WASTE SERVICES, INC. 91/2% Senior Subordinated Notes due 2014 PURCHASE AGREEMENT
Exhibit 20.1
$50,000,000
91/2% Senior Subordinated Notes due 2014
September 16, 2009
Barclays Capital Inc.,
as representative of the
Initial Purchasers (as defined below),
Initial Purchasers (as defined below),
c/o Barclays Capital Inc.
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Ladies and Gentlemen:
Waste Services, Inc., a Delaware corporation (the “Company”), proposes, upon the terms and
conditions set forth in this agreement (this “Agreement”), to issue and sell to you, as
representative of the initial purchasers (the “Initial Purchasers”), $50,000,000 in aggregate
principal amount of its 91/2% Senior Subordinated Notes due 2014 (the “Notes”). The Notes will
(i) have terms and provisions that are summarized in the Offering Memorandum (as defined below),
and (ii) are to be issued pursuant to the Indenture, dated as of April 30, 2004 (as supplemented
through the date hereof, the “Indenture”), among the Company, the Guarantors (as defined below) and
▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”). The Company’s obligations
under the Notes, including the due and punctual payment of interest on the Notes, will be
irrevocably and unconditionally guaranteed (the “Guarantees”) by the guarantors listed in Schedule
II hereto (together the “Guarantors”). As used herein, the term “Notes” shall include the
Guarantees, unless the context otherwise requires. This Agreement is to confirm the agreement
concerning the purchase of the Notes from the Company by the Initial Purchaser.
1. Purchase and Resale of the Notes. The Notes will be offered and sold to the Initial
Purchasers without registration under the Securities Act of 1933, as amended (the “Securities
Act”), in reliance on an exemption pursuant to Section 4(2) under the Securities Act. The Company
and the Guarantors have prepared a preliminary offering memorandum, dated September 16, 2009 (the
“Preliminary Offering Memorandum”), a pricing term sheet substantially in the form attached hereto
as Schedule III (the “Pricing Term Sheet”) setting forth the terms of the Notes omitted from the
Preliminary Offering Memorandum and certain other information and an offering memorandum, dated
September 16, 2009 (the “Offering Memorandum”), setting forth information regarding the Company,
the Guarantors, the Notes, the Exchange Notes (as defined herein), the Guarantees and the Exchange
Guarantees (as defined herein). The Preliminary Offering Memorandum, as supplemented and amended
as of the Applicable Time (as defined below), together with the Pricing Term Sheet and any of the
documents listed on Schedule IV(A) hereto are collectively referred to as the “Pricing
Disclosure Package”. The Company and the Guarantors hereby confirm that they have
authorized the
use of the Pricing Disclosure Package and the Offering Memorandum in connection with the offering
and resale of the Notes by the Initial Purchasers. “Applicable Time” means 12:00 p.m. (New York
City time) on the date of this Agreement.
Any reference to the Preliminary Offering Memorandum, the Pricing Disclosure Package or the
Offering Memorandum shall be deemed to refer to and include the Company’s most recent Annual Report
on Form 10-K and all subsequent documents filed with the United States Securities and Exchange
Commission (the “Commission”) pursuant to Section 13(a), 13(c) or 15(d) of the United States
Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or prior to the date of the
Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, as the
case may be. Any reference to the Preliminary Offering Memorandum, Pricing Disclosure Package or
the Offering Memorandum, as the case may be, as amended or supplemented, as of any specified date,
shall also be deemed to include any documents filed with the Commission pursuant to Section 13(a),
13(c) or 15(d) of the Exchange Act after the date of the Preliminary Offering Memorandum, Pricing
Disclosure Package or the Offering Memorandum, as the case may be, and prior to such specified
date. All documents filed under the Exchange Act and so deemed to be included in the Preliminary
Offering Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the case may be, or
any amendment or supplement thereto are hereinafter called the “Exchange Act Reports”.
You have advised the Company that you will offer and resell (the “Exempt Resales”) the Notes
purchased by you hereunder on the terms set forth in each of the Pricing Disclosure Package and the
Offering Memorandum, as amended or supplemented, solely to (i) persons whom you reasonably believe
to be “qualified institutional buyers” as defined in Rule 144A under the Securities Act (“QIBs”),
and (ii) outside the United States to certain persons who are not U.S. Persons (as defined in
Regulation S under the Securities Act (“Regulation S”)) (such persons, “Non-U.S. Persons”) in
offshore transactions in reliance on Regulation S. As used herein, the terms “offshore
transaction” and “United States” have the meanings assigned to them in Regulation S. Those persons
specified in clauses (i) and (ii) are referred to herein as “Eligible Purchasers”.
