EXHIBIT 10.1
ALLIED WASTE NORTH AMERICA, INC.
EACH ENTITY LISTED ON SCHEDULE A, AS GUARANTORS
$600,000,000
8 7/8% Senior Secured Notes due 2008
Purchase Agreement
January 25, 2001
Credit Suisse First Boston Corporation
XX Xxxxxx
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Banc alex. brown Inc.
Xxxxxx Brothers Inc.
UBS Warburg LLC
ABN Amro Incorporated
Banc One Capital Markets Inc.
CIBC World Markets Corp.
Credit Lyonnais Securities (USA) Inc.
First Union securities, inc.
Fleet Securities, Inc.
and
SCOTIA CAPITAL (USA) INC.
$600,000,000 8 7/8% SENIOR SECURED NOTES DUE 2008
OF
ALLIED WASTE NORTH AMERICA, INC.
PURCHASE AGREEMENT
CREDIT SUISSE FIRST BOSTON CORPORATION
XX XXXXXX
XXXXXXX XXXXX XXXXXX INC.
DEUTSCHE BANC ALEX. BROWN INC.
XXXXXX BROTHERS INC.
UBS WARBURG LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS INC.
CIBC WORLD MARKETS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION SECURITIES, INC.
FLEET SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
c/o Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Allied Waste North America, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Credit Suisse First Boston Corporation (acting
through its affiliate Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation)*, XX
Xxxxxx (a division of Chase Securities Inc.), Xxxxxxx Xxxxx Xxxxxx Inc.,
Deutsche Banc Xxxx. Xxxxx Inc., Xxxxxx Brothers Inc., UBS Warburg LLC, ABN AMRO
Incorporated, Banc One Capital Markets Inc., CIBC World Markets Corp., Credit
Lyonnais Securities (USA) Inc., First Union Securities, Inc., Fleet Securities,
Inc. and Scotia Capital (USA) Inc. (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers") $600,000,000 in aggregate principal
amount of its 8 7/8% Senior Secured 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"), among the Company, the Guarantors (as defined
below) and U.S. Bank and Trust, N.A. (the "Trustee").
--------------------------------
* In this Agreement, all references to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ") shall refer to DLJ until such time (currently anticipated
to be February 5, 2001) as Credit Suisse First Boston Corporation ("CSFBC")
succeeds to DLJ's business, whether by merger, sale of assets or otherwise,
at which time "DLJ" will mean CSFBC, which shall be considered the successor
of DLJ hereunder and shall be treated as having assumed DLJ's obligations
hereunder, including those under Section 3.
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 7/8% Series B Senior Secured 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 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 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 each of the entities listed on Schedule A hereto (each, 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") will enter into an amendment to the
Shared Collateral Pledge Agreement, dated July 30, 1999, among the Company, BFI,
the Grantor Subsidiaries and the Collateral Trustee (the "Shared Collateral
Pledge Agreement"), and an amendment to the Shared Collateral Security
Agreement, dated July 30, 1999, among the Company, BFI, the Grantor Subsidiaries
and the Collateral Trustee (the "Shared Collateral Security Agreement") and an
amendment to the Collateral Trust Agreement, dated July 30, 1999, among the
Company, BFI, the Grantor Subsidiaries and the Collateral Trustee (the
"Collateral Trust Agreement" and, along with the Shared Collateral Pledge
Agreement and Shared Collateral Security Agreement, the "Shared Collateral
Agreements"), providing for the grant by BFI and the Grantor Subsidiaries to the
Collateral Trustee for the ratable benefit of the Holders of the Notes of
security 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.
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1. Offering Circular.
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 a preliminary offering circular, dated January 22, 2001
(including any information and documents incorporated by reference therein, the
"Preliminary Offering Circular") and a final offering circular, dated January
25, 2001 (including any information and documents incorporated by reference
therein, the "Offering Circular"), 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."
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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 forth in the Offering Circular, 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 Xxxxxx & Xxxxxxx 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 January 30, 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.
