EXHIBIT 10.1
EXECUTION VERSION
ALLIED WASTE NORTH AMERICA, INC.
EACH ENTITY LISTED ON SCHEDULE A, AS GUARANTORS
$750,000,000
8-1/2% Senior Notes due 2008
Purchase Agreement
November 15, 2001
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX BROTHERS INC.
UBS WARBURG LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS INC.
SCOTIA CAPITAL (USA) INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION SECURITIES, INC.
FLEET SECURITIES, INC.
$750,000,000 8-1/2% SENIOR NOTES DUE 0000
XX
XXXXXX XXXXX XXXXX XXXXXXX, INC.
PURCHASE AGREEMENT
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX BROTHERS INC.
UBS WARBURG LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS INC.
SCOTIA CAPITAL (USA) INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION SECURITIES, INC.
FLEET SECURITIES, INC.
c/o X.X. XXXXXX SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Allied Waste North America, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to X.X. Xxxxxx Securities Inc., Xxxxxxx
Xxxxx Barney Inc., Credit Suisse First Boston Corporation, Deutsche Banc Alex.
Xxxxx Inc., Xxxxxx Brothers Inc., UBS Warburg LLC, ABN AMRO Incorporated, Banc
One Capital Markets Inc., Scotia Capital (USA) Inc., Credit Lyonnais Securities
(USA) Inc., First Union Securities, Inc. and Fleet Securities, Inc. (each, an
"INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS") $750,000,000 in
aggregate principal amount of its 8-1/2% Senior Notes due 2008 (the "SERIES A
NOTES"), subject to the terms and conditions set forth herein. The Series A
Notes are to be issued pursuant to a Series Supplement (the "SUPPLEMENT"), to be
dated as of the Closing Date (as defined below), to an indenture (collectively
with the Supplement, the "INDENTURE"), dated December 23, 1998, among the
Company, the Guarantors (as defined below) and U.S. Bank Trust National
Association (the "TRUSTEE").
Holders (including subsequent transferees) of the Series A
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date,
in substantially the form of Exhibit A hereto, for so long as such Series A
Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth therein
(i) a registration statement under the
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the Company's
8-1/2% Series B Senior Notes due 2008 (the "SERIES B NOTES"), to be offered in
exchange for the Series A Notes (such offer to exchange being referred to as the
"EXCHANGE OFFER") and the Guarantees (as defined below) thereof and (ii) if
required, a shelf registration statement for the Series A Notes and the Series B
Notes pursuant to Rule 415 under the Act (the "SHELF REGISTRATION STATEMENT"
and, together with the Exchange Offer Registration Statement, the "REGISTRATION
STATEMENT") relating to the resale by certain holders of the Series A Notes or
Series B Notes and to use its reasonable best efforts to cause such Registration
Statement to be declared and remain effective and usable for the periods
specified in the Registration Rights Agreement and to consummate the Exchange
Offer. The Series A Notes and the Series B Notes issuable in exchange therefor
are collectively referred to herein as the "NOTES." The Notes will be guaranteed
(the "GUARANTEES") by Allied Waste Industries, Inc., a Delaware corporation
("ALLIED"), and each of the entities listed on Schedule A hereto (each,
including Allied, a "GUARANTOR" and collectively, the "GUARANTORS").
The Notes will be secured by a first priority lien on: (i) all
the Capital Stock of all of Xxxxxxxx-Xxxxxx Industries, Inc.'s ("BFI") domestic
Restricted Subsidiaries (the "DOMESTIC PLEDGED STOCK"); (ii) 65% of the Capital
Stock of all of BFI's foreign Restricted Subsidiaries (the "FOREIGN PLEDGED
STOCK") and (iii) all tangible and intangible assets (other than real property)
currently owned by BFI and all of BFI's domestic Restricted Subsidiaries
(collectively, the "ASSETS" and, along with the Domestic Pledged Stock and the
Foreign Pledged Stock, the "COLLATERAL"). BFI and its subsidiaries that own the
Collateral (the "GRANTOR SUBSIDIARIES") entered into an amendment on January 25,
2001 to the Shared Collateral Pledge Agreement, dated July 30, 1999, among the
Company, BFI, the Grantor Subsidiaries and the Collateral Trustee (as amended,
the "SHARED COLLATERAL PLEDGE AGREEMENT"), an amendment on January 25, 2001 to
the Shared Collateral Security Agreement, dated July 30, 1999, among the
Company, BFI, the Grantor Subsidiaries and the Collateral Trustee (as amended,
the "SHARED COLLATERAL SECURITY AGREEMENT") and an amendment on January 25, 2001
to the Collateral Trust Agreement, dated July 30, 1999, among the Company, BFI,
the Grantor Subsidiaries and the Collateral Trustee (as amended, the "COLLATERAL
TRUST AGREEMENT" and, along with the Shared Collateral Pledge Agreement and
Shared Collateral Security Agreement, the "SHARED COLLATERAL AGREEMENTS"). Upon
consummation of the Amendment (as defined herein), the Shared Collateral
Agreements will provide for the grant by BFI and the Grantor Subsidiaries to the
Collateral Trustee for the ratable benefit of the Holders of the Notes of a
security interest in the Collateral.
This Agreement, the Indenture, the Notes, the Guarantees, the
Registration Rights Agreement and the Shared Collateral Agreements are
hereinafter sometimes referred to collectively as the "OPERATIVE DOCUMENTS."
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
1. OFFERING MEMORANDUM.
The Series A Notes will be offered and sold to the Initial
Purchasers pursuant to one or more exemptions from the registration requirements
under the Securities Act of 1933, as amended (the "ACT"). The Company and the
Guarantors have prepared an offering memorandum, dated November 15, 2001
(including any information and documents
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incorporated by reference therein, the "OFFERING MEMORANDUM"), relating to the
Series A Notes and the Guarantees.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
IN (A) ABOVE."
2. AGREEMENTS TO SELL AND PURCHASE.
On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions contained
herein, the Company agrees to issue and sell to the Initial Purchasers, and each
Initial Purchaser agrees, severally and not jointly, to purchase from the
Company the principal amounts of the Series A Notes set forth opposite the name
of such Initial Purchaser on Schedule C hereto at a purchase price equal to
98.25% of the principal amount thereof (the "PURCHASE PRICE").
3. TERMS OF OFFERING.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "EXEMPT RESALES") of the Series A Notes
purchased hereunder on the terms set
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forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons whom the Initial Purchaser reasonably believes are "qualified
institutional buyers" as defined in Rule 144A under the Act ("QIBS"), and (ii)
non-U.S. persons (as "U.S. person" is defined in Regulation S under the Act) in
offshore transactions in reliance upon Regulation S under the Act (each, a
"REGULATION S PURCHASER") (such persons specified in clauses (i) and (ii) being
referred to herein as "ELIGIBLE PURCHASERS"). The Initial Purchasers will offer
the Series A Notes to Eligible Purchasers initially at a price equal to 100% of
the principal amount thereof. Such price may be changed at any time without
notice.
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the
Series A Notes shall be made at the offices of Cravath, Swaine & Xxxxx, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 9:00 a.m., New
York City time, on November 27, 2001 or at such other time on the same date or
such other date as shall be agreed upon by the Initial Purchasers and the
Company in writing. The time and date of such delivery and the payment for the
Series A Notes are herein called the "CLOSING DATE."
(b) One or more of the Series A Notes in definitive global
form, registered in the name of Cede & Co., as nominee of the Depository Trust
Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (collectively, the "GLOBAL
NOTES"), shall be delivered by the Company to the Initial Purchasers (or as the
Initial Purchasers direct) in each case with any transfer taxes thereon duly
paid by the Company against payment by the Initial Purchasers of the Purchase
Price thereof by wire transfer in same day funds to the order of the Company.
The Global Notes shall be made available to the Initial Purchasers for
inspection not later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS.
Each of the Company and the Guarantors hereby agrees with the
Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Notes for offering
or sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Offering
Memorandum untrue or that requires any additions to or changes in the Offering
Memorandum in order to make the statements therein not misleading. The Company
and the Guarantors shall use their best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of any Series A
Notes under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of any Series
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A Notes under any state securities or Blue Sky laws, the Company and the
Guarantors shall use their best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request for the time period specified in Section 5(c).
Subject to the Initial Purchasers' compliance with its representations and
warranties and agreements set forth in Section 7 hereof, the Company consents to
the use of the Offering Memorandum, and any amendments and supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) DURING SUCH PERIOD AS IN THE OPINION OF COUNSEL FOR THE
INITIAL PURCHASERS AN OFFERING MEMORANDUM IS REQUIRED BY LAW TO BE DELIVERED IN
CONNECTION WITH EXEMPT RESALES BY THE INITIAL PURCHASERS AND IN CONNECTION WITH
MARKET-MAKING ACTIVITIES OF THE INITIAL PURCHASERS FOR SO LONG AS ANY SERIES A
NOTES ARE OUTSTANDING, (I) NOT TO MAKE ANY AMENDMENT OR SUPPLEMENT TO THE
OFFERING MEMORANDUM OF WHICH THE INITIAL PURCHASERS SHALL NOT PREVIOUSLY HAVE
BEEN ADVISED OR TO WHICH THE INITIAL PURCHASERS SHALL REASONABLY OBJECT AFTER
BEING SO ADVISED AND (II) TO PREPARE PROMPTLY UPON THE REASONABLE REQUEST OF ANY
OF THE INITIAL PURCHASERS, ANY AMENDMENT OR SUPPLEMENT TO THE OFFERING
MEMORANDUM WHICH MAY BE NECESSARY OR ADVISABLE IN CONNECTION WITH SUCH EXEMPT
RESALES OR SUCH MARKET-MAKING ACTIVITIES.
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Series A Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Series A Notes for offer and sale to the Initial Purchasers
and pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that neither the Company nor any Guarantor shall be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not
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now so qualified or to take any action that would subject it to general consent
to service of process or taxation other than as to matters and transactions
relating to the Offering Memorandum or Exempt Resales, in any jurisdiction in
which it is not now so subject.
(f) So long as any of the Series A Notes remain outstanding
and during any period prior to the completion of the Exchange Offer in which the
Company and the Guarantors are not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder of Series A Notes in connection with any sale thereof
and any prospective purchaser of such Series A Notes from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Offering Memorandum and all amendments and supplements to
any of the foregoing (including financial statements), including the mailing and
delivering of copies thereof to the Initial Purchasers and persons designated by
it in the quantities specified herein, (ii) all costs and expenses related to
the transfer and delivery of the Series A Notes to the Initial Purchasers,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Series A Notes, (iv) all expenses in connection with the
registration or qualification of the Series A Notes and the Guarantees for offer
and sale under the securities or Blue Sky laws of the several states and all
costs of printing or producing any Blue Sky memoranda in connection therewith
(including the filing fees and reasonable fees and disbursements of counsel for
the Initial Purchasers in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Series A Notes and the Guarantees, (vi) all expenses and listing fees in
connection with the application for quotation of the Series A Notes in the
National Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the
reasonable fees and disbursements of the Trustee's counsel in connection with
the Indenture, the Notes and the Guarantees, (viii) the costs and charges of any
transfer agent, registrar and/or depositary (including DTC), (ix) any fees
charged by rating agencies for the rating of the Notes, (x) all costs and
expenses of the Exchange Offer and any Registration Statement, as set forth in
the Registration Rights Agreement, and (xi) and all other costs and expenses
incident to the performance of the obligations of the Company and the Guarantors
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that, except as specifically provided in this Section, and
Sections 8 and 11 hereof, the Initial Purchasers will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Series A Notes by them, and any advertising expenses connected with
any offers they may make.
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(h) To use its best efforts to effect the inclusion of the
Series A Notes in PORTAL and to maintain the listing of the Series A Notes on
PORTAL for so long as the Series A Notes are outstanding.
(i) To obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(j) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of the Company or
any Guarantor or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company or any Guarantor substantially similar to
the Notes and the Guarantees (other than (i) the Notes and the Guarantees and
(ii) commercial paper issued in the ordinary course of business), without the
prior written consent of the Initial Purchasers.
(k) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Series A Notes or the Guarantees to the
Initial Purchasers or to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes or the Guarantees under the
Act.
(l) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes and the related Guarantees.
(m) To cause (or, to the extent provided in the Registration
Rights Agreement, to use its reasonable best efforts to cause) the Exchange
Offer to be made in the appropriate form to permit Series B Notes and guarantees
thereof by the Guarantors registered pursuant to the Act to be offered in
exchange for the Series A Notes and the Guarantees and to comply with all
applicable federal and state securities laws in connection with the Exchange
Offer.
(n) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(o) If the Transactions (as defined in the Offering
Memorandum) have not been consummated on or prior to November 26, 2001, the
Company shall, and shall cause AWIN Escrow Company, Inc., a Delaware corporation
and its wholly-owned subsidiary ("AWIN"), and the Guarantors to, execute the
purchase agreement in substantially the form of Exhibit C hereto (the "ALTERNATE
AGREEMENT") and perform the obligations thereunder. The parties hereto agree
that once the Company, AWIN and the Guarantors execute and deliver to the
Initial Purchasers the Alternate Agreement, the Alternate Agreement shall
supersede and replace this Agreement and shall render this Agreement null and
void.
(p) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Series A Notes and the Guarantees.
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6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
GUARANTORS.
As of the date hereof, each of the Company and the Guarantors
represents and warrants to, and agrees with, the Initial Purchasers that:
(a) The Offering Memorandum does not, and any supplement or
amendment to it will not, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act, has been
issued.
(b) The documents incorporated by reference into the Offering
Memorandum, when filed with the Commission, conformed or will conform, as the
case may be, in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
(c) Each of Allied and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Offering Memorandum and
to own, lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, prospects,
financial condition or results of operations of Allied and its subsidiaries,
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(d) All outstanding shares of capital stock of Allied and the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(e) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of Allied. All of the outstanding shares of
capital stock of each of the subsidiaries of Allied have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by
Allied, directly or indirectly through one or more subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature (each, a "LIEN"), except for Liens (i) to be created in connection with
the issuance of the Notes, (ii) as otherwise disclosed in the Offering
Memorandum, and (iii) which could not reasonably be expected to have a Material
Adverse Effect, and each Subsidiary of the Company (other than Global Indemnity
Assurance and Commercial Reassurance Limited) will be a "RESTRICTED SUBSIDIARY"
within the meaning of the Indenture.
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(f) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
(g) The Indenture has been duly authorized by the Company and
each of the Guarantors and, on the Closing Date, will have been validly executed
and delivered by the Company and each of the Guarantors. When the Indenture has
been duly executed and delivered by the Company and each of the Guarantors, the
Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally and (ii) general principles
of equity, including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to the
availability of equitable remedies (whether such principles are considered in a
proceeding at law or equity). On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder.
(h) The Series A Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Series A Notes have been issued, executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, the Series A
Notes will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally and (ii) general principles of equity,
including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to the availability
of equitable remedies (whether such principles are considered in a proceeding at
law or equity). On the Closing Date, the Series A Notes will conform in all
material respects to the description thereof contained in the Offering
Memorandum.
(i) On the Closing Date, the Series B Notes will have been
duly authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to (i) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity).
(j) The Guarantee to be endorsed on the Series A Notes by each
Guarantor has been duly authorized by such Guarantor and, on the Closing Date,
will have been duly executed and delivered by each such Guarantor. When the
Series A Notes have been issued, executed and authenticated in accordance with
the Indenture and delivered to and paid for by the Initial
9
Purchasers in accordance with the terms of this Agreement, the Guarantee of each
Guarantor endorsed thereon will be entitled to the benefits of the Indenture and
will be the valid and binding obligation of such Guarantor, enforceable against
such Guarantor in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity). On the Closing Date, the Guarantees to be endorsed on the Series
A Notes will conform in all material respects to the description thereof
contained in the Offering Memorandum.
(k) The Guarantee to be endorsed on the Series B Notes by each
Guarantor has been duly authorized by such Guarantor and, when issued, will have
been duly executed and delivered by each such Guarantor. When the Series B Notes
have been issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Guarantee of each Guarantor endorsed
thereon will be entitled to the benefits of the Indenture and will be the valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws affecting creditors' rights and remedies generally and (ii) general
principles of equity, including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness, equitable defenses and limits as to
the availability of equitable remedies (whether such principles are considered
in a proceeding at law or equity). When the Series B Notes are issued,
authenticated and delivered, the Guarantees to be endorsed on the Series B Notes
will conform in all material respects to the description thereof in the Offering
Memorandum.
(l) The Shared Collateral Agreements have been duly authorized
by the Company, BFI and the Grantor Subsidiaries, and upon execution and
delivery by the Company and Allied of the Amendment (assuming due execution and
delivery by each of the other parties thereto), will be valid and binding
obligations of the Company, BFI and the Grantor Subsidiaries with respect to the
Notes, enforceable against the Company, BFI and the Grantor Subsidiaries, as
applicable, in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and equitable principals of general applicability. On the
Closing Date, the Shared Collateral Agreements will conform in all material
respects to the description thereof in the Offering Memorandum.
