1
$500,000,000
USA WASTE SERVICES, INC.
4% CONVERTIBLE SUBORDINATED NOTES DUE 2002
UNDERWRITING AGREEMENT
February 3, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX,
XXXXXX & XXXXX INCORPORATED
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 $500,000,000 principal amount of its 4% Convertible
Subordinated Notes due 2002 (the "Firm Securities"), to the several
underwriters named in Schedule I hereto (the "Underwriters"). The Company also
proposes to issue and sell to the several Underwriters not more than
$35,275,000 additional principal amount of 4% Convertible Subordinated Notes
due 2002 (the "Additional Securities") if requested by the Underwriters as
provided in Section 2 hereof. The Firm Securities and the Additional
Securities are herein collectively called the Securities. The Securities are
to be issued pursuant to the provisions of an indenture (the "Indenture") to be
dated as of February 1, 1997 between the Company and Texas Commerce Bank,
National Association, as trustee (the "Trustee"). The terms of the Securities
are set forth in resolutions of the Pricing Committee of the Board of Directors
of the Company dated February 3, 1997 (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. 333-17453), including a prospectus relating to the
Securities, which may be amended. The registration statement as
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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 through not
specifically stated, any document filed under the 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 97.5% of the principal amount thereof (the "Purchase
Price") plus accrued interest thereon, if any, from February 7, 1997 to the
date of payment and delivery.
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 the Underwriters shall have the right to purchase, severally and
not jointly, up to an aggregate $45,000,000 principal amount of Additional
Securities from the Company at the Purchase Price. Additional Securities may
be purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Securities. The Underwriters may
exercise their right to purchase Additional Securities in whole or in part from
time to time by giving written notice thereof to the Company within 30 days
after the date of this Agreement. You shall give any such notice on behalf of
the Underwriters and such notice shall specify the aggregate number of
Additional Securities to be purchased pursuant to such exercise and the date
for payment and delivery thereof. The date specified in any such notice shall
be a business day (i) no earlier than the Closing Date (as hereinafter
defined), (ii) no later than ten business days after such notice has been given
and (iii) no earlier than two business days after such notice has been given.
If any Additional Securities are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Company the principal amount of
Additional Securities which bears the same proportion to the
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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total principal amount of Additional Securities to be purchased from the
Company as the principal amount of Firm Securities set forth opposite the name
of such Underwriter in Schedule I bears to the total principal amount of Firm
Securities.
Except pursuant to the concurrent offering of common stock of the
Company, the Company hereby agrees and the Company shall, concurrently with the
execution of this Agreement, deliver an agreement executed by each of the
directors and executive officers of the Company, pursuant to which each such
person agrees, not to offer, sell, contract to sell, grant any option to
purchase, or otherwise dispose of any Common Stock $.01 par value per share, of
the Company (the "Common Stock") or any securities convertible into or
exercisable or exchangeable for such Common Stock or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any such Common Stock, except to the Underwriters pursuant to this
Agreement, for a period of 90 days after the date of the Prospectus without the
prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
Notwithstanding the foregoing, (i) 250,000 shares of the shares of Common Stock
owned by Xxxxxx X. Xxxxxxxxx, Xx. and 500,000 shares of the shares of Common
Stock owned by Xxxx X. Xxxxxx, Xx. and Xxxxxxxxx Xxxxxx will not be subject to
the foregoing restriction and during such 90-day period (ii) the Company may
grant stock options pursuant to the Company's existing director and employee
benefit plans, (iii) the Company may issue shares of its Common Stock pursuant
to existing contractual obligations or upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and (iv)
the Company may issue shares of its Common Stock as consideration in the
acquisition of businesses or assets by the Company or its subsidiaries.
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 Firm 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 the initial public offering at such place as you shall
designate. The Closing Date and the location of delivery of and the form of
payment for the Firm Securities may be varied by agreement between you and the
Company.
Delivery to the Underwriters of and payment for any Additional
Securities to be purchased by the Underwriters shall be made at such place as
you shall designate at 10:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of
and the form of payment for such Additional 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 or an Option Closing Date, as the case may be.
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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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Date or an Option Closing Date, as the case may be. A global certificate for
the Securities in definitive form evidencing the Securities shall be delivered
to you on the Closing Date or the applicable Option Closing Date, as the case
may be, 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 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 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
462(b) Registration Statement, Term Sheet or amendment or supplement
to the Registration Statement or the Prospectus which may be
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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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 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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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, the Indenture, the Preliminary and Supplemental Blue
Sky Memoranda, (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 listing of the
Securities on the New York Stock Exchange, and (vi) furnishing such
copies of the Registration Statement, the Prospectus and all
amendments and supplements thereto as may be 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 Common Stock and the Securities 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 or any Option Closing Date, as
the case may be, 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 Shares 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 and any Option 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 and (ii) commercial
paper issued in the ordinary course of business), without your prior
written consent.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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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 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, and if later, the Option 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 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, if later, the Option 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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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 $70.0 million of revenues during fiscal 1996
or which, as of December 31, 1996, had assets in excess of $125.0
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 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; and the shares of Common Stock issuable upon conversion of the
Securities have been duly authorized and, when issued and delivered
upon conversion of the Securities in accordance with their terms, will
be validly issued, fully paid and non-assessable, and the issuance of
such shares of Common Stock will not be 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
Indenture and delivered to the Underwriters against payment therefor
as provided by 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 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.