Holders (including subsequent transferees) of the Notes will have the registration rights set
forth in the registration rights agreement attached hereto as Exhibit A (the “Registration Rights
Agreement”) among the Company, the Guarantors and Barclays Capital Inc., as representative of the
Initial Purchasers, to be dated the Closing Date (as defined herein), for so long as such Notes
constitute “Transfer Restricted Securities” (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company and the Guarantors will agree to file
with the Commission a registration statement under the Securities Act relating to the Company’s 9
1/2% Senior Subordinated Notes (the “Exchange Notes”) and the Guarantors’ Exchange Guarantees (the
“Exchange Guarantees”) to be offered in exchange for the Notes and the Guarantees. Such portion of
the offering is referred to as the “Exchange Offer”.
2. Representations, Warranties and Agreements of the Company and the Guarantors. The Company
and each of the Guarantors, jointly and severally, represent, warrant and agree as follows:
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(a) When the Notes and Guarantees are issued and delivered pursuant to this Agreement, such
Notes and Guarantees will not be of the same class (within the meaning of Rule 144A under the
Securities Act) as securities of the Company or the Guarantors that are listed on a national
securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United
States automated inter-dealer quotation system.
(b) Assuming the accuracy of your representations and warranties in Section 3(b) of this
Agreement, the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt
Resales) are exempt from the registration requirements of the Securities Act.
(c) No form of general solicitation or general advertising within the meaning of Regulation D
(including, but not limited to, advertisements, articles, notices or other communications published
in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar
or meeting whose attendees have been invited by any general solicitation or general advertising)
was used by the Company, the Guarantors, any of their respective affiliates or any of their
respective representatives (other than you, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Notes.
(d) No directed selling efforts within the meaning of Rule 902 under the Securities Act were
used by the Company, the Guarantors or any of their respective representatives (other than you, as
to whom the Company and the Guarantors make no representation) with respect to Notes sold outside
the United States to Non-U.S. Persons, and the Company, any affiliate of the Company and any person
acting on its or their behalf (other than you, as to whom the Company and the Guarantors make no
representation) has complied with and will implement the “offering restrictions” required by
Rule 902 under the Securities Act.
(e) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the
Offering Memorandum, each as of its respective date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
(f) Neither the Company, any Guarantor nor any other person acting on behalf of the Company or
any Guarantor has sold or issued any securities that would be integrated with the offering of the
Notes contemplated by this Agreement pursuant to the Securities Act, the rules and regulations
thereunder or the interpretations thereof by the Commission. The Company and the Guarantors will
take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes
or any substantially similar security issued by the Company or any Guarantor, within six months
subsequent to the date on which the distribution of the Notes has been completed (as notified to
the Company by the Initial Purchasers), is made under restrictions and other circumstances
reasonably designed not to affect
the status of the offer and sale of the Notes in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the registration provisions of the
Securities Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act.
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(g) The Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering
Memorandum have been prepared by the Company and the Guarantors for use by the Initial Purchasers
in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary
Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act has been issued, and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Company or any of the Guarantors is
contemplated.
(h) The Offering Memorandum will not, as of its date or as of the Closing Date, contain an
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;
provided that no representation or warranty is made as to information contained in or omitted from
the Offering Memorandum in reliance upon and in conformity with written information furnished to
the Company through the Initial Purchasers specifically for inclusion therein, which information is
specified in Section 8(e).
(i) The Pricing Disclosure Package did not, as of the Applicable Time, contain an 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;
provided that no representation or warranty is made as to information contained in or omitted from
the Pricing Disclosure Package in reliance upon and in conformity with written information
furnished to the Company through the Initial Purchasers specifically for inclusion therein, which
information is specified in Section 8(e).
(j) The Company has not made any offer to sell or solicitation of an offer to buy the Notes
that would constitute a “free writing prospectus” (if the offering of the Notes was made pursuant
to a registered offering under the Securities Act), as defined in Rule 405 under the Securities Act
(a “Free Writing Offering Document”) without the prior consent of the Initial Purchasers; any such
Free Writing Offering Document the use of which has been previously consented to by the Initial
Purchasers is listed on Schedule IV.