(m) the Amendment, together with the Shared Collateral
Agreements, when executed and delivered by the Company and Allied (assuming due
execution and delivery by each of the other parties thereto), will create a
valid security interest in favor of the Collateral Trustee for the benefit of
the Holders of the Notes in that portion of the Collateral described in Section
2.01 of the Shared Collateral Security Agreement and in that portion of the
collateral described in Section 2 of the Shared Collateral Pledge Agreement in
which a valid security interest may be created under Article 9 of the UCC of the
State of New York.
(n) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date, will have
been duly executed and delivered
10
by the Company and each of the Guarantors. When the Registration Rights
Agreement has been duly executed and delivered, the Registration Rights
Agreement will be a valid and binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each Guarantor in accordance
with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally, (ii) general principles of
equity, including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to the
availability of equitable remedies (whether such principles are considered in a
proceeding at law or equity) and (iii) the qualification that rights to
indemnification or contribution may be limited by applicable law or equitable
principles or otherwise unenforceable as against public policy. On the Closing
Date, the Registration Rights Agreement will conform in all material respects to
the description thereof in the Offering Memorandum.
(o) The Amendment has been duly authorized, executed and
delivered by the Company.
(p) Neither Allied nor any of its subsidiaries is (x) in
violation of its respective charter or by-laws or (y) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to Allied and its subsidiaries, taken as a whole, to which Allied or
any of its subsidiaries is a party or by which Allied or any of its subsidiaries
or their respective property is bound, which violation or default, in the case
of this clause (y), could reasonably be expected to have a Material Adverse
Effect.
(q) The execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and each of the Guarantors,
compliance by the Company and each of the Guarantors with all provisions hereof
and thereof and the consummation of the transactions contemplated hereby,
thereby and by the Offering Memorandum will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of Allied or any of its subsidiaries, (iii) conflict with or constitute
a breach of any of the terms or provisions of, or a default under any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to Allied and its subsidiaries, taken as a whole, to which Allied or
any of its subsidiaries is a party or by which Allied or any of its subsidiaries
or their respective property is bound, or, in the case of this clause (iii),
which violation or default could reasonably be expected to have a Material
Adverse Effect, (iv) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over Allied, any of its subsidiaries or their
respective property, (v) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which Allied or any of its subsidiaries is a party or by which Allied or any of
its subsidiaries or their respective property is bound which Lien could
reasonably be expected to have a Material Adverse Effect, or (vi) result in the
termination, suspension or revocation of any Authorization (as defined below) of
Allied or any of its subsidiaries or result in any other impairment of the
rights of the holder of
11
any such Authorization which termination, suspension or revocation could
reasonably be expected to have a Material Adverse Effect.
(r) Except as set forth in the Offering Memorandum, there are
no legal or governmental proceedings pending or threatened to which Allied or
any of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result, singly or in the
aggregate, in a Material Adverse Effect.
(s) Except as set forth in the Offering Memorandum, neither
Allied nor any of its subsidiaries has violated any foreign, federal, state or
local law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(t) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(u) Each of Allied and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of Allied and its
subsidiaries is in compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; except where such failure to be valid and
in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(v) The accountants, Xxxxxx Xxxxxxxx LLP, that have certified
the financial statements and supporting schedules included in the Offering
Memorandum, are independent public accountants with respect to the Company and
the Guarantors, as required by the Act and the Exchange Act.
(w) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present
12
fairly the consolidated financial position, results of operations and changes in
financial position of Allied and its subsidiaries on the basis stated in the
Offering Memorandum at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Offering Memorandum (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company.
(x) Neither Allied nor the Company is, and, after giving
effect to the offering and sale of the Series A Notes and the application of the
net proceeds thereof as described in the Offering Memorandum, neither of them
will be, an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended.
(y) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such person the
right to require the Company or such Guarantor to include securities of the
Company or any Guarantor with the Notes and Guarantees registered pursuant to
any Registration Statement.
(z) Neither Allied nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Series A
Notes to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
(aa) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned to the Company or any Guarantor,
any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any securities of
the Company or any Guarantor.
(bb) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of Allied and its subsidiaries, taken as a whole, (ii) there has not
been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of Allied
or any of its subsidiaries and (iii) neither Allied nor any of its subsidiaries
has incurred any material liability or obligation, direct or contingent.
13
(cc) The Offering Memorandum, as of its date, contains all the
information specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Act.
(dd) To the knowledge of the Company, when the Series A Notes
and the Guarantees are issued and delivered pursuant to this Agreement, neither
the Series A Notes nor Guarantees will be of the same class (within the meaning
of Rule 144A under the Act) as any security of the Company or the Guarantors
that is listed on a national securities exchange registered under Section 6 of
the Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(ee) To the knowledge of the Company, no form of general
solicitation or general advertising (as defined in Regulation D under the Act)
was used by the Company, the Guarantors or any of their respective
representatives (other than the Initial Purchasers, as to whom the Company and
the Guarantors make no representation) in connection with the offer and sale of
the Series A Notes and the Guarantees contemplated hereby, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as the
Series A Notes or the Guarantees have been issued and sold by the Company or the
Guarantors within the six-month period immediately prior to the date hereof.
(ff) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the TIA.
(gg) The Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the Initial
Purchasers, as to whom the Company and the Guarantors make no representation)
have complied with and will comply with the offering restrictions requirements
of Regulation S in connection with the offering of the Series A Notes outside
the United States and, in connection therewith, the Offering Memorandum will
contain the disclosure required by Rule 902(g)(2).
(hh)The Series A Notes offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions (it being understood that no representation is made as to the
actions of the Initial Purchasers).
(ii) The sale of the Series A Notes pursuant to Regulation S
is not part of a plan or scheme to evade the registration provisions of the Act
(it being understood that no representation is made as to the actions of the
Initial Purchasers).
(jj) No registration under the Act of the Series A Notes or
the Guarantees is required for the sale of the Series A Notes and the Guarantees
to the Initial Purchasers as contemplated hereby or for the Exempt Resales
assuming the accuracy of the Initial Purchasers' representations and warranties
and agreements set forth in Section 7 hereof.
(kk) Each certificate signed by any officer of the Company or
any Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Company or
such Guarantor to the Initial Purchasers as to the matters covered thereby.
14
(ll) All indebtedness of the Company and the Guarantors that
will be repaid with the proceeds of the issuance and sale of the Series A Notes
was incurred, and the indebtedness represented by the Series A Notes is being
incurred, for proper purposes and in good faith and each of the Company and the
Guarantors was, at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Series A Notes, and
will be on the Closing Date (after giving effect to the application of the
proceeds from the issuance of the Series A Notes) solvent, and had at the time
of the incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Series A Notes and will have on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Series A Notes) sufficient capital for carrying on their respective business and
were, at the time of the incurrence of such indebtedness that will be repaid
with the proceeds of the issuance and sale of the Series A Notes, and will be on
the Closing Date (after giving effect to the application of the proceeds from
the issuance of the Series A Notes) able to pay their respective debts as they
mature.
(mm) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of any of
the Operative Documents, the issuance of the Series A Notes or the Guarantees,
or suspends the sale of the Series A Notes or the Guarantees in any jurisdiction
referred to in Section 5(e); and no injunction, restraining order or other order
or relief of any nature by a federal or state court or other tribunal of
competent jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the Series A
Notes or the Guarantees in any jurisdiction referred to in Section 5(e).
The Company acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 9 hereof, counsel to the Company and the Guarantors and counsel to the
Initial Purchasers, will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. INITIAL PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each of the Initial Purchasers, severally and not jointly,
represents and warrants to the Company and the Guarantors, and agrees that:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the Series A
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling the
Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) in offshore
transactions in reliance upon Regulation S under the Act.
15
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Series A
Notes only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A Notes only
from Eligible Purchasers that the Initial Purchaser reasonably believes are (A)
QIBs, and (B) Regulation S Purchasers, in each case, that agree that (x) the
Series A Notes purchased by them may be resold, pledged or otherwise transferred
within the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the Act, as in
effect on the date of the transfer of such Series A Notes, only (I) to the
Company or any of its subsidiaries, (II) to a person whom the seller reasonably
believes is a QIB purchasing for its own account or for the account of a QIB in
a transaction meeting the requirements of Rule 144A under the Act, (III) in an
offshore transaction (as defined in Rule 902 under the Act) meeting the
requirements of Rule 904 of the Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Act, (V) in accordance with another exemption
from the registration requirements of the Act (and based upon an opinion of
counsel acceptable to the Company) or (VI) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States or any other applicable jurisdiction and (y)
they will deliver to each person to whom such Series A Notes or an interest
therein is transferred a notice substantially to the effect of the foregoing.
(e) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Series A Notes in the United States or to,
or for the benefit or account of, a U.S. Person (other than a distributor), in
each case, as defined in Rule 902 under the Act (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement
of the offering of the Series A Notes pursuant hereto and the Closing Date,
other than in accordance with Regulation S of the Act or another exemption from
the registration requirements of the Act. Such Initial Purchaser agrees that,
during such 40-day distribution compliance period, it will not cause any
advertisement with respect to the Series A Notes (including any "tombstone"
advertisement) to be published in any newspaper or periodical or posted in any
public place and will not issue any circular relating to the Series A Notes,
except such advertisements as are permitted by and include the statements
required by Regulation S.
(f) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Series A Notes by it to any distributor, dealer or
person receiving a selling concession, fee or other remuneration during the
40-day distribution compliance period referred to in Rule 903(b)(2) under the
Act, it will send to such distributor, dealer or person receiving a selling
concession, fee or other remuneration a confirmation or notice to substantially
the following effect:
16
"The Series A Notes covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in transactions that
are exempt from the registration requirements of the Securities Act), and in
connection with any subsequent sale by you of the Series A Notes covered hereby
in reliance on Regulation S during the period referred to above to any
distributor, dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in Regulation S."
(g) Such Initial Purchaser agrees that (i) it has not offered
or sold and, prior to the date six months after the Closing Date, will not offer
or sell any Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 and the Public
Offers of Securities Regulations 1995 with respect to anything done by it in
relation to the notes in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Notes to a person who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom such document may otherwise lawfully be issued
or passed on.
(h) Such Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged or will not engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Series A Notes or the Guarantees.
(i) The Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(j) The sale of the Series A Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act.
Such Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchaser will rely upon the accuracy and
truth of the foregoing representations and such Initial Purchaser hereby
consents to such reliance.
17
8. INDEMNIFICATION.
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless each Initial Purchaser, its directors,
its officers and each person, if any, who controls such Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any reasonable legal or other expenses incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto) or any Rule 144A Information provided by the Company or any
Guarantor to any holder or prospective purchaser of Series A Notes pursuant to
Section 5(f) or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Initial Purchaser furnished in writing to the Company by such Initial Purchaser.
(b) The Initial Purchasers, severally and not jointly, agree
to indemnify and hold harmless the Company and the Guarantors, and their
respective directors and officers and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company or the Guarantors, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each Initial Purchaser but only with reference
to information relating to such Initial Purchaser furnished in writing to the
Company by such Initial Purchaser expressly for use in the Offering Memorandum.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page regarding delivery of the Series A Notes and, under the heading
"Plan of Distribution," (i) the paragraph related to overallotment,
stabilization and syndicate covering transactions, (ii) the third paragraph
related to the terms of the offering by the Initial Purchasers and (iii) the
last paragraph (describing the relationships between the Initial Purchasers and
the Company), in the Offering Memorandum constitute the only information
furnished in writing by or on behalf of the several Initial Purchasers for
inclusion in the Offering Memorandum.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers
shall not be required to assume the defense of such action pursuant to this
Section 8(c), but may employ separate counsel and participate in the defense
thereof, but the fees and expenses of such counsel, except as provided below,
shall be at the expense of the Initial Purchasers). Any indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the
18
indemnifying party, (ii) the indemnifying party shall have failed to assume the
defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such reasonable fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
X.X. Xxxxxx Securities Inc., in the case of the parties indemnified pursuant to
Section 8(a), and by the Company and the Guarantors, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be
obligated to indemnify and hold harmless any indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action effected without the indemnified party's written
consent. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand, from the offering of the Series A Notes or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (after underwriting discounts and commissions,
but before deducting expenses) received by the Company, and the total discounts
and commissions received by the Initial Purchasers bear to the total price to
investors of the Series A Notes, in each case as set forth in this Agreement.
The relative fault of the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
19
information supplied by the Company or the Guarantors, on the one hand, or the
Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Guarantors, and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation even if the Initial
Purchasers were treated as one entity for such purpose or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. Notwithstanding the provisions of
this Section 8, the Initial Purchasers shall not be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchasers exceeds the amount of any damages which the
Initial Purchasers has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Series A Notes purchased by each of the Initial Purchasers
hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS.
The obligations of the Initial Purchasers to purchase the
Series A Notes under this Agreement are subject to the satisfaction of each of
the following conditions:
(a) All the representations and warranties of the Company and
the Guarantors contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended negative change, in the outlook for any
rating of the
20
Company or any Guarantor or any securities of the Company or any Guarantor by
any such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower rating
to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of Allied and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or any
development involving a prospective change in the capital stock or in the
long-term debt of Allied or any of its subsidiaries and (iii) neither Allied nor
any of its subsidiaries shall have incurred any liability or obligation, direct
or contingent, the effect of which, in any such case described in clause
9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is material and adverse and,
in your judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the President and the Chief Financial Officer
of the Company and each of the Guarantors, confirming the matters set forth in
Sections 9(a) and 9(b) and stating that each of the Company and the Guarantors
has complied with all the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied on or prior to the
Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Xxxxxx & Xxxxxxx, counsel for the Company and the Guarantors, to the
effect set forth on Exhibit A attached hereto and an opinion of Xxxxxx Xxxx,
Vice President and General Counsel of the Company to the effect set forth on
Exhibit B attached hereto. In addition, you shall have received opinions
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of counsel to the Company and the Guarantors (satisfactory to you and
counsel for the Initial Purchasers) as to such matters as you may reasonably
request with respect to Guarantors organized outside the states of New York and
Delaware which are identified as Significant Subsidiaries (within the meaning of
Rule 1-02 of Regulation 5-X under the Act) in an officer's certificate addressed
to you and dated the Closing Date.
The opinion of Xxxxxx & Xxxxxxx described in Section 9(e)
above shall be rendered to you at the request of the Company and the Guarantors
and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of Cravath, Swaine & Xxxxx, counsel for
the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Xxxxxx Xxxxxxxx LLP,
21
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to the Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(h) The Series A Notes shall have been approved by the NASD
for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture, including all supplements thereto
relating to the Series A Notes, which shall have been entered into by the
Company, the Guarantors and the Trustee.
(j) The Company and the Guarantors shall have executed the
Registration Rights Agreement, and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
(k) Neither the Company nor the Guarantors shall have failed
at or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company or
the Guarantors, as the case may be, at or prior to the Closing Date.
(l) The Company shall have amended the credit agreement, dated
as of July 21, 1999, as amended on January 25, 2001, among the Company, Allied,
the lenders party thereto, The Chase Manhattan Bank, as administrative agent and
the collateral trustee (as so amended, the "Credit Agreement") to (i) permit the
Company and the Guarantors to incur the debt under the Notes and the Guarantees
and to secure the Notes and Guarantees with the Collateral and (ii) change
certain financial covenants (the "AMENDMENT").
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by the Initial Purchasers by written notice to the Company if
any of the following has occurred: (i) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of Allied and
its subsidiaries, taken as a
22
whole, (v) the declaration of a banking moratorium by either federal or New York
State authorities or (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the financial markets in the
United States.
If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Series A Notes which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of the Series A Notes which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Series A Notes to
be purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the principal
amount of the Series A Notes set forth opposite its name in Schedule C bears to
the aggregate principal amount of the Series A Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as you may specify, to purchase the Series A Notes
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase on such date; provided that in no
event shall the aggregate principal amount of the Series A Notes which any
Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the written consent of such
Initial Purchaser. If on the Closing Date any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase the Series A Notes and the aggregate
principal amount of the Series A Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of the Series A Notes
to be purchased by all Initial Purchasers and arrangements satisfactory to the
Initial Purchasers and the Company for purchase of such the Series A Notes are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Initial Purchaser and the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of any such Initial Purchaser under this Agreement.