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Each of the Company and the Guarantors hereby agrees with the
Initial Purchasers as follows:
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(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 Preliminary Offering
Circular or the Offering Circular untrue or that requires any additions to or
changes in the Preliminary Offering Circular or the Offering Circular 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 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 Preliminary Offering
Circular and the Offering Circular, 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 Preliminary Offering Circular and the
Offering Circular, 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 Circular 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
Circular 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 Circular 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 Circular in order to make the statements therein, in the light of the
circumstances when such Offering Circular is delivered to an Eligible Purchaser,
not misleading, or if, in the opinion of counsel to the Initial Purchasers, it
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is necessary to amend or supplement the Offering Circular to comply with any
applicable law, forthwith to prepare an appropriate amendment or supplement to
such Offering Circular 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 Circular 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 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 Preliminary Offering Circular, the Offering Circular or Exempt
Resales, in any jurisdiction in which it is not now so subject.
(f) [Intentionally omitted.]
(g) 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.
(h) 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 Preliminary Offering Circular, the Offering Circular 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
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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
preliminary and supplemental 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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
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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.
(o) To comply with all of its agreements set forth in the Registration Rights
Agreement.
(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.
6. Representations, Warranties and Agreements of the Company and the Guarantors.
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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 Preliminary Offering Circular and the Offering Circular do not, and any
supplement or amendment to them 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 Preliminary Offering Circular or the Offering Circular (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 Preliminary
Offering Circular or the Offering Circular, 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) Each of Allied Waste Industries, Inc. ("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 Preliminary Offering
Circular and the Offering Circular 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").
(c) 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.
(d) 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
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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 Circular, 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.
(e) This Agreement has been duly authorized, executed and delivered by the
Company and each of the Guarantors.
(f) 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.
(g) 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 Circular.
(h) 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
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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).
(i) 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 Purchasers in accordance with the terms
of this Agreement, the Subsidiary 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 Circular.
(j) 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 Subsidiary 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
Circular.
(k) On the Closing Date, the amendments to the Shared Collateral Agreements will
have been duly authorized by the Company, BFI and the Grantor Subsidiaries, and
upon execution and delivery by the Company, BFI and the Grantor Subsidiaries
(assuming due execution and delivery by the Collateral Trustee), will be valid
and binding obligations of the Company, BFI and the Grantor Subsidiaries,
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, as amended, will conform in all
material respects to the description thereof in the Offering Circular.
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(l) The amendments to the Shared Collateral Agreements, when executed and
delivered by the Company, BFI and the Grantor Subsidiaries to the Collateral
Trustee will be effective to create in favor of the Collateral Trustee for the
benefit of the Holders of the Notes as security for the Obligations, an equal
and ratable sharing of the perfected security interest held by the Collateral
Trustee under the uniform commercial code as in effect in the State of New York
on the date of the Shared Collateral Agreements (the "NY UCC") pursuant to the
Shared Collateral Agreements in (i) the Domestic Pledged Stock, (ii) the Foreign
Pledged Stock and (iii) the Assets in which a security interest may be perfected
under the NY UCC by filing a financing statement in the offices specified in the
Shared Collateral Security Agreement.
(m) 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 Circular.
(n) 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.
(o) 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 Circular 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
11
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.
(p) Except as set forth in the Offering Circular, 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.
(q) Except as set forth in the Offering Circular, 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.
(r) 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.
(s) 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
12
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.
(t) The accountants, Xxxxxx Xxxxxxxx LLP, that have certified the financial
statements and supporting schedules included in the Preliminary Offering
Circular and the Offering Circular, are independent public accountants with
respect to the Company and the Guarantors, as required by the Act and the
Exchange Act.
(u) The historical financial statements, together with related schedules and
notes forming part of the Offering Circular (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 Circular 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 Circular (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.
(v) 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 Circular, neither of them will be, an "investment
company," as such term is defined in the Investment Company Act of 1940, as
amended.
(w) 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.
(x) 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.
(y) 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
13
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.
(z) Since the respective dates as of which information is given in the Offering
Circular other than as set forth in the Offering Circular (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.
(aa) Each of the Preliminary Offering Circular and the Offering Circular, as of
its date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Act.
(bb) To the knowledge of the Company, when the Series A Notes and the Guarantees
are issued and delivered pursuant to this Agreement, neither issue of 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 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.
(cc) 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.
(dd) Prior to the effectiveness of any Registration Statement, the Indenture is
not required to be qualified under the TIA.
