<PAGE>
EXHIBIT 4.28
GUARANTEE AGREEMENT
BETWEEN
ALLIED WASTE INDUSTRIES, INC.
(AS GUARANTOR)
AND
US BANK NATIONAL ASSOCIATION
(as Trustee)
dates as of ____________
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
SECTION OF TRUST INDENTURE
SECTION OF
ACT OF 1939, AS AMENDED
GUARANTEE AGREEMENT
--------------------------
-------------------
<S>
<C>
310(a)
4.1 (a)
310(b)
4.1(c), 2.8
310(c)
Inapplicable
3ll(a)
2.2(b)
3ll(b)
2.2(b)
311(c)
Inapplicable
312(a)
2.2(a)
312(b)
2.2(b)
313
2.3
314(a)
2.4
314(b)
Inapplicable
314(c)
2.5
314(d)
Inapplicable
314(e)
1.1, 2.5, 3.2
314(f)
2.1, 3.2
315(a)
3.1(d)
315(b)
2.7
315(c)
3.1
315(d)
3.1(d)
316(a)
1.1, 2.6, 5.4
316(b)
5.3
316(c)
8.2
317(a)
Inapplicable
317(b)
Inapplicable
318(a)
2.1(b)
318(b)
2.1
318(c)
2.l(a)
</TABLE>
----------
* This
Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its
terms or
provisions.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S>
<C>
Article I.
DEFINITIONS
1
Section 1.1
Definitions
1
Article II.
TRUST INDENTURE ACT
3
Section 2.1
Trust Indenture Act; Application
3
Section 2.2 List
of Holders; Preferential Claims
4
Section 2.3
Reports by the Guarantee Trustee
4
Section 2.4
Periodic Reports to the Guarantee Trustee
4
Section 2.5
Evidence of Compliance with Conditions Precedent
4
Section 2.6
Events of Default; Waiver
4
Section 2.7
Conflicting Interests
5
Article III. POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
5
Section 3.1
Powers and Duties of the Guarantee Trustee
5
Section 3.2
Certain Rights of Guarantee Trustee
6
Section 3.3
Compensation; Indemnity; Fees
8
Section 3.4
Conflicting Interests
9
Article IV.
GUARANTEE TRUSTEE
9
Section 4.1
Guarantee Trustee; Eligibility
9
Section 4.2
Appointment, Removal and Resignation of the Guarantee Trustee
10
Article V.
GUARANTEE
10
Section 5.1
Guarantee
10
Section 5.2
Waiver of Notice and Demand
10
Section 5.3
Obligations Not Affected
11
Section 5.4
Rights of Holders
11
Section 5.5
Guarantee of Payment
12
Section 5.6
Subordination
12
Section 5.7
Independent Obligations
12
Article VI.
COVENANTS AND SUBORDINATION
12
Article VII.
TERMINATION
13
Section 7.1
Termination
13
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
----
<S>
<C>
Article VIII. MISCELLANEOUS
13
Section 8.1
Successors and Assigns
13
Section 8.2
Amendments
13
Section 8.3
Notices
13
Section 8.4
Benefit
14
Section 8.5
Interpretation
14
Section 8.6
Governing Law
15
</TABLE>
iii
<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of _____ (this "Guarantee
Agreement"),
entered into between Allied Waste Industries, Inc., a Delaware
corporation
having its principal office at 15880 North Greenway-Hayden Loop,
Scottsdale,
Arizona, 85260 (the "Guarantor"), and US BANK NATIONAL ASSOCIATION,
as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein)
from time to time of the Preferred Securities (as defined herein)
of AWNA TRUST,
a Delaware statutory trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust,
dated as
of _____ (the "Declaration"), among Allied Waste Industries, Inc.,
a Delaware
corporation (the "Company"), as Sponsor, the Property Trustee named
therein, the
Delaware Trustee named therein, the Regular Trustees named therein
and the
several Holders as defined therein, the Issuer is issuing $_____
aggregate
Liquidation Amount (as defined in the Declaration) of its _____%
_____ Preferred
Securities, Series _____ (Liquidation Amount $_____ per Preferred
Security) (the
"Preferred Securities"), representing undivided beneficial
interests in the
assets of the Issuer and having the terms set forth in the
Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and
the
proceeds thereof, together with the proceeds from the issuance of
the Common
Securities (as defined in the Declaration), will be used to
purchase the
Subordinated Debt Securities (as defined in the Declaration) of the
Company
which will be deposited with US Bank National Association, as
Property Trustee
under the Declaration, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities the
Guarantor desires irrevocably and unconditionally to agree, to the
extent set
forth herein, to pay to the Holders of the Preferred Securities the
Guarantee
Payments (as defined herein) and to make certain other payments on
the terms and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for
the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. As used in this Guarantee Agreement, the
terms set
forth below shall, unless the context otherwise requires, have the
following
meanings. Capitalized or otherwise defined terms used but not
otherwise defined
herein shall have the meanings assigned to such terms in the
Declaration as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly
or
indirectly controlling or controlled by or under direct or indirect
common
control with such specified Person. For the purposes of this
definition,
"control" when used with respect to any specified Person means the
power to
direct the management and policies of such Person, directly or
1
<PAGE>
indirectly, whether through the ownership of voting securities, by
contract or
otherwise; and the terms "controlling" and "controlled" have
meanings
correlative to the foregoing.
