$600,000,000
USA WASTE SERVICES, INC.
6-1/8% MANDATORILY TENDERED SENIOR NOTES DUE 2011
UNDERWRITING AGREEMENT
July 14, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXX SECURITIES INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXX SECURITIES INC.
DEUTSCHE BANK SECURITIES
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
USA Waste Services, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $600,000,000 principal amount of its 6-1/8%
Mandatorily Tendered Senior Notes due 2011 (the "Securities"), to the several
underwriters named in Schedule I hereto (the "Underwriters"). The Securities
are to be issued pursuant to the provisions of an indenture (the "Senior
Indenture") dated as of September 10, 1997 between the Company and Chase Bank
of Texas, National Association, as trustee (the "Trustee"). The Securities
are also subject to a Remarketing Agreement dated as of July 17, 1998 between
the Company and X.X. Xxxxxx Securities, Inc. (the "Remarketing Agreement").
The terms of the Securities are set forth in resolutions of the Pricing
Committee of the Board of Directors of the Company dated as of the date
hereof (the "Resolutions").
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-3
(Registration No. 333-52197), including a prospectus relating to the
Securities, which may be amended. The registration statement as amended at
the time when it became effective, including all documents or information
incorporated or deemed to be incorporated by reference therein is referred to
as the "Registration Statement"; and the prospectus in the form first used to
confirm sales of Securities, (including (a) the information contained in any
prospectus supplement relating to the Securities or deemed to be part of the
Registration Statement at effectiveness pursuant to Rule 430A or Rule 434 of
the Act, and (b) any documents or information incorporated or deemed to be
incorporated by reference into such prospectus), are hereinafter referred to
as the "Prospectus". Any registration statement (including any amendment or
supplement thereto or
information which is deemed to be a part thereof) filed by the Company under
Rule 462(b) of the Act (a "Rule 462(b) Registration Statement") shall be
deemed to be a part of the Registration Statement. If the Company elects to
rely on Rule 434 under the Act, all references to the Prospectus shall be
deemed to also include, without limitation, the form of prospectus and term
sheet (a "Term Sheet"), taken together, provided to the Underwriters by the
Company in reliance on Rule 434 under the Act (the "Rule 434 Prospectus").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "described" or "stated"
in the Registration Statement or the Prospectus (and all references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include,
without limitation, even though not specifically stated, any document filed
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (the "Exchange Act") which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus after the effective date, as the case may be.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto at 99.345% of the principal amount thereof
(excluding the premium payment of $14.7 million to the Company by X.X. Xxxxxx
Securities Inc. pursuant to the Remarketing Agreement) (the "Purchase Price")
plus accrued interest thereon, if any, from July 17, 1998 to the date of
payment and delivery.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Securities upon the terms set forth in the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to the Underwriters of and
payment for the Securities shall be made at 10:00 A.M., New York City time,
on the third or fourth business day unless otherwise permitted by the
Commission pursuant to Rule 15c6-1 of the Exchange Act (the "Closing Date")
following the date of this Agreement at such place as you shall designate.
The Closing Date and the location of delivery of and the form of payment for
the Securities may be varied by agreement between you and the Company.
The Securities shall be registered in such names and issued in such
denominations as you shall request in writing not later than two full
business days prior to the Closing Date. A global certificate for the
Securities shall be made available to you for inspection not later than 9:30
A.M., New York City time, on the business day next preceding the Closing
Date. A global certificate for the Securities in definitive form evidencing
the Securities shall be delivered to you on the Closing Date with any
transfer taxes thereon duly paid by the Company, for the respective accounts
of the several Underwriters, against payment of the Purchase Price therefor
by wire transfer in same day funds to an account specified by the Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) Immediately following the determination of the Purchase
Price, to prepare, and file or transmit for filing with the Commission in
accordance with Rule 424(b) of the Act, copies
-2-
of a prospectus supplement relating to the Securities and containing all
information required under the Act.
