UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 9, 2012
Casella Waste Systems, Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 000-23211 | 03-0338873 | ||
| (State or Other Jurisdiction of Incorporation |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 25 Greens Hill Lane Rutland, Vermont |
05701 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: (802) 775-0325
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
Supplemental Indenture
On October 9, 2012, Casella Waste Systems, Inc. (the “Company”), the Guarantors (as defined below) and Wilmington Trust Company, as trustee (the “Trustee”), entered into a first supplemental indenture (the “Supplemental Indenture”) to the Indenture, dated as of July 9, 2009, by and among the Company, the guarantors named therein (the “Guarantors”) and the Trustee (the “2014 Indenture”), relating to the Company’s 11% Senior Second Lien Notes due 2014 (the “2014 Notes”). The Supplemental Indenture was entered into in connection with the Company’s previously announced tender offer and consent solicitation with respect to the 2014 Notes (the “Tender Offer”). The Supplemental Indenture amended the 2014 Indenture by eliminating substantially all of the restrictive covenants, certain events of default and related definitions. The amendments set forth in the Supplemental Indenture became effective when the Company purchased the validly tendered 2014 Notes pursuant to the Tender Offer on October 9, 2012, the initial settlement date of the Tender Offer.
The foregoing description of certain of the terms of the Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Supplemental Indenture, which is attached to this Current Report on Form 8-K as Exhibit 4.1 and is incorporated herein by reference.
Registration Rights Agreement
On October 9, 2012, the Company consummated its previously announced offering of $125 million aggregate principal amount of senior subordinated notes due 2019 (the “2019 Notes”), which were offered in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and to non-U.S. persons outside the United States under Regulation S under the Securities Act.
In connection with the closing of the issuance and sale of the 2019 Notes (the “Closing”), the Company entered into a Registration Rights Agreement, dated as of October 9, 2012, with the initial purchasers (the “Registration Rights Agreement”). Under the Registration Rights Agreement, the Company has agreed to use commercially reasonable efforts to file a registration statement within 30 days after the Closing to enable noteholders to exchange the privately placed notes for publicly registered notes with substantially identical terms. The Company has also agreed to use commercially reasonable efforts to cause the registration statement to become effective under the Securities Act within 120 days after the Closing and to consummate the exchange offer within 150 days after the Closing. The Company has agreed to file a shelf registration statement for the resale of the 2019 Notes within 150 days after the Closing if it cannot complete an exchange offer and in certain other circumstances.
If the Company is unable to meet certain registration obligations under the Registration Rights Agreement, then additional interest will accrue on the principal amount of the 2019 Notes at a rate of 0.25% per annum for the first 90-day period immediately following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum additional rate of 1.00% per annum thereafter, until the exchange offer is completed, the shelf registration statement is declared effective or, if such shelf registration statement ceased to be effective, again becomes effective or until the second anniversary of the original issue date of the 2019 Notes, unless such period is extended, as described in the Registration Rights Agreement.
The foregoing description of certain of the terms of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference.
Item 8.01. Other Events.
Tender Offer
On October 9, 2012, the Company announced that, pursuant to the Tender Offer, it had received the requisite consents to amend the 2014 Indenture under the terms of the Tender Offer and had accepted for payment all 2014 Notes validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on October 5, 2012, the deadline for tendering 2014 Notes for the initial settlement of the Tender Offer. The 2014 Notes accepted for payment by the Company comprised $107,318,000 in aggregate principal amount, or approximately 59.6% of the $180,000,000 outstanding aggregate principal amount of the 2014 Notes. In addition, the Company announced that, under the terms of the 2014 Indenture, it had provided notice for the redemption on November 8, 2012 (the “Redemption Date”) of all of the 2014 Notes that remain outstanding on the Redemption Date at a redemption price of $1,055 per $1,000 in principal amount, plus accrued and unpaid interest.
The press release announcing the initial results of the Tender Offer is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
The Tender Offer will expire at 11:59 p.m., New York City time, on October 22, 2012 unless extended, and the Company expects the final settlement of the Tender Offer, if any, to occur promptly after the expiration of the Tender Offer.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
See Exhibit Index attached hereto.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CASELLA WASTE SYSTEMS, INC. | ||||||||
| Date: October 9, 2012 | By: | /s/ Edwin D. Johnson | ||||||
| Name: | Edwin D. Johnson | |||||||
| Title: | Senior Vice President and Chief Financial Officer | |||||||
EXHIBIT INDEX
| Exhibit |
Description | |
| 4.1 | First Supplemental Indenture, dated as of October 9, 2012, by and among Casella Waste Systems, Inc., the Guarantors named therein and Wilmington Trust Company. | |
| 10.1 | Registration Rights Agreement, dated as of October 9, 2012, by and among the Company, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Comerica Securities, Inc. and KeyBanc Capital Markets Inc. | |
| 99.1 | Press release of Casella Waste Systems, Inc. dated October 9, 2012. | |
Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), executed as of October 9, 2012, between Casella Waste Systems, Inc., a Delaware corporation (the “Company”), the Guarantors named on the signature pages hereto (the “Guarantors”) and Wilmington Trust Company, as Trustee (the “Trustee”) and Second Lien Agent (the “Second Lien Agent”).