(k) The Pricing Disclosure Package, when taken together with each Free Writing Offering
Document listed in Schedule IV(B) hereto, did not, as of the Applicable Time, contain an 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; provided
that no representation or warranty is made as to information contained in or omitted from the
Pricing Disclosure Package (or Free Writing Offering Document listed in Schedule IV(B) hereto) in
reliance upon and in conformity with written information furnished to the Company through the
Initial Purchasers specifically for inclusion therein, which information is specified in
Section 8(e).
(l) The Exchange Act Reports, when they were or are filed with the Commission, conformed or
will conform in all material respects to the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder. The Exchange Act Reports did not
and will not, when filed with the Commission, contain an untrue statement of material fact or omit
to state a material fact necessary in order to make the
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statements therein, in the light of the
circumstances under which they were made, not misleading.
(m) Each of the Company, the Guarantors and their respective subsidiaries has been duly
organized, is validly existing and in good standing as a corporation or other business entity under
the laws of its jurisdiction of organization and is duly qualified to do business and in good
standing as a foreign corporation or other business entity in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified or in good standing could not, in
the aggregate, reasonably be expected to have a material adverse effect on the condition (financial
or otherwise), results of operations, stockholders’ equity, properties or business of the Company
and its subsidiaries taken as a whole (a “Material Adverse Effect”). Each of the Company, the
Guarantors and their respective subsidiaries has all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which it is engaged. The Company does
not own or control, directly or indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the most
recent fiscal year. None of the subsidiaries of the Company (other than Omni Waste of Osceola
County LLC, SLD Landfill, Inc., Sun Country Materials, LLC, Waste Services (CA) Inc. and Waste
Services of Florida, Inc.; collectively, the “Significant Subsidiaries”)) is a “significant
subsidiary” (as defined in Rule 405 under the Securities Act).
(n) The Company has an authorized capitalization as set forth under “Capitalization” in each
of the Pricing Disclosure Package and the Offering Memorandum, and all of the issued shares of
capital stock of the Company have been duly authorized and validly issued and are fully paid and
non-assessable. All of the issued shares of capital stock of each subsidiary of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and except as described
in each of the Pricing Disclosure Package and the Offering Memorandum are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except
for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(o) The Company and each Guarantor has all requisite corporate, partnership or limited
liability company power and authority, as applicable, to perform its obligations under the
Indenture. The Indenture has been duly and validly authorized, executed and delivered by the
Company and the Guarantors, and constitutes the valid and binding agreement of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, except
as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and
by general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law). No qualification of the Indenture under the Trust Indenture Act
of 1939 (the “Trust Indenture Act”) is required in connection with the offer and sale of the Notes
contemplated hereby or in connection with the
Exempt Resales. The Indenture conforms in all material respects to the description thereof in
each of the Pricing Disclosure Package and the Offering Memorandum.
(p) The Company has all requisite corporate power and authority to execute, issue, sell and
perform its obligations under the Notes. The Notes have been duly authorized by
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the Company and,
when duly executed by the Company in accordance with the terms of the Indenture, assuming due
authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment
therefor in accordance with the terms hereof, will be validly issued and delivered and will
constitute valid and binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except as such enforceability may
be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other
laws relating to or affecting creditors’ rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in equity or at law). The
Notes, when issued, will conform in all material respects to the description thereof in each of the
Pricing Disclosure Package and the Offering Memorandum.
(q) The Company has all requisite corporate power and authority to execute, issue and perform
its obligations under the Exchange Notes. The Exchange Notes have been duly and validly authorized
by the Company and if and when issued and authenticated in accordance with the terms of the
Indenture and delivered in accordance with the Exchange Offer provided for in the Registration
Rights Agreement, will be validly issued and delivered and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or
affecting creditors’ rights generally and by general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(r) Each Guarantor has all requisite corporate, partnership or limited liability company power
and authority, as applicable, to execute, issue and perform its obligations under the Guarantees.
The Guarantees have been duly and validly authorized by the Guarantors and upon the due execution,
authentication and delivery of the Notes in accordance with the Indenture and the issuance of the
Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute valid
and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with
their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights
generally and by general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Guarantees will conform in all material
respects to the description thereof in each of the Pricing Disclosure Package and the Offering
Memorandum.