(b) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective,
(ii) of the receipt of comments from the Commission relating to the
Registration Statement, (iii) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (v) of the happening of any event
during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(c) To furnish to you, without charge, five signed copies of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) Prior to the termination of the offering of Securities, not
to (i) file any Rule 462(b) Registration Statement, (ii) file any
amendment or supplement to the Registration Statement, (iii) file any
document under the Exchange Act which shall be deemed to be incorporated
by reference into the Prospectus, or (iv) make any amendment or
supplement to the Prospectus (including the issuance or filing of any
Term Sheet) of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any Rule 462(b)
Registration Statement, Term Sheet or amendment or supplement to the
Registration Statement or the Prospectus which may be necessary or
advisable in connection with the distribution of the Securities by you,
and to use its best efforts to cause the same to become promptly
effective.
(e) From time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the Commission
an appropriate amendment or supplement to the Prospectus so that the
statements in
-3-
the Prospectus, as so amended or supplemented, will not, in the light of
the circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law, and to furnish to each Underwriter and
to such dealers as you shall specify, such number of copies thereof as
such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Securities, to
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Securities for offer and sale by
the several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue such
qualification in effect so long as required for distribution of the
Securities and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its securityholders
as soon as reasonably practicable an earnings statement covering a period
of at least twelve months after the Closing Date (but in no event
commencing later than 90 days after such date) which shall satisfy the
provisions of Section 11(a) of the Act.
(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Securities a financial
report of the Company and its subsidiaries on a consolidated basis (and a
similar financial report of all unconsolidated subsidiaries, if any), all
such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of cash
flows and a consolidated statement of shareholders' equity as of the end
of and for such fiscal year, together with comparable information as of
the end of and for the preceding year, certified by independent certified
public accountants, and (ii) to make generally available as soon as
practicable after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders, a consolidated
balance sheet, a consolidated statement of operations and a consolidated
statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such
period, and for the period from the beginning of such year to the close
of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the securityholders of the
Company or filed with the Commission and such other publicly available
information concerning the Company and its subsidiaries as you may
reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to (i)
the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits),
each preliminary prospectus relating to the Securities and all amendments
and supplements to any of them prior to or during the period specified in
paragraph (e), (ii) the printing and delivery of the Prospectus and all
amendments or supplements to it during the period specified in paragraph
(e), (iii) the printing and delivery of this Agreement and the Senior
Indenture, (iv) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the several
states (including in each case the fees and disbursements of counsel for
the Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) the rating of the Securities by
securities rating agencies or services, and (vi) furnishing such copies
of the Registration Statement, the Prospectus and all amendments and
supplements thereto as may be
-4-
requested for use in connection with the offering or sale of the
Securities by the Underwriters or by dealers to whom Securities may be
sold.
(l) To use its best efforts to maintain the listing of the
Company's common stock, par value $0.01 per share (the "Common Stock") on
the New York Stock Exchange for a period of five years after the
effective date of the Registration Statement.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities.
(n) To use the net proceeds received by it from the sale of
Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(o) 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 dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company (other
than (i) the Securities or the Company's 7% Senior Notes due 2028 which
are being offered concurrently pursuant to a separate Prospectus
Supplement and (ii) commercial paper issued in the ordinary course of
business), without your prior written consent.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3; the
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or have been threatened
by the Commission.
(b) At the time the Registration Statement, any Rule 462(b)
Registration Statement or any post-effective amendment to the
Registration Statement became or becomes effective, on the date that any
amendment or supplement to the Prospectus is filed with the Commission,
and at the Closing Date, (i) each part of the Registration Statement,
when such part became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus did not and does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact 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 set forth in this paragraph (b) do not
apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for
use therein.
