EXHIBIT 4.3
EXECUTION COPY
$150,000,000
IESI CORPORATION
10 1/4% SENIOR SUBORDINATED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
June 7, 2002
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Xxxxxx Inc.
as Representatives of the Initial Purchasers
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
IESI Corporation, a Delaware corporation (the "ISSUER"), proposes to
issue and sell to Credit Suisse First Boston Corporation, Xxxxxxx Xxxxx Barney
Inc., Fleet Securities, Inc. and X.X. Xxxxxx Securities Inc. (collectively, the
"INITIAL PURCHASERS"), upon the terms set forth in a purchase agreement of even
date herewith (the "PURCHASE AGREEMENT"), $150,000,000 aggregate principal
amount of its 10 1/4 % Senior Subordinated Notes due 2012 (the "INITIAL
SECURITIES") to be guaranteed (the "GUARANTIES") by the subsidiaries of the
Company identified on Schedule A hereto, the "GUARANTORS" and, collectively with
the Issuer, the "COMPANY"). The Initial Securities will be issued pursuant to an
Indenture, dated as of June 12, 2002 (the "INDENTURE"), among the Issuer, the
Guarantors named therein and The Bank of New York, as trustee (the "TRUSTEE").
As an inducement to the Initial Purchasers to enter into the Purchase Agreement,
the Company and the Guarantors agree with you, for the benefit of the Initial
Purchasers and the holders of the Securities (as defined below) (collectively
the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. Unless not permitted by applicable
law, the Company and the Guarantors shall prepare and, not later than 75 days
(such 75th day being a "FILING DEADLINE") after the date on which the Initial
Purchasers purchase the Initial Securities pursuant to the Purchase Agreement
(the "CLOSING DATE"), file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED
EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities of the Company issued under the Indenture, identical
in all material respects to the Initial Securities and registered under the
Securities Act (the "EXCHANGE SECURITIES"). The Company and the Guarantors shall
use their best efforts to (i) cause such Exchange Offer Registration Statement
to become effective under the Securities Act within 180 days after the Closing
Date (such 180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE
OFFER REGISTRATION PERIOD").
If the Company and the Guarantors commence the Registered Exchange
Offer, the Company and the Guarantors (i) will be entitled to consummate the
Registered Exchange Offer 30 days after such commencement (provided that the
Company has accepted all the Initial Securities theretofore validly tendered in
accordance with the terms of the Registered Exchange Offer) and (ii) will be
required to consummate the Registered Exchange Offer no later than 40 days after
the date on which the Exchange Offer Registration Statement is declared
effective (such 40th day being the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly commence
the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of Transfer Restricted Securities electing
to exchange the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company and the Guarantors acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act, in
the absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities, for
Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Item 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
The Company and the Guarantors shall use their reasonable best efforts
to keep the Exchange Offer Registration Statement effective and to amend and
supplement the prospectus contained therein, in order to permit such prospectus
to be lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Securities;
PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment
or supplement thereto must be delivered by an Exchanging Dealer or an Initial
Purchaser, such period shall be the lesser of 180 days and the date on which all
Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities
held by them (unless such period is extended pursuant to Section 3(j) below) and
(ii) the Company and the Guarantors shall make such prospectus and any amendment
or supplement thereto available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than 90 days
after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including
with respect to the Guarantees thereof) to the Initial Securities (the "PRIVATE
EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the
Private Exchange Securities are herein collectively called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company and the
Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
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(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain open;
and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company and the
Guarantors shall:
(x) accept for exchange all the Securities validly tendered
and not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly
to each Holder of the Initial Securities, Exchange Securities or
Private Exchange Securities, as the case may be, equal in principal
amount to the Initial Securities of such Holder so accepted for
exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Initial Securities surrendered in exchange therefor or, if no interest has
been paid on the Initial Securities, from the date of original issue of the
Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Guarantors that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Company or if
it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if such
Holder is a broker-dealer, that it will receive Exchange Securities for its own
account in exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact
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required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2. SHELF REGISTRATION. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