(s) Each Guarantor has all requisite corporate, partnership or limited liability company power
and authority, as applicable, to execute, issue and perform its obligations under the Exchange
Guarantees. The Exchange Guarantees have been duly and validly authorized by the Guarantors and if
and when executed and delivered by the Guarantors in accordance with the terms of the Indenture and
upon the due execution and authentication of the Exchange Notes in accordance with the Indenture
and the issuance and delivery of the Exchange Notes in the
Exchange Offer contemplated by the Registration Rights Agreement, will be validly issued and
delivered and will constitute valid and binding obligations of the Guarantors entitled to the
benefits of the Indenture, enforceable against the Guarantors in accordance with their terms,
except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and
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by general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(t) The Company and each Guarantor has all requisite corporate, partnership or limited
liability company power and authority, as applicable, to execute, deliver and perform its
obligations under the Registration Rights Agreement. The Registration Rights Agreement has been
duly authorized by the Company and each Guarantor and, when executed and delivered by the Company
and each Guarantor in accordance with the terms hereof and thereof, will be validly executed and
delivered and (assuming the due authorization, execution and delivery thereof by you) will be the
legally valid and binding obligation of the Company and each Guarantor in accordance with the terms
thereof, enforceable against the Company and each Guarantor in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditor’s rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in equity or at law) and,
as to rights of indemnification and contribution, by principles of public policy. The Registration
Rights Agreement will conform in all material respects to the description thereof in each of the
Pricing Disclosure Package and the Offering Memorandum.
(u) The Company and each Guarantor has all requisite corporate, partnership or limited
liability company power and authority, as applicable, to execute, deliver and perform its
obligations under this Agreement. This Agreement has been duly and validly authorized, executed
and delivered by the Company and each of the Guarantors.
(v) The issue and sale of the Notes and the Guarantees, the execution, delivery and
performance by the Company and the Guarantors of the Notes, the Guarantees, the Exchange Notes, the
Exchange Guarantees, the Registration Rights Agreement and this Agreement, the performance by the
Company and the Guarantors of the Indenture, the application of the proceeds from the sale of the
Notes as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the
Offering Memorandum and the consummation of the transactions contemplated hereby and thereby, will
not (i) conflict with or result in a breach or violation of any of the terms or provisions of,
impose any lien, charge or encumbrance upon any property or assets of the Company, the Guarantors
or their respective subsidiaries, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, license, lease or other agreement or instrument to which the Company, the
Guarantors or any of their respective subsidiaries is a party or by which the Company, the
Guarantors or any of their respective Significant Subsidiaries is bound or to which any of the
property or assets of the Company, the Guarantors or any of their respective subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar
organizational documents) of the Company, the Guarantors or any of their respective subsidiaries,
or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company, the Guarantors or
any of their respective subsidiaries or any of their
properties or assets, except, with respect to clauses (i) and (iii), conflicts or violations
that would not reasonably be expected to have a Material Adverse Effect.
(w) No consent, approval, authorization or order of, or filing, registration or qualification
with any court or governmental agency or body having jurisdiction over the
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Company, the Guarantors
or any of their respective subsidiaries or any of their properties or assets is required for the
issue and sale of the Notes and the Guarantees, the execution, delivery and performance by the
Company and the Guarantors of the Notes, the Guarantees, the Exchange Notes, the Exchange
Guarantees, the Registration Rights Agreement and this Agreement, the performance by the Company
and the Guarantors of the Indenture, the application of the proceeds from the sale of the Notes as
described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Offering
Memorandum and the consummation of the transactions contemplated hereby and thereby, except for the
filing of a registration statement by the Company with the Commission pursuant to the Securities
Act as required by the Registration Rights Agreement and such consents, approvals, authorizations,
orders, filings, registrations or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Notes by the Initial Purchasers,
each of which has been obtained and is in full force and effect.
(x) The historical financial statements (including the related notes and supporting schedules)
included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum
present fairly in all material respects the financial condition, results of operations and cash
flows of the entities purported to be shown thereby, at the dates and for the periods indicated,
and have been prepared in conformity with accounting principles generally accepted in the United
States applied on a consistent basis throughout the periods involved.