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee have heretofore executed and delivered that certain Indenture, dated as of July 9, 2009 (such agreement, as amended from time to time, the “Indenture”), pursuant to which the Company issued its 11% Senior Second Lien Notes due 2014 (the “Notes”);
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes, the Company, the Guarantors and the Trustee may amend or supplement the Indenture, subject to certain limitations specified therein, without notice to any other Noteholders;
WHEREAS, the Company has commenced an offer to purchase for cash any and all of the outstanding Notes from all Holders thereof (the “Offer”), upon the terms and subject to the conditions set forth in the Offer to Purchase and Consent Solicitation Statement, dated September 24, 2012 (the “Offer to Purchase”), and in the related Letter of Transmittal and Consent, dated September 24, 2012;
WHEREAS, in connection with the Offer and forming a part thereof, the Company has solicited (the “Solicitation”) consents (the “Consents”) of the Holders of the Notes to effect certain amendments (the “Amendments”) to the Indenture;
WHEREAS, pursuant to the Solicitation, there have been validly delivered Consents of Holders of at least a majority in aggregate principal amount of the outstanding Notes, which constitute requisite Consents to effect the Amendments under the Indenture and the Notes;
WHEREAS, in accordance with the terms of the Offer and Solicitation, the Company and the Trustee have determined that it is necessary or required to supplement the Indenture to reflect the Amendments; and
WHEREAS, the Company certifies that all conditions and requirements of the Indenture necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto;
NOW, THEREFORE, in consideration of the premises provided for herein, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and proportionate benefit of all Holders as follows:
ARTICLE ONE
SECTION 1.01 Preamble, Definitions and Incorporation by Reference
(a) Effective as of the Effective Time (as defined below), the first parenthetical of the preamble of the Indenture is hereby amended by inserting the following text following the term “Casella”:
“or the “Company””
(b) Effective as of the Effective Time, Section 1.01 of Article One of the Indenture is hereby amended by deleting the definitions of the following defined terms in their entirety and inserting “[Intentionally Omitted]” in place of the text of the respective definitions, and the Indenture is hereby further amended by deleting all references to such defined terms in the Indenture, except where such deletion is expressly prohibited by the Indenture:
“Acquired Debt”
“Asset Sale”
“Beneficial Owner”
“Cash Equivalents”
“Change of Control”
“Consolidated EBITDA”
“Consolidated Fixed Charge Coverage Ratio”
“Consolidated Fixed Charges”
“Consolidated Interest Expense”
“Consolidated Net Income”
“Consolidated Non-Cash Charges”
“Continuing Director”
“Coverage Ratio Exception”
“Deposit Account Control Agreement”
“Disinterested Director”
“Existing Indebtedness”
“Foreign Subsidiary”
“Four Quarter Period”
“GreenFiber”
“Insurance Subsidiary”
“Investments”
“MERC”
“Moody’s”
“Net Proceeds”
“Permitted Business”
“Permitted Investments”
“Permitted Liens”
“Permitted Refinancing Indebtedness”
“Purchase Money Obligations”
“Qualified Capital Stock”
“Restricted Investment”
“S&P”
“Specified Assets”
“Transaction Date”
“Voting Stock”
“Weighted Average Life to Maturity”
“Wholly Owned Restricted Subsidiary”
(c) Effective as of the Effective Time, Section 1.02 of Article One of the Indenture is hereby amended by deleting the section cross references for the following defined terms and inserting “[Definition Intentionally Omitted]” in place of thereof, and the Indenture is hereby further amended by deleting all references to such defined terms in the Indenture, except where such deletion is expressly prohibited by the Indenture:
“Affiliate Transaction”
“Alternate Offer”
“Asset Sale Offer”
“Asset Sale Offer Amount”
“Asset Sale Payment”
“Asset Sale Payment Date”
“Basket”
“Change of Control Offer”
“Change of Control Payment”
“Change of Control Payment Date”
“Designation”
“Excess Proceeds”
“Permitted Debt”
“Replacement Assets”
“Restricted Payments”
“Revocation”
SECTION 1.02 Covenants
(a) Effective as of the Effective Time, Article Four of the Indenture is hereby amended by deleting the provisions of Sections 4.02, 4.04, 4.05, 4.07 through 4.16 and 4.18 through 4.23 in their entirety and inserting “[Intentionally Omitted]” in place of the provisions of each such section, and the Indenture is hereby further amended by deleting all references to such sections in the Indenture, except where such deletion is expressly prohibited by the Indenture.
(b) Effective as of the Effective Time, Section 4.06 of Article Four of the Indenture is hereby deleted in its entirety and the following inserted in place thereof:
“SECTION 4.06. Compliance Certificate
The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall deliver to the Trustee not less often than annually an Officers’ Certificate stating that as to each such Officer’s knowledge the Company has complied with all conditions and covenants under this Indenture.”
SECTION 1.03 Merger, Consolidation, or Sale of Assets
(a) Effective as of the Effective Time, Section 5.01 of Article Five of the Indenture is hereby amended by deleting the provisions of clauses (a)(3), (a)(4) and (b)(1) thereof in their entirety and inserting “[Intentionally Omitted]” in place of the provisions of each such clause, and the Indenture is hereby further amended by deleting all references to such clauses in the Indenture, except where such deletion is expressly prohibited by the Indenture.
(b) Effective as of the Effective Time, Section 5.01 of Article Five of the Indenture is hereby further amended by deleting the first paragraphs immediately following each of clauses 5.01(a)(4) and 5.01(b)(2) thereof in their entirety and by inserting the following in place of the first paragraph immediately following clause 5.01(b)(2) thereof:
“Any requirements of this clause (b) shall not apply to (x) a consolidation or merger of any Guarantor with or into Casella or any other Guarantor so long as Casella or a Guarantor survives such consolidation or merger or (y) the sale by consolidation or merger of a Guarantor.”
SECTION 1.04 Events of Default.
Effective as of the Effective Time, Section 6.01 of Article Six of the Indenture is hereby amended by deleting the provisions of clauses (3), (5) and (6) thereof in their entirety and inserting “[Intentionally Omitted]” in place of the provisions of each such clause, and the Indenture is hereby further amended by deleting all references to such clauses in the Indenture, except where such deletion is expressly prohibited by the Indenture.
SECTION 1.05 Exhibits.
(a) Effective as of the Effective Time, Exhibit A to the Indenture is hereby amended by deleting the provisions of Section 8 thereof in their entirety and inserting “[Intentionally Omitted]” in place thereof, and such Exhibit A is further amended by deleting all references to such section in such Exhibit A, except where such deletion is expressly prohibited by the Indenture.
(b) Effective as of the Effective Time, Exhibit A to the Indenture is hereby further amended by deleting the phrases “to make restricted payments, to incur indebtedness, to create liens, to sell assets, to permit restrictions on dividends and other payments by Restricted Subsidiaries of Casella” and “or to engage in transactions with affiliates” from the first sentence of Section 14 thereof, and by deleting the form “Option of Holder to Elect Purchase” attached thereto in its entirety.
ARTICLE TWO
SECTION 2.01 Effect of Supplemental Indenture.
Upon the execution and delivery of this Supplemental Indenture by the Company, the Guarantors and the Trustee, the Indenture shall be supplemented in accordance herewith, and this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby.
SECTION 2.02 General Definitions.