11. MISCELLANEOUS.
Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Company or any Guarantor, to 00000
Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, (000) 000-0000 and
(ii) if to the Initial Purchasers, c/o X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements,
representations and warranties of the Company, the Guarantors and the Initial
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Series A Notes, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of the Initial Purchasers, the
officers or directors of the Initial Purchasers, any person controlling the
Initial Purchasers, the Company, any Guarantor, the officers or directors of
23
the Company or any Guarantor, or any person controlling the Company or any
Guarantor, (ii) acceptance of the Series A Notes and payment for them hereunder
and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or
on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company and each
Guarantor, jointly and severally, agree to reimburse the Initial Purchasers for
all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company and the Guarantors shall be liable for all expenses
which they have agreed to pay pursuant to Section 5(g) hereof. The Company and
each Guarantor also agree, jointly and severally, to reimburse the Initial
Purchasers and its officers, directors and each person, if any, who controls
such Initial Purchasers within the meaning of Section 15 of the Act or Section
20 of the Exchange Act for any and all reasonable fees and expenses (including
without limitation the reasonable fees and expenses of counsel) incurred by them
in connection with enforcing their rights under this Agreement (including
without limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchasers, the Initial Purchasers' directors and
officers, any controlling persons referred to herein, the directors of the
Company and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Series A Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
24
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Treasurer
ALLIED WASTE INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Treasurer
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Treasurer
[SIGNATURES CONTINUE ON NEXT PAGE]
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written by X.X. Xxxxxx Securities Inc.
on behalf of the Initial Purchasers.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SCHEDULE A: GUARANTORS
CORPORATIONS
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
AAWI, Inc. Texas
Action Disposal, Inc. Texas
Xxxxxx Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Agri-tech, Inc. of Oregon Oregon
Alabama Recycling Services, Inc. Alabama
Albany-Lebanon Sanitation, Inc. Oregon
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Enviro Engineering, Inc. Texas
Allied Enviroengineering, Inc. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Waste Alabama, Inc. Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Hauling of Georgia, Inc. Georgia
Allied Waste Holdings (Canada) Ltd. Delaware
Allied Waste Industries, Inc. * Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries (New Mexico), Inc. New Mexico
Allied Waste Industries (Southwest), Inc. Arizona
Allied Waste Industries of Georgia, Inc. Georgia
Allied Waste Industries of Illinois, Inc. Illinois
Allied Waste Industries of Northwest Indiana, Inc. Indiana
Allied Waste Industries of Tennessee, Inc. Tennessee
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, Inc. New Jersey
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Texas
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Systems, Inc. * Delaware
Allied Waste Systems (Texas) Inc. Texas
Allied Waste Transportation, Inc. * Delaware
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Materials Recycling Corp. New Jersey
American Sanitation, Inc. Idaho
American Transfer Company, Inc. New York
Apache Junction Landfill Corporation Arizona
Area Disposal Inc. Illinois
Attwoods of North America, Inc. Delaware
Automated Modular Systems, Inc. New Jersey
Autoshred, Inc. Missouri
AWIN Leasing Company, Inc. Delaware
AWIN Management, Inc. Delaware
Belleville Landfill, Inc. Missouri
BFI Atlantic, Inc. Delaware
BFI Energy Systems of Albany, Inc. Delaware
BFI Energy Systems of Boston, Inc. Massachusetts
BFI Energy Systems of Delaware County, Inc. Delaware
BFI Energy Systems of Essex County, Inc. New Jersey
BFI Energy Systems of Hempstead, Inc. Delaware
BFI Energy Systems of Niagara, Inc. Delaware
BFI Energy Systems of Niagara II, Inc. Delaware
BFI Energy Systems of Plymouth, Inc. Delaware
BFI Energy Systems of SEMASS, Inc. Delaware
BFI Energy Systems of Southeastern Connecticut, Inc. Delaware
BFI International, Inc. Delaware
BFI Ref-Fuel, Inc. Delaware
BFI Services Group, Inc. California
BFI Trans River (GP), Inc. Delaware
BFI Trans River (LP), Inc. Delaware
BFI Transfer Systems of New Jersey, Inc. New Jersey
BFI Waste Systems of New Jersey, Inc. New Jersey
BFI Waste Systems of North America, Inc. Delaware
Bio-Med of Oregon, Inc. Oregon
Xxxxxxx Landfill, Inc. California
Brickyard Disposal & Recycling, Inc. Illinois
Xxxxxxxx-Xxxxxx Financial Services, Inc. Delaware
Xxxxxxxx-Xxxxxx, Inc. Maryland
Xxxxxxxx-Xxxxxx Industries Asia Pacific, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries Chemical Services, Inc. Nevada
Xxxxxxxx-Xxxxxx Industries Europe, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries, Inc. * Delaware
Xxxxxxxx-Xxxxxx Industries, Inc. Massachusetts
2
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
Xxxxxxxx-Xxxxxx Industries of California, Inc. California
Xxxxxxxx-Xxxxxx Industries of Florida, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries of Illinois, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries of New Jersey, Inc. New Jersey
Xxxxxxxx-Xxxxxx Industries of New York, Inc. New York
Xxxxxxxx-Xxxxxx Industries of Ohio, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries of Tennessee, Inc. Tennessee
Xxxxxxxx-Xxxxxx Services, Inc. Delaware
Xxxxxxx Trash Service, Inc. Colorado
Capitol Recycling and Disposal, Inc. Oregon
X.X. Xxxxx & Sons, Inc. New York
CC Landfill, Inc. Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
CECOS International, Inc. New York
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Xxxxxxxx Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc. New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chestnut Equipment Leasing Corp. New York
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
City Garbage, Inc. Texas
Clarkston Disposal, Inc. Michigan
Cocopah Landfill, Inc. Delaware
Consolidated Processing, Inc. Illinois
Containerized, Inc. of Texas Texas
Copper Mountain Landfill, Inc. Delaware
Corvallis Disposal Co. Oregon
County Disposal, Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
D&D Garage Services, Inc. Illinois
Dallas Disposal Co. Oregon
Delta Container Corporation California
Delta Dade Recycling Corp. Florida
Delta Paper Stock, Co. California
Delta Recycling Corp. Florida
Delta Resources Corp. Florida
Delta Site Development Corp. Florida
Delta Tall Pines Corp. Florida
3
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
Delta Transfer Corp. Florida
Delta Waste Corp. Florida
Xxxxxxx Waste Systems II, Inc. Ohio
Denver RL North, Inc. Colorado
Xxxxxxxx, Inc. Michigan
Xxxxxxx Industries, Inc. New York
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Holdings, Inc. Delaware
Elder Creek Transfer & Recovery, Inc. California
Environmental Development Corp. Delaware
Environmental Reclamation Company Illinois
Environtech, Inc. Delaware
EOS Environmental, Inc. Texas
Evergreen Scavenger Service, Inc. Delaware
X.X. XxXxxxxx Rubbish Removal, Inc. Massachusetts
Forward, Inc. California
Xxxx Xxxxxxx Trucking Co., Inc. Illinois
X. Xxx Xxxxx Disposal Inc. Michigan
Xxxxxxxx Brothers, Inc. New Jersey
Xxxxxxxx Recycling and Transfer Station Co., Inc. New Jersey
GEK, Inc. Alabama
General Refuse Rolloff Corp. Delaware
Xxxxxxxx Recycling Corp. New Jersey
Golden Waste Disposal, Inc. Georgia
Grants Pass Sanitation, Inc. Oregon
Great Lakes Disposal Services, Inc. Delaware
Gulfcoast Waste Service, Inc. Florida
Harland's Sanitary Landfill, Inc. Michigan
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Imperial Landfill, Inc. California
Independent Trucking Company California
Xxxxxx Waste Disposal, Inc. Illinois
International Disposal Corp. of California California
Xxxxxx Disposal, Inc. Iowa
Xxx Xx Xxxx & Sons, Inc. New Jersey
Kankeekee RDF Landfill, Inc. Delaware
Xxxxxx Canyon Landfill Company California
Xxxxxx Drop Box, Inc. Oregon
La Canada Disposal Company, Inc. California
Lake Xxxxxx Landfill, Inc. North Carolina
Lathrop Sunrise Sanitation Corporation California
Xxx County Landfill, Inc. Illinois
4
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
Liberty Waste Holdings, Inc. Delaware
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Xxxxx Xxxxx & Son, Inc., Sanitation Contractors New Jersey
Macomb Landfill, Inc. Delaware
Mamaroneck Truck Repair, Inc. New York
Manumit of Florida, Inc. Florida
XxXxxxx Waste Systems, Inc. Oregon
Medical Disposal Services, Inc. Illinois
Mesa Disposal, Inc. Arizona
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Mountain Home Disposal, Inc. Delaware
NationsWaste Catawba Regional Landfill, Inc. South Carolina
NationsWaste, Inc. Delaware
Ncorp, Inc. Delaware
New Jersey Republic Contracts, Inc. New Jersey
New Xxxxxx Landfill Company, Inc. Pennsylvania
Newco Waste Systems of New Jersey, Inc. New Jersey
Noble Road Landfill, Inc. Ohio
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Waste Industries, Inc. Washington
Oakland Heights Development, Inc. Michigan
Omaha Hauling Company, Inc. Delaware
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Palomar Transfer Station, Inc. California
Paper Fibers, Inc. Washington
Paper Recycling Systems, Inc. New York
Xxxxxxx Real Estate Company Oregon
Pinal County Landfill Corp. Arizona
Pittsburg County Landfill, Inc. Oklahoma
Portable Storage, Inc. Oregon
Prime Carting, Inc. New York
PSI Waste Systems, Inc. Idaho
R. 18, Inc. Illinois
Rabanco Connections International, Inc. Washington
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Washington
5
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
Xxxxxx Landfill, Inc. California
RCS, Inc. Illinois
X.X. Xxxxxx Enterprises, Inc. Ohio
X.X. Xxxxxx Refuse Service, Inc. Ohio
Recycling Associates Inc. New York
Recycling Industries Corp. New York
Resource Recovery, Inc. Kansas
Risk Services, Inc. Delaware
Xxxx Bros. Waste & Recycling Co. Ohio
Xxxxxxx Sanitary Service, Inc. Oregon
Roxana Landfill, Inc. Illinois
S&L Inc. Washington
S&S Recycling, Inc. Georgia
Saline County Landfill, Inc. Illinois
San Marcos NCRRF, Inc. California
Sangamon Valley Landfill, Inc. Delaware
Sanitary Disposal Service, Inc. Michigan
Sauk Trail Development, Inc. Michigan
Seattle Disposal Company, Inc. Washington
Selas Enterprises LTD. New York
Shred-All Recycling Systems, Inc. Illinois
Source Recycling, Inc. Oregon
Southwest Regional Landfill, Inc. Missouri
Southwest Waste Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Star Services Group, Inc. Florida
Streator Area Landfill, Inc. Illinois
Suburban Carting Corp. New York
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Summit Waste Systems, Inc. Arizona
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Service Inc. California
Super Services Waste Management, Inc. Arizona
Sycamore Landfill, Inc. California
Xxxx'x Transfer Systems, Inc. Missouri
Xxxxxx Ridge Landfill, Inc. Delaware
Tennessee Union County Landfill, Inc. Delaware
The Ecology Group, Inc. Ohio
6
NAME OF COMPANY STATE OF INCORPORATION
--------------- ----------------------
Xxx Xxxxxxx'x Disposal Service, Inc. New Jersey
Total Solid Waste Recyclers, Inc. New Jersey
Tricil (N.Y.), Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Corporation Arizona
Trottown Transfer, Inc. New York
United Disposal Service, Inc. Oregon
United Waste Control Corp. Washington
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Valley Landfills, Inc. Oregon
VHG, Inc. Minnesota
Xxxxxx Disposal Service, Inc. Massachusetts
Xxxxxx Xxxx Development Company Delaware
Waste Associates, Inc. Washington
Waste Control Systems, Inc. Oregon
Wastehaul, Inc. Indiana
Waste Services of New York, Inc. New York
Xxxxx County Landfill IL, Inc. Delaware
WDTR, Inc. Oregon
WJR Environmental, Inc. Washington
Willamette Resources, Inc,. Oregon
Xxxxxxxx County Landfill, Inc. Ohio
Woodlake Sanitary Service, Inc. Minnesota
7
LIMITED LIABILITY COMPANIES
NAME OF COMPANY STATE OF FORMATION
--------------- ------------------
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Services, LLC Delaware
Allied Transfer Systems of New Jersey, LLC New Jersey
Allied Waste of New Jersey-New York, LLC Delaware
Allied Waste Sycamore Landfill, LLC Delaware
Allied Waste Systems of New Jersey, LLC New Jersey
Xxxxxxxx Regional Landfill, LLC Delaware
Anson County Landfill NC, LLC Delaware
AWIN Leasing II, LLC Ohio
BFI Transfer Systems of Alabama, LLC Delaware
BFI Transfer Systems of DC, LLC Delaware
BFI Transfer Systems of Georgia, LLC Delaware
BFI Transfer Systems of Maryland, LLC Delaware
BFI Transfer Systems of Massachusetts, LLC Massachusetts
BFI Transfer Systems of Mississippi, LLC Delaware
BFI Transfer Systems of Pennsylvania, LLC Pennsylvania
BFI Transfer Systems of Virginia, LLC Delaware
BFI Waste Services, LLC Delaware
BFI Waste Services of Massachusetts, LLC Massachusetts
BFI Waste Services of Pennsylvania, LLC Pennsylvania
BFI Waste Services of Tennessee, LLC Delaware
BFI Waste Systems of Alabama, LLC Delaware
BFI Waste Systems of Arkansas, LLC Delaware
BFI Waste Systems of Georgia, LLC Delaware
BFI Waste Systems of Kentucky, LLC Delaware
BFI Waste Systems of Louisiana, LLC Delaware
BFI Waste Systems of Massachusetts, LLC Massachusetts
BFI Waste Systems of Mississippi, LLC Delaware
BFI Waste Systems of Missouri, LLC Delaware
BFI Waste Systems of North Carolina, LLC Delaware
BFI Waste Systems of Oklahoma, LLC Oklahoma
BFI Waste Systems of Pennsylvania, LLC Pennsylvania
BFI Waste Systems of South Carolina, LLC Delaware
BFI Waste Systems of Tennessee, LLC Delaware
BFI Waste Systems of Virginia, LLC Delaware
Bridgeton Landfill, LLC Delaware
Xxxxxxxxx Landfill, LLC Delaware
Brunswick Waste Management Facility, LLC Delaware
Xxxxxx County Landfill, LLC Delaware
Xxxxxxx Landfill, LLC Delaware
Xxxxxxxx Xxxxx Landfill, LLC Delaware
8
NAME OF COMPANY STATE OF FORMATION
--------------- ------------------
D & L Disposal L.L.C. Delaware
ECDC Environmental, L.C. Utah
ECDC Logistics, LLC Delaware
Xxxxx Xxxxx Landfill MO, LLC Delaware
Envotech-Illinois, L.L.C. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Flint Hill Road, LLC South Carolina
Forest View Landfill, LLC Delaware
Frontier Waste Services (Colorado), LLC Colorado
Frontier Waste Services (Utah), LLC Utah
Frontier Waste Services of Louisiana L.L.C Louisiana
General Refuse Service of Ohio, LLC Ohio
Great Plains Landfill OK, LLC Delaware
Greenridge Reclamation, LLC Pennsylvania
Greenridge Waste Services, LLC Pennsylvania
Jefferson City Landfill, LLC Delaware
Xxx County Landfill SC, LLC Delaware
Lemons Landfill, LLC Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Local Sanitation of Rowan County, L.L.C. Delaware
Metro Enviro Transfer, LLC Delaware
New York Waste Services, LLC Delaware
Northeast Landfill, LLC Delaware
Oklahoma City Landfill, LLC Oklahoma
Packerton Land Company, L.L.C. Delaware
Pinecrest Landfill OK, LLC Delaware
Polk County Landfill, LLC Delaware
Sand Valley Holdings, L.L.C. Delaware
Show-Me Landfill, LLC Delaware
Southeast Landfill, LLC Delaware
Total Roll-Offs, L.L.C. Texas
Webster Parish Landfill, L.L.C. Delaware
Willow Ridge Landfill, LLC Delaware
9
PARTNERSHIPS
NAME OF COMPANY STATE OF FORMATION
--------------- ------------------
BFI Transfer Systems of Texas, LP Delaware
BFI Waste Services of Indiana, LP Delaware
BFI Waste Services of Texas, LP Delaware
BFI Waste Systems of Indiana, LP Delaware
BFI Waste Systems of Texas, LP Delaware