(y) The pro forma financial statements incorporated by reference in the Pricing Disclosure
Package and the Offering Memorandum include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the transactions and events described
therein, the related pro forma adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements included in the Pricing
Disclosure Package. The pro forma financial statements incorporated by reference in the Pricing
Disclosure Package have been prepared in accordance with the Commission’s rules and guidance with
respect to pro forma financial information. The pro forma financial statements incorporated by
reference in the Pricing Disclosure Package and the Offering Memorandum have been prepared on the
basis consistent with such historical financial statements, except for the pro forma adjustments
specified therein, include all material adjustments to the historical financial data required by
Rule 11-02 of Regulation S X to reflect the transactions described in the Company’s Current Report
on Form 8-K filed on July 13, 2009, and give effect to assumptions made on a reasonable basis and
in good faith present fairly in all material respects the transaction described in the Company’s
Current Report on Form 8-K filed on July 13, 2009.
(z) BDO ▇▇▇▇▇▇▇, LLP, who have certified certain financial statements of the Company, whose
report appears in the Pricing Disclosure Package and the Offering Memorandum or is incorporated by
reference therein and who have delivered the initial letter
referred to in Section 8(e) hereof, are independent registered public accountants as required
by the Securities Act and the rules and regulations thereunder.
(aa) The Company and each of its subsidiaries maintain a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act)
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that complies
with the requirements of the Exchange Act and that has been designed by, or under the supervision
of, the Company’s principal executive and principal financial officers, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles in the
United States. The Company and each of its subsidiaries maintains internal accounting controls
sufficient to provide reasonable assurances regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted
accounting principles in the United States, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization, (ii) transactions are recorded as
necessary to permit preparation of the Company’s financial statements in conformity with accounting
principles generally accepted in the United States and to maintain accountability for its assets,
(iii) access to the Company’s assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for the Company’s assets is compared
with existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. As of the date of the most recent balance sheet of the Company and its consolidated
subsidiaries reviewed or audited by BDO ▇▇▇▇▇▇▇, LLP and the audit committee of the board of
directors of the Company, there were no material weaknesses in the Company’s internal controls.
(bb) (i) The Company and each of its subsidiaries maintain disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls
and procedures are designed to ensure that the information required to be disclosed by the Company
and its subsidiaries in the reports they file or submit under the Exchange Act is accumulated and
communicated to management of the Company and its subsidiaries, including their respective
principal executive officers and principal financial officers, as appropriate, to allow timely
decisions regarding required disclosure to be made; and (iii) such disclosure controls and
procedures are effective in all material respects to perform the functions for which they were
established.
(cc) Since the date of the most recent balance sheet of the Company and its consolidated
subsidiaries reviewed or audited by BDO ▇▇▇▇▇▇▇, LLP and the audit committee of the board of
directors of the Company, (i) the Company has not been advised of or become aware of (A) any
significant deficiencies in the design or operation of internal controls, that could adversely
affect the ability of the Company or any of its subsidiaries to record, process, summarize and
report financial data, or any material weaknesses in internal controls, and (B) any fraud, whether
or not material, that involves management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries; and (ii) there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies and
material weaknesses.
(dd) The section entitled “Management’s Discussion and Analysis of Financial Condition and
Results of Operations – Critical Accounting Policies” set forth or incorporated by reference in the
Preliminary Offering Memorandum contained in the Pricing Disclosure Package and the Offering
Memorandum accurately and fully describes (i) the accounting policies that the Company believes are
the most important in the portrayal of the Company’s financial condition
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and results of operations
and that require management’s most difficult, subjective or complex judgments; (ii) the judgments
and uncertainties affecting the application of critical accounting policies; and (iii) the
likelihood that materially different amounts would be reported under different conditions or using
different assumptions and an explanation thereof.
(ee) There is and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith.
(ff) Since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Disclosure Package and the Offering Memorandum and except as disclosed in
the Pricing Disclosure Package and the Offering Memorandum, (A) neither the Company, the Guarantors
nor any of their respective subsidiaries has (i) sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor disturbance or dispute or court or governmental action, order or decree except as
could not reasonably be expected to have a Material Adverse Effect, (ii) issued or granted any
securities, (iii) incurred any material liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary course of business, (iv) entered
into any material transaction not in the ordinary course of business, (v) declared or paid any
dividend on its capital stock and (B) there has not been any change in the capital stock,
partnership or limited liability interests, as applicable, or long-term debt of the Company, the
Guarantors or any of their respective subsidiaries or any adverse change, or any development
involving a prospective adverse change, in or affecting the condition (financial or otherwise),
results of operations, stockholders’ equity, properties, management, business or prospects of the
Company and its subsidiaries, taken as a whole, in each case except as could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(gg) The Company, the Guarantors and each of their respective subsidiaries has good and
marketable title in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances and defects, except
such liens, encumbrances and defects as are described in the Pricing Disclosure Package and the
Offering Memorandum and except as could not reasonably be expected to have a Material Adverse
Effect. All assets held under lease by the Company, the Guarantors or any of their respective
subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions
as could not reasonably be expected to have a Material Adverse Effect.