and the Guarantors are not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated by the 220th day after the Closing Date, (iii) any Initial Purchaser
so requests in writing with respect to the Initial Securities (or the Private
Exchange Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer)
is not eligible to participate in the Registered Exchange Offer or, in the case
of any Holder (other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Securities on the date of the exchange and any such Holder so requests
in writing the Company and the Guarantors shall take the following actions (the
date on which any of the conditions described in the foregoing clauses (i)
through (iv) occur, including in the case of clauses (iii) or (iv) the receipt
of the required notice, being a "TRIGGER DATE"):
(a) The Company and the Guarantors shall promptly (but in no
event more than 60 days after the Trigger Date (such 60th day being a
"FILING DEADLINE")) file with the Commission and thereafter use their
reasonable best efforts to cause to be declared effective no later
than 180 days after the Trigger Date (such 180th day being an
"EFFECTIVENESS DEADLINE") a registration statement (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT") on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "SHELF REGISTRATION"); PROVIDED, HOWEVER, that no
Holder (other than an Initial Purchaser) shall be entitled tohave the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Company and the Guarantors shall use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer period if
extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been
sold pursuant thereto or (ii) are no longer restricted securities (as
defined in Rule 144 under the Securities Act, or any successor rule
thereof). The Company and the Guarantors shall be deemed not to have
used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period,
unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement
to the contrary, the Company and the Guarantors shall cause the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission and (ii) not to contain
any untrue statement of a material fact or omit 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; with regard to clause (ii), it being
understood that the Company and the Guarantor will not be so
responsible for information provided by or on behalf of Holders of
Securities, Exchange Securities or Private Exchange Securities.
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3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company and the Guarantors shall (i) furnish to
each Initial Purchaser, prior to the filing thereof with the
Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to
any portion of an unsold allotment from the original offering) is
participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company and the Guarantors shall use their
reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include the information set forth in
Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section
and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement
and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested in writing by an Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement; (iv) include within the
prospectus contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer
that is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Securities received by such broker-dealer in the Registered
Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such
positions or policies have been publicly disseminated by the staff of
the Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel (which
may be in-house counsel), represent the prevailing views of the staff
of the Commission; and (v) in the case of a Shelf Registration
Statement, include the names of the Holders who propose to sell
Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company and the Guarantors shall give written
notice to the Initial Purchasers, the Holders of the Securities and
any Participating Broker-Dealer from whom the Company or any Guarantor
has received prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer (which notice pursuant
to clauses (ii)-(vi) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have
been made, or the Company decides to resume the use of the prospectus,
as the case may be):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company, any Guarantor or
their legal counsel of any notification with respect to the
suspension of the qualification of the Securities for
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sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that, in the good
faith judgment of the Company, requires the Company to make
changes in the Registration Statement or the prospectus in order
that the Registration Statement or the prospectus do not contain
an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus, in light
of the circumstances under which they were made) not misleading.
(vi) of the Company choosing to suspend the use of
the prospectus in good faith and for valid business reasons,
provided that such suspension may not last for more than 90
consecutive days and there shall be no more than one such
suspension in any period of 360 consecutive days.
(c) The Company and the Guarantors shall make every
reasonable effort to obtain the withdrawal at the earliest possible
time, of any order suspending the effectiveness of the Registration
Statement.
(d) The Company and the Guarantors shall furnish to each
Holder of Securities included within the coverage of the Shelf
Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company and the Guarantors shall deliver to each
Exchanging Dealer and each Initial Purchaser, and to any other Holder
who so requests in writing, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if any
Initial Purchaser or any such Holder requests in writing, all exhibits
thereto (including those incorporated by reference).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request in writing.