(i) This 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 hereunder may be
limited by applicable laws or principles of public policy and subject
to the qualifications that the enforceability of the Company's
obligations hereunder may be limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting creditors'
rights generally and
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(j) The 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 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) The authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to the
description thereof included in the Prospectus.
(m) 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 property is bound.
(n) The execution, delivery and performance of this
Agreement, the 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 property is
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 property.
(o) 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 property is 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.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMEN -- CONVERTIBLE SUBORDINATED NOTES
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(p) 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 operation of the Company and its subsidiaries,
taken as a whole.
(q) 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.
(r) 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.
(s) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects, financial
condition or results of operation 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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them is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such subsidiary.
(t) The Company and each of its subsidiaries maintains
insurance as is customary in the industry.
(u) Coopers & Xxxxxxx LLP, Deloitte & Touche LLP, Xxxxxx
Xxxxxxxx LLP, Xxxxx & Xxxxx LLP, Deloitte & Touche Chartered
Accountants, Xxxxxx Xxxxx & Associates, Xxxxx, Xxxxxxx, Xxxxxxx &
Pool, Xxxxxx Xxxxxxx & Company and Xxxxxx, Xxxxxxx and Company are
independent public accountants with respect to the Company as required
by the Act.
(v) 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 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. 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.
(w) 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.
(x) 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.
(y) The Shares are duly authorized for listing on the New
York Stock Exchange, subject to official notice of issuance.
(z) The Company has filed a registration statement
pursuant to Section 12(b) of the Exchange Act, to register the
Securities and has filed an application to list the Securities and the
shares of common stock into which the Securities are convertible on
the New York Stock Exchange and has received notification that the
listings have been approved, subject to notice of issuance.
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UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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12
(aa) 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.
(bb) 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.
(cc) 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 best knowledge of the Company, 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 best knowledge of the Company, 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.
(dd) 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 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.
(ee) 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.
(ff) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Date, or if later, the Option 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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13
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.
(gg) 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 matter 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
Securities Exchange Act of 1934, as amended (the "Exchange Act"), 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 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 Underwriters 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, damages
or liability results from the fact that a copy of the Prospectus was
not sent or given by or on behalf of such Underwriter to the person
asserting any such loss, claim, damages or liability to the extent
that the Prospectus would have cured the defect giving rise to such
loss, claim, damages, 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 Securities Act and was not so
made.
(c) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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14
Statement or the Prospectus or any amendment or supplement thereto and
with respect to which indemnity may be sought against the Company,
such Underwriter shall promptly notify the Company in writing and the
Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment
of all fees and expenses. Any Underwriter or any such controlling
person 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
or such controlling person 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 or
(iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and
the Company and such Underwriter or such controlling person 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 or such controlling person, 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 Underwriters and controlling persons, 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 and any such
controlling person 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 indemnified party shall have requested
the Company to reimburse the 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
indemnified party in accordance with such request for reimbursement
prior to the date of such settlement. The Company shall not, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such 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, any person controlling
the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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15
Statement, the Prospectus or any preliminary prospectus. In case any
action shall be brought against the Company, any of its directors, any
such officer or any person controlling the Company 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, its directors, any such officers
and any person controlling the Company 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 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
- 15 -
16
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 number 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 Closing
Date and the Option Closing Date with the same force and effect as if
made on and as of the Closing Date or the Option Closing Date, as the
case may be.