Blue Ridge Landfill General Partnership Kentucky
Brenham Total Roll-Offs, LP Delaware
Camelot Landfill TX, LP Delaware
County Line Landfill Partnership Indiana
Crow Landfill TX L.P. Delaware
Xxxxx County Landfill TX, L.P. Delaware
Fort Worth Landfill TX, LP Delaware
Frontier Waste Services, L.P. Texas
Green Valley Landfill General Partnership Kentucky
Greenwood Landfill TX, LP Delaware
Houston Towers TX, LP Delaware
Illiana Disposal Partnership Indiana
Xxxxx Road Landfill and Recycling, Ltd. Florida
Key Waste Indiana Partnership Indiana
Lake County C & D Development Partnership Indiana
Mars Road TX, LP Delaware
Mesquite Landfill TX, LP Delaware
Xxxxxxxx Landfill General Partnership Kentucky
Xxxxxx County Landfill Partnership Indiana
Panama Road Landfill TX, L.P. Delaware
Paper Fibres Company Washington
Pinehill Landfill TX, LP Delaware
Pleasant Oaks Landfill TX, LP Delaware
Rabanco Companies Washington
Recycle Seattle II Washington
Regional Disposal Company Washington
Royal Oaks Landfill TX, LP Delaware
Springfield Environmental General Partnership Indiana
Turkey Creek Landfill TX, LP Delaware
U.S. Disposal II Washington
10
SCHEDULE B: SUBSIDIARIES
DOMESTIC COMPANIES
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
AAWI, Inc. Texas
Action Disposal Inc. Texas
Xxxxxx Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Agri-tech, Inc. of Oregon Oregon
Alabama Recycling Services, Inc. Alabama
Albany-Lebanon Sanitation, Inc. Oregon
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Enviro Engineering, Inc. Texas
Allied Enviroengineering, Inc. Delaware
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Transfer Systems of New Jersey, LLC New Jersey
Allied Waste Alabama, Inc. Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Hauling of Georgia, Inc. Georgia
Allied Waste Holdings (Canada) Ltd. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries (New Mexico), Inc. New Mexico
Allied Waste Industries (Southwest), Inc. Arizona
Allied Waste Industries of Georgia, Inc. Georgia
Allied Waste Industries of Illinois, Inc. Illinois
Allied Waste Industries of Northwest Indiana, Inc. Indiana
Allied Waste Industries of Tennessee, Inc. Tennessee
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, Inc. New Jersey
Allied Waste of New Jersey-New York, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Texas
Allied Waste Sycamore Landfill, LLC Delaware
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Systems, Inc. Delaware
Allied Waste Systems of New Jersey, LLC New Jersey
Allied Waste Systems (Texas), Inc. Texas
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Allied Waste Transportation, Inc. Delaware
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Materials Recycling Corp. New Jersey
American Sanitation, Inc. Idaho
American Transfer Company, Inc. New York
Xxxxxxxx Regional Landfill, LLC Delaware
Anson County Landfill NC, LLC Delaware
Apache Junction Landfill Corporation Arizona
Area Disposal Inc. Illinois
Attwoods of North America, Inc. Delaware
Automated Modular Systems, Inc. New Jersey
Autoshred, Inc. Missouri
AWIN Leasing Company, Inc. Delaware
AWIN Leasing II, LLC Ohio
AWIN Management, Inc. Delaware
Belleville Landfill, Inc. Missouri
BFI Atlantic, Inc. Delaware
BFI Energy Systems of Albany, Inc. Delaware
BFI Energy Systems of Boston, Inc. Masssachusetts
BFI Energy Systems of Delaware County, Inc. Delaware
BFI Energy Systems of Essex County, Inc, New Jersey
BFI Energy Systems of Hempstead, Inc. Delaware
BFI Energy Systems of Niagara, Inc. Delaware
BFI Energy Systems of Niagara II, Inc. Delaware
BFI Energy Systems of Plymouth, Inc. Delaware
BFI Energy Systems of SEMASS, Inc. Delaware
BFI Energy Systems of Southeastern Connecticut, Inc. Delaware
BFI International, Inc. Delaware
BFI Ref-Fuel, Inc. Delaware
BFI Services Group, Inc. California
BFI Trans River (GP), Inc. Delaware
BFI Trans River (LP), Inc. Delaware
BFI Transfer Systems of Alabama, LLC Delaware
BFI Transfer Systems of DC, LLC Delaware
BFI Transfer Systems of Georgia, LLC Delaware
BFI Transfer Systems of Maryland, LLC Delaware
BFI Transfer Systems of Massachusetts, LLC Massachusetts
2
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
BFI Transfer Systems of Mississippi, LLC Delaware
BFI Transfer Systems of New Jersey, Inc. New Jersey
BFI Transfer Systems of Pennsylvania, LLC Pennsylvania
BFI Transfer Systems of Texas, LLC Texas
BFI Transfer Systems of Virginia, LLC Delaware
BFI Waste Services, LLC Delaware
BFI Waste Services of Indiana, LLC Delaware
BFI Waste Services of Massachusetts, LLC Massachusetts
BFI Waste Services of Pennsylvania, LLC Pennsylvania
BFI Waste Services of Tennessee, LLC Delaware
BFI Waste Services of Texas, LLC Delaware
BFI Waste Systems of Alabama, LLC Delaware
BFI Waste Systems of Arkansas, LLC Delaware
BFI Waste Systems of Georgia, LLC Delaware
BFI Waste Systems of Indiana, LLC Delaware
BFI Waste Systems of Kentucky, LLC Delaware
BFI Waste Systems of Louisiana, LLC Delaware
BFI Waste Systems of Massachusetts, LLC Massachusetts
BFI Waste Systems of Mississippi, LLC Delaware
BFI Waste Systems of Missouri, LLC Delaware
BFI Waste Systems of New Jersey, Inc. New Jersey
BFI Waste Systems of North America, Inc. Delaware
BFI Waste Systems of North Carolina, LLC Delaware
BFI Waste Systems of Oklahoma, LLC Oklahoma
BFI Waste Systems of Pennsylvania, LLC Pennsylvania
BFI Waste Systems of South Carolina, LLC Delaware
BFI Waste Systems of Texas, LLC Delaware
BFI Waste Systems of Tennessee, LLC Delaware
BFI Waste Systems of Virginia, LLC Delaware
Bio-Med of Oregon, Inc. Oregon
Blue Ridge Landfill General Partnership Kentucky
Xxxxxxx Landfill, Inc. California
Brenham Total Roll-Offs, LP Delaware
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC Delaware
Xxxxxxxx-Xxxxxx Financial Services, Inc. Delaware
Xxxxxxxx-Xxxxxx, Inc. Maryland
Xxxxxxxx-Xxxxxx Industries Asia Pacific, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries Chemical Services, Inc. Nevada
Xxxxxxxx-Xxxxxx Industries Europe, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries, Inc. Massachusetts
Xxxxxxxx-Xxxxxx Industries of California, Inc. California
3
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Xxxxxxxx-Xxxxxx Industries of Florida, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries of Illinois, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries of New Jersey, Inc. New Jersey
Xxxxxxxx-Xxxxxx Industries of New York, Inc. New York
Xxxxxxxx-Xxxxxx Industries of Ohio, Inc. Delaware
Xxxxxxxx-Xxxxxx Industries of Tennessee, Inc. Tennessee
Xxxxxxxx-Xxxxxx Services, Inc. Delaware
Xxxxxxxxx Landfill, LLC Delaware
Brunswick Waste Management Facility, LLC Delaware
Xxxxxxx Trash Service, Inc. Colorado
Xxxxxx County Landfill, LLC Delaware
Camelot Landfill TX, LP Delaware
Capitol Recycling and Disposal, Inc. Oregon
X.X. Xxxxx & Sons, Inc. New York
CC Landfill, Inc. Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
CECOS International, Inc. New York
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Xxxxxxxx Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc. New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chestnut Equipment Leasing Corp. New York
Xxxxxxx Landfill, LLC Delaware
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
City Garbage, Inc. Texas
Clarkston Disposal, Inc. Michigan
Cocopah Landfill, Inc. Delaware
Consolidated Processing, Inc. Illinois
Containerized Inc. of Texas Texas
Xxxxxx Mountain Landfill, Inc. Delaware
Corvallis Disposal Co. Oregon
County Disposal , Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
County Line Landfill Partnership Indiana
Xxxxxxxx Xxxxx Landfill, LLC Delaware
Crow Landfill TX L.P. Delaware
D & D Garage Services, Inc. Illinois
D&L Disposal L.L.C. Delaware
4
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Dallas Disposal Co. Oregon
Delta Container Corporation California
Delta Dade Recycling Corp. Florida
Delta Paper Stock Co. California
Delta Recycling Corp. Florida
Delta Resources Corp. Florida
Delta Site Development Corp. Florida
Delta Tall Pines Corp. Florida
Delta Transfer Corp. Florida
Delta Waste Corp. Florida
Xxxxxxx Waste Systems II, Inc. Ohio
Denver RL North, Inc. Colorado
Xxxxxxxx, Inc. Michigan
Xxxxxxx Industries, Inc. New York
E Leasing Company, LLC Delaware
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
ECDC Logistics, LLC Delaware
Elder Creek Transfer & Recovery, Inc. California
Xxxxx County Landfill TX, L.P. Delaware
Xxxxx Xxxxx Landfill MO, LLC Delaware
Environmental Development Corp. Delaware
Environmental Reclamation Company Illinois
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
EOS Environmental, Inc. Texas
Evergreen Scavenger, Service, Inc. Delaware
Evergreen Scavenger Service. L.L.C. Delaware
Flint Hill Road, LLC South Carolina
X. X. XxXxxxxx Rubbish Removal, Inc. Massachusetts
Forest View Landfill, LLC Delaware
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
Xxxx Xxxxxxx Trucking Co., Inc. Illinois
Frontier Waste Services, L.P. Texas
Frontier Waste Services (Colorado), LLC Colorado
Frontier Waste Services (Utah), LLC Utah
Frontier Waste Services of Louisiana L.L.C Louisiana
General Refuse Service of Ohio, LLC Ohio
X. Xxx Xxxxx Disposal Inc. Michigan
Xxxxxxxx Brothers, Inc. New Jersey
Xxxxxxxx Recycling and Transfer Station Co., Inc. New Jersey
5
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
GEK, Inc. Alabama
General Refuse Rolloff Corp. Delaware
Xxxxxxxx Recycling Corp. New Jersey
Global Indemnity Assurance Company Vermont
Golden Waste Disposal, Inc. Georgia
Grants Pass Sanitation, Inc. Oregon
Great Lakes Disposal Services, Inc. Delaware
Great Plains Landfill OK, LLC Delaware
Green Valley Landfill General Partnership Kentucky
Greenridge Reclamation, LLC Pennsylvania
Greenridge Waste Services, LLC Pennsylvania
Greenwood Landfill TX, LP Delaware
Gulfcoast Waste Service, Inc. Florida
H. Leasing Company, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
Houston Towers TX, LP Delaware
Illiana Disposal Partnership Indiana
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Imperial Landfill, Inc. California
Independent Trucking Company California
Xxxxxx Waste Disposal, Inc. Illinois
International Disposal Corp. of California California
Jefferson City Landfill, LLC Delaware
Xxxxxx Disposal, Inc. Iowa
Xxx Xx Xxxx & Sons, Inc. New Jersey
Xxxxx Road Landfill and Recycling, Ltd. Florida
La Canada Disposal Company, Inc.
Kankeekee RDF Landfill, Inc. Delaware
Xxxxxx Canyon Landfill Company California
Xxxxxx Drop Box, Inc. Oregon
Key Waste Indiana Partnership Indiana
Lake County C & D Development Partnership Indiana
Lake Xxxxxx Landfill, Inc. North Carolina
Lathrop Sunrise Sanitation Corporation California
Xxx County Landfill SC, LLC Delaware
Xxx County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Local Sanitation of Rowan County, L.L.C. Delaware
6
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Xxxxx Xxxxx & Son, Inc., Sanitation Contractors New Jersey
Macomb Landfill, Inc. Delaware
Mamaroneck Truck Repair, Inc. New York
Manunit of Florida, Inc. Florida
XxXxxxx Waste Systems, Inc. Oregon
Mars Road TX, LP Delaware
Medical Disposal Services, Inc. Illinois
Mesa Disposal, Inc. Arizona
Mesquite Landfill TX, LP Delaware
Metro Enviro Transfer, LLC Delaware
Mississippi Waste Paper Company Mississippi
MIS Associates, Inc. Washington
Xxxxxxxx Landfill General Partnership Kentucky
Mountain Home Disposal, Inc. Delaware
N Leasing Company, LLC Delaware
NationsWaste Catawba Regional Landfill, Inc. South Carolina
NationsWaste, Inc. Delaware
Ncorp, Inc. Delaware
New Jersey Republic Contracts, Inc. New Jersey
New Xxxxxx Landfill Company, Inc. Pennsylvania
New York Waste Services, LLC Delaware
Newco Waste Systems of New Jersey, Inc. New Jersey
Xxxxxx County Landfill Partnership Indiana
Noble Road Landfill, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Waste Industries, Inc. Washington
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Omaha Hauling Company, LLC Delaware
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, LLC Delaware
Palomar Transfer Station, Inc. California
Panama Road Landfill TX, L.P. Delaware
Paper Fibers Company Washington
Paper Fibers, Inc. Washington
Paper Recycling Systems, Inc. New York
Xxxxxxx Real Estate Company Oregon
7
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Pinal County Landfill Corp. Arizona
Pinecrest Landfill OK, LLC Delaware
Pinehill Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Polk County Landfill, LLC Delaware
Portable Storage, Inc. Oregon
Prime Carting, Inc. New York
PSI Waste Systems, Inc. Idaho
R. 18, Inc. Illinois
Rabanco Companies Washington
Rabanco Connections International, Inc. Washington
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Xxxxxxxxxx
Xxxxxx Landfill, Inc. California
RCS, Inc. Illinois
X.X. Xxxxxx Enterprises, Inc. Ohio
X.X. Xxxxxx Refuse Service, Inc. Ohio
Recycle Seattle II Washington
Recycling Associates Inc. New York
Recycling Industries Corp. New York
Regional Disposal Company Washington
Resource Recovery, Inc. Kansas
Risk Services, Inc. Delaware
Xxxx Bros. Waste & Recycling Co. Ohio
Xxxxxxx Sanitary Service, Inc. Oregon
Roxana Landfill, Inc. Illinois
Royal Oaks Landfill TX, LP Delaware
S & L, Inc. Washington
S & S Recycling, Inc. Georgia
S Leasing Company, LLC Delaware
Saguaro National Insurance Company Vermont
Saline County Landfill, Inc. Illinois
San Marcos NCRRF, Inc. California
Sand Valley Holdings, L.L.C. Delaware
Sangamon Valley Landfill, Inc. Delaware
Sanitary Disposal Service, Inc. Michigan
Sauk Trail Development, Inc. Michigan
Seattle Disposal Company, Inc. Washington
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
8
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Shred-All Recycling Systems, Inc. Illinois
Source Recycling, Inc. Oregon
Southeast Landfill, LLC Delaware
Southwest Regional Landfill, Inc. Missouri
Southwest Waste, Inc. Missouri
Springfield Environmental General Partnership Indiana
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Star Services Group, Inc. Florida
Streator Area Landfill, Inc. Illinois
Suburban Carting Corp. New York
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Summit Waste Systems, Inc. Arizona
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Service Inc. California
Super Services Waste Management, Inc. Arizona
Sycamore Landfill, Inc. California
Xxxx'x Transfer Systems, Inc. Missouri
Xxxxxx Ridge Landfill, Inc. Delaware
Tennessee Union County Landfill, Inc. Delaware
The Ecology Group, Inc. Ohio
Xxx Xxxxxxx'x Disposal Service, Inc. New Jersey
Total Solid Waste Recyclers, Inc. New Jersey
Total Roll-Offs, L.L.C. Texas
Tricil (N.Y.), Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Corporation Arizona
Trottown Transfer, Inc. New York
Turkey Creek Landfill TX, LP Delaware
United Disposal Service, Inc. Oregon
United Waste Control Corp. Washington
Upper Rock Island County Landfill, Inc. Illinois
U.S. Disposal II Washington
USA Waste of Illinois, Inc. Illinois
Valley Landfills, Inc. Oregon
VHG, Inc. Minnesota
Xxxxxx Disposal Service, Inc. Massachusetts
Xxxxxx Xxxx Development Company Delaware
Waste Associates, Inc. Washington
9
NAME OF COMPANY STATE OF INCORPORATION/FORMATION
--------------- --------------------------------
Waste Control Systems, Inc. Oregon
Wastehaul, Inc. Indiana
Waste Services of New York, Inc. New York
Xxxxx County Landfill IL, Inc. Delaware
WDTR, Inc. Oregon
Webster Parish Landfill, L.L.C. Delaware
WJR Environmental, Inc. Washington
Willamette Resources, Inc. Oregon
Xxxxxxxx County Landfill, Inc. Ohio
Willow Ridge Landfill, LLC Delaware
Woodlake Sanitary Service, Inc. Minnesota
10
INTERNATIONAL COMPANIES
PLACE OF
NAME OF COMPANY ORGANIZATION
--------------- ------------
3003304 Nova Scotia Company Canada
572060 B.C. Ltd. British Columbia
Al-Mulla Environmental Systems W.L.L. Kuwait
Attwoods Holdings GmbH Germany
Attwoods Umweltschutz GmbH Germany
BFI Argentina, S.A. Argentina
BFI Atlantic GmbH Germany
BFI Chile Ltda. Chile
BFI Energie Inc. Quebec
BFI of Xxxxx, Inc. Puerto Rico
BFI Umwelttechnik GmbH Austria
Xxxxxxxx-Xxxxxx Industries Argentina, X.X.