(ee) 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 Circular will contain the disclosure required
by Rule 902(g)(2).
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(ff) 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).
(gg) 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).
(hh) 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.
(ii) 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.
(jj) 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.
(kk) 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
15
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.
(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 (A) Eligible
Purchasers that the Initial Purchaser reasonably believes are 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
16
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(c)(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 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.
(h) 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.
(i) 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.
17
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.
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 Circular (or any amendment or supplement thereto), the Preliminary
Offering Circular 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(h) 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
provided that the indemnification contained in this paragraph (a) shall not
inure to the benefit of the Initial Purchasers (or to the benefit of any person
controlling the Initial Purchasers) with respect to any preliminary Offering
Circular on account of any such loss, claim, damage, liability or expense
arising from the sale of the Series A Notes by the Initial Purchasers to any
person if a copy of the Offering Circular (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) shall
not have been delivered or sent to such person and each untrue statement of a
material fact contained in, and each omission or alleged omission of a material
fact from, such Preliminary Offering Circular was corrected in the Final
Offering Circular (as so amended or supplemented) and it shall have been
determined that any Initial Purchaser and each person, if any, who controls such
Initial Purchaser would not have incurred such losses, claims, damages,
liabilities and expenses had the Final Offering Circular been delivered or sent.
(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 Preliminary Offering Circular or the Offering
Circular.
18
(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 Credit Suisse First Boston Corporation, in the
case of the parties indemnified pursuant to Section 8(a), and by the Company, 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
19
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 the table on the
cover page of the Offering Circular. 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 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.
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9. Conditions of Initial Purchaser's Obligations.
The obligations of the Initial Purchaser 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
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
Circular other than as set forth in the Offering Circular (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 Circular.
(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 6(y), 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 Fried,
21
Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, 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
Rule1-02 of Regulation 5-X under the Act) in an officer's certificate addressed
to you and dated the Closing Date.
The opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx
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 Xxxxxx & Xxxxxxx, 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 Circular.
(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) The Company, BFI and the Grantor Subsidiaries shall have entered into the
amendments to the Shared Collateral Agreements and the Initial Purchasers shall
have received an original copy thereof, duly executed by the Company, BFI and
the Grantor Subsidiaries.
(l) 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.
22
(m) The Company shall have amended the Credit Facility 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; (ii) change certain
financial covenants; and (iii) provide for the reduction of the amount of
available credit under the Company's $1.5 billion revolving credit facility by
$200 million to $1.3 billion upon the satisfactory consummation of the American
Ref-Fuel transaction (as described in the Preliminary Offering Circular).
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 Circular, (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 which any
23
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 Circular 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
X. Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, (000) 000-0000 and
(ii) if to the Initial Purchasers, c/o Credit Suisse First Boston Corporation,
00 Xxxxxxx 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 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(i) 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
24
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.
25
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/ X. XXXXXX XXXXXXXX, XX.
----------------------------------
X. Xxxxxx Xxxxxxxx, Xx.
Treasurer
ALLIED WASTE INDUSTRIES, INC.
By: /s/ X. XXXXXX XXXXXXXX, XX.
-----------------------------------
X. Xxxxxx Xxxxxxxx, Xx.
Treasurer
EACH ENTITY LISTED ON SCHEDULE A,
as Guarantors
By: /s/ X. XXXXXX XXXXXXXX, XX.
------------------------------------------
X. Xxxxxx Xxxxxxxx, Xx.
Treasurer
[SIGNATURES CONTINUE ON NEXT PAGE]
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written by Credit Suisse First Boston Corporation on behalf of the
Initial Purchasers.
Credit Suisse First Boston Corporation
By:
----------------------------------------------
Name:
Title:
XXXXXXXXX XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
----------------------------------------------
Name:
Title:
SCHEDULE A
Guarantors
SCHEDULE B
Subsidiaries
SCHEDULE C
Principal
Amount of
Initial Purchaser Series A Notes
--------------------------------------------------- --------------------
Credit Suisse First Boston Corporation1................ $150,000,000
XX Xxxxxx............................................... 150,000,000
Xxxxxxx Xxxxx Xxxxxx Inc................................ 120,000,000
Deutsche Banc Xxxx. Xxxxx Inc........................... 120,000,000
Xxxxxx Brothers Inc....................................... 5,143,000
UBS Warburg LLC 5,143,000
ABN AMRO Incorporated..................................... 5,143,000
Banc One Capital Markets Inc.............................. 5,143,000
CIBC World Markets Corp................................... 5,143,000
Credit Lyonnais Securities (USA) Inc...................... 5,143,000
First Union Securities, Inc............................... 5,143,000
Fleet Securities, Inc..................................... 5,143,000
Scotia Capital (USA) Inc.................................. 5,142,000
Total ................................................. $600,000,000
============
----------------------------
1 Acting through its affiliate Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation.
EXHIBIT A
FORM OF OPINION OF XXXXX, XXXXX, XXXXXX, XXXXXXX & XXXXXXXX
(i) each of the Company, Allied and its subsidiaries identified on Schedule B
attached hereto with an asterisk ("*") (Allied and each other Guarantor, an
"Identified Guarantor"), 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 Circular and
to own, lease and operate its properties (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 Series A Notes have been duly authorized and, when 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, 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 (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 the Identified Guarantors have been duly authorized and,
when the Series A Notes are 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, each of the
Guarantees of the Identified Guarantors endorsed thereon will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Identified Guarantors, enforceable 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);
(iv) assuming that (A) each of the Guarantors other than the Identified
Guarantors (the "Other Guarantors") is a corporation or partnership validly
existing 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 are executed 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, each of
the Guarantees of the Other Guarantors endorsed thereon will be entitled to the
benefits of the Indenture and will be a valid and binding obligation of each of
the Other Guarantors, enforceable against each of the Other Guarantors 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);
(v) the Indenture has been duly authorized, executed and delivered by the
Company and each Identified Guarantor and is a valid and binding agreement of
the Company and each Identified Guarantor, enforceable against the Company and
each Identified Guarantor 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);
(vi) assuming that (A) each of the Other Guarantors is a corporation or
partnership validly existing 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 constitutes a valid and binding
agreement of each of the Other Guarantors, enforceable against each of the Other
Guarantors 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);
(vii) this Agreement has been duly authorized, executed and delivered by the
Company and the Identified Guarantors;
(viii) the Registration Rights Agreement has been duly authorized, executed and
delivered by the Company and the Identified Guarantors and is a valid and
binding agreement of the Company and each Identified Guarantor, enforceable
against the Company and each Identified Guarantor 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
A-2
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;
(ix) assuming that (A) each of the Other Guarantors is a corporation or
partnership validly existing 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 constitutes a valid and binding obligation of each of the Other
Guarantors, enforceable against each Other Guarantor 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;
(x) the Series B Notes has been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture, the
Registration Rights Agreement and the Exchange Offer, will be valid and binding
obligations of the Company, enforceable 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);
(xi) the descriptions under the captions "Description of Notes" and "Certain
United States Federal Tax Consequences in the Offering Circular, insofar as such
description constitute a summary of the legal matters or documents referred to
therein, fairly summarizes the matters referred to therein;
(xii) the issue and sale of the Notes and the compliance by the Company and each
of the Guarantors with all of the provisions of the Notes, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not (except as described in the Offering Circular) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute 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 the 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
A-3
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) nor will such actions result in any
violation of the provisions of (a) the Certificate of Incorporation or By-laws
of Allied or the Company and any Identified Guarantor, (b) any statute, rule or
regulation of any governmental agency or authority of the United States or of
the State of New York or under the Delaware General Corporation Law (the
"DGCL"), and (c) any order of any court binding upon the Company or any of its
subsidiaries (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); nor will such actions 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 states);
(xiii) 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 Circular, will be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended;
(xiv) the Indenture complies as to form in all material respects with the