For all purposes of this Supplemental Indenture:
| (a) | capitalized terms used herein without definition shall have the meanings specified in the Indenture; and |
| (b) | the terms “herein”, “hereof”, “hereunder” and other words of similar import refer to this Supplemental Indenture. |
SECTION 2.03 Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 2.04 Effective Time.
The provisions of Article One hereof shall become effective, and the amendments to the Indenture contemplated by Article One hereof shall become operative, at such time as the Company purchases validly tendered Notes representing a majority in aggregate principal amount of the outstanding Notes pursuant to the Offer on the Initial Payment Date (as defined in the Offer to Purchase) (such time, the “Effective Time”).
SECTION 2.05 Indenture Remains in Full Force and Effect.
Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
SECTION 2.06 Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.07 Conflict with the TIA.
If any provision of this Supplemental Indenture limits, qualifies or conflicts with any provision of the TIA that is required under the TIA to be a part of and govern any provision of this Supplemental Indenture, the provision of the TIA shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Supplemental Indenture, as the case may be.
SECTION 2.08 Severability.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 2.09 Benefits of Supplemental Indenture.
Except as otherwise provided in Article Ten and Section 12.14 of Article Twelve of the Indenture, nothing in this Supplemental Indenture or the Notes, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the Holders of the Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Supplemental Indenture or the Notes.
SECTION 2.10 Modification of the Notes.
The Notes shall be modified as necessary to give effect to the provisions in this Supplemental Indenture.
SECTION 2.11 Successors.
All agreements of the Company and the Guarantors in this Supplemental Indenture shall bind their respective successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successor.
SECTION 2.12 Certain Duties and Responsibilities of the Trustee.
In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture and the Notes relating to the conduct of, affecting the liability of or affording protection to, the Trustee, whether or not elsewhere herein so provided.
SECTION 2.13 Counterparts.
This Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed an original, and all such counterparts shall together constitute but one and the same instrument.
SECTION 2.14 Governing Law.
THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 2.15 Headings.
The Article and Section headings herein are inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 2.16 The Trustee.
The Trustee shall not be responsible in any manner for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made by the Company.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the day and year first above written.
| COMPANY | ||
| CASELLA WASTE SYSTEMS, INC. | ||
| By: | /s/ Edwin D. Johnson | |
| Name: | Edwin D. Johnson | |
| Title: | Senior Vice President and Chief Financial Officer | |
| Attest: | /s/ Shelley S. Field |
|||||
| Name: | Shelley S. Field |
|||||
| Title: | Associate General Counsel |
(Signature Page to First Supplemental Indenture)
| GUARANTORS | ||
| ALL CYCLE WASTE, INC. | ||
| ATLANTIC COAST FIBERS, INC. | ||
| B. AND C. SANITATION CORPORATION | ||
| BRISTOL WASTE MANAGEMENT, INC. | ||
| C.V. LANDFILL, INC. | ||
| CASELLA ALBANY RENEWABLES, LLC | ||
| CASELLA MAJOR ACCOUNT SERVICES, LLC | ||
| CASELLA RECYCLING, LLC | ||
| CASELLA RENEWABLE SYSTEMS, LLC | ||
| CASELLA TRANSPORTATION, INC. | ||
| CASELLA WASTE MANAGEMENT OF MASSACHUSETTS, INC. | ||
| CASELLA WASTE MANAGEMENT OF N.Y., INC. | ||
| CASELLA WASTE MANAGEMENT OF PENNSYLVANIA, INC. | ||
| CASELLA WASTE MANAGEMENT, INC. | ||
| CASELLA WASTE SERVICES OF ONTARIO LLC | ||
| CHEMUNG LANDFILL LLC | ||
| COLEBROOK LANDFILL LLC | ||
| CWM ALL WASTE LLC | ||
| FOREST ACQUISITIONS, INC. | ||
| GRASSLANDS INC. | ||
| GROUNDCO LLC | ||
| HAKES C&D DISPOSAL, INC. | ||
| HARDWICK LANDFILL, INC. | ||
| HIRAM HOLLOW REGENERATION CORP. | ||
| KTI BIO FUELS, INC. | ||
| KTI ENVIRONMENTAL GROUP, INC. | ||
| KTI NEW JERSEY FIBERS, INC. | ||
| KTI OPERATIONS, INC. | ||
| KTI SPECIALTY WASTE SERVICES, INC. | ||
| KTI, INC. | ||
| MAINE ENERGY RECOVERY COMPANY, LIMITED PARTNERSHIP | ||
| NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC. | ||
| NEW ENGLAND WASTE SERVICES OF ME, INC. | ||
| NEW ENGLAND WASTE SERVICES OF N.Y., INC. | ||
| NEW ENGLAND WASTE SERVICES OF VERMONT, INC. | ||
| NEW ENGLAND WASTE SERVICES, INC. | ||
| NEWBURY WASTE MANAGEMENT, INC. | ||
| NEWS OF WORCESTER LLC | ||
| NEWSME LANDFILL OPERATIONS LLC | ||
| NORTH COUNTRY ENVIRONMENTAL SERVICES, INC. | ||
(Signature Page to First Supplemental Indenture)
| NORTHERN PROPERTIES CORPORATION OF PLATTSBURGH PINE TREE WASTE, INC. RESOURCE WASTE SYSTEMS, INC. SCHULTZ LANDFILL, INC. SOUTHBRIDGE RECYCLING & DISPOSAL PARK, INC. SUNDERLAND WASTE MANAGEMENT, INC. THE HYLAND FACILITY ASSOCIATES U.S. FIBER, LLC WASTE-STREAM INC. WINTERS BROTHERS, INC. | ||
| By: | /s/ Edwin D. Johnson | |
| Name: | Edwin Johnson | |
| Title: | Vice President and Treasurer | |
(Signature Page to First Supplemental Indenture)
| TRUSTEE | ||
| WILMINGTON TRUST COMPANY, as Trustee | ||
| By: | /s/ Joshua C. Jones | |
| Name: | Joshua C. Jones | |
| Title: | Financial Services Officer | |
| SECOND LIEN AGENT | ||
| WILMINGTON TRUST COMPANY, as Second Lien Agent | ||
| By: | /s/ Joshua C. Jones | |
| Name: | Joshua C. Jones | |
| Title: | Financial Services Officer | |
(Signature Page to First Supplemental Indenture)
Exhibit 10.1
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
by and among
CASELLA WASTE SYSTEMS, INC.,
the Guarantors listed herein
and
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities LLC
Comerica Securities, Inc.