(hh) The Company and each of its subsidiaries have such permits, licenses, patents,
franchises, certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“Permits”) as are necessary under applicable law to own their properties
and conduct their businesses in the manner described in the Pricing Disclosure Package and the
Offering Memorandum, except for any of the foregoing that could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Company and each of its
subsidiaries have fulfilled and performed all of its obligations with respect to the Permits,
and no event has occurred that allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the rights of the holder or any such
Permits, except for any of the foregoing that could not reasonably be expected to have a Material
Adverse Effect. Neither the Company, nor any of its subsidiaries has received notice of any
10
revocation or modification of any such Permits or has any reason to believe that any such Permits
will not be renewed in the ordinary course except as could not reasonably be expected to have a
Material Adverse Effect.
(ii) The Company and each of its subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses, know-how, software, systems and
technology (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their respective businesses will
conflict with, and have not received any notice of any claim of conflict with, any such rights of
others if such conflict or claim of conflict would reasonably be likely to have a Material Adverse
Effect if determined adversely.
(jj) Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property or assets of the Company or any of its subsidiaries is the subject
that could, in the aggregate, reasonably be expected to have a Material Adverse Effect or could, in
the aggregate, reasonably be expected to have a material adverse effect on the performance by the
Company and the Guarantors of the performance of this Agreement, the Indenture or the Notes or the
consummation of any of the transactions contemplated hereby. To the Company’s and each Guarantors’
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
others.
(kk) There are no contracts or other documents that would be required to be described in a
registration statement filed under the Securities Act or filed as exhibits to a registration
statement of the Company pursuant to Item 601(10) of Regulation S-K that have not been described in
the Pricing Disclosure Package and the Offering Memorandum. The statements made in the Pricing
Disclosure Package and the Offering Memorandum, insofar as they purport to constitute summaries of
the terms of the contracts and other documents that are so described, constitute accurate summaries
of the terms of such contracts and documents in all material respects. Neither the Company, the
Guarantors nor any of their respective subsidiaries has knowledge that any other party to any such
contract or other document has any intention not to render full performance as contemplated by the
terms thereof.
(ll) The statements made in “Item 1. Business–Government Regulation” of the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2008, incorporated by reference in each
of the Pricing Disclosure Package and the Offering Memorandum, insofar as they purport to
constitute summaries of the terms of statutes, rules or regulations, legal or governmental
proceedings or contracts and other documents, constitute accurate summaries of the terms of such
statutes, rules and regulations, legal and governmental proceedings and contracts and other
documents in all material respects.
(mm) The Company, the Guarantors and each of their respective subsidiaries carry, or are
covered by, insurance from insurers of recognized financial responsibility in such amounts and
covering such risks which the Company believes are adequate for the conduct of their respective
businesses and the value of their respective properties. All policies of insurance
11
of the Company,
the Guarantors and their respective subsidiaries are in full force and effect; the Company, the
Guarantors and each of their respective subsidiaries are in compliance with the terms of such
policies in all material respects; and neither the Company, the Guarantors nor any of their
respective Significant Subsidiaries has received notice from any insurer or agent of such insurer
that material capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance. There are no material claims by the Company, the Guarantors or
any of their respective subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause; and neither the
Company, the Guarantors nor any such subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that could
not reasonably be expected to have a Material Adverse Effect.
(nn) No relationship, direct or indirect, that would be required to be described in a
registration statement of the Company pursuant to Item 404 of Regulation S-K, exists between or
among the Company or any Guarantor and their respective subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any Guarantor and their
respective subsidiaries, on the other hand, that has not been described in the Pricing Disclosure
Package and the Offering Memorandum.
(oo) No labor disturbance by or dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company or any Guarantor, is imminent that could
reasonably be expected to have a Material Adverse Effect.