Xxxxxxxx-Xxxxxx Industries de Mexico, S.A. de C.V. Mexico
Xxxxxxxx-Xxxxxx Industries Ltd. Ontario, Canada
Xxxxxxx-Xxxxxx Industries of Puerto Rico., Inc. Puerto Rico
Commercial Reassurance Limited Ireland
Eastern Disposal, Inc. Quebec
Environmental Development Corp. Puerto Rico
Mirror Nova Scotia Limited Quebec
Omega Holdings GmbH Germany
Ref-Fuel Canada Ltd. Ontario
Usine de Triage Lachenaie Inc. Quebec
11
SCHEDULE C
Principal
Amount of
Initial Purchaser Series A Notes
X.X. Xxxxxx Securities Inc................................ $262,500,000
Xxxxxxx Xxxxx Barney Inc.................................. 225,000,000
Credit Suisse First Boston Corporation.................... 63,750,000
Deutsche Banc Alex. Xxxxx Inc............................. 52,500,000
Xxxxxx Brothers Inc....................................... 22,500,000
UBS Warburg LLC........................................... 22,500,000
ABN AMRO Incorporated..................................... 18,750,000
Banc One Capital Markets Inc.............................. 18,750,000
Scotia Capital (USA) Inc.................................. 18,750,000
Credit Lyonnais Securities (USA) Inc...................... 15,000,000
First Union Securities, Inc............................... 15,000,000
Fleet Securities, Inc..................................... 15,000,000
Total................................... $750,000,000
============
EXHIBIT A
FORM OF OPINION OF XXXXXX & XXXXXXX
(i) each of the Company, Allied and its subsidiaries
identified on Schedule A attached hereto with an asterisk ("*") (Allied and each
such other Guarantor, an "IDENTIFIED GUARANTOR"), is a corporation, and is
validly existing and in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and to
conduct its business as described in the Offering Memorandum (such counsel being
entitled to rely in respect of the opinion in this clause upon a certificate(s)
of public officials and opinions of local counsel, and in respect of matter of
fact upon certificates of officers of the Company or the Identified Guarantors,
as the case may be);
(ii) the execution, delivery and performance of the Series A
Notes have been duly authorized by the Company, and when the Series A Notes have
been duly executed, issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement, the Series A Notes will be legally
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to (x) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws affecting creditors' rights and remedies generally and (y) general
principles of equity, including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness, equitable defenses and limits as to
the availability of equitable remedies (whether such principles are considered
in a proceeding at law or equity);
(iii) the Guarantees of each of the Identified Guarantors
included in the Indenture have been duly authorized by each of the Identified
Guarantors and will, when the Series A Notes have been duly executed, issued and
authenticated in accordance with the terms of the Indenture and delivered to and
paid for by the Initial Purchasers in accordance with the terms of the Purchase
Agreement, be the legally valid and binding obligation of each of the Identified
Guarantors, enforceable against each of them in accordance with their terms,
subject to (x) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally and (y) general principles of equity,
including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to the availability
of equitable remedies (whether such principles are considered in a proceeding at
law or equity);
(iv) assuming that (A) each of the Guarantors other than the
Identified Guarantors (the "OTHER GUARANTORS") is a corporation or partnership,
and is validly existing and in good standing under the laws of each of the Other
Guarantors' respective state of incorporation or formation, (B) each of the
Other Guarantors has all requisite corporate or partnership power and authority
to execute, deliver and perform its obligations under the Guarantees and (C)
each of the Guarantees of the Other Guarantors has been duly authorized,
executed and delivered by each of the Other Guarantors under the laws of each of
the Other Guarantors' respective state of incorporation or formation, and when
the Series A Notes have been duly executed, issued and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of the Purchase
Agreement, each of the Guarantees of the Other Guarantors endorsed thereon will
be the legally valid and binding obligation of each of the Other Guarantors,
enforceable against each of them in accordance with their terms, subject to (x)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equity defenses and limits as to the availability of equitable
remedies (whether such principles are considered in a proceeding at law or
equity);
(v) the Indenture has been duly authorized by the Company and
each of the Identified Guarantors, and the Indenture has been duly executed and
delivered by the Company and each of the Identified Guarantors;
(vi) the Indenture is the legally valid and binding agreement
of the Company and each of the Identified Guarantors, enforceable against each
of them in accordance with its terms, subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally and
(y) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity);
(vii) assuming that (A) each of the Other Guarantors is a
corporation or partnership, and is validly existing and in good standing under
the laws of each of the Other Guarantors' respective state of incorporation or
formation, (B) each of the Other Guarantors has all requisite corporate or
partnership power and authority to execute, deliver and perform its obligations
under the Indenture and (C) the Indenture has been duly authorized, executed and
delivered by each of the Other Guarantors under the laws of each of the Other
Guarantors' respective state of incorporation or formation, the Indenture is the
legally valid and binding agreement of each of the Other Guarantors, enforceable
against each of them in accordance with its terms, subject to (x) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equity defenses and limits as to the availability of equitable
remedies (whether such principles are considered in a proceeding at law or
equity);
(viii) the execution, delivery and performance of the Purchase
Agreement has been duly authorized by all necessary corporate action of the
Company and the Identified Guarantors, and the Purchase Agreement has been duly
executed and delivered by the Company and the Identified Guarantors;
(ix) the Registration Rights Agreement has been duly
authorized by the Company and each of the Identified Guarantors and the
Registration Rights Agreement has been duly executed and delivered by the
Company and each of the Identified Guarantors;
(x) the Registration Rights Agreement is the legally valid and
binding agreement of the Company and each of the Identified Guarantors,
enforceable against each of
A-2
them in accordance with its terms, subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally,
(y) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity) and (z) the qualification that
rights to indemnification or contribution may be limited by applicable law or
equitable principles or otherwise unenforceable as against public policy;
(xi) assuming that (A) each of the Other Guarantors is a
corporation or partnership, and is validly existing and in good standing under
the laws of each of the Other Guarantors' respective state of incorporation or
formation, (B) each of the Other Guarantors has all requisite corporate or
partnership power and authority to execute, deliver and perform its obligations
under the Registration Rights Agreement and (C) the Registration Rights
Agreement has been duly authorized, executed and delivered by each of the Other
Guarantors under the laws of each of the Other Guarantors' respective state of
incorporation or formation, the Registration Rights Agreement is the legally
valid and binding agreement of each of the Other Guarantors, enforceable against
each of them in accordance with its terms, subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally,
(y) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity) and (z) the qualification that
rights to indemnification or contribution may be limited by applicable law or
equitable principles or otherwise unenforceable as against public policy;
(xii) the execution, delivery and performance of the Series B
Notes have been duly authorized by the Company, and when the Series B Notes have
been duly executed, issued and authenticated in accordance with the terms of the
Indenture the Registration Rights Agreement and the Exchange Offer, the Series B
Notes will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to (x) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity);
(xiii) the Notes, the Guarantees and the Indenture conform in
all material respects to the descriptions thereof in the Offering Memorandum
under the caption "Description of Notes," in each case insofar as such
statements are summaries of legal matters;
(xiv) the statements in the Offering Memorandum under the
caption "Certain United States Federal Tax Consequences," insofar as they
purport to describe or summarize certain provisions of the agreements, statutes
or regulations referred to therein, are accurate descriptions or summaries in
all material respects;
A-3
(xv) the execution and delivery of the Purchase Agreement, the
Notes, the Guarantees, the Indenture and the Registration Rights Agreement and
the issuance and sale of the Notes by the Company and the Identified Guarantors
pursuant to the Purchase Agreement will not:
(a) violate the Company's or the Identified Guarantors'
charter, bylaws or comparable governing documents;
(b) result in the breach of, a conflict with, a violation of
or a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to us to which Allied
or any of its subsidiaries is party or by which Allied or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (this opinion being
limited to (x) those agreements which have been identified to us in an
Officer's Certificate of the Company as being the agreements to which
the Company, Allied or any of the Company's subsidiaries is party, or
to which any of their respective businesses or assets is subject, that
are material to the financial condition or results of operations of the
Company, Allied and the Company's subsidiaries taken as a whole and (y)
in that such counsel need not express any opinion with respect to any
such conflict, breach or violation not readily ascertainable from the
face of any such agreement, or arising under or based upon any
cross-default provision insofar as it relates to a default under an
agreement not so identified or arising under or based upon any covenant
of a financial or numerical nature or requiring computations);
(c) violate any federal or State of New York statute, rule or
regulation applicable to the Company or any Identified Guarantor or the
Delaware General Corporation Law (the "DGCL"), and any order of any
court binding upon the Company or any Identified Guarantor (this
opinion being limited to (x) those orders, judgments and decrees which
have been identified to us in an Officer's Certificate of the Company
as being all of the orders, judgments and decrees that are material to
the financial condition or results of operations of the Company, Allied
and the Company's subsidiaries taken as a whole and (y) in that such
counsel need not express an opinion with respect to any such violation
not readily ascertainable from the face of any such court order);
(d) require any consents, approvals, authorizations,
registrations, declarations or filings by the Company or any Identified
Guarantor under the federal or State of New York statute, rule or
regulation applicable to the Company or any Identified Guarantor or the
DGCL (except such as may be required under the securities or Blue Sky
laws of the states);
(xvi) neither the Company nor any Identified Guarantor is and,
after giving effect to the offering and sale of the Series A Notes and the
application of the net proceeds thereof as described in the Offering Memorandum,
will be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xvii) it is not necessary in connection with the Company's
offer, sale and delivery of the Series A Notes to the Initial Purchasers
pursuant to the Purchase Agreement or the initial resale of the Series A Notes
by the Initial Purchasers in the manner contemplated by
A-4
the Purchase Agreement and the Offering Memorandum, to register the Series A
Notes under the Securities Act of 1933, as amended, or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended. Such counsel does not need to
express any opinion, however, as to when or under what circumstances any Series
A Notes initially sold by the Initial Purchasers may be reoffered or resold.
(xviii) the Shared Collateral Agreements have been duly
authorized by the Company, Xxxxxxxx-Xxxxxx Industries, Inc. ("BFI") and each of
the Company's subsidiaries that is a party thereto (each a "GRANTOR SUBSIDIARY")
that is also an Identified Guarantor (collectively, the "IDENTIFIED GRANTOR
SUBSIDIARIES"), and upon execution and delivery by the Company and Allied of the
Amendment (assuming due execution and delivery by each of the other parties
thereto), will be valid and binding obligations of the Company, BFI and the
Grantor Subsidiaries with respect to the Notes, enforceable against the Company,
BFI and the Grantor Subsidiaries, as applicable, in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and equitable principals of
general applicability. On the Closing Date, the Shared Collateral Agreements
will conform in all material respects to the description thereof in the Offering
Memorandum;
(xix) the Amendment, together with the Shared Collateral
Agreements, when executed and delivered by Allied and the Company(assuming due
execution and delivery by each of the other parties thereto), will create a
valid security interest in favor of the Collateral Trustee for the benefit of
the Holders of the Notes in that portion of the collateral described in Section
2.01 of the Shared Collateral Security Agreement and in that portion of the
collateral described in Section 2 of the Shared Collateral Pledge Agreement in
which a valid security interest may be created under Article 9 of the UCC of the
State of New York (the "COLLATERAL");
In addition, such counsel shall state that in the course of
the preparation by the Company of the Offering Memorandum, it participated in
conferences with officers and other representatives of the Company and Allied,
representatives of the independent public accountants for the Company and
Allied, and the representatives and counsel for the Initial Purchasers at which
the contents of the Offering Memorandum (including the information and documents
incorporated by reference therein) and related matters were discussed and,
although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum (or incorporated by reference therein) and
has not made any independent check or verification thereof, during the course of
such participation, no facts came to such counsel's attention that caused such
counsel to believe that the Offering Memorandum (including the information and
documents incorporated by reference therein), taken as a whole, as of its date
and the date hereof, contained an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; it being
understood that such counsel express no belief with respect to the financial
statements, schedules, other financial data, or exhibits included or
incorporated by reference in, or omitted from, the Offering Memorandum.
A-5
EXHIBIT B
FORM OF OPINION OF XXXXXX XXXX, ESQ.
(i) each of the Company and the Identified Guarantors is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of Allied
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights;
(iii) all of the outstanding shares of capital stock of each
of Allied's Significant Subsidiaries (including the Company) (as defined in Rule
1-02 of Regulation S-X under the Act) have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by Allied, free and
clear of any Lien except as otherwise disclosed in the Offering Memorandum;
(iv) to the best of such counsel's knowledge, after due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which Allied or any of its subsidiaries is or could be
a party or to which any of their respective properties are or could be subject,
which might result, singly or in the aggregate, in a Material Adverse Effect.
(v) to the best of such counsel's knowledge, neither Allied
nor any of its subsidiaries has violated any Environmental Law or any provisions
of ERISA, any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a Material Adverse Effect;
(vi) to the best of such counsel's knowledge, each of Allied
and its subsidiaries has such Authorizations of, and has made all filings with
and notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where
the failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of Allied and its
subsidiaries is in compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; except where such failure to be valid and in full
force and effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate, have a
Material Adverse Effect; and
(vii) to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or understandings between the
Company or any Guarantor and any person
granting such person the right to require the Company or such Guarantor to
include securities of the Company or any Guarantor with the Notes and Guarantees
registered pursuant to any Registration Statement.
B-2
EXHIBIT C
AWIN ESCROW COMPANY, INC.
ALLIED WASTE NORTH AMERICA, INC.
EACH ENTITY LISTED ON SCHEDULE A, AS GUARANTORS
$750,000,000
8-1/2% Senior Notes due 2008
Purchase Agreement
November 27, 2001
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX BROTHERS INC.
UBS WARBURG LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS INC.
SCOTIA CAPITAL (USA) INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION SECURITIES, INC.
FLEET SECURITIES, INC.
$750,000,000 8-1/2% SENIOR NOTES DUE 2008
OF
AWIN ESCROW COMPANY, INC.
PURCHASE AGREEMENT
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX BROTHERS INC.
UBS WARBURG LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS INC.
SCOTIA CAPITAL (USA) INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION SECURITIES, INC.
FLEET SECURITIES, INC.
c/o X.X. XXXXXX SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
AWIN Escrow Company, Inc., a Delaware corporation ("AWIN") and
a wholly-owned subsidiary of Allied Waste North America, Inc. (the "COMPANY"),
proposes to issue and sell to X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Barney
Inc., Credit Suisse First Boston Corporation, Deutsche Banc Alex. Xxxxx Inc.,
Xxxxxx Brothers Inc., UBS Warburg LLC, ABN AMRO Incorporated, Banc One Capital
Markets Inc., Scotia Capital (USA) Inc., Credit Lyonnais Securities (USA) Inc.,
First Union Securities, Inc. and Fleet Securities, Inc. (each, an "INITIAL
PURCHASER" and, collectively, the "INITIAL PURCHASERS") $750,000,000 in
aggregate principal amount of its 8-1/2% Senior Notes due 2008 (the "SERIES A
NOTES"), subject to the terms and conditions set forth herein. The Series A
Notes are to be issued pursuant to a Series Supplement (the "SUPPLEMENT"), to be
dated as of the Closing Date (as defined below), among AWIN, the Company, the
Guarantors and U.S. Bank Trust National Association (the "TRUSTEE"), to an
indenture (collectively with the Supplement, the "INDENTURE"), dated December
23, 1998, among the Company, the Guarantors (as defined below) and the Trustee.
Concurrently with the sale of the Series A Notes, the Company
is seeking to amend its Credit Agreement, dated as of July 21, 1999, as amended
on January 25, 2001, among the Company, Allied, the lenders party thereto, The
Chase Manhattan Bank, as administrative agent and the collateral trustee to
permit it and the Guarantors to incur the debt under the Series A Notes and the
Guarantees (as defined herein) and to secure the Series A Notes and the
Guarantees with the Collateral (as defined herein) and to revise certain
financial covenants to
provide greater operating flexibility (the "AMENDMENT"). The Indenture will
provide that upon consummation of the Amendment, Allied NA will assume all the
obligations of AWIN under the Indenture and Allied Waste Industries, Inc., a
Delaware corporation ("ALLIED"), and the other Guarantors will guarantee all
obligations under the Series A Notes. Pending the consummation of the Amendment,
the gross proceeds from the sale of the Series A Notes will be held in escrow
pursuant to an Escrow Agreement, to be dated the Closing Date (the "ESCROW
AGREEMENT"). The Amendment and the transactions described above with respect to
the Indenture, including the effectiveness of the security for the Series A
Notes pursuant to the execution of the Amendment, are collectively referred to
as the "TRANSACTIONS."