KeyBanc Capital Markets Inc.
Dated as of October 9, 2012
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of October 9, 2012, by and among Casella Waste Systems, Inc., a Delaware corporation (the “Company”), the subsidiaries listed on the signature pages hereof (collectively, the “Guarantors”), and Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Comerica Securities, Inc. and KeyBanc Capital Markets Inc., (collectively, the “Initial Purchasers”), who have agreed to purchase $125,000,000 aggregate principal amount of the Company’s 7 3/4% Senior Subordinated Notes due 2019 (the “Initial Notes”) fully and unconditionally guaranteed by the Guarantors (the “Guarantees”) pursuant to the Purchase Agreement (as defined below). The Initial Notes and the Guarantees attached thereto are herein collectively referred to as the “Initial Securities.”
This Agreement is made pursuant to the purchase agreement, dated September 27, 2012 (the “Purchase Agreement”), among the Company, the Guarantors and the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of the Holders (as defined herein) from time to time of Initial Securities (as defined herein), including the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Initial Securities (as defined herein), 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 set forth in Section 5(g) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings:
Additional Interest: As defined in Section 5 hereof.
Broker-Dealer: Any broker or dealer registered with the Commission under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which banking institutions or trust companies located in New York, New York are authorized or obligated to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of an Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance of such Exchange Offer Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not
less than the minimum period required pursuant to Section 3(c) hereof, and (iii) the delivery by the Company to the Registrar under the Indenture of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of Transfer Restricted Securities that were validly tendered (and not withdrawn) by Holders thereof pursuant to the Exchange Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Securities Act of the Exchange Securities pursuant to a Registration Statement which has been declared effective by the Commission pursuant to which the Company offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities validly tendered (and not withdrawn) in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Securities and the Exchange Offer, including the related Prospectus, on any form selected by the Company, in its sole discretion, that the Company is permitted to use by the rules and regulations of the Commission.
Exchange Securities: The 7 3/4% Senior Subordinated Notes due 2019, of the same series under the Indenture as the Initial Notes and the Guarantees attached thereto, to be issued to Holders in exchange for Transfer Restricted Securities pursuant to the Exchange Offer.
FINRA: The Financial Industry Regulatory Authority, Inc.
Guarantees: As defined in the definition of “Securities” below.
Guarantors: As defined in the preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 7, 2011, by and among the Company, the Guarantors and U.S. Bank National Association, as trustee (the “Trustee”), pursuant to which the Securities are to be issued, as such Indenture is amended, modified or supplemented from time to time in accordance with the terms thereof.
Initial Payment Date: As defined in the Indenture and the Securities.
Initial Placement: The issuance and sale by the Company of the Initial Securities to the Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchaser: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
-2-
Issuer Free Writing Prospectus: As defined in Section 4(c) hereof.
Person: An individual, partnership, limited partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, 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.
Registrar: As defined in the Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to a Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. If the Company is required to file a Registration Statement pursuant to this Agreement, it may use any form selected by the Company, in its sole discretion, that the Company is permitted to use by the rules and regulations of the Commission.
Securities: $125,000,000 in aggregate principal amount of the Initial Notes, and securities issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each Security is entitled to the benefit of the guarantees provided for in the Indenture (the “Guarantees”) and, unless the context otherwise requires, any reference herein to a “Security”, an “Exchange Security” or a “Transfer Restricted Security” shall include a reference to the related Guarantees.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the date on which such Initial Security is exchanged in the Exchange Offer for an Exchange Security entitled to be resold to the public by the Holder thereof without complying with the prospectus delivery requirements of the Securities Act, (b) the date on which such Initial Security has been effectively registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement and (c) the date on which such Initial Security is distributed to the public by a Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus contained therein).
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
-3-
Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities, for so long as they remain such.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities of record.
SECTION 3. Registered Exchange Offer.
(a) [Reserved].
(b) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy, each of the Company and the Guarantors shall (i) cause to be filed with the Commission as soon as practicable after the Closing Date, but in no event later than 30 days after the Closing Date (or if such 30th day is not a Business Day, the next succeeding Business Day), an Exchange Offer Registration Statement under the Securities Act, (ii) use commercially reasonable efforts to cause such Registration Statement to become effective at the earliest possible time, but in no event later than 120 days after the Closing Date (or if such 120th day is not a Business Day, the next succeeding Business Day), (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) file, if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the registration and qualification of the Exchange Securities to be made under the state securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of such Registration Statement, promptly commence the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting registration of the Exchange Securities to be offered in exchange for the Transfer Restricted Securities and to permit resales of Initial Securities held by Broker-Dealers as contemplated by Section 3(d) hereof.
(c) The Company and the Guarantors shall 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 60 days after the date notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement. The Company shall use commercially reasonable 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 150 days after the Closing Date (or if such 150th day is not a Business Day, the next succeeding Business Day).
-4-
(d) The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds Initial Securities that are Transfer Restricted Securities and that were acquired for its own account as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company), may exchange such Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Securities received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement, as such Registration Statement may have been amended or supplemented as of the date the Prospectus is required to be delivered. Such “Plan of Distribution” section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of Initial Securities held by any such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement.
Each of the Company and the Guarantors shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of Initial Securities acquired by Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period ending on the earlier of (i) 365 days from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities.
The Company shall provide reasonably sufficient number of copies of the latest version of such Prospectus to Broker-Dealers promptly upon request at any time during such 365-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales.
Any reference to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by applicable law or Commission policy, (ii) for any reason the Exchange Offer is not Consummated within 150 days after the Closing Date (or if such 150th day is not a Business Day, the next succeeding Business Day), or (iii) with respect to any Holder of Transfer Restricted Securities (A) such Holder is prohibited by applicable law or Commission policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to
-5-
the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial Securities acquired directly from the Company or one of its affiliates, then, upon such Holder’s request, the Company and the Guarantors shall
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the “Shelf Registration Statement”) on or prior to 30 days after such obligation arises but no earlier than the 150th day after the Closing Date (or if such 150th day is not a Business Day, the next succeeding Business Day) (such date being the “Shelf Filing Deadline”), which Shelf Registration Statement shall provide for resales of all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and
(y) use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission within 90 days after filing such Shelf Registration Statement.