(pp) Neither the Company nor any of its Significant Subsidiaries is in violation of its
charter or by-laws (or similar organizational documents), and neither the Company nor any of its
subsidiaries (i) is in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of any term, covenant,
condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement,
license or other agreement or instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject, or (ii) is in violation of any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over it or its
property or assets or has failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property or to the conduct
of its business, except in the case of clauses (i) and (ii), to the extent any such conflict,
breach, violation or default could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(qq) The Company and each of its subsidiaries (i) are, and at all times prior hereto were, in
compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or
other legal requirements of any governmental authority, including without limitation any
international, foreign, national, state, provincial, regional, or local authority,
relating to pollution, the protection of human health or safety, the environment, or natural
resources, or to use, handling, storage, manufacturing, transportation, treatment, discharge,
disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”) applicable to such entity, which compliance includes, without
12
limitation,
obtaining, maintaining and complying with all permits and authorizations and approvals required by
Environmental Laws to conduct their respective businesses, and (ii) have not received notice or
otherwise have knowledge of any actual or alleged violation of Environmental Laws, or of any actual
or potential liability for or other obligation concerning the presence, disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except in the case of clause
(i) or (ii) where such non-compliance, violation, liability, or other obligation could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except as described in the
Pricing Disclosure Package and the Offering Memorandum, (x) there are no proceedings that are
pending, or known to be contemplated, against the Company or any of its subsidiaries under
Environmental Laws in which a governmental authority is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed, (y) the Company, the Guarantors and their respective subsidiaries are not aware of any
issues regarding compliance with Environmental Laws, including any pending or proposed
Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be
expected to have a material effect on the capital expenditures, earnings or competitive position of
the Company and its subsidiaries, and (z) none of the Company, the Guarantors and their respective
subsidiaries anticipates material capital expenditures relating to Environmental Laws.
(rr) The Company, the Guarantors and each of their respective subsidiaries have filed all
federal, state, local and foreign tax returns required to be filed through the date hereof, subject
to permitted extensions, and have paid all taxes due, and no tax deficiency has been determined
adversely to the Company, the Guarantors or any of their respective subsidiaries, nor does the
Company or any Guarantor have any knowledge of any tax deficiencies that have been, or could
reasonably be expected to be asserted against the Company, the Guarantors and each of their
respective subsidiaries, that could, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(ss) Except as could not reasonably be expected to have a Material Adverse Effect, (i) each
“employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act
of 1974, as amended (“ERISA”)) for which the Company or any member of its “Controlled Group”
(defined as any organization which is a member of a controlled group of corporations within the
meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have
any liability (each a “Plan”) has been maintained in compliance with its terms and with the
requirements of all applicable statutes, rules and regulations including ERISA and the Code;
(ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory
or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur, (B) no “accumulated funding deficiency” (within the meaning of Section 302 of
ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to
occur, (C) the fair
market value of the assets under each Plan exceeds the present value of all benefits accrued
under such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the
Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or
13
premiums to the PBGC in
the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”,
within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(tt) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in the Pricing Disclosure Package and the Offering
Memorandum.
(uu) The statistical and market-related data included in the Pricing Disclosure Package and
the Offering Memorandum are based on or derived from sources that the Company believes to be
reliable in all material respects.
(vv) Neither the Company, the Guarantors nor any of their respective subsidiaries is, and
after giving effect to the offer and sale of the Notes and the application of the proceeds
therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the
Offering Memorandum will be, an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(ww) Immediately after the consummation of the placement of Notes, the Company will be
Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date,
that on such date (i) the present fair market value (or present fair saleable value) of the assets
of the Company are not less than the total amount required to pay the probable liabilities of the
Issuers on their total existing debts and liabilities (including contingent liabilities) as they
become absolute and matured, (ii) the Company is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they mature and become due in the
normal course of business, (iii) assuming the sale of the Notes as contemplated by this Agreement,
the Pricing Disclosure Package and the Offering Memorandum, the Company is not incurring debts or
liabilities beyond its ability to pay as such debts and liabilities mature, (iv) the Company is not
engaged in any business or transaction, and is not about to engage in any business or transaction,
for which its property would constitute unreasonably small capital after giving due consideration
to the prevailing practice in the industry in which the Company is engaged, and (v) the Company is
not a defendant in any civil action that would result in a judgment that the Company is or would
become unable to satisfy. In computing the amount of such contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(xx) The statements set forth in each of the Pricing Disclosure Package and the Offering
Memorandum under the caption “Description of Notes,” insofar as they purport to constitute a
summary of the terms of the Notes and the Guarantees and under the caption
14
“Certain U.S. Federal
Income Tax Considerations,” insofar as it purports to summarize the provisions of the laws referred
to therein, are accurate summaries in all material respects.