requirements of the TIA, and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder. It is not necessary in
connection with the offer, sale and delivery of the Series A Notes to the
Initial Purchasers in the manner contemplated by this Agreement or in connection
with the Exempt Resales to qualify the Indenture under the TIA;
(xv) no registration under the Act of the Series A Notes is required for the
sale of the Series A Notes to the Initial Purchasers as contemplated by this
Agreement or for the Exempt Resales assuming that (i) each Initial Purchaser is
a QIB or a Regulation S Purchaser, (ii) the accuracy of, and compliance with,
the Initial Purchasers' representations and agreements contained in Section 7 of
this Agreement, (iii) the accuracy of the representations of the Company and the
Guarantors set forth in Sections 6(ee), (ff) and (gg) of this Agreement;
(xvi) assuming that (A) each of the Grantor Subsidiaries other than the Grantor
Subsidiaries that are (y) incorporated or formed in the State of New York or
Delaware and (z) Allied's Significant Subsidiary (as defined in Rule 1-02 of
Regulation S-X under the Act) (the "Other Grantor Subsidiaries") is a
corporation or partnership validly existing under the laws of each of the Other
Grantor Subsidiaries' respective state of incorporation or formation, (B) each
of the Other Grantor Subsidiaries has all requisite corporate or partnership
power and authority to execute, deliver and perform its obligations under the
Shared Collateral Agreements and (C) each of the Other Grantor Subsidiaries has
A-4
duly authorized, executed and delivered each of the Shared Collateral Agreements
under the laws of each of the Other Grantor Subsidiaries' respective state of
incorporation or formation, on the Closing Date, the amendments to the Shared
Collateral Agreements will have been duly authorized by the Company, BFI and the
Grantor Subsidiaries, and upon execution and delivery by the Company, BFI and
the Grantor Subsidiaries (assuming due execution and delivery by the Collateral
Trustee), will be valid and binding obligations of the Company, BFI and the
Grantor Subsidiaries, 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, as
amended, will conform in all material respects to the description thereof in the
Offering Circular;
(xvii) assuming that (A) each of the Other Grantor Subsidiaries is a corporation
or partnership validly existing under the laws of each of the Other Grantor
Subsidiaries' respective state of incorporation or formation, (B) each of the
Other Grantor Subsidiaries has all requisite corporate or partnership power and
authority to execute, deliver and perform its obligations under the Shared
Collateral Agreements and (C) each of the Other Grantor Subsidiaries has duly
authorized, executed and delivered each of the Shared Collateral Agreements
under the laws of each of the Other Grantor Subsidiaries' respective state of
incorporation or formation, the amendments to the Shared Collateral Agreements,
when executed and delivered by the Company, BFI and the Grantor Subsidiaries to
the Collateral Trustee will be effective to create in favor of the Collateral
Trustee for the benefit of the Holders of the Notes as security for the
Obligations, an equal and ratable sharing of the perfected security interest
held by the Collateral Trustee under the uniform commercial code as in effect in
the State of New York on the date of the Shared Collateral Agreements (the "NY
UCC") pursuant to the Shared Collateral Agreements in (i) the Domestic Pledged
Stock, (ii) the Foreign Pledged Stock and (iii) the Assets in which a security
interest may be perfected under the NY UCC by filing a financing statement in
the offices specified in the Shared Collateral Security Agreement;
(xviii) such counsel shall state that in the course of the preparation by the
Company of the Offering Circular, it participated in conferences with certain of
the officers and representatives of, and the independent public accountants for,
Allied and the Company, at which the contents of the Offering Circular were
discussed. Between the date of the Offering Circular and the time of delivery of
this opinion, such counsel shall also state that it participated in additional
conferences with certain of the officers and representatives of, and independent
public accountants for, Allied and the Company at which the contents of the
Offering Circular were discussed to a limited extent. Given the limitations
inherent in the independent verification of factual matters and the character of
determinations involved in the process, such counsel need not pass upon or
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Circular, except to the extent provided in
paragraph (xi) above. Subject to the foregoing and on the basis of the
information gained in the performance of the services referred to therein,
including information obtained from officers and other representatives of, and
the independent public accountants for the Company, no facts have come to such
counsel's attention that cause them to believe that the Offering Circular, as of
its date, contained any untrue statement of a material fact or omitted to state
A-5
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Also, subject to the foregoing, no facts have come to such
counsel's attention in the course of the proceedings described in the second
sentence of this paragraph that cause them to believe that the Offering
Circular, as of the date and time of delivery of the opinion, contains an untrue
statement or a material fact or omits to the state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Such counsel
need not express any view or belief, however, with respect to financial
statements, the notes or schedules thereto, pro forma data or other financial
information included in or omitted from the Offering Circular.
A-6
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 (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 Circular;
(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 property is 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