Following the consummation of the Transactions, the Holders
(including subsequent transferees) of the Series A Notes will have the
registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Series A Notes constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein (i) a registration
statement under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating
to the Company's 8-1/2% Series B Senior Notes due 2008 (the "SERIES B NOTES"),
to be offered in exchange for the Series A Notes (such offer to exchange being
referred to as the "EXCHANGE OFFER") and the Guarantees thereof and (ii) if
required, a shelf registration statement for the Series A Notes and the Series B
Notes pursuant to Rule 415 under the Act (the "SHELF REGISTRATION STATEMENT"
and, together with the Exchange Offer Registration Statement, the "REGISTRATION
STATEMENT") relating to the resale by certain holders of the Series A Notes or
Series B Notes and to use its reasonable best efforts to cause such Registration
Statement to be declared and remain effective and usable for the periods
specified in the Registration Rights Agreement and to consummate the Exchange
Offer. The Series A Notes and the Series B Notes issuable in exchange therefor
are collectively referred to herein as the "NOTES." Following the consummation
of the Transactions, the Notes will be guaranteed (the "GUARANTEES") by Allied
and each of the entities listed on Schedule A hereto (each, including Allied, a
"GUARANTOR" and collectively, the "GUARANTORS").
Following the consummation of the Transactions, the Notes will
be secured by a first priority lien on: (i) all the Capital Stock of all of
Xxxxxxxx-Xxxxxx Industries, Inc.'s ("BFI") domestic Restricted Subsidiaries (the
"DOMESTIC PLEDGED Stock"); (ii) 65% of the Capital Stock of all of BFI's foreign
Restricted Subsidiaries (the "FOREIGN PLEDGED STOCK") and (iii) all tangible and
intangible assets (other than real property) currently owned by BFI and all of
BFI's domestic Restricted Subsidiaries (collectively, the "ASSETS" and, along
with the Domestic Pledged Stock and the Foreign Pledged Stock, the
"COLLATERAL"). BFI and its subsidiaries that own the Collateral (the "GRANTOR
SUBSIDIARIES") entered into an amendment on January 25, 2001 to the Shared
Collateral Pledge Agreement, dated July 30, 1999, among the Company, BFI, the
Grantor Subsidiaries and the Collateral Trustee (as amended, the "SHARED
COLLATERAL PLEDGE AGREEMENT"), an amendment on January 25, 2001 to the Shared
Collateral Security Agreement, dated July 30, 1999, among the Company, BFI, the
Grantor Subsidiaries and the Collateral Trustee (as amended, the "SHARED
COLLATERAL SECURITY AGREEMENT") and an amendment on January 25, 2001 to the
Collateral Trust Agreement, dated July 30, 1999, among the Company, BFI, the
Grantor Subsidiaries and the Collateral Trustee (as amended, the "COLLATERAL
TRUST
2
AGREEMENT" and, along with the Shared Collateral Pledge Agreement and Shared
Collateral Security Agreement, the "SHARED COLLATERAL AGREEMENTS"). Upon
consummation of the Amendment, the Shared Collateral Agreements will provide for
the grant by BFI and the Grantor Subsidiaries to the Collateral Trustee for the
ratable benefit of the Holders of the Notes of a security interest in the
Collateral.
This Agreement, the Indenture, the Notes, the Guarantees, the
Registration Rights Agreement, the Shared Collateral Agreements and the Escrow
Agreement are hereinafter sometimes referred to collectively as the "OPERATIVE
DOCUMENTS." Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture.
1. OFFERING MEMORANDUM.
The Series A Notes will be offered and sold to the Initial
Purchasers pursuant to one or more exemptions from the registration requirements
under the Securities Act of 1933, as amended (the "ACT"). AWIN has prepared an
offering memorandum, dated November 15, 2001 (including any information and
documents incorporated by reference therein, the "OFFERING MEMORANDUM"),
relating to the Series A Notes and the Guarantees.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
2. AGREEMENTS TO SELL AND PURCHASE.
On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions contained
herein, AWIN agrees to issue and sell to the Initial Purchasers, and each
Initial Purchaser agrees, severally and not jointly, to purchase from AWIN the
principal amounts of the Series A Notes set forth opposite the name of such
Initial Purchaser on Schedule C hereto at a purchase price equal to 98.25% of
the principal amount thereof (the "PURCHASE PRICE").
3. TERMS OF OFFERING.
The Initial Purchasers have advised AWIN that the Initial
Purchasers will make offers (the "EXEMPT RESALES") of the Series A Notes
purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchaser
reasonably believes are "qualified institutional buyers" as defined in Rule 144A
under the Act ("QIBS"), and (ii) non-U.S. persons (as "U.S. person" is defined
in Regulation S under the Act) in offshore transactions in reliance upon
Regulation S under the Act (each, a "REGULATION S PURCHASER") (such persons
specified in clauses (i) and (ii) being referred to herein as "ELIGIBLE
PURCHASERS"). The Initial Purchasers will offer the Series A Notes to Eligible
Purchasers initially at a price equal to 100% of the principal amount thereof.
Such price may be changed at any time without notice.
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the
Series A Notes shall be made at the offices of Cravath, Swaine & Xxxxx, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 9:00 a.m., New
York City time, on November 27, 2001 or at such other time on the same date or
such other date as shall be agreed upon by the Initial Purchasers and AWIN in
writing. The time and date of such delivery and the payment for the Series A
Notes are herein called the "CLOSING DATE."
(b) One or more of the Series A Notes in definitive global
form, registered in the name of Cede & Co., as nominee of the Depository Trust
Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (collectively, the "GLOBAL
NOTES"), shall be delivered by AWIN to the Initial Purchasers (or as the Initial
Purchasers direct) in each case with any transfer taxes thereon duly paid by
AWIN against payment by the Initial Purchasers of the Purchase Price thereof by
wire transfer in same day funds to the order of AWIN. The Global Notes shall be
made available to the Initial Purchasers for inspection not later than 9:30
a.m., New York City time, on the business day immediately preceding the Closing
Date.
4
5. AGREEMENTS OF AWIN, THE COMPANY AND THE GUARANTORS.
Each of AWIN, the Company and the Guarantors hereby agrees
with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Notes for offering
or sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Offering
Memorandum untrue or that requires any additions to or changes in the Offering
Memorandum in order to make the statements therein not misleading. AWIN, the
Company and the Guarantors shall use their best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of any
Series A Notes under any state securities or Blue Sky laws and, if at any time
any state securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any Series A
Notes under any state securities or Blue Sky laws, AWIN, the Company and the
Guarantors shall use their best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to AWIN as many copies of the Offering
Memorandum, and any amendments or supplements thereto, as the Initial Purchasers
may reasonably request for the time period specified in Section 5(c). Subject to
the Initial Purchasers' compliance with its representations and warranties and
agreements set forth in Section 7 hereof, AWIN consents to the use of the
Offering Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) DURING SUCH PERIOD AS IN THE OPINION OF COUNSEL FOR THE
INITIAL PURCHASERS AN OFFERING MEMORANDUM IS REQUIRED BY LAW TO BE DELIVERED IN
CONNECTION WITH EXEMPT RESALES BY THE INITIAL PURCHASERS AND IN CONNECTION WITH
MARKET-MAKING ACTIVITIES OF THE INITIAL PURCHASERS FOR SO LONG AS ANY SERIES A
NOTES ARE OUTSTANDING, (I) NOT TO MAKE ANY AMENDMENT OR SUPPLEMENT TO THE
OFFERING MEMORANDUM OF WHICH THE INITIAL PURCHASERS SHALL NOT PREVIOUSLY HAVE
BEEN ADVISED OR TO WHICH THE INITIAL PURCHASERS SHALL REASONABLY OBJECT AFTER
BEING SO ADVISED AND (II) TO PREPARE PROMPTLY UPON THE REASONABLE REQUEST OF ANY
OF THE INITIAL PURCHASERS, ANY AMENDMENT OR SUPPLEMENT TO THE OFFERING
MEMORANDUM WHICH MAY BE NECESSARY OR ADVISABLE IN CONNECTION WITH SUCH EXEMPT
RESALES OR SUCH MARKET-MAKING ACTIVITIES.
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the
5
statements therein, in the light of the circumstances when such Offering
Memorandum is delivered to an Eligible Purchaser, not misleading, or if, in the
opinion of counsel to the Initial Purchasers, it is necessary to amend or
supplement the Offering Memorandum to comply with any applicable law, forthwith
to prepare an appropriate amendment or supplement to such Offering Memorandum so
that the statements therein, as so amended or supplemented, will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
such Offering Memorandum will comply with applicable law, and to furnish to the
Initial Purchasers and such other persons as the Initial Purchasers may
designate such number of copies thereof as the Initial Purchasers may reasonably
request.
(e) Prior to the sale of all Series A Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Series A Notes for offer and sale to the Initial Purchasers
and pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that none of AWIN, the Company or the Guarantors shall be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Offering Memorandum or Exempt Resales, in any
jurisdiction in which it is not now so subject.
(f) So long as any of the Series A Notes remain outstanding
and during any period prior to the completion of the Exchange Offer in which
AWIN, the Company and the Guarantors are not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder of Series A Notes in connection with any sale thereof
and any prospective purchaser of such Series A Notes from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of AWIN, the
Company and the Guarantors under this Agreement, including: (i) the fees,
disbursements and expenses of counsel to AWIN, the Company and the Guarantors
and accountants of AWIN, the Company and the Guarantors in connection with the
sale and delivery of the Series A Notes to the Initial Purchasers and pursuant
to Exempt Resales, and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Offering Memorandum and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Series A Notes to the Initial Purchasers, including any transfer or other taxes
payable thereon, (iii) all costs of printing or producing this Agreement, the
other Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Series A Notes, (iv) all
expenses in connection with the registration or qualification of the Series A
Notes and the Guarantees for offer and sale under the securities or Blue Sky
laws of the several states and all costs of printing or producing any Blue Sky
memoranda in connection therewith (including the
6
filing fees and reasonable fees and disbursements of counsel for the Initial
Purchasers in connection with such registration or qualification and memoranda
relating thereto), (v) the cost of printing certificates representing the Series
A Notes and the Guarantees, (vi) all expenses and listing fees in connection
with the application for quotation of the Series A Notes in the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotation System -
PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the reasonable
fees and disbursements of the Trustee's counsel in connection with the
Indenture, the Notes and the Guarantees, (viii) the costs and charges of any
transfer agent, registrar and/or depositary (including DTC), (ix) any fees
charged by rating agencies for the rating of the Notes, (x) all costs and
expenses of the Exchange Offer and any Registration Statement, as set forth in
the Registration Rights Agreement, and (xi) all other costs and expenses
incident to the performance of the obligations of AWIN, the Company and the
Guarantors hereunder for which provision is not otherwise made in this Section.
It is understood, however, that, except as specifically provided in this
Section, and Sections 8 and 11 hereof, the Initial Purchasers will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Series A Notes by them, and any advertising
expenses connected with any offers they may make.
(h) To use its best efforts to effect the inclusion of the
Series A Notes in PORTAL and to maintain the listing of the Series A Notes on
PORTAL for so long as the Series A Notes are outstanding.
(i) To obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letters of AWIN, the Company and the Guarantors to DTC relating
to the approval of the Notes by DTC for "book-entry" transfer.
(j) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of AWIN, the
Company or any Guarantors or any warrants, rights or options to purchase or
otherwise acquire debt securities of AWIN, the Company or any Guarantors
substantially similar to the Notes and the Guarantees (other than (i) the Notes
and the Guarantees and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Initial Purchasers.
(k) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Series A Notes or the Guarantees to the
Initial Purchasers or to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes or the Guarantees under the
Act.
(l) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes and the related Guarantees.
(m) To cause (or, to the extent provided in the Registration
Rights Agreement, to use its reasonable best efforts to cause) the Exchange
Offer to be made in the appropriate form to permit Series B Notes and guarantees
thereof by the Guarantors registered pursuant to the Act to be offered in
exchange for the Series A Notes and the Guarantees and to comply with all
applicable federal and state securities laws in connection with the Exchange
Offer.
7
(n) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(o) To use its best efforts to do and perform all things
required or necessary to be done and performed (i) under this Agreement by it
prior to the Closing Date and (ii) after receipt of the Amendment, to consummate
the Transactions, and to satisfy all conditions precedent to the delivery of the
Series A Notes and the Guarantees.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF AWIN, THE COMPANY AND THE
GUARANTORS.
As of the date hereof, each of AWIN, the Company and the
Guarantors, jointly and severally, represents and warrants to, and agrees with,
the Initial Purchasers that:
(a) The Offering Memorandum does not, and any supplement or
amendment to it will not, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to AWIN in writing by
the Initial Purchasers expressly for use therein. No stop order preventing the
use of the Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued.
(b) The documents incorporated by reference into the Offering
Memorandum, when filed with the Commission, conformed or will conform, as the
case may be, in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
(c) Each of Allied and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Offering Memorandum and
to own, lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, prospects,
financial condition or results of operations of Allied and its subsidiaries,
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(d) All outstanding shares of capital stock of AWIN and the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(e) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of Allied. All of the outstanding shares of
capital stock of each of the subsidiaries of Allied have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by
Allied, directly or indirectly through one or more subsidiaries, free and clear
of any
8
security interest, claim, lien, encumbrance or adverse interest of any nature
(each, a "LIEN"), except for Liens (i) to be created in connection with the
issuance of the Notes, (ii) as otherwise disclosed in the Offering Memorandum,
and (iii) which could not reasonably be expected to have a Material Adverse
Effect, and each Subsidiary of the Company (other than Global Indemnity
Assurance and Commercial Reassurance Limited) will be a "RESTRICTED SUBSIDIARY"
within the meaning of the Indenture.
(f) This Agreement has been duly authorized, executed and
delivered by AWIN, the Company and each of the Guarantors.
(g) The Indenture has been duly authorized by AWIN, the
Company and each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by AWIN, the Company and each of the Guarantors.
When the Indenture has been duly executed and delivered by AWIN, the Company and
each of the Guarantors, the Indenture will be a valid and binding agreement of
AWIN, the Company and each of the Guarantors, enforceable against each of them
in accordance with its terms, subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws affecting creditors' rights and remedies generally and (ii) general
principles of equity, including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness, equitable defenses and limits as to
the availability of equitable remedies (whether such principles are considered
in a proceeding at law or equity). On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder.
(h) The Series A Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by AWIN. When the
Series A Notes have been issued, executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Series A Notes
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of AWIN, enforceable in accordance with their terms, subject to (i)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (ii) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity). On the Closing Date, the Series A Notes will conform in all
material respects to the description thereof contained in the Offering
Memorandum.
(i) Upon consummation of the Transactions, the Series A Notes
will be valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to (i) applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally and (ii) general principles
of equity, including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to the
availability of equitable remedies (whether such principles are considered in a
proceeding at law or equity).
9
(j) The Series B Notes will have been duly authorized by the
Company. When the Series B Notes are issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the Series B
Notes will be entitled to the benefits of the Indenture and will be the valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws affecting creditors' rights and remedies generally and (ii) general
principles of equity, including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness, equitable defenses and limits as to
the availability of equitable remedies (whether such principles are considered
in a proceeding at law or equity).
(k) The Guarantee to be endorsed on the Series A Notes by each
Guarantor has been duly authorized by such Guarantor and, one the Closing Date,
will have been duly executed and delivered by each such Guarantor. When the
Series A Notes have been issued, executed and authenticated in accordance with
the Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, the Guarantee of each Guarantor
endorsed thereon will be entitled to the benefits of the Indenture and will be
the valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally and
(ii) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity). On the Closing Date, the
Guarantees to be endorsed on the Series A Notes will conform in all material
respects to the description thereof contained in the Offering Memorandum.
(l) The Guarantee to be endorsed on the Series B Notes by each
Guarantor has been duly authorized by such Guarantor and, upon consummation of
the Transactions and when issued, will have been duly executed and delivered by
each such Guarantor. When the Series B Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Guarantee of each Guarantor endorsed thereon will be entitled to
the benefits of the Indenture and will be the valid and binding obligation of
such Guarantor, enforceable against such Guarantor in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally and (ii) general principles of equity,
including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to the availability
of equitable remedies (whether such principles are considered in a proceeding at
law or equity). When the Series B Notes are issued, authenticated and delivered,
the Guarantees to be endorsed on the Series B Notes will conform in all material
respects to the description thereof in the Offering Memorandum.
(m) The Shared Collateral Agreements have been duly authorized
by the Company, BFI and the Grantor Subsidiaries, and upon execution and
delivery by the Company and Allied of the Amendment (assuming due execution and
delivery by each of the other parties thereto), will be valid and binding
obligations of the Company, BFI and the Grantor Subsidiaries
10
with respect to the Notes, enforceable against the Company, BFI and the Grantor
Subsidiaries, as applicable, in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and equitable principals of general
applicability. On the Closing Date, the Shared Collateral Agreements will
conform in all material respects to the description thereof in the Offering
Memorandum.
(n) the Amendment, together with the Shared Collateral
Agreements, when executed and delivered by the Company and Allied (assuming due
execution and delivery by each of the other parties thereto), will create a
valid security interest in favor of the Collateral Trustee for the benefit of
the Holders of the Notes in that portion of the Collateral described in Section
2.01 of the Shared Collateral Security Agreement and in that portion of the
collateral described in Section 2 of the Shared Collateral Pledge Agreement in
which a valid security interest may be created under Article 9 of the UCC of the
State of New York.
