally guarantees, on a
senior subordinated basis to the Holder of the Security upon which this Senior
Subordinated Guarantee is endorsed, and to the Trustee on behalf of such Holder,
the due and punctual payment of the principal of (and 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.
The Senior Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Security or the Indenture, the absence of
any action to enforce the 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 Finance Guarantee, Allied Parent) 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 Finance Guarantee, Allied Parent) or any other Person or any
collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company (or, with respect to the Allied Finance Guarantee, Allied Parent),
protest or notice with respect to such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Senior Subordinated
Guarantee will not be discharged except by complete performance of the
obligations contained in such Security and in this Senior Subordinated
Guarantee. Each of the Guarantors hereby agrees that, in the event of a default
in payment of principal (or premium, if any) or interest on such Security,
whether at their Stated Maturity, by
1
2
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 the Indenture, directly against
each of the Guarantors to enforce this Senior Subordinated Guarantee without
first proceeding against the Company. 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 Finance Guarantee, the Guarantee
of Allied Parent), 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
Subordinated Guarantee or of the Indenture shall alter or impair the Senior
Subordinated Guarantee of any Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Security upon which this Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder of such
Security against the Company (or, with respect to the Allied Finance Guarantee,
against Allied Parent) in respect of any amounts paid by such Guarantor on
account of such Security (or with respect to the Allied Finance Guarantee, on
account of the Guarantee of Allied Parent) pursuant to the provisions of its
Senior Subordinated Guarantee or the Indenture; provided, however, that such
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of (and
premium, if any) and interest on this Security and all other Securities issued
under the Indenture shall have been paid in full.
This Senior Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or with respect to the Allied Finance Guarantee, Allied Parent) for
liquidation or reorganization, should the Company (or with respect to the Allied
Finance Guarantee, Allied Parent) 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 (or with respect to the Allied Finance
Guarantee, Allied Parent's) assets, 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 is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities (or with respect to the Allied Finance Guarantee, on
the Guarantee of Allied Parent), 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.
2
3
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 Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released from this
Senior Subordinated Guarantee upon the terms and subject to certain conditions
provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance
with the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Subsidiary Guarantee for the benefit of the Holder of the Security upon
which this Subsidiary Guarantee is endorsed, 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 Subordinated Guarantee which are defined
in the Indenture referred to in the Security upon which this Senior Subordinated
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Senior Subordinated Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Senior Subordinated Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by manual signature.
Reference is made to Article Thirteen of the Indenture for further
provisions with respect to this Senior Subordinated Guarantee.
THIS SENIOR SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
3
4
IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Subordinated Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor
By: /s/XXXXX X. XXXXXX
-------------------------------------------------
Chairman of the Board and Chief Executive Officer
Attest:
/s/XXXXXX X. XXXX
---------------------------------
Vice President -- Legal and Secretary
Each of the Subsidiary Guarantors Listed on Schedule I to the
Indenture, As Guarantor
By:* /s/AUTHORIZED OFFICER
-----------------------------------------
[Officer]
Attest:*
/s/AUTHORIZED OFFICER
---------------------------------
[Secretary]
--------
*Signing as duly authorized officer for each such Subsidiary Guarantor.
4