Each of the Company and the Guarantors shall use commercially reasonable efforts to supplement and amend such Shelf Registration Statement as required by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for resales of Initial Securities by the Holders of Transfer Restricted Securities entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least one year following the effective date of such Shelf Registration Statement (or such shorter period that will terminate when all the Initial Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement).
(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 10 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
(c) Issuer Free Writing Prospectuses. Each Holder represents and agrees that, unless it obtains the prior consent of the Company, it will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act (an “Issuer Free Writing Prospectus”), or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required to be filed with the Commission. The Company represents that any Issuer Free Writing Prospectus, when taken together with the information in the Shelf Registration Statement and the Prospectus, will not
-6-
include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) If any of the Transfer Restricted Securities covered by any Shelf Registration Statement are to be sold in an underwritten offering, the underwriter or underwriters and manager or managers that will manage such offering shall be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities included in such offering and, in the case of an underwriter other than an Initial Purchaser, shall be reasonably acceptable to the Company and on terms reasonably acceptable to the Company. The Company shall be required to effect an underwritten offering only if the Company is required to file a Shelf Registration Statement and in no event shall the Company be required to effect more than two (2) underwritten offerings pursuant to this Agreement.
SECTION 5. Additional Interest. If (i) the Exchange Offer Registration Statement required by this Agreement is not filed with the Commission on or prior to the date that is 30 days after the Closing Date (or if such 30th day is not a Business Day, the next succeeding Business Day), (ii) the Exchange Offer Registration Statement has not been declared effective by the Commission on or prior to the date that is 120 days after the Closing Date (or if such 120th day is not a Business Day, the next succeeding Business Day), (iii) the Exchange Offer has not been Consummated within 150 days after the Closing Date (or if such 150th day is not a Business Day, the next succeeding Business Day) with respect to the Exchange Offer Registration Statement, (iv) the Shelf Registration Statement is not filed within the Shelf Filing Deadline or has not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement, or (v) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective 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 (v), a “Registration Default”), the Company hereby agrees that the interest rate borne by the Transfer Restricted Securities shall increase by 0.25% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by 0.25% per annum at the end of each subsequent 90-day period (such increase “Additional Interest”), but in no event shall such increase exceed 1.00% per annum. Following the cure of all Registration Defaults, the interest rate borne by the Transfer Restricted Securities will be reduced to the original interest rate borne by the Transfer Restricted Securities; provided, however, that, if after any such reduction in interest rate due to the cure of a Registration Default, a different Registration Default occurs, the interest rate borne by the Transfer Restricted Securities shall again be increased pursuant to the foregoing provisions. In no event shall the Company be required to pay Additional Interest for more than one Registration Default at any given time. Notwithstanding any other provisions of this Section 5, a Holder of Transfer Restricted Securities that is not entitled to the benefits of the Registration Statement (because, e.g., such Holder has not elected to include information or has not timely delivered such information to the Company pursuant to Section 4(b) hereof) shall not be entitled to Additional Interest with respect to a Registration Default that pertains to the Registration Statement.
-7-
All obligations of the Company and the Guarantors set forth in the preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company and the Guarantors shall comply with all of the provisions of Section 6(c) hereof and shall use commercially reasonable efforts to effect such exchange to permit the sale of Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof.
(i) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (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 Exchange Securities to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in its ordinary course of business. In addition, all such Holders of Transfer Restricted Securities shall otherwise cooperate in the Company’s preparations for, and the actions necessary to be taken by the Company in connection with, the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should 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 if the resales are of Exchange Securities obtained by such Holder in exchange for Initial Securities acquired by such Holder directly from the Company.
(b) Shelf Registration Statement. If required pursuant to Section 4, in connection with the Shelf Registration Statement, each of the Company and the Guarantors shall comply with all the provisions of Section 6(c) hereof and shall use commercially reasonable 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, and pursuant thereto each of 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 Securities 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 in accordance with the time periods set forth in Section 4.
-8-
(c) General Provisions. In connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Registration Statement and the related Prospectus required to permit resales of Initial Securities by Broker-Dealers), each of the Company and the Guarantors shall:
(i) use commercially reasonable efforts to keep such Registration Statement continuously effective for the period required by this Agreement and provide all requisite financial statements (including, if required by the Securities Act or any regulation thereunder, financial statements of the Guarantors for the period specified in Section 3 or 4 hereof, as applicable); upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such material misstatement or omission, and, in the case of either clause (A) or (B), use commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-effective amendments to the applicable Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply with the provisions of the Securities 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) in the case of a Shelf Registration Statement, advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to 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 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 Securities 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
-9-
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 or the Prospectus in order to make the statements therein 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, each of the Company and the Guarantors shall use commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest practicable time;
(iv) furnish without charge to each selling Holder named in any Registration Statement, and each of the underwriter(s), if any, at least three Business Days before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Registration Statement), which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least three 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 any Holder of more than 10% of the outstanding Transfer Restricted Securities (each, a “Significant Holder”) covered by such Registration Statement or the underwriter(s), if any, shall reasonably object in writing within three Business Days after the receipt thereof (such objection to be deemed timely made upon compliance with the notice provisions set forth in Section 10(d), including confirmation of transmission, within such period). The objection of an Initial Purchaser or underwriter, if any, shall be deemed to be reasonable if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission;
(v) in the case of a Shelf Registration Statement, make available at reasonable times for inspection by the Significant Holders, the managing underwriter(s), if any, participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by such Significant Holders or any of the underwriter(s), all financial and other records, pertinent corporate documents and properties of each 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 Significant Holder, underwriter, 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 and to participate in meetings with investors to the extent reasonably requested by the managing underwriter(s), if any, until such time as such information becomes publicly available; provided that the Company may require each such party to sign a customary confidentiality agreement in a form to be agreed;
-10-
(vi) in the case of a Shelf Registration Statement, if requested by any selling Holders or the underwriter(s), if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Transfer Restricted Securities, information with respect to the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Transfer Restricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) use commercially reasonable efforts to confirm that the ratings assigned to the Initial Notes will apply to the Transfer Restricted Securities covered by the Registration Statement, if so requested by the Holders of a majority in aggregate principal amount of Securities covered thereby or the underwriter(s), if any;
(viii) in the case of a Shelf Registration Statement, furnish to each selling Holder and each of the underwriter(s), if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules, all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference); provided, however, that timely filing of any of the foregoing on the Interactive Data Electronic Applications (IDEA) system of the Commission (a successor system) and availability publicly on the Internet shall constitute furnishing of such documents to the Holders;
(ix) in the case of a Shelf Registration Statement, deliver to each selling Holder and each of the underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; each of the Company and the Guarantors hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
-11-
(x) in the case of a Shelf Registration Statement, enter into such agreements (including an underwriting agreement), 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 Shelf Registration Statement contemplated by this Agreement, all to such extent as may be reasonably requested by any Holders of a majority in aggregate principal amount of Transfer Restricted Securities or the underwriters in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, each of the Company and the Guarantors shall:
(A) furnish to the selling Holders and each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf Registration Statement, signed by (y) the President or any Vice President and (z) a principal financial or accounting officer of each of the Company and the Guarantors, confirming, as of the date thereof, the matters set forth in Section 5(e) of the Purchase Agreement and such other matters as such parties may reasonably request;
(2) an opinion and negative assurance letter, dated the date of effectiveness of the Shelf Registration Statement of counsel for the Company and the Guarantors, covering the matters reasonable satisfactory to the managing underwriters and covering matters of the type customarily covered in opinions and negative assurance letters to underwriters in connection with primary underwritten offerings; and
(3) a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the Company’s independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings;
(B) set forth in full or incorporate by reference in the underwriting agreement, if any, the indemnification provisions and procedures of Section 8 hereof or substantially similar provisions with respect to all parties to be indemnified pursuant to Section 8 hereof; and
(C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with Section 6(c)(x)(A) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company or any of the Guarantors pursuant to this Section 6(c)(x), if any.