(o) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date, will have
been duly executed and delivered by the Company and each of the Guarantors. When
the Registration Rights Agreement has been duly executed and delivered, the
Registration Rights Agreement will be a valid and binding agreement of the
Company and each of the Guarantors, enforceable against the Company and each
Guarantor in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally,
(ii) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity) and (iii) the qualification that
rights to indemnification or contribution may be limited by applicable law or
equitable principles or otherwise unenforceable as against public policy. On the
Closing Date, the Registration Rights Agreement will conform in all material
respects to the description thereof in the Offering Memorandum.
(p) The Escrow Agreement has been duly authorized by AWIN and
the Company and, on the Closing Date, will have been duly executed and delivered
by AWIN and the Company. When the Escrow Agreement has been duly executed and
delivered, the Escrow Agreement will be a valid and binding agreement of AWIN
and the Company, enforceable against each of them in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally, (ii) general principles of equity,
including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to the availability
of equitable remedies (whether such principles are considered in a proceeding at
law or equity) and (iii) the qualification that rights to indemnification or
contribution may be limited by applicable law or equitable principles or
otherwise unenforceable as against public policy.
(q) The Amendment has been duly authorized by the Company and,
upon consummation of the Transactions, will have been executed and delivered.
11
(r) Neither Allied nor any of its subsidiaries is (x) in
violation of its respective charter or by-laws or (y) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to Allied and its subsidiaries, taken as a whole, to which Allied or
any of its subsidiaries is a party or by which Allied or any of its subsidiaries
or their respective property is bound, which violation or default, in the case
of this clause (y), could reasonably be expected to have a Material Adverse
Effect.
(s) The execution, delivery and performance of this Agreement
and the other Operative Documents by AWIN, the Company and each of the
Guarantors (to the extent that each is a party thereto), compliance by AWIN, the
Company and each of the Guarantors with all provisions hereof and thereof and
the consummation of the transactions contemplated hereby, thereby and by the
Offering Memorandum will not (i) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws of the
various states), (ii) conflict with or constitute a breach of any of the terms
or provisions of, or a default under, the charter or by-laws of Allied or any of
its subsidiaries, (iii) conflict with or constitute a breach of any of the terms
or provisions of, or a default under any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to Allied and its
subsidiaries, taken as a whole, to which Allied or any of its subsidiaries is a
party or by which Allied or any of its subsidiaries or their respective property
is bound, or, in the case of this clause (iii), which violation or default could
reasonably be expected to have a Material Adverse Effect, (iv) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
Allied, any of its subsidiaries or their respective property, (v) result in the
imposition or creation of (or the obligation to create or impose) a Lien under,
any agreement or instrument to which Allied or any of its subsidiaries is a
party or by which Allied or any of its subsidiaries or their respective property
is bound which Lien could reasonably be expected to have a Material Adverse
Effect, or (vi) result in the termination, suspension or revocation of any
Authorization (as defined below) of Allied or any of its subsidiaries or result
in any other impairment of the rights of the holder of any such Authorization
which termination, suspension or revocation could reasonably be expected to have
a Material Adverse Effect.
(t) Except as set forth in the Offering Memorandum, there are
no legal or governmental proceedings pending or threatened to which Allied or
any of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result, singly or in the
aggregate, in a Material Adverse Effect.
(u) Except as set forth in the Offering Memorandum, neither
Allied nor any of its subsidiaries has violated any foreign, federal, state or
local law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
12
(v) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(w) Each of Allied and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of Allied and its
subsidiaries is in compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; except where such failure to be valid and
in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(x) The accountants, Xxxxxx Xxxxxxxx LLP, that have certified
the financial statements and supporting schedules included in the Offering
Memorandum, are independent public accountants with respect to Allied, as
required by the Act and the Exchange Act.
(y) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of Allied and its
subsidiaries on the basis stated in the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(z) None of AWIN, the Company or Allied is, and, after giving
effect to the offering and sale of the Series A Notes and the application of the
net proceeds thereof as described in the Offering Memorandum, none of them will
be, an "investment company," as such term is defined in the Investment Company
Act of 1940, as amended.
(aa) There are no contracts, agreements or understandings
between AWIN or the Company or any Guarantor and any person granting such person
the right to require AWIN
13
or the Company or such Guarantor to include securities of AWIN or the Company or
any Guarantor with the Notes and Guarantees registered pursuant to any
Registration Statement.
(bb) Neither Allied nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Series A
Notes to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
(cc) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned to the Company or any Guarantor,
any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any securities of
the Company or any Guarantor.
(dd) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of Allied and its subsidiaries, taken as a whole, (ii) there has not
been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of Allied
or any of its subsidiaries and (iii) neither Allied nor any of its subsidiaries
has incurred any material liability or obligation, direct or contingent.
(ee) The Offering Memorandum, as of its date, contains all the
information specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Act.
(ff) To the knowledge of the Company, when the Series A Notes
and the Guarantees are issued and delivered pursuant to this Agreement, neither
the Series A Notes nor the Guarantees will be of the same class (within the
meaning of Rule 144A under the Act) as any security of AWIN, the Company or the
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(gg) To the knowledge of the Company, no form of general
solicitation or general advertising (as defined in Regulation D under the Act)
was used by AWIN, the Company or the Guarantors or any of their respective
representatives (other than the Initial Purchasers, as to whom AWIN, the Company
and the Guarantors make no representation) in connection with the offer and sale
of the Series A Notes and the Guarantees contemplated hereby, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of
14
the same class as the Series A Notes or the Guarantees have been issued and sold
by AWIN, the Company or the Guarantors within the six-month period immediately
prior to the date hereof.
(hh) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the TIA.
(ii) AWIN, the Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the Initial
Purchasers, as to whom AWIN, the Company and the Guarantors make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Series A Notes outside the United States and, in connection therewith, the
Offering Memorandum will contain the disclosure required by Rule 902(g)(2).
(jj) The Series A Notes offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions (it being understood that no representation is made as to the
actions of the Initial Purchasers).
(kk) The sale of the Series A Notes pursuant to Regulation S
is not part of a plan or scheme to evade the registration provisions of the Act
(it being understood that no representation is made as to the actions of the
Initial Purchasers).
(ll) No registration under the Act of the Series A Notes or
the Guarantees is required for the sale of the Series A Notes and the Guarantees
to the Initial Purchasers as contemplated hereby or for the Exempt Resales
assuming the accuracy of the Initial Purchasers' representations and warranties
and agreements set forth in Section 7 hereof.
(mm) Each certificate signed by any officer of AWIN, the
Company or any Guarantor and delivered to the Initial Purchasers or counsel for
the Initial Purchasers shall be deemed to be a representation and warranty by
AWIN, the Company or such Guarantor to the Initial Purchasers as to the matters
covered thereby.
(nn) All indebtedness of the Company and the Guarantors that
will be repaid with the proceeds of the issuance and sale of the Series A Notes
was incurred, and the indebtedness represented by the Series A Notes is being
incurred, for proper purposes and in good faith and each of the Company and the
Guarantors was, at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Series A Notes, and
will be on the Closing Date (after giving effect to the application of the
proceeds from the issuance of the Series A Notes) solvent, and had at the time
of the incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Series A Notes and will have on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Series A Notes) sufficient capital for carrying on their respective business and
were, at the time of the incurrence of such indebtedness that will be repaid
with the proceeds of the issuance and sale of the Series A Notes, and will be on
the Closing Date (after giving effect to the application of the proceeds from
the issuance of the Series A Notes) able to pay their respective debts as they
mature.
(oo) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the
15
execution, delivery and performance of any of the Operative Documents, the
issuance of the Series A Notes or the Guarantees, or suspends the sale of the
Series A Notes or the Guarantees in any jurisdiction referred to in Section
5(e); and no injunction, restraining order or other order or relief of any
nature by a federal or state court or other tribunal of competent jurisdiction
has been issued with respect to the Company or any of its subsidiaries which
would prevent or suspend the issuance or sale of the Series A Notes or the
Guarantees in any jurisdiction referred to in Section 5(e).
AWIN and the Company acknowledge that the Initial Purchasers
and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 9 hereof, counsel to AWIN, the Company and the Guarantors
and counsel to the Initial Purchasers, will rely upon the accuracy and truth of
the foregoing representations and hereby consents to such reliance.
7. INITIAL PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each of the Initial Purchasers, severally and not jointly,
represents and warrants to AWIN, the Company and the Guarantors, and agrees
that:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the Series A
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling the
Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Series A
Notes only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A Notes only
from Eligible Purchasers that the Initial Purchaser reasonably believes are (A)
QIBs, and (B) Regulation S Purchasers, in each case, that agree that (x) the
Series A Notes purchased by them may be resold, pledged or otherwise transferred
within the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the
16
Act, as in effect on the date of the transfer of such Series A Notes, only (I)
to the Company or any of its subsidiaries, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account or for the account
of a QIB in a transaction meeting the requirements of Rule 144A under the Act,
(III) in an offshore transaction (as defined in Rule 902 under the Act) meeting
the requirements of Rule 904 of the Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Act, (V) in accordance with another exemption
from the registration requirements of the Act (and based upon an opinion of
counsel acceptable to the Company) or (VI) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States or any other applicable jurisdiction and (y)
they will deliver to each person to whom such Series A Notes or an interest
therein is transferred a notice substantially to the effect of the foregoing.
(e) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Series A Notes in the United States or to,
or for the benefit or account of, a U.S. Person (other than a distributor), in
each case, as defined in Rule 902 under the Act (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement
of the offering of the Series A Notes pursuant hereto and the Closing Date,
other than in accordance with Regulation S of the Act or another exemption from
the registration requirements of the Act. Such Initial Purchaser agrees that,
during such 40-day distribution compliance period, it will not cause any
advertisement with respect to the Series A Notes (including any "tombstone"
advertisement) to be published in any newspaper or periodical or posted in any
public place and will not issue any circular relating to the Series A Notes,
except such advertisements as are permitted by and include the statements
required by Regulation S.
(f) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Series A Notes by it to any distributor, dealer or
person receiving a selling concession, fee or other remuneration during the
40-day distribution compliance period referred to in Rule 903(b)(2) under the
Act, it will send to such distributor, dealer or person receiving a selling
concession, fee or other remuneration a confirmation or notice to substantially
the following effect:
"The Series A Notes covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in transactions that
are exempt from the registration requirements of the Securities Act), and in
connection with any subsequent sale by you of the Series A Notes covered hereby
in reliance on Regulation S during the period referred to above to any
distributor, dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in Regulation S."
(g) Such Initial Purchaser agrees that (i) it has not offered
or sold and, prior to the date six months after the Closing Date, will not offer
or sell any Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses
17
or otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 and the Public
Offers of Securities Regulations 1995 with respect to anything done by it in
relation to the notes in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Notes to a person who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom such document may otherwise lawfully be issued
or passed on.
(h) Such Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged or will not engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Series A Notes or the Guarantees.
(i) The Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(j) The sale of the Series A Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act.
Such Initial Purchaser acknowledges that AWIN, the Company and
the Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to AWIN, the Company and the
Guarantors and counsel to the Initial Purchaser will rely upon the accuracy and
truth of the foregoing representations and such Initial Purchaser hereby
consents to such reliance.
8. INDEMNIFICATION.
(a) Each of AWIN, the Company and the Guarantors agree,
jointly and severally, to indemnify and hold harmless each Initial Purchaser,
its directors, its officers and each person, if any, who controls such Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any reasonable legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto) or any Rule 144A Information provided by AWIN,
the Company or any Guarantor to any holder or prospective purchaser of Series A
Notes pursuant to Section 5(f) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Initial Purchaser furnished in writing to the Company by such Initial
Purchaser.
18
(b) The Initial Purchasers, severally and not jointly, agree
to indemnify and hold harmless each of AWIN, the Company and the Guarantors, and
their respective directors and officers and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
AWIN, the Company or the Guarantors, to the same extent as the foregoing
indemnity from AWIN, the Company and the Guarantors to each Initial Purchaser
but only with reference to information relating to such Initial Purchaser
furnished in writing to the Company by such Initial Purchaser expressly for use
in the Offering Memorandum. The Company acknowledges that the statements set
forth in the last paragraph of the cover page regarding delivery of the Series A
Notes and, under the heading "Plan of Distribution," (i) the paragraph related
to overallotment, stabilization and syndicate covering transactions (ii) the
third paragraph related to the terms of the offering by the Initial Purchasers
and (iii) the last paragraph (describing the relationships between the Initial
Purchasers and the Company), in the Offering Memorandum constitute the only
information furnished in writing by or on behalf of the several Initial
Purchasers for inclusion in the Offering Memorandum.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers
shall not be required to assume the defense of such action pursuant to this
Section 8(c), but may employ separate counsel and participate in the defense
thereof, but the fees and expenses of such counsel, except as provided below,
shall be at the expense of the Initial Purchasers). Any indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such reasonable fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by X.X. Xxxxxx Securities
Inc., in the case of the parties indemnified pursuant to Section 8(a), and by
AWIN, the Company and the Guarantors, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be obligated to
indemnify and hold harmless any indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action effected without the indemnified party's written consent. No
indemnifying party shall, without the prior written consent of the
19
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by AWIN,
the Company and the Guarantors, on the one hand, and the Initial Purchasers on
the other hand, from the offering of the Series A Notes or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of AWIN, the
Company and the Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by AWIN, the
Company and the Guarantors, on the one hand and the Initial Purchasers, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Series A Notes (after underwriting discounts
and commissions, but before deducting expenses) received by AWIN, and the total
discounts and commissions received by the Initial Purchasers bear to the total
price to investors of the Series A Notes, in each case as set forth in this
Agreement. The relative fault of AWIN, the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by AWIN, the Company or the Guarantors, on the
one hand, or the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
AWIN, the Company and the Guarantors, and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation even if the
Initial Purchasers were treated as one entity for such purpose or by any other
method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or judgments referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter, including any action, that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, the Initial Purchasers shall not be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchasers exceeds the amount of any
damages which the Initial Purchasers has otherwise been required to pay by
20
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Series A Notes purchased by
each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS.
The obligations of the Initial Purchasers to purchase the
Series A Notes under this Agreement are subject to the satisfaction of each of
the following conditions:
(a) All the representations and warranties of AWIN, the
Company and the Guarantors contained in this Agreement shall be true and correct
on the Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended negative change, in the outlook for any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of Allied and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or any
development involving a prospective change in the capital stock or in the
long-term debt of Allied or any of its subsidiaries and (iii) neither Allied nor
any of its subsidiaries shall have incurred any liability or obligation, direct
or contingent, the effect of which, in any such case described in clause
9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is material and adverse and,
in your judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum.
21
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the President and the Chief Financial Officer
of AWIN, the Company and the each of the Guarantors, confirming the matters set
forth in Sections 9(a) and 9(b) and stating that AWIN, the Company and each of
the Guarantors has complied with all the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied on or
prior to the Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Xxxxxx & Xxxxxxx, counsel for AWIN, the Company and the Guarantors, to
the effect set forth on Exhibit A attached hereto and an opinion of Xxxxxx Xxxx,
Vice President and General Counsel of the Company to the effect set forth on
Exhibit B attached hereto. In addition, you shall have received opinions
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of counsel to AWIN, the Company and the Guarantors (satisfactory to you
and counsel for the Initial Purchasers) as to such matters as you may reasonably
request with respect to Guarantors organized outside the states of New York and
Delaware which are identified as Significant Subsidiaries (within the meaning of
Rule 1-02 of Regulation 5-X under the Act) in an officer's certificate addressed
to you and dated the Closing Date.
The opinion of Xxxxxx & Xxxxxxx described in Section 9(e)
above shall be rendered to you at the request of AWIN, the Company and the
Guarantors and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of Cravath, Swaine & Xxxxx, counsel for
the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Xxxxxx Xxxxxxxx LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Initial Purchasers
with respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(h) The Series A Notes shall have been approved by the NASD
for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture, including all supplements thereto
relating to the Series A Notes, which shall have been entered into by AWIN, the
Company and the Guarantors and the Trustee (and which shall provide for the
assumption of the obligations Series A Notes by the Company and the execution of
the Guarantees by the Guarantors).
(j) The Company and the Guarantors shall have executed the
Registration Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
22
(k) AWIN, the Company and the Trustee shall have executed the
Escrow Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by AWIN and the Trustee.
(l) None of AWIN, the Company or the Guarantors shall have
failed at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with by
AWIN, the Company or the Guarantors, as the case may be, at or prior to the
Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by the Initial Purchasers by written notice to AWIN if any of
the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of Allied and
its subsidiaries, taken as a whole, (v) the declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Series A Notes which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of the Series A Notes which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Series A Notes to
be purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the principal
amount of the Series A Notes set forth opposite its name in Schedule C bears to
the aggregate principal amount of the Series A Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as you may specify, to purchase the Series A Notes
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase on such date; provided that in no
event shall the aggregate principal amount of the Series A Notes
23
which any Initial Purchaser has agreed to purchase pursuant to Section 2 hereof
be increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the written consent of such
Initial Purchaser. If on the Closing Date any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase the Series A Notes and the aggregate
principal amount of the Series A Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of the Series A Notes
to be purchased by all Initial Purchasers and arrangements satisfactory to the
Initial Purchasers and AWIN for purchase of such the Series A Notes are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser and AWIN. In any
such case which does not result in termination of this Agreement, either you or
AWIN shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Offering Memorandum or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of any such Initial Purchaser
under this Agreement.