(c) Any term sheet or prospectus subject to completion provided
by the Company to the Underwriters for use in connection with the
offering and sale of the Securities pursuant to Rule 434 under the Act
together are not materially different from the prospectus included in the
-5-
Registration Statement (exclusive of any information deemed a part
thereof by virtue of Rule 434(d)). The documents incorporated or deemed
to be incorporated by reference in the Prospectus pursuant to Item 12 of
Form S-3 under the Act, at the time they were, or hereafter are, filed
with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act, and, when read together with
other information in the Prospectus, at the time the Registration
Statement became effective and as of the Closing Date, and during the
period specified in Section 5(e), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Rule
462(b) Registration Statement, if any, complied when so filed in all
material respects with the Act; and did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Annex I is an accurate and complete list of all
subsidiaries of the Company (the "Material Subsidiaries") which accounted
for more than $21.5 million of revenues during the three months ended
March 31, 1998 or which, as of March 31, 1998, had assets in excess of
$151.8 million. The Company and each of 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 it is currently being conducted
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 Company and its subsidiaries, taken as a whole.
(f) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and
are owned by the Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature (other than liens
created under the Credit Facility (as defined in the Registration
Statement)).
(g) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights. Upon
payment of the Purchase Price and delivery of certificates representing
the Securities, each of the Underwriters will receive the Securities free
and clear of all liens, security interests or encumbrances.
(h) The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Senior
Indenture and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be entitled to the benefits of the
Senior Indenture, and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited to
equitable principles of general applicability.
-6-
(i) Each of this Agreement and the Remarketing Agreement has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable in accordance with
its terms (except as enforcement of rights to indemnity and contribution
may be limited by applicable laws or principles of public policy and
subject to the qualifications that the enforceability of the Company's
obligations may be limited by bankruptcy, insolvency, reorganization, or
other laws relating to or affecting creditors' rights generally and by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(j) The Senior Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(k) The Securities conform as to legal matters to the
description thereof contained in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of the
business of the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which it or any
of its subsidiaries or their respective properties are bound.
(m) The execution, delivery and performance of this Agreement,
the Remarketing Agreement, the Senior Indenture and the Securities and
compliance by the Company with all the provisions hereof and thereof and
the consummation of the transactions contemplated hereby and thereby will
not require any consent, approval, authorization or order of any court,
regulatory body, administrative agency or other governmental body (except
such as may be required under the securities or Blue Sky laws of the
various states or jurisdictions outside the United States) and will not
conflict with or constitute a breach of any of the terms or provisions
of, or a default under, the charter or by-laws of the Company or any of
its subsidiaries or any agreement, indenture or other instrument to which
it or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective properties are bound, or violate or
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company, any of its subsidiaries or their
respective properties.
(n) Except as otherwise set forth in the Prospectus, there are
no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective properties are the subject, and, to the Company's knowledge,
no such proceedings are threatened or contemplated. No material
development has occurred with respect to the legal proceedings described
in the Registration Statement. No contract or document of a character
required to be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement is not so
described or filed as required.
-7-
(o) Neither the Company 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"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, prospects, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business as currently being
conducted and as the Company expects it to be conducted except where the
failure to have such permits would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole; the Company and each
of its subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(q) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries,
in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, except to
the extent properly accrued for in the Company's financial statements,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(r) Except as otherwise set forth in the Prospectus or such as
are not material to the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and
restrictions, except liens for taxes not yet due and payable, to all
property and assets described in the Registration Statement as being
owned by it. All leases to which the Company or any of its subsidiaries
is a party are valid and binding and no default has occurred or is
continuing thereunder that might result in any material adverse change in
the business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, and the Company and
its subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions as
do not materially interfere with the use made by the Company or such
subsidiary.
(s) The Company and each of its subsidiaries maintains
insurance as is customary in the industry.
-8-
(t) PricewaterhouseCoopers LLP are independent public
accountants with respect to the Company and Xxxxxx Xxxxxxxx LLP are
independent public accountants with respect to Waste Management, Inc.
("Waste Management") as required by the Act.
(u) The financial statements, together with related schedules
and notes, forming part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries and Waste
Management on the basis stated in the Registration Statement 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
Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries and Waste
Management. No other financial statements or schedules are required by
the Act or the Exchange Act to be included in the Registration Statement
or the Prospectus.