"Event of Default" means (i) a default by the Guarantor on any of
its
payment obligations under this Guarantee Agreement and (ii) a
default by the
Guarantor on any other obligation hereunder that remains uncured
after 30 days
from the occurrence thereof.
"Guarantee Payments" means the following payments or distributions,
without
duplication, with respect to the Preferred Securities, to the
extent not paid or
made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions
(as defined in the Declaration) required to be paid on the
Preferred Securities,
to the extent the Issuer shall have funds on hand available
therefor at such
time, (ii) the redemption price, including all accumulated and
unpaid
Distributions to the date of redemption (the "Redemption Price"),
with respect
to any Preferred Securities called for redemption by the Issuer, to
the extent
the Issuer shall have funds on hand available therefor at such
time, and (iii)
upon a voluntary or involuntary termination, winding-up or
liquidation of the
Issuer, unless Subordinated Debt Securities are distributed to the
Holders, the
lesser of (a) the aggregate of the Liquidation Amount of $______
per _____
Preferred Security plus accumulated and unpaid Distributions on the
Preferred
Securities to the date of payment, to the extent the Issuer shall
have funds on
hand available therefor at such time and (b) the amount of assets
of the Issuer
remaining available for distribution to Holders in liquidation of
the Issuer (in
either case, the "Liquidation Distribution").
"Guarantee Trustee" has the meaning set forth in the preamble to
this
Guarantee Agreement.
"Holder" means any holder, as registered on the books and records
of the
Issuer, of any Preferred Securities; provided, however, that in
determining
whether the holders of the requisite percentage of Preferred
Securities have
given any request, notice, consent or waiver hereunder, "Holder"
shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of
the Guarantor
or the Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of [
] among the
Company and US Bank National Association, as trustee
thereunder.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means,
except
as provided in the Declaration and by the Trust Indenture Act,
Holder(s) of
Preferred Securities voting separately as a class, who vote
Preferred Securities
and the aggregate liquidation amount (including the stated amount
that would be
paid on redemption, liquidation or otherwise, plus accrued and
unpaid
Distributions to the date upon which the voting percentage is
determined) of the
Preferred Securities voted by such Holders represents more than 50%
of the above
stated aggregate liquidation amount of all Preferred
Securities.
"Officer's Certificate" means a certificate signed by any one of
the
Chairman of the Board, Chief Executive Officer, President, a Vice
President, the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the
Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered
to the
Guarantee Trustee. Any Officer's Certificate delivered with
2
<PAGE>
respect to compliance with a condition or covenant provided for in
this
Guarantee Agreement shall include:
(a)
a statement that the officer signing the Officer's Certificate
has
read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or
investigation undertaken by such officer in rendering the
Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such
officer to express an informed opinion as to whether or not such
covenant
or
condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such
condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation,
estate, partnership, joint venture, association, joint stock
company, limited
liability company, trust, unincorporated association, or government
or any
agency or political subdivision thereof, or any other entity of
whatever nature.
"Record Date" means, with respect to Preferred Securities that are
held in
book-entry form, the date that is one Business Day before the
relevant
Distribution Date, and with respect to Preferred Securities that
are held in
definitive form, the 15th day, whether or not a Business Day,
before the
relevant Distribution Date.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any
vice-president, any assistant vice-president, any assistant
secretary, any
assistant treasurer, any trust officer or assistant trust officer
or any other
officer of the Guarantee Trustee customarily performing functions
similar to
those performed by any of the above designated officers and also
means, with
respect to a particular corporate trust matter, any other officer
to whom such
matter is referred because of that officer's knowledge of and
familiarity with
the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee
possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a)
This Guarantee Agreement is subject to the provisions of the
Trust
Indenture Act that are required to be part of this Guarantee
Agreement and
shall, to the extent applicable, be governed by such
provisions.
3
<PAGE>
(b)
If and to the extent that any provision of this Guarantee
Agreement
limits, qualifies or conflicts with the duties imposed by Sections
310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.2 List of Holders; Preferential Claims.