11. MISCELLANEOUS.
Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to AWIN, the Company or any Guarantor, to
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, (480)
627-2700 and (ii) if to the Initial Purchasers, c/o X.X. Xxxxxx Securities Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or
in any case to such other address as the person to be notified may have
requested in writing.
The respective indemnities, contribution agreements,
representations and warranties of AWIN, the Company, the Guarantors and the
Initial Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Series A Notes, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of the Initial Purchasers, the
officers or directors of the Initial Purchasers, any person controlling the
Initial Purchasers, AWIN, the Company, any Guarantor, the officers or directors
of AWIN, the Company or any Guarantor, or any person controlling AWIN, the
Company or any Guarantor, (ii) acceptance of the Series A Notes and payment for
them hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or
on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), AWIN, the Company and
each Guarantor, jointly and severally, agree to reimburse the Initial Purchasers
for all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, AWIN, the Company and the Guarantors shall be liable for all
expenses which they have agreed to pay pursuant to Section 5(g) hereof. AWIN,
the Company and each Guarantor also agree, jointly and severally, to reimburse
the Initial Purchasers and its officers, directors and each person, if any, who
controls such Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act for any and all reasonable fees and expenses
(including without limitation the reasonable fees and expenses of counsel)
24
incurred by them in connection with enforcing their rights under this Agreement
(including without limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon AWIN, the Company, the
Guarantors, the Initial Purchasers, the Initial Purchasers' directors and
officers, any controlling persons referred to herein, the directors of AWIN, the
Company and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Series A Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
25
Please confirm that the foregoing correctly sets forth the
agreement among AWIN, the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
AWIN ESCROW COMPANY, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
ALLIED WASTE NORTH AMERICA, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
ALLIED WASTE INDUSTRIES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By:
------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
[SIGNATURES CONTINUE ON NEXT PAGE]
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written by X.X. Xxxxxx Securities Inc.
on behalf of the Initial Purchasers.
X.X. XXXXXX SECURITIES INC.
By:
----------------------------------------
Name:
Title:
SCHEDULE A
GUARANTORS
SCHEDULE B
SUBSIDIARIES
SCHEDULE C
Principal
Amount of
Initial Purchaser Series A Notes
X.X. Xxxxxx Securities Inc..................................... $262,500,000
Xxxxxxx Xxxxx Xxxxxx Inc....................................... 225,000,000
Credit Suisse First Boston Corporation......................... 63,750,000
Deutsche Banc Alex. Xxxxx Inc.................................. 52,500,000
Xxxxxx Brothers Inc............................................ 22,500,000
UBS Warburg LLC................................................ 22,500,000
ABN AMRO Incorporated.......................................... 18,750,000
Banc One Capital Markets Inc................................... 18,750,000
Scotia Capital (USA) Inc....................................... 18,750,000
Credit Lyonnais Securities (USA) Inc........................... 15,000,000
First Union Securities, Inc.................................... 15,000,000
Fleet Securities, Inc.......................................... 15,000,000
Total........................................ $750,000,000
============
EXHIBIT A
FORM OF OPINION OF XXXXXX & XXXXXXX
(i) each of AWIN, the Company, Allied and its subsidiaries
identified on Schedule B attached hereto with an asterisk ("*") (Allied and each
such other Guarantor, an "IDENTIFIED GUARANTOR"), is a corporation, and is
validly existing and in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and to
conduct its business as described in the Offering Memorandum (such counsel being
entitled to rely in respect of the opinion in this clause upon a certificate(s)
of public officials and opinions of local counsel, and in respect of matter of
fact upon certificates of officers of AWIN, the Company or the Identified
Guarantors, as the case may be);
(ii) the execution, delivery and performance of the Series A
Notes have been duly authorized by AWIN, and when the Series A Notes have been
duly executed, issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement, the Series A Notes will be legally
valid and binding obligations of AWIN, enforceable against AWIN in accordance
with their terms, subject to (x) applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally and (y) general principles of
equity, including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to the
availability of equitable remedies (whether such principles are considered in a
proceeding at law or equity);
(iii) upon consummation of the Transactions, the Series A
Notes will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to (x) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity);
(iv) the Guarantees of each of the Identified Guarantors
included in the Indenture have been duly authorized by each of the Identified
Guarantors and will, when the Series A Notes have been duly executed, issued and
authenticated in accordance with the terms of the Indenture and delivered to and
paid for by the Initial Purchasers in accordance with the terms of the Purchase
Agreement, be the legally valid and binding obligation of each of the Identified
Guarantors, enforceable against each of them in accordance with their terms,
subject to (x) applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other laws affecting
creditors' rights and remedies generally and (y) general principles of equity,
including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to the availability
of equitable remedies (whether such principles are considered in a proceeding at
law or equity);
(v) assuming that (A) each of the Guarantors other than the
Identified Guarantors (the "OTHER GUARANTORS") is a corporation or partnership,
and is validly existing and in good standing under the laws of each of the Other
Guarantors' respective state of incorporation or formation, (B) each of the
Other Guarantors has all requisite corporate or partnership power and authority
to execute, deliver and perform its obligations under the Guarantees and (C)
each of the Guarantees of the Other Guarantors has been duly authorized,
executed and delivered by each of the Other Guarantors under the laws of each of
the Other Guarantors' respective state of incorporation or formation, and when
the Series A Notes have been duly executed, issued and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of the Purchase Agreement, each
of the Guarantees of the Other Guarantors endorsed thereon will be the legally
valid and binding obligation of each of the Other Guarantors, enforceable
against each of them in accordance with their terms, subject to (x) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equity defenses and limits as to the availability of equitable
remedies (whether such principles are considered in a proceeding at law or
equity);
(vi) the Indenture has been duly authorized by AWIN, the
Company and each of the Identified Guarantors, and the Indenture has been duly
executed and delivered by AWIN, the Company and each of the Identified
Guarantors;
(vii) the Indenture is the legally valid and binding agreement
of AWIN, the Company and each of the Identified Guarantors, enforceable against
each of them in accordance with its terms, subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally and
(y) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity);
(viii) assuming that (A) each of the Other Guarantors is a
corporation or partnership, and is validly existing and in good standing under
the laws of each of the Other Guarantors' respective state of incorporation or
formation, (B) each of the Other Guarantors has all requisite corporate or
partnership power and authority to execute, deliver and perform its obligations
under the Indenture and (C) the Indenture has been duly authorized, executed and
delivered by each of the Other Guarantors under the laws of each of the Other
Guarantors' respective state of incorporation or formation, the Indenture is the
legally valid and binding agreement of each of the Other Guarantors, enforceable
against each of them in accordance with its terms, subject to (x) applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equity defenses and limits as to the availability of equitable
remedies (whether such principles are considered in a proceeding at law or
equity);
A-2
(ix) the execution, delivery and performance of the Purchase
Agreement has been duly authorized by all necessary corporate action of AWIN,
the Company and the Identified Guarantors, and the Purchase Agreement has been
duly executed and delivered by AWIN, the Company and the Identified Guarantors;
(x) the Registration Rights Agreement has been duly authorized
by the Company and each of the Identified Guarantors and the Registration Rights
Agreement has been duly executed and delivered by the Company and each of the
Identified Guarantors;
(xi) the Registration Rights Agreement is the legally valid
and binding agreement of the Company and each of the Identified Guarantors,
enforceable against each of them in accordance with its terms, subject to (x)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally, (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity) and (z) the qualification that rights to indemnification or
contribution may be limited by applicable law or equitable principles or
otherwise unenforceable as against public policy;
(xii) assuming that (A) each of the Other Guarantors is a
corporation or partnership, and is validly existing and in good standing under
the laws of each of the Other Guarantors' respective state of incorporation or
formation, (B) each of the Other Guarantors has all requisite corporate or
partnership power and authority to execute, deliver and perform its obligations
under the Registration Rights Agreement and (C) the Registration Rights
Agreement has been duly authorized, executed and delivered by each of the Other
Guarantors under the laws of each of the Other Guarantors' respective state of
incorporation or formation, the Registration Rights Agreement is the legally
valid and binding agreement of each of the Other Guarantors, enforceable against
each of them in accordance with its terms, subject to (x) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights and remedies generally,
(y) general principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies (whether such principles are
considered in a proceeding at law or equity) and (z) the qualification that
rights to indemnification or contribution may be limited by applicable law or
equitable principles or otherwise unenforceable as against public policy;
(xiii) the Escrow Agreement has been duly authorized by AWIN
and the Company and the Escrow Agreement has been duly executed and delivered by
AWIN and the Company;
(xiv) the Escrow Agreement is the legally valid and binding
agreement of AWIN and the Company, enforceable against each of them in
accordance with its terms, subject to (x) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws affecting creditors' rights and remedies generally, (y) general principles
of equity, including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits as to the
availability of equitable
A-3
remedies (whether such principles are considered in a proceeding at law or
equity) and (z) the qualification that rights to indemnification or contribution
may be limited by applicable law or equitable principles or otherwise
unenforceable as against public policy;
(xv) the execution, delivery and performance of the Series B
Notes have been duly authorized by the Company, and when the Series B Notes have
been duly executed, issued and authenticated in accordance with the terms of the
Indenture, the Registration Rights Agreement and the Exchange Offer, the Series
B Notes will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to (x)
applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights and
remedies generally and (y) general principles of equity, including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the availability of
equitable remedies (whether such principles are considered in a proceeding at
law or equity);
(xvi) the Notes, the Guarantees and the Indenture conform in
all material respects to the descriptions thereof in the Offering Memorandum
under the caption "Description of Notes," in each case insofar as such
statements are summaries of legal matters;
(xvii) the statements in the Offering Memorandum under the
caption "Certain United States Federal Tax Consequences," insofar as they
purport to describe or summarize certain provisions of the agreements, statutes
or regulations referred to therein, are accurate descriptions or summaries in
all material respects;
(xviii) the execution and delivery of the Purchase Agreement,
the Notes, the Guarantees, the Indenture, the Registration Rights Agreement and
the Escrow Agreement and the issuance and sale of the Notes by the Company and
the Identified Guarantors pursuant to the Purchase Agreement will not:
(a) violate AWIN's, the Company's or the Identified
Guarantors' charter, bylaws or comparable governing documents;
(b) result in the breach of, a conflict with, a violation of
or a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to us to which AWIN,
Allied or any of its subsidiaries is party or by which AWIN, Allied or
any of its subsidiaries is bound or to which any of the property or
assets of AWIN, the Company or any of its subsidiaries is subject (this
opinion being limited to (x) those agreements which have been
identified to us in an Officer's Certificate of AWIN, the Company as
being the agreements to which AWIN, the Company, Allied or any of the
Company's subsidiaries is party, or to which any of their respective
businesses or assets is subject, that are material to the financial
condition or results of operations of AWIN, the Company, Allied and the
Company's subsidiaries taken as a whole and (y) in that such counsel
need not express any opinion with respect to any such conflict, breach
or violation not readily ascertainable from the face of any such
agreement, or arising under or based upon any cross-default provision
insofar as it relates to a default under an agreement not so identified
or arising under or based upon any covenant of a financial or numerical
nature or requiring computations);
A-4
(c) violate any federal or State of New York statute, rule or
regulation applicable to AWIN, the Company or any Identified Guarantor
or the Delaware General Corporation Law (the "DGCL"), and any order of
any court binding upon AWIN, the Company or any Identified Guarantor
(this opinion being limited to (x) those orders, judgments and decrees
which have been identified to us in an Officer's Certificate of AWIN or
the Company as being all of the orders, judgments and decrees that are
material to the financial condition or results of operations of AWIN,
the Company, Allied and the Company's subsidiaries taken as a whole and
(y) in that such counsel need not express an opinion with respect to
any such violation not readily ascertainable from the face of any such
court order);
(d) require any consents, approvals, authorizations,
registrations, declarations or filings by AWIN, the Company or any
Identified Guarantor under the federal or State of New York statute,
rule or regulation applicable to AWIN, the Company or any Identified
Guarantor or the DGCL (except such as may be required under the
securities or Blue Sky laws of the states);
(xix) none of AWIN, the Company or any Identified Guarantor is
and, after giving effect to the offering and sale of the Series A Notes and the
application of the net proceeds thereof as described in the Offering Memorandum,
will be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xx) it is not necessary in connection with the AWIN's offer,
sale and delivery of the Series A Notes to the Initial Purchasers pursuant to
the Purchase Agreement or the initial resale of the Series A Notes by the
Initial Purchasers in the manner contemplated by the Purchase Agreement and the
Offering Memorandum, to register the Series A Notes under the Securities Act of
1933, as amended, or to qualify the Indenture under the Trust Indenture Act of
1939, as amended. Such counsel does not need to express any opinion, however, as
to when or under what circumstances any Series A Notes initially sold by the
Initial Purchasers may be reoffered or resold.
(xxi) the Shared Collateral Agreements have been duly
authorized by the Company, Xxxxxxxx-Xxxxxx Industries, Inc. ("BFI") and each of
the Company's subsidiaries that is a party thereto (each a "GRANTOR SUBSIDIARY")
that is also an Identified Guarantor (collectively, the "IDENTIFIED GRANTOR
SUBSIDIARIES"), and upon execution and delivery by the Company and Allied of the
Amendment (assuming due execution and delivery by each of the other parties
thereto), will be valid and binding obligations of the Company, BFI and the
Grantor Subsidiaries with respect to the Notes, enforceable against the Company,
BFI and the Grantor Subsidiaries, as applicable, in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and equitable principals of
general applicability. On the Closing Date, the Shared Collateral Agreements
will conform in all material respects to the description thereof in the Offering
Memorandum;
(xxii) the Amendment, together with the Shared Collateral
Agreements, when executed and delivered by the Company and Allied (assuming due
execution and delivery by each of the other parties thereto), will create a
valid security interest in favor of the Collateral
A-5
Trustee for the benefit of the Holders of the Notes in that portion of the
collateral described in Section 2.01 of the Shared Collateral Security Agreement
and in that portion of the collateral described in Section 2 of the Shared
Collateral Pledge Agreement in which a valid security interest may be created
under Article 9 of the UCC of the State of New York (the "COLLATERAL");
In addition, such counsel shall state that in the course of
the preparation by AWIN and the Company of the Offering Memorandum, it
participated in conferences with officers and other representatives of AWIN, the
Company and Allied, representatives of the independent public accountants for
AWIN, the Company and Allied, and the representatives and counsel for the
Initial Purchasers at which the contents of the Offering Memorandum (including
the information and documents incorporated by reference therein) and related
matters were discussed and, although such counsel is not passing upon, and does
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Memorandum (or incorporated by reference
therein) and has not made any independent check or verification thereof, during
the course of such participation, no facts came to such counsel's attention that
caused such counsel to believe that the Offering Memorandum (including the
information and documents incorporated by reference therein), taken as a whole,
as of its date or the date hereof, contained an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that such counsel express no belief with
respect to the financial statements, schedules, other financial data, or
exhibits included or incorporated by reference in, or omitted from, the Offering
Memorandum.
A-6
EXHIBIT B
FORM OF OPINION OF XXXXXX XXXX, ESQ.
(i) Each of AWIN, the Company and the Identified Guarantors is
duly qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of AWIN and
the Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(iii) all of the outstanding shares of capital stock of each
of Allied's Significant Subsidiaries (including the Company) (as defined in Rule
1-02 of Regulation S-X under the Act) have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by Allied, free and
clear of any Lien except as otherwise disclosed in the Offering Memorandum;
(iv) to the best of such counsel's knowledge, after due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which AWIN, the Company or any of their subsidiaries is
or could be a party or to which any of their respective properties are or could
be subject, which might result, singly or in the aggregate, in a Material
Adverse Effect.
(v) to the best of such counsel's knowledge, none of AWIN, the
Company or any of their subsidiaries has violated any Environmental Law or any
provisions of ERISA, any provisions of the Foreign Corrupt Practices Act or the
rules and regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a Material Adverse Effect;
(vi) to the best of such counsel's knowledge, each of AWIN,
the Company and their subsidiaries has such Authorizations of, and has made all
filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. Each such Authorization is valid and in full force and effect
and each of Allied and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has
occurred (including the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such Authorization; except where such failure to
be valid and in full force and effect or to be in compliance, the occurrence of
any such event or the
presence of any such restriction would not, singly or in the aggregate, have a
Material Adverse Effect; and
(vii) to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or understandings between the
Company and the Guarantors and any person granting such person the right to
require the Company or such Guarantor to include securities of the Company or
any Guarantor with the Notes and Guarantees registered pursuant to any
Registration Statement.
B-2