(v) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(w) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of
the Company because of the filing of the Registration Statement, which
has not been waived.
(x) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in, the
Company or any subsidiary thereof except as otherwise disclosed in the
Registration Statement or Prospectus.
(y) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(z) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any state or local labor relations
board, and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Company or any of its subsidiaries or, to the Company's
knowledge, threatened against any of them, and (ii) no significant
strike, labor dispute, slowdown or stoppage pending against the Company
or any of its subsidiaries or, to the Company's knowledge, threatened
against it or any of its subsidiaries except for such actions specified
in clause (i) or (ii) above, which, singly or in the aggregate could not
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(aa) The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary
-9-
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(bb) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been filed,
other than those filings being contested in good faith, and all material
taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of its subsidiaries have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(cc) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior to
the Closing Date, (i) there has not been and will not have been, except
as set forth in or as contemplated by the Registration Statement and the
Prospectus any change in the capitalization, long term or short term debt
or in the capital stock or equity of the Company or any of its
subsidiaries, (ii) neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent,
nor has it entered into any material transactions other than pursuant to
this Agreement, and the transactions referred to herein, or as
contemplated in the Prospectus, and (iii) there has not been any material
adverse effect, or any development involving a prospective material
adverse effect, in or affecting the general affairs, management,
financial position, shareholders' equity (or, with respect to partnership
subsidiaries, partnership capital), net worth or results of operations of
the Company and its subsidiaries, taken as a whole.
(dd) The Company and its affiliates have not taken, and will not
take, directly or indirectly, any action designed to, or which might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities pursuant to the distribution
contemplated by this Agreement, and other than as permitted by the Act,
the Company has not distributed and will not distribute any prospectus or
other offering material in connection with the offering and sale of the
Securities.
Any certificate or other document signed by any officer or authorized
representative of the Company and delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty of the
Company to each Underwriter as to the matters covered thereby.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(each an "Underwriter Indemnified Party" and collectively the
"Underwriter Indemnified Parties"), from and against any and all losses,
claims, damages, liabilities and judgments caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto)
or any preliminary prospectus, 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
-10-
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 any Underwriter furnished in
writing to the Company by or on behalf of any Underwriter through you
expressly for use therein.
(b) The indemnity agreement contained in paragraph 7(a), with
respect to any preliminary prospectus, shall not inure to the benefit of
any Underwriter to the extent that any loss, claim, damage or liability
results from the fact that a copy of the Prospectus (not including
documents incorporated by reference therein) was not sent or given by or
on behalf of such Underwriter to the person asserting any such loss,
claim, damage or liability to the extent that the Prospectus would have
cured the defect giving rise to such loss, claim, damage, liability or
judgment if such Underwriter shall have been provided with the number of
copies of the Prospectus requested by such Underwriter and it is
judicially determined that such delivery was required under the Act and
was not so made.
(c) In case any action shall be brought against any Underwriter
Indemnified Party, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Company, such Underwriter Indemnified Party shall promptly notify the
Company in writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such
Underwriter Indemnified Party and payment of all fees and expenses. Any
Underwriter 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 such
Underwriter Indemnified Party unless (i) the employment of such counsel
has been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel
reasonably satisfactory to such Underwriter Indemnified Party, or (iii)
the named parties to any such action (including any impleaded parties)
include both such Underwriter Indemnified Party and the Company and such
Underwriter 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 Company (in which
case the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter Indemnified Party, it being
understood, however, that the Company shall not, in connection with any
one such 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
such Underwriter Indemnified Parties, which firm shall be designated in
writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and that
all such fees and expenses shall be reimbursed as they are incurred).