If at any time after the date of the effectiveness of any Shelf Registration Statement the representations and warranties of the Company and the Guarantors contemplated in Section 6(c)(x)(A)(1) hereof cease to be true and correct, the Company or the Guarantors shall so advise the underwriter(s), if any, and each selling Holder promptly and, if requested by such Persons, shall confirm such advice in writing;
(xi) in the case of a Shelf Registration, prior to any public offering of Transfer Restricted Securities, reasonably cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Transfer Restricted Securities under the state securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may reasonably request and
-12-
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 Shelf Registration Statement; provided, however, that none of the Company nor the Guarantors shall be required to register or qualify as a foreign corporation where it is not then so qualified 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 then so subject or make any changes to its certificate of incorporation or by-laws;
(xii) shall issue, upon the request of any Holder of Initial Securities covered by the Shelf Registration Statement, Exchange Securities having an aggregate principal amount equal to the aggregate principal amount of Initial Securities surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Exchange Securities to be registered in the name of such Holder or in the name of the purchaser(s) of such Securities, as the case may be; in return, the Initial Securities held by such Holder shall be surrendered to the Company for cancellation;
(xiii) in the case of a Shelf Registration, and solely in those instances in which any Transfer Restricted Securities are not held exclusively in book entry form, reasonably cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer Restricted Securities made by such Holders or underwriter(s);
(xiv) in the case of a Shelf Registration, use commercially reasonable efforts to cause 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 or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in Section 6(c)(xi) hereof;
(xv) in the case of a Shelf Registration, if any fact or event contemplated by Section 6(c)(iii)(D) hereof 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 in order to make the statements therein in the light of the circumstances under which they were made, not misleading;
(xvi) provide a CUSIP number for all Securities not later than the effective date of the Registration Statement covering such Securities, which shall be the same CUSIP number as the exchange notes issued pursuant to the exchange offer for the notes issued under the Indenture on February 7, 2011 to the extent the Securities are fungible for tax purposes with such existing exchange notes, unless it is not possible to obtain the same
-13-
CUSIP number following the reasonable best efforts of the Company to do so; and provide the Trustee under the Indenture with printed certificates for such Securities which are in a form eligible for deposit with the Depository Trust Company and take all other action necessary to ensure that all such Securities are eligible for deposit with the Depository Trust Company;
(xvii) in the case of a Shelf Registration, cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of FINRA;
(xviii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statement meeting the requirements of Rule 158 under the Securities Act;
(xix) cause the Indenture to continue to be qualified under the Trust Indenture Act not later than the effective date of the first Registration Statement required by this Agreement, and, in connection therewith, to the extent necessary, cooperate with the Trustee and the Holders of Securities 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 Trust Indenture Act; and to execute, and use commercially reasonable 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;
(xx) cause all Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the Holders of a majority in aggregate principal amount of Initial Securities or the managing underwriter(s), if any; and
In the case of a Shelf Registration Statement, each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xiv) hereof, or until it is advised in writing (the “Advice”) 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. If so directed by the Company, each Holder will 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 immediately prior to of receipt of such notice. In the event the Company shall give any such 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 the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when each
-14-
selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xiv) hereof or shall have received the Advice; provided, however, that no such extension shall be taken into account in determining whether Additional Interest shall be payable.
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 and the Guarantors, jointly and severally, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by any Initial Purchaser or Holder with FINRA (and, if applicable, the fees and expenses of any “qualified independent underwriter” and its counsel that may be required by the rules and regulations of FINRA)); (ii) all fees and expenses of compliance with federal securities and state securities or blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange Securities 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, to the extent contemplated by Section 7(b) hereof, the Holders of Transfer Restricted Securities; (v) all application and filing fees in connection with listing the Exchange Securities on a securities exchange or automated quotation system pursuant to the requirements thereof; 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).
Each of the Company and the Guarantors will, in any event, bear its 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.
(b) In connection with any Shelf Registration Statement required by this Agreement), the Company and the Guarantors, jointly and severally, will reimburse the Holders of Transfer Restricted Securities resold pursuant to the “Plan of Distribution” contained in the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Cahill Gordon & Reindel LLP or such other counsel as may 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 and reasonably acceptable to the Company.
SECTION 8. Indemnification.