The Company and the Guarantors consent, subject to the provisions of
this Agreement, to the use of the prospectus or any amendment or
supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company and the Guarantors shall deliver to each
Initial Purchaser, any Exchanging Dealer, any Participating
Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer
Registration Statement and any amendment or supplement thereto as such
persons may reasonably request in writing. The Company and the
Guarantors consent, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by
any Initial Purchaser, if necessary, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant
to any Registration Statement the Company and the Guarantors shall
register or qualify or cooperate with the Holders
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of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities
for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; PROVIDED, HOWEVER,
that neither the Company nor any Guarantor shall be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
(i) The Company and the Guarantors shall cooperate with the
Holders of the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold
pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as the Holders
may request in writing a reasonable period of time prior to sales of
the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period
for which the Company and the Guarantors are required to maintain an
effective Registration Statement, the Company and the Guarantors shall
promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and
any other required document so that, as thereafter delivered to
Holders of the Securities or purchasers of Securities, the prospectus
will not contain an 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 light of the circumstances under which
they were made, not misleading. If the Company notifies the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (vi) of
Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made or the Company
chooses to resume the use of the prospectus, as the case may be, then
the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by
the number of days from and including the date of the giving of such
notice to and including the date when the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer
shall have received such amended or supplemented prospectus pursuant
to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company and the Guarantors will provide a
CUSIP number for the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Initial
Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with
The Depository Trust Company.
(l) The Company and the Guarantors will comply with all
rules and regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to their security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) a consolidated earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is
a fiscal year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Company and the Guarantors shall cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and containing such changes, if any, as
shall be necessary for such qualification. In the event that such
qualification would require
7
the appointment of a new trustee under the Indenture, the Company and
the Guarantors shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) The Company and the Guarantors may require each Holder
of Securities to be sold pursuant to the Shelf Registration Statement
to furnish to the Company such information regarding the Holder and
the distribution of the Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration
Statement, and the Company and the Guarantors may exclude from such
registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(o) The Company and the Guarantors shall enter into such
customary agreements (including, if requested, a single underwriting
agreement in customary form) and take all such other action, if any,
as Holders of a majority in interest of the Securities to be included
in a Shelf Registration Statement or any Initial Purchaser shall
reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company and
the Guarantors shall (i) make reasonably available for inspection by
the Holders of the Securities, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and an
attorney, accountant or other agent retained by the Holders of the
Securities or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) cause the Company's officers, directors,
employees, accountants and auditors, and those of its subsidiaries, to
supply all relevant information reasonably requested by the Holders of
the Securities or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons, to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; PROVIDED, HOWEVER, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4 hereof.
(q) In the case of any Shelf Registration, the Company and
the Guarantors, if requested by any Holder of Securities covered
thereby, shall cause (i) their counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed
to such Holders and the managing underwriters, if any, thereof and
dated, in the case of the initial opinion, the effective date of such
Shelf Registration Statement; (ii) their officers to execute and
deliver all customary documents and certificates and updates thereof
reasonably requested by any managing underwriters of the applicable
Securities and (iii) their independent public accountants and the
independent public accountants with respect to any other entity for
which financial information is provided in the Shelf Registration
Statement to provide to the selling Holders of the applicable
Securities and any managing underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72.
(r) If a Registered Exchange Offer or a Private Exchange
is to be consummated, upon delivery of the Initial Securities by
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company shall xxxx, or
caused to be marked, on the Initial Securities so exchanged that such
Initial Securities are being canceled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in
no event shall the Initial Securities be marked as paid or otherwise
satisfied.
(s) The Company and the Guarantors will use commercially
reasonable efforts to confirm that any ratings that were applied to
the Initial Securities will apply to the Securities covered by a
Registration Statement.
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(t) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES")
of the National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a Holder of such Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof,
or otherwise, the Company and the Guarantors will assist such
broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent underwriter"
(as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(u) The Company and the Guarantors shall use their
commercially reasonable efforts to take all other steps necessary to
effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
4. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of and
compliance and that of the Guarantors with this Agreement will be borne by the
Company and the Guarantors, regardless of whether a Registration Statement is
ever filed or 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 Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of Prospectuses),
messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company
and the Guarantors; and
(v) 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).