The Company shall not be liable for any settlement of any such action
effected without its written consent, but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless
any Underwriter Indemnified Party from and against any loss or liability
by reason of such settlement. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of counsel are at
the expense of the Company and an Underwriter Indemnified Party shall
have requested the Company to reimburse the Underwriter Indemnified Party
for such fees and expenses of counsel as incurred, the Company agrees
that it shall be liable for any settlement of any action effected without
its written consent if (i) such settlement is entered into more than
forty business days after the receipt by the Company of the aforesaid
request and (ii) the Company shall have failed to reimburse the
Underwriter Indemnified Party in accordance with such request for
reimbursement prior to the date of such
-11-
settlement. The Company shall not, without the prior written consent
of the Underwriter Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Underwriter
Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Underwriter Indemnified Party, unless
such settlement includes an unconditional release of such Underwriter
Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement, and any person controlling the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act (each a "Company Indemnified Party," collectively the "Company
Indemnified Parties" and together with the Underwriter Indemnified
Parties, an "Indemnified Party" or the "Indemnified Parties"), to the
same extent as the foregoing indemnity from the Company to each
Underwriter Indemnified Party but only with reference to information
relating to such Underwriter furnished in writing by or on behalf of such
Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus. In case any action shall
be brought against a Company Indemnified Party based on the Registration
Statement, the Prospectus or any preliminary prospectus and in respect of
which indemnity may be sought against any Underwriter, the Underwriter
shall have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), and the Company
Indemnified Party shall have the rights and duties given to the
Underwriter, by Section 7(c) hereof.
(e) If the indemnification provided for in this Section 7 is
unavailable to an Indemnified Party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Securities or (ii) if the allocation
provided by clause (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 (i) above but also the relative fault of the
Company and the Underwriters 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 Underwriters shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company, and the
total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7(e) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
-12-
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 reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter 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
Underwriters' obligations to contribute pursuant to this Section 7(e) are
several in proportion to the respective principal amount of Securities
purchased by each of the Underwriters hereunder and not joint.
(f) The Company hereby designates CT Corporation Systems, Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (a Delaware corporation) as its
authorized agent, upon which process may be served in any action, suit or
proceeding which may be instituted in any state or federal court in the
State of New York by any Underwriter or person controlling an Underwriter
asserting a claim for indemnification or contribution under or pursuant
to this Section 7, and the Company will accept the jurisdiction of such
court in such action, and waives, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or
venue. A copy of any such process shall be sent or given to the Company,
at the address for notices specified in Section 10 hereof.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the date hereof
and on the Closing Date with the same force and effect as if made on and
as of such dates.
(b) The Registration Statement shall have become effective not
later than 5:00 P.M., (and in the case of a Registration Statement filed
under 462(b) of the Act, not later than 10:00 P.M.) New York City time,
on the date of this Agreement or at such later date and time as you may
approve in writing, and at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be
pending before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have been
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in
the ordinary course of business, of the Company, (ii) since the date of
the latest balance sheet included in the Registration Statement and the
Prospectus there shall not have been any change, or any development
involving a prospective material adverse change, in the capital stock or
in the long-term debt of the Company from that set forth in the
Registration Statement and Prospectus, (iii) the Company and its
-13-
subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a whole,
other than those reflected in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by Xxxx X. XxXxxxxx and Xxxxxx
X. Xxxxx, in their respective capacities as Chief Financial Officer and
Treasurer of the Company, confirming the matters set forth in paragraphs
(a), (b), and (c) of this Section 8.