(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
and the Option Closing Date, as the case be, 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 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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17
reflected in the Registration Statement and the Prospectus and (iv) on
the Closing Date and the Option Closing Date you shall have received a
certificate dated the Closing Date, and the Option Closing Date, as
the case may be, signed by Xxxx X. Xxxxx and Xxxx X. XxXxxxxx, in
their capacities as the Chief Executive Officer and Chief Financial
Officer 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 and the
Option Closing Date an opinion (satisfactory to you and counsel for
the Underwriters), dated the Closing Date or the Option Closing, as
applicable, of Xxxxxx & 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 Indenture and delivered to the Underwriters
against payment therefor as provided by 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 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; the
shares of Common Stock into which the Securities are
convertible have been duly authorized, and when issued upon
conversion of the Securities will be validly issued, fully
paid and non-assessable and not subject to any statutory
preemptive rights or, to the knowledge of such counsel, any
other similar rights;
(iii) this 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 thereunder may be limited under applicable
laws or principles of public policy and subject to the
qualifications that the enforceability of the Company's
obligations thereunder 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 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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18
of acceleration and the availability of equitable remedies
may be limited by equitable principles of general
applicability;
(v) the authorized capital stock of the Company,
including the Common Stock, conforms in all material respects
as to legal matters to the description thereof contained in
the Prospectus;
(vi) 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;
(vii) the statements under the captions
"Description of Notes", "Certain United States Tax
Considerations", "Description of Debt Securities" and
"Description of Capital Stock" in the Prospectus and Item 15
of Part II of the Registration Statement 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;
(viii) the execution, delivery and performance of
this Agreement, the 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;
(ix) 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;
(x) 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 and the
Option Closing Date an opinion (satisfactory to you and counsel for
the Underwriters), dated the Closing Date, of Xxxxx & Xxxxx L.L.P.,
counsel for 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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19
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 the outstanding shares of Common Stock
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;
(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 property is bound;
(vi) the execution, delivery and performance of
this Agreement, the 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 property is 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
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMEN -- CONVERTIBLE SUBORDINATED NOTES
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20
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 operation 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, 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 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) does not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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21
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 Xxxxxx & Xxxxxx L.L.P. referred to in
subsection (d) above shall contain a statement that 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 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) does not 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.
Xxxxxx & Xxxxxx L.L.P. and Xxxxx & Xxxxx L.L.P., in giving their
opinions with respect to the matters covered by clauses (d)(ix) and
(e)(xi) may state that their opinions and beliefs are based upon their
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.
The opinion of Xxxxxx & Xxxxxx L.L.P. and Xxxxx & Xxxxx L.L.P.
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 and the
Option Closing Date an opinion, dated the Closing Date or the Option
Closing Date, as the case may be, of XxXxxxxxx, Xxxx & Xxxxx, counsel
for the Underwriters, in form and substance satisfactory to you.
(g) You shall have received a letter on and as of the
Closing Date and the Option Closing Date, in form and substance
satisfactory to you, (i) from Coopers & Xxxxxxx LLP, independent
public accountants, with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus and substantially in the form and substance of the
letter delivered to you by Xxxxxxx & Xxxxxxx LLP on the date of this
Agreement, (ii) from Deloitte & Touche L.L.P., Xxxxxx Xxxxxxxx L.L.P.,
Xxxxx & Young LLP, Deloitte & Touche Chartered Accountants, Xxxxxx
Xxxxx & Associates, Xxxxx, Xxxxxxx, Xxxxxxx & Pool, Xxxxxx Xxxxxxx &
Company and Xxxxxx, Xxxxxxx and Company, independent public
accountants, each with respect to the financial statements and certain
financial
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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22
information contained in the Registration Statement and the Prospectus
and in each case substantially in the form and substance of the letter
delivered to you by such firm 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 or the Option Closing Date as the case
may be.
(i) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date or any Option 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 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 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 or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional Securities, as the case may be, which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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23
of Firm Securities or Additional Securities, as the case may be, 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 Firm Securities set forth opposite its name in
Schedule I bears to the total principal amount of Firm 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 Firm Securities or
Additional Securities, as the case may be, 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 Firm
Securities or Additional Securities, as the case may be, 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
Firm Securities or Additional Securities, as the case may be, without the
written consent of such Underwriter. If on the Closing Date or on an Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Securities, or Additional Securities, as the case may
be, and the aggregate principal amount of Firm Securities or Additional
Securities, as the case may be, 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 or the applicable Option Closing
Date, as the case may be, 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:
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,
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
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24
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.
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.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
- 24 -
25
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/ XXXX X. XxXXXXXX
-----------------------------------
Title: Executive Vice President
and CFO
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX,
XXXXXX & XXXXX INCORPORATED
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXXX X. XXXXXX
-----------------------------------
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
- 25 -
26
SCHEDULE I
Principal Amount of Firm
Securities
to Be Purchased
----------------------------
Underwriters
------------ --
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation . . . . . . . . . . . . . . . $ 125,000,000
Deutsche Xxxxxx Xxxxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 125,000,000
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated . . . . . . . . . . . . . . . 125,000,000
-------------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 500,000,000
=============
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
SCHEDULE I-1
27
ANNEX I
MATERIAL SUBSIDIARIES
STATE OF
SUBSIDIARY INCORPORATION
Xxxxxxxx Development Company, Inc. Delaware
Empire Sanitary Landfill, Inc. Pennsylvania
Envirofil, Inc. Delaware
Sanifill, Inc. Delaware
Western Waste Industries California
Canadian Waste Services, Inc. Ontario, Canada
Quebec Waste Services, Inc. Quebec, Canada
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES
ANNEX I-1