(a)
The Guarantor shall furnish or cause to be furnished to the
Guarantee
Trustee (a) not later than 15 days after each Record Date of each
year, a list,
in such form as the Guarantee Trustee may reasonably require,
containing all the
information in the possession or control of the Guarantor, as to of
the names
and addresses of the Holders ("List of Holders") as of the
preceding respective
Record Date, and (b) at such other times as the Guarantee Trustee
may request in
writing, within 30 days after the receipt by the Guarantor of any
such request,
a list of similar form and content as of a date not more than 15
days prior to
the time such list is furnished. The Guarantee Trustee shall
preserve, in as
current a form as is reasonably practicable, all information
contained in Lists
of Holders given to it, provided that the Guarantee Trustee may
destroy any List
of Holders previously given to it on receipt of a new List of
Holders.
(b)
The Guarantee Trustee shall comply with its obligations under
Section
31l(a), Section 31l(b) and Section 312(b) of the Trust Indenture
Act.
Section 2.3 Reports by the Guarantee Trustee.
Not
later than 60 days following __________ of each year,
commencing
___________, the Guarantee Trustee shall provide to the Holders
such reports as
are required by Section 313 of the Trust Indenture Act, if any, in
the form and
in the manner provided by Section 313 of the Trust Indenture Act.
The Guarantee
Trustee shall also comply with the requirements of Section 313(d)
of the Trust
Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee. The
Guarantor shall
provide to the Guarantee Trustee such documents, reports and
information, if
any, as required by Section 314 of the Trust Indenture Act and the
compliance
certificate required by Section 314 of the Trust Indenture Act, in
the form, in
the manner and at the times required by Section 314(a)(4) of the
Trust Indenture
Act.
Section 2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor
shall provide to the Guarantee Trustee such evidence of compliance
with such
conditions precedent, if any, provided for in this Guarantee
Agreement that
relate to any of the matters set forth in Section 314(c) of the
Trust Indenture
Act. Any certificate or opinion required to be given by an officer
pursuant to
such Section 314(c)(1) may be given in the form of an Officer's
Certificate.
Section 2.6 Events of Default; Waiver. The Holders of a Majority
in
Liquidation Amount of the Preferred Securities may, by vote, on
behalf of the
Holders, waive any past Event of Default and its consequences. Upon
such waiver,
any such Event of Default shall cease to exist, and any Event of
Default arising
therefrom shall be deemed to have been cured, for every purpose of
this
Guarantee Agreement, but no such waiver shall extend to any
subsequent or other
default or Event of Default or impair any right consequent
therefrom.
4
<PAGE>
(a)
Event of Default; Notice. The Guarantee Trustee shall, within 90
days
after the occurrence of an Event of Default actually known to a
Responsible
Officer of the Guarantee Trustee, transmit by mail, first class
postage prepaid,
to the Holders, notices of all such defaults unless such defaults
have been
cured before the giving of such notice (the term "defaults" for the
purposes of
this Section 2.6(a) being hereby defined to be an Event of Default
as, not
including any periods of grace provided for therein and
irrespective of the
giving of any notice provided therein); provided, that, except in
the case of a
default in the payment of a Guarantee Payment, the Guarantee
Trustee shall be
protected in withholding such notice if and so long as the board of
directors,
the executive committee, or a trust committee of directors and/or
Responsible
Officers, of the Guarantee Trustee in good faith determines that
the withholding
of such notice is in the interests of the Holders.
Section 2.7 Conflicting Interests. The Declaration and the
Indenture shall
be deemed to be specifically described in this Guarantee Agreement
for the
purposes of clause (i) of the first proviso contained in Section
310(b) of the
Trust Indenture Act.
ARTICLE
III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.
(a)
This Guarantee Agreement shall be held by the Guarantee Trustee for
the
benefit of the Holders, and the Guarantee Trustee shall not
transfer this
Guarantee Agreement to any Person except a Holder exercising his or
her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by
such Successor Guarantee Trustee of its appointment to act as
Successor
Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall
automatically vest in any Successor Guarantee Trustee, upon
acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such
vesting and
cessation of title shall be effective whether or not conveying
documents have
been executed and delivered pursuant to the appointment of such
Successor
Guarantee Trustee.
(b)
The Guarantee Trustee, before the occurrence of any Event of
Default
and after the curing or waiving of all Events of Default that may
have occurred,
shall undertake to perform only such duties as are specifically set
forth in
this Guarantee Agreement, and no implied covenants, duties or
obligations shall
be read into this Guarantee Agreement against the Guarantee
Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to
Section 2.6), the Guarantee Trustee shall enforce this Guarantee
Agreement for
the benefit of the Holders and shall exercise such of the rights
and powers
vested in it by this Guarantee Agreement, and use the same degree
of care and
skill in its exercise thereof, as a prudent person would exercise
or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of
this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action,
its own
negligent failure to act or its own willful misconduct, except
that:
5
<PAGE>
(i) this Subsection shall not be construed to limit Subsection (b)
of
this
Section;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent
in
ascertaining