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date of Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P., counsel for the
Company, to the effect that:
(i) the Company 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 required to carry on its business as it is currently
being conducted and to own, lease and operate its properties;
(ii) the Securities have been duly authorized, and when
executed and authenticated in accordance with the provisions of
the Senior Indenture and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be entitled
to the benefits of the Senior Indenture and will be valid and
binding obligations of the Company enforceable in accordance with
their terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(iii) each of this Agreement and the Remarketing Agreement
has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company enforceable in
accordance with its terms (except as enforcement of rights to
indemnity and contribution may be limited under applicable laws or
principles of public policy and subject to the qualifications that
the enforceability of the Company's obligations may be limited by
bankruptcy, insolvency, reorganization, or other laws relating to
or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law));
(iv) the Senior Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended, and has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance
with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(v) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are, to the knowledge
of such counsel, pending before or contemplated by the Commission;
(vi) the statements under the captions "Description of
Notes" and "Description of Debt Securities" in the Prospectus and
Item 15 of Part II of the Registration Statement,
-14-
insofar as such statements constitute a summary of legal matters
or documents referred to therein, fairly present the information
called for with respect to such legal matters or documents;
(vii) the execution, delivery and performance of this
Agreement, the Remarketing Agreement, the Senior Indenture and the
Securities by the Company, compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except such as may be required under the Act or other securities
or Blue Sky laws) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company;
(viii) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended;
(ix) the Registration Statement, the Prospectus, any
supplement or amendment thereto and each document filed pursuant
to the Exchange Act and incorporated or deemed to be incorporated
by reference in the Prospectus (except for financial statements,
financial and statistical information contained therein as to
which no opinion need be expressed) comply as to form in all
material respects with the Act;
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxxxxx X. Xxxxxxxx, General Counsel to the Company, to the
effect that:
(i) each of the Company's Material 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 required to carry on its
business as it is currently being conducted and to own, lease and
operate its properties;
(ii) the Company and each of its Material Subsidiaries 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 Company and its
subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Company's
subsidiaries have been duly and validly authorized and issued and
are fully paid and non-assessable, and are owned by the Company,
free and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature (other than liens created under
the Credit Facility);
(iv) all of the outstanding shares of Common Stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any statutory preemptive
rights or, to the knowledge of such counsel, any other similar
rights;
-15-
(v) neither the Company nor any of its Material
Subsidiaries is in violation of its respective charter or by-laws
and, to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its Material Subsidiaries is in
default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the Company
and its subsidiaries, taken as a whole, to which the Company or
any of its Material Subsidiaries is a party or by which it or any
of its subsidiaries or their respective properties are bound;
(vi) the execution, delivery and performance of this
Agreement, the Remarketing Agreement the Senior Indenture and the
Securities by the Company, compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of any of the Company's
Material Subsidiaries or any agreement, indenture or other
instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its
Material Subsidiaries or their respective properties are bound, or
violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to the Company or any of its
subsidiaries or their respective properties;
(vii) to such counsel's knowledge there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of
their respective properties are subject which is required to be
described in the Registration Statement or the Prospectus and is
not so described, or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed as
required; such counsel does not have any reason to believe that
the description of litigation in the Prospectus is not accurate
and complete in all material respects;
(viii) to such counsel's knowledge, except as described in
the Prospectus, neither the Company nor any of its subsidiaries
has violated any Environmental Laws, nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder,
which in each case might result in any material adverse change in
the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole;
(ix) to such counsel's knowledge, the Company and each of
its subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its business in the manner
described in the Prospectus except where the failure to have such
permits would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; to such counsel's
knowledge, the Company and each of its subsidiaries has fulfilled
and performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or
lapse of time would allow,
-16-
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, subject
in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, such
permits contain no restrictions that are materially burdensome
to the Company or any of its subsidiaries;
(x) to such counsel's knowledge, no holder of any
security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as a
result of filing the Registration Statement, which have not been
waived;
(xi) such counsel believes that (except for financial
statements, financial and statistical information contained
therein, as aforesaid and except for that part of the Registration
Statement that constitutes the Form T-1) the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective (including the documents
incorporated by reference therein) did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus, as amended or
supplemented, if applicable (except for financial statements, and
financial and statistical information, as aforesaid) did not, as
of its date, and does not, as of the Closing Date, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(xii) all descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings in all material
respects are accurate and fairly present the information required
to be shown;
The opinion of Xxxxxxx, Xxxx, Xxxxxx, Xxxx & XxXxxx, L. L.P.
referred to in subsection (d) above shall contain a statement that such
counsel believes that (except for financial statements and financial and
statistical information contained therein, as aforesaid and except for
that part of the Registration Statement that constitutes the Form T-1),
the Registration Statement and the prospectus included therein at the
time the Registration Statement became effective (including the documents
incorporated by reference therein) did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that the Prospectus, as amended or supplemented, if applicable (except
for financial statements and financial and statistical information, as
aforesaid) did not, as of its date, and does not, as of the Closing Date,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In making such statement, Xxxxxxx, Xxxx, Xxxxxx, Xxxx & XxXxxx, L.L.P.
may state that its opinions and beliefs are based upon its participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
In giving the opinions described in clause (d) and (e) above, such
counsel may rely as to factual matters on information set forth in
certificates of the Company or public officials.
