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Exhibit 10.2
EXECUTION COPY
ALLIED WASTE NORTH AMERICA, INC.
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$600,000,000
7 5/8% SENIOR NOTES DUE 2006
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 23, 1998
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XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
BEAR XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED
CIBC XXXXXXXXXXX CORP.
XXXXXXX XXXXX XXXXXX INC.
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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
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ("DLJ"), Xxxxxxx, Sachs &
Co., Credit Suisse First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, Bear, Xxxxxxx & Co. Inc.,
BT Alex. Xxxxx Incorporated, CIBC Xxxxxxxxxxx Corp. and Xxxxxxx Xxxxx Xxxxxx
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
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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.
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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
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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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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
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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.
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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 Xxxxxx Xxxxxxx 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
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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), Xxxxxx Xxxxxxx 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.
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(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;
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(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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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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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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(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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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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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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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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(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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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:
00000 Xxxxx Xxxxxxxx - Xxxxxx
Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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
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. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name:
Title:
ALLIED WASTE INDUSTRIES, INC.
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name:
Title:
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written by Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation on behalf of the
Initial Purchasers.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx X.X. Xxxxxx
-------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Vice President
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
Xxxxxx 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
24
American Disposal Services of West Virginia, Inc.* Delaware
American Disposal Transfer Services of Illinois, Inc.* Delaware
American Transfer Company, Inc.* New York
Xxxxxxxx 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
Xxxxxxx Landfill, Inc. California
Xxxxxx Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC* Delaware
Brunswick Waste Management Facility, LLC* Delaware
Xxxxxx 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
Xxxxxxxx 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
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
Xxxxxxxx, Inc. Michigan
Xxxxxxxx Recycling, Inc. Michigan
Xxxxxxxx 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
Xxxxxx 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
Xxxxx County Landfill TX, LLC* Delaware
Xxxxx County Landfill TX, L.P.* Delaware
Xxxxx Xxxxx 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
Xxxx X. Xxxxxxx Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP* Delaware
Forward, Inc. California
X. Xxx Xxxxx Disposal Inc. Michigan
Xxxxxxxx Brothers, Inc. New Jersey
Xxxxxxxx Recycling and Transfer Station Co., Inc. New Jersey
Xxxx 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
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
Xxxxxx Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC* Delaware
Xxx Xx Xxxx & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Xxxxxxx Waste Systems (Dallas) Inc.* Delaware
Xxxxxxx Waste Systems (Kansas City) Inc. Missouri
Xxxxxxx Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Xxx County Landfill SC, LLC* Delaware
Xxx 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
Xxxxx Xxxxx & 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
Xxxxxx County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC* Delaware
Northeast Sanitary Landfill, Inc. South Carolina
A-4
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 Xxxxxxx
X. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Xxxxxxxxxx
Xxxxxx Landfill, Inc. California
RCS, Inc. Illinois
X.X. Xxxxxx Enterprises, Inc. Ohio
X.X. Xxxxxx Refuse Service, Inc. Ohio
Recycling Associates, Inc.* New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Xxxx Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Xxxxxx 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
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
Xxxxx Recycling Center, Inc. Ohio
Xxxxxxx 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
Xxx Xxxxxxx'x 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
Xxxxxx Disposal Service, Inc. Massachusetts
Xxxxxx Xxxxx'x Waste Systems, Inc.* New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Xxxxx County Landfill IL, Inc.* Delaware
WJR Environmental, Inc. Washington
Xxxxxxxx County Landfill, Inc. Ohio
World Sanitation Corporation* New York
A-6