The Company and the Guarantors will bear their 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 and the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement, the Company and the Guarantors will reimburse the Initial Purchasers
and the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as applicable,
for the reasonable fees and disbursements of not more than one counsel, who
shall be Debevoise & Xxxxxxxx unless another firm shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
9
5. INDEMNIFICATION.
(a) The Company and the Guarantors jointly and severally agree to
indemnify and hold harmless each Holder of the Securities, any Participating
Broker-Dealer and each person, if any, who controls such Holder or such
Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the "INDEMNIFIED PARTIES") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; PROVIDED, HOWEVER, that (i) the Company
and the Guarantors shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company or the Guarantors by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Holder
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that a prospectus relating to
such Securities was required to be delivered by such Holder under the Securities
Act in connection with such purchase and any such loss, claim, damage or
liability of such Holder results from the fact that there was not sent or given
to such person, at or prior to the written confirmation of the sale of such
Securities to such person, a copy of the final prospectus if the Company had
previously furnished copies thereof to such Holder; PROVIDED FURTHER, HOWEVER,
that this indemnity agreement will be in addition to any liability which the
Company or the Guarantors may otherwise have to such Indemnified Party. The
Company and the Guarantors shall also indemnify underwriters, their officers and
directors and each person who controls such underwriters within the meaning of
the Securities Act or the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities if requested by
such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and the Guarantors and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company and the Guarantors or any such
controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company and the
Guarantors for any legal or other expenses reasonably incurred by the Company
and the Guarantors or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company and the Guarantors or any of
the Company's controlling persons.
10
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will not be
liable to such indemnified party under this Section 5 for any legal or other
expenses. In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the contrary; and (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party; (iii) the indemnified party
shall have concluded upon the advice of counsel that there may be legal defenses
available to it that are different from or in addition to those available to the
indemnifying party; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that all fees and expenses shall be reimbursed to the
indemnified party as they are incurred. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is a
party and indemnity had been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action, and does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties from the
offering of the Initial Securities and the Exchange Securities on the one hand
and the indemnified party on the other from receiving Initial Securities or
Exchange Securities registered under the Securities Act, or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties 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
and the Guarantors on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Securities pursuant to a Registration Statement exceeds the amount of damages
which such Holders 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
Securities 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
11
Section 5 are several in proportion to their respective purchase obligations
hereunder and not joint. For purposes of this paragraph (d), each person, if
any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company and the Guarantors.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect to
the Securities shall be assessed as follows if any of the following events occur
(each such event in clauses (i) through (iv) below being herein called a
"REGISTRATION DEFAULT"):
(i) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable Filing
Deadline;
(ii) any Registration Statement required by this Agreement
is not declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated
on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement
has been declared effective by the Commission but (A) such
Registration Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be usable
in connection with resales of Transfer Restricted Securities during
the periods specified herein that such registration statement is
required to be effective because either (1) any event occurs as a
result of which the related prospectus forming part of such
Registration Statement would include any 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, or (2) it shall be necessary to amend such
Registration Statement or supplement the related prospectus, to comply
with the Securities Act or the Exchange Act or the respective rules
thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company and the Guarantors or pursuant to operation of law or as
a result of any action or inaction by the Commission .
Additional Interest shall accrue on the Securities over and above the
interest set forth in the title of the Securities from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.25% per
annum (the "ADDITIONAL INTEREST RATE") for the first 90-day period immediately
following the occurrence of such Registration Default. The Additional Interest
Rate shall increase by an additional 0.25% per annum with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum Additional Interest Rate of 1.5% per annum.
(b) A Registration Default referred to in Section 6(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company and its subsidiaries where
such post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related prospectus or (y) other material
events, with respect to the Company and the Guarantors that would need to be
described in such Shelf Registration Statement or
12
the related prospectus and (ii) in the case of clause (y), the Company and the
Guarantors are proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
PROVIDED, HOWEVER, that in any case if such Registration Default occurs for a
continuous period in excess of 90 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the Securities and further multiplied by a fraction, the numerator of which is
the number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i)
the date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of an Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act.