-17-
The opinions of Xxxxxxx, Xxxx, Xxxxxx, Hill & XxXxxx, L.L.P. and
Xxxxxxx X. Xxxxxxxx described in paragraphs (d) and (e) above shall be
rendered to you at the request of the Company and shall so state therein.
(f) You shall have received on the Closing Date an opinion,
dated the Closing Date, of XxXxxxxxx, Xxxx & Xxxxx, counsel for the
Underwriters, in form and substance satisfactory to you.
(g) You shall have received letters on and as of the Closing
Date, in form and substance satisfactory to you, from
PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public
accountants to the Company and Waste Management, respectively, with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus; the letters
to be delivered on the Closing Date being substantially in the form and
substance of the letters delivered to you by PricewaterhouseCoopers LLP
and Xxxxxx Xxxxxxxx LLP, respectively, on the date of this Agreement.
(h) The Company shall not 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 at
or prior to the Closing Date.
(i) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating or outlook accorded
any of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Act.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii) when
notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Company if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any adverse change or development involving a
prospective adverse change in the condition, financial or otherwise, of the
Company or any of its subsidiaries or the earnings, affairs, or business
prospects of the Company or any of its subsidiaries, whether or not arising in
the ordinary course of business, which would, in your judgment, make it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (ii) 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 your judgment, is material and adverse and would, in your judgment, make it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (iii) the suspension or material limitation of
trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market System or limitation on prices for
securities on any such exchange or National Market System, (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 or operations of the Company or any Subsidiary, (v) the
declaration of a banking moratorium by either federal or New York State
authorities,
-18-
(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 or
(vii) the suspension or material limitation of trading in the Company's
securities on the New York Stock Exchange or limitation on prices for the
Company's securities on such exchange.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters, as the case may be, agreed but
failed or refused to purchase is not more than one-tenth of the total principal
amount of the Securities to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the principal amount of Securities set forth opposite its name in Schedule I
bears to the total principal amount of Securities which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount of
Securities which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities, without the written consent
of such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate principal
amount of Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Securities to be purchased on
such date by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Securities are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter 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 Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to USA Waste
Services, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 and (b) if
to any Underwriter or to you, to you c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Bond 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,
warranties and other statements of the Company, its officers and directors and
of the several Underwriters 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 Securities, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
by or on behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Securities and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
-19-
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, any
controlling persons referred to herein 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
Securities from any of the several Underwriters 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.
[The next page is the signature page.]
-20-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
USA WASTE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
Vice President and Treasurer
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXX SECURITIES INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXX SECURITIES INC.
DEUTSCHE BANK SECURITIES
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------
-21-
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES
UNDERWRITERS TO BE PURCHASED
------------ -------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation $ 120,000,000
X.X. Xxxxxx Securities Inc. 120,000,000
BancAmerica Xxxxxxxxx Xxxxxxxx 120,000,000
Chase Securities Inc. 120,000,000
Deutsche Bank Securities. 120,000,000
-------------
TOTAL $ 600,000,000
-22-
ANNEX I
MATERIAL SUBSIDIARIES
STATE OF
NO. SUBSIDIARY INCORPORATION
1 Xxxxxxxx Development Company, Inc. Delaware
2 United Waste Systems, Inc. Delaware
3 Envirofil, Inc. Delaware
4 Sanifill, Inc. Delaware
5 Western Waste Services, Inc. California
6 Canadian Waste Services, Inc. Ontario, Canada
7 Quebec Waste Services, Inc. Quebec, Canada
-23-