(a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and
-15-
all losses, claims, damages, liabilities and expenses (including, without limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly caused by, based upon or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment or supplement thereto) or Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Company by any of the Holders expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company or any of the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder shall promptly notify the Company and the Guarantors in writing; provided, however, that the failure to give such notice shall not relieve any of the Company or the Guarantors of its obligations pursuant to this Section 8 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights and defenses) by such failure, and provided further that the failure to give such notice shall not relieve any of the Company or the Guarantors from any liability that it may have to an Indemnified Holder otherwise than under this Section 8. If any such proceeding shall be brought or asserted against an Indemnified Holder and it shall have notified the Company thereof, the Company shall assume the defense thereof and retain counsel reasonably satisfactory to the Indemnified Holder (who shall not, without the consent of the Indemnified Holder, be counsel to the Company) to represent the Indemnified Person in such Proceeding, and the reasonable fees and expenses of such counsel shall be reimbursed, as incurred, by the Company and the Guarantors. In any such proceeding, any Indemnified Holder 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 Holder unless (i) the Company and the Indemnified Holder shall have mutually agreed to the contrary, (ii) the Company has failed to assume or proceed in a timely and reasonable manner with the defense of such proceeding, or the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Holder, (iii) counsel for such Indemnified Holder determines in good faith that there is a conflict that requires separate representation for the Company and the Guarantors and such Indemnified Holder or (iv) the Indemnified Holder reasonably concludes that there may be legal defenses available to it that are different from or in addition to those available to the Company and the Guarantors. The Company and the Guarantors shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel (in any jurisdiction)) at any time for all Indemnified Holders. The Company and the Guarantors shall be liable for any settlement of any such action or proceeding effected with the Company’s and the
-16-
Guarantors’ prior written consent (such consent not to be unreasonably withheld), and each of the Company and the Guarantors agrees to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any settlement of any action effected with the written consent of the Company and the Guarantors. The Company and the Guarantors shall not, without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Holder from all liability arising out of such action, claim, litigation or proceeding and does not contain any statement as to or finding of fault, culpability or failure to act by or on behalf of any Indemnified Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors and their respective directors, officers of the Company and the Guarantors who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company or any of the Guarantors, and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Company and the Guarantors to each of the Indemnified Holders, but only with respect to claims and actions based on information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement or Prospectus (or any amendment or supplement thereto) or any free writing prospectus (or any amendment or supplement thereto). In case any action or proceeding shall be brought against the Company, the Guarantors or their respective 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, and the Company, the Guarantors, their respective directors and officers and such controlling person shall have the rights and duties given to each Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each applicable 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 expenses 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 the offering of the Securities and the Exchange Securities, or if such allocation is not permitted by applicable law, the relative fault of the Company and the Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The benefits received by the Company and the Guarantors shall be deemed to be equal to the total gross proceeds to the Company and the Guarantors from the Initial Placement plus the amount of Additional Interest which did not become payable as a result of the filing of the Registration Statement, and the benefits received by the Holders shall be deemed to be equal to (i) if the Holder is an Initial Purchaser, the total discounts and commissions received by such Initial Purchaser in the Initial Placement and (ii) if
-17-
the Holder is not an Initial Purchaser, the total net profit received by such Holder in connection with the resale of the Securities or Exchange Securities. The relative fault of the Company on the one hand and of the Indemnified Holders on the other 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 any of the Guarantors, on the one hand, or the Indemnified Holders, 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 expenses referred to above shall be deemed to include, subject to the limitations set forth above, 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 of Transfer Restricted Securities agree that it would not be just and equitable if contribution pursuant to this Section 8(c) 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 expenses 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 such action or claim. Notwithstanding the provisions of this Section 8, none of the Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the aggregate benefit received by such Holder (as determined pursuant to Section 8(c) hereof) exceeds 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 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 Section 8(c) are several in proportion to the respective principal amount of Transfer Restricted Securities held by each of the Holders hereunder and not joint.
SECTION 9. Rule 144A. Each of the Company and the Guarantors hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding, to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A under the Securities Act.
SECTION 10. Participation in Underwritten Registrations. No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) 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 (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents customarily required under the terms of such underwriting arrangements.
-18-
SECTION 11. Miscellaneous.
(a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Company and the Guarantors 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 or any of 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 the Company has (i) in the case of Section 5 hereof and this Section 10(c)(i), obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case of all other provisions hereof, obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relate exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer or registered pursuant to a Shelf Registration Statement and that do not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer or registered pursuant to a Shelf Registration Statement may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities being tendered or registered, as applicable; provided, however, that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of each such Initial Purchaser with respect to which such amendment, qualification, supplement, waiver, consent or departure is to be effective.
(d) 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:
| Casella Waste Systems, Inc. 25 Greens Hill Lane Rutland, VT 05701 | ||
| Facsimile: | (802) 770-5030 | |
| Attention: | David L. Schmitt, Vice President and General Counsel | |
-19-
With a copy to:
| Wilmer Cutler Pickering Hale & Dorr LLP 60 State Street Boston, MA 02109 | ||
| Facsimile: | (617) 526-5000 | |
| Attention: | Jeffrey A. Stein | |
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 answered back, if telexed; 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.
(e) 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 of Transfer Restricted Securities.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(h) 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 CONFLICTS OF LAW RULES THEREOF.
(i) 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.