7. RULES 144 AND 144A. The Company and the Guarantors shall use
their reasonable best efforts to file the reports required to be filed by them
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the written
request of any Holder of Securities, make publicly available other information
so long as necessary to permit sales of their securities pursuant to Rules 144
and 144A. The Company and the Guarantors covenant that they will take such
further action as any Holder of Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Initial Securities identified to the Company by the Initial
Purchasers upon written request. Upon the written request of any Holder of
Initial Securities, the Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering subject to the consent of
the Company, which shall not be unreasonably withheld.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably 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,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. MISCELLANEOUS.
(a) REMEDIES. Subject to the following sentence, the parties hereto
agree that the additional interest provided for in Section 6 is intended to
constitute the sole monetary damages that may be collected by Holders of
Transfer Restricted Securities as a result of any failure by the Company and the
Guarantors
13
to comply with their obligations under Sections 1 and 2 hereof. The Company and
the Guarantors acknowledge and agree that any failure by the Company and the
Guarantors to comply with their obligations under Sections 1 and 2 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 obligations of the Company and the
Guarantors under Sections 1 and 2 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. The Company will not 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. 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 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 departures from
the provisions hereof may not be given, except by the Company and the Guarantors
and the written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx
(3) if to the Company, at its address as follows:
IESI Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Chief Executive Officer
with a copy to:
14
IESI Corporation
0 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: General Counsel
with a copy to:
XxXxxxxxx Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX
Fax No.:(000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
or such other address as shall be specified in writing by a party hereto. All
such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; three business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged
by recipient's facsimile machine operator, if sent by facsimile transmission;
and on the day delivered, if sent by overnight air courier guaranteeing next day
delivery.
(e) THIRD PARTY BENEFICIARIES. 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 their rights or the
rights of Holders hereunder.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and the Guarantors and their successors and assigns.
(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
PRINCIPLES OF CONFLICTS OF LAWS.
(j) SEVERABILITY. If 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) SECURITIES HELD BY THE COMPANY AND THE GUARANTORS. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company and the
Guarantors or their affiliates (other than subsequent Holders of Securities if
such subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
IESI Corporation
By
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer
and Treasurer
IESI AR Corporation
IESI AR Landfill Corporation
IESI LA Corporation
IESI LA Landfill Corporation
IESI MO Corporation
IESI NJ Corporation
IESI NJ Recycling Corporation
IESI NY Corporation
IESI OK Corporation
IESI PA Bethlehem Landfill Corporation
IESI PA Blue Ridge Landfill Corporation
IESI PA Corporation
IESI TX Corporation
IESI TX GP Corporation
By
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer
and Treasurer
IESI DE Corporation
IESI DE LP Corporation
By
----------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx Xxxxxx
Title: Vice President
IESI TX Landfill LP
By: IESI TX GP Corporation, its General Partner
By
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer
and Treasurer
16
The foregoing Registration Rights Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By
---------------------------
Name:
Title:
Acting on behalf of itself
and as a Representative of
the several Purchasers
17
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. 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. 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 Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
18
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
19
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. 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 Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until 200__, all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities 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 Exchange Securities 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 or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities 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 Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission 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 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
----------
(1) In addition, the legend required by Item 502(e) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus
20
ANNEX D
/ / 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:
--------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
21
SCHEDULE A
Subsidiary Guarantors
IESI AR Corporation
IESI AR Landfill Corporation
IESI DE Corporation
IESI DE LP Corporation
IESI LA Corporation
IESI LA Landfill Corporation
IESI MO Corporation
IESI NJ Corporation
IESI NJ Recycling Corporation
IESI NY Corporation
IESI OK Corporation
IESI PA Bethlehem Landfill Corporation
IESI PA Blue Ridge Landfill Corporation
IESI PA Corporation
IESI TX Corporation
IESI TX GP Corporation
IESI TX Landfill LP
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