(j) 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 by the Company 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-
[Signature pages follow]
-21-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| CASELLA WASTE SYSTEMS, INC. | ||
| By: | /s/ Edwin D. Johnson | |
| Name: Edwin D. Johnson | ||
| Title: Chief Financial Officer and Treasurer | ||
-22-
| ALL CYCLE WASTE, INC. ATLANTIC COAST FIBERS, INC. B. AND C. SANITATION CORPORATION BRISTOL WASTE MANAGEMENT, INC. C.V. LANDFILL, INC. CASELLA ALBANY RENEWABLES, LLC CASELLA MAJOR ACCOUNT SERVICES, LLC CASELLA RECYCLING, LLC CASELLA RENEWABLE SYSTEMS, LLC CASELLA TRANSPORTATION, INC. CASELLA WASTE MANAGEMENT OF MASSACHUSETTS, INC. CASELLA WASTE MANAGEMENT OF N.Y., INC. CASELLA WASTE MANAGEMENT OF PENNSYLVANIA, INC. CASELLA WASTE MANAGEMENT, INC. CASELLA WASTE SERVICES OF ONTARIO LLC CHEMUNG LANDFILL LLC COLEBROOK LANDFILL LLC CWM ALL WASTE LLC FOREST ACQUISITIONS, INC. GRASSLANDS INC. GROUNDCO LLC HAKES C&D DISPOSAL, INC. HARDWICK LANDFILL, INC. HIRAM HOLLOW REGENERATION CORP. KTI BIO FUELS, INC. KTI ENVIRONMENTAL GROUP, INC. KTI NEW JERSEY FIBERS, INC. KTI OPERATIONS, INC. KTI SPECIALTY WASTE SERVICES, INC. KTI, INC. | ||
| By: | /s/ Edwin Johnson | |
| Name: Edwin Johnson | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Registration Rights Agreement]
-23-
| MAINE ENERGY RECOVERY COMPANY, LIMITED PARTNERSHIP NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC. NEW ENGLAND WASTE SERVICES OF ME, INC. NEW ENGLAND WASTE SERVICES OF N.Y., INC. NEW ENGLAND WASTE SERVICES OF VERMONT, INC. NEW ENGLAND WASTE SERVICES, INC. NEWBURY WASTE MANAGEMENT, INC. NEWSME LANDFILL OPERATIONS LLC NEWS OF WORCESTER LLC NORTH COUNTRY ENVIRONMENTAL SERVICES, INC. NORTHERN PROPERTIES CORPORATION OF PLATTSBURGH PINE TREE WASTE, INC. RESOURCE WASTE SYSTEMS, INC. SCHULTZ LANDFILL, INC. SOUTHBRIDGE RECYCLING & DISPOSAL PARK, INC. SUNDERLAND WASTE MANAGEMENT, INC. THE HYLAND FACILITY ASSOCIATES U.S. FIBER, LLC WASTE-STREAM INC. WINTERS BROTHERS, INC. | ||
| By: | /s/ Edwin Johnson | |
| Name: Edwin Johnson | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Registration Rights Agreement]
-24-
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written:
| MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED | ||
| J.P. MORGAN SECURITIES LLC COMERICA SECURITIES, INC. | ||
| KEYBANC CAPITAL MARKETS INC. | ||
| As Representatives of the Initial Purchasers | ||
| By: | MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED | |
| By: | /s/ Joy R. Allen | |
| Name: Joy R. Allen | ||
| Title: Managing Director | ||
-25-
Exhibit 99.1
Casella Waste Systems, Inc. Announces Early Results of Tender Offer and Consent Solicitation and Notice of Redemption of Notes
RUTLAND, VERMONT (October 9, 2012) – Casella Waste Systems, Inc. (NASDAQ: CWST) (the “Company”), a vertically-integrated solid waste, recycling and resource management services company, announced today the early results of its previously announced cash tender offer and consent solicitation (the “Offer”) with respect to the 11% Senior Second Lien Notes due 2014 (CUSIP Number 147448AD6) (the “Notes”) of the Company.
As of 5:00 p.m., New York City time, on October 5, 2012 (the “Early Tender Date”), $107,318,000 of the principal amount of the Notes had been validly tendered and not withdrawn, which represented approximately 59.6% of the outstanding aggregate principal amount of the Notes. Today (the “Initial Acceptance Date”), the Company accepted for purchase and made payment for (the “Initial Payment”) all of the Notes that were validly tendered at or prior to the Early Tender Date.
Holders of Notes who tendered their Notes at or prior to the Early Tender Date received $1,060.00 for each $1,000 in principal amount of the Notes validly tendered (which included an early tender premium of $30.00 per $1,000 in principal amount of Notes), plus any accrued and unpaid interest up to, but not including, the Initial Payment Date.
Through the Offer, the Company received the requisite consents from holders of Notes to approve amendments to the indenture under which the Notes were issued to remove substantially all of the restrictive covenants and certain events of default relating to the Notes. In connection with the Initial Payment, the Company entered into a supplemental indenture effecting these amendments. The amendments are binding on all non-tendering holders and affect the Notes that remain outstanding.
Holders who have not yet tendered their Notes pursuant to the Offer may continue to tender their Notes under the Offer for the tender offer consideration of $1,030.00 per $1,000 in principal amount of Notes, plus accrued and unpaid interest. The Offer will expire at 11:59 p.m., New York City time, on October 22, 2012, unless extended. The Company expects the final settlement date, if any, to occur promptly after the expiration of the Offer.
The Company also announced today that it has called for redemption on November 8, 2012 (the “Redemption Date”) all of the Notes that remain outstanding on the Redemption Date. All Notes outstanding on the Redemption Date will be required to be surrendered to the Company for redemption at a price of $1,055.00 per $1,000 in principal amount of Notes, plus accrued and unpaid interest to, but not including, the Redemption Date.
The Company has engaged BofA Merrill Lynch as Dealer Manager and Solicitation Agent for the Offer. Persons with questions regarding the Offer should contact BofA Merrill Lynch at 888-292-0070 (toll free) or 980-387-3907 (collect). Requests for copies of the Offer to Purchase and other Offer materials may be directed to Global Bondholder Services Corporation, the Information Agent, at 866-924-2200 (toll free) or 212-430-3774 (collect).
This press release does not constitute an offer to purchase the Notes. The Offer is made solely pursuant to the Offer to Purchase and Consent Solicitation Statement dated September 24, 2012.
The Offer is not being made to holders of Notes in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction.
About Casella Waste Systems, Inc.
The Company is an integrated solid waste and resource management company headquartered in Rutland, Vermont. For further information, investors should contact Ned Coletta, vice president of finance and investor relations at 802-772-2239.
Safe Harbor Statement
Certain statements made in this press release are “forward-looking statements” intended to qualify for the safe harbors from liability established by the Private Securities Litigation Reform Act of 1995. These forward-looking statements can generally be identified as such by the context of the statements, including words such as the Company “expects,” “will,” “intends,” and other similar expressions. Among the forward-looking statements in this press release are statements regarding the expiration of the Offer and the redemption of Notes outstanding following the Offer. All of these forward-looking statements are based on current expectations and estimates and management’s beliefs and assumptions and involve a number of risks and uncertainties. The Company cannot guarantee that it will complete the Offer or the redemption of the Notes on the terms disclosed in the forward-looking statements or at all. The Company expressly disclaims any obligation to update the forward-looking statements contained in this press releases whether as a result of new information, future events or otherwise, except as required. These forward-looking statements should not be relied upon as representing the Company’s views as of any date subsequent to the date of this press release.
Contact:
Ned Coletta
802-772-2239