(yy) Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, there
are no contracts, agreements or understandings between the Company, any Guarantor and any person
granting such person the right to require the Company or any Guarantor to file a registration
statement under the Securities Act with respect to any securities of the Company or any Guarantor
(other than the Registration Rights Agreement) owned or to be owned by such person or to require
the Company or any Guarantor to include such securities in the securities registered pursuant to
the Registration Rights Agreement or in any securities being registered pursuant to any other
registration statement filed by the Company or any Guarantor under the Securities Act.
(zz) Neither the Company nor any of its subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that could give rise to a valid claim
against any of them or the Initial Purchasers for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the Notes.
(aaa) None of the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Notes), will violate or result in a violation of
Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.
(bbb) The Company and its affiliates have not taken, directly or indirectly (other than any
actions taken by you, as to which the Company and the Guarantors make no representation), any
action designed to or that has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company or the Guarantors
in connection with the offering of the Notes.
(ccc) The Company has not taken any action or omitted to take any action (such as issuing any
press release relating to any Notes without an appropriate legend) which may result in the loss by
the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the
Financial Services Authority under the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the “FSMA”).
(ddd) Neither the Company nor any of its subsidiaries is in violation of or has received
notice of any violation with respect to any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor
any state law precluding the denial of credit due to the neighborhood in which a property is
situated, the violation of any of which could reasonably be expected to have a Material Adverse
Affect.
(eee) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company
and the Guarantors, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company, the Guarantors or any of their respective subsidiaries, has
(i) used any corporate funds for any unlawful contribution, gift, entertainment
15
or other unlawful expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds;
or (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977;
in each case, except to the extent such action could not reasonably be expected to have a Material
Adverse Effect.
(fff) The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(ggg) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Company or the Guarantor and delivered to counsel
for the Initial Purchasers in connection with the offering of the Notes shall be deemed a
representation and warranty by the Company or such Guarantor, jointly and severally, as to matters
covered thereby, to the Initial Purchasers.
3. Purchase of the Notes by the Initial Purchasers, Agreements to Sell, Purchase and Resell.
(a) The Company and the Guarantors, jointly and severally hereby agree, on the basis of the
representations, warranties, covenants and agreements of the Initial Purchasers contained herein
and subject to all the terms and conditions set forth herein, to issue and sell to the Initial
Purchasers and, upon the basis of the representations, warranties and agreements of the Company and
the Guarantors herein contained and subject to all the terms and conditions set forth herein, the
Initial Purchasers agree to purchase from the Company, at a purchase price of 98.00% of the
principal amount thereof, the total principal amount of Notes. The Company and the Guarantors
shall not be obligated to deliver any of the securities to be delivered hereunder except upon
payment for all of the securities to be purchased as provided herein.
(b) The Initial Purchasers hereby represent and warrant to the Company that it will offer the
Notes for sale upon the terms and conditions set forth in this Agreement and in the Pricing
Disclosure Package. The Initial Purchasers hereby represent and warrant to, and agree with, the
Company, on the basis of the representations, warranties and agreements of the
16
Company and the Guarantors, that each Initial Purchaser: (i) is a QIB with such knowledge and
experience in financial and business matters as are necessary in order to evaluate the merits and
risks of an investment in the Notes; (ii) is purchasing the Notes pursuant to a private sale exempt
from registration under the Securities Act; (iii) in connection with the Exempt Resales, will
solicit offers to buy the Notes only from, and will offer to sell the Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated by the Pricing
Disclosure Package; and (iv) will not offer or sell the Notes, nor has it offered or sold the Notes
by, or otherwise engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D, including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine, or similar medium or broadcast over television
or radio, or any seminar or meeting whose attendees have been invited by any general solicitation
or general advertising) and will not engage in any directed selling efforts within the meaning of
Rule 902 under the Securities Act, in connection with the offering of the Notes. The Initial
Purchasers have advised the Company that it will offer the Notes to Eligible Purchasers at a price
initially equal to 99.01% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance of the Notes. Such price may be changed by the Initial Purchasers at any time
without notice.
(c) The Initial Purchasers hereby represent and warrant to the Company that it has not nor,
prior to the later to occur of (A) the Closing Date and (B) completion of the distribution of the
Notes, will not, use, authorize use of, refer to or distribute any material in connection with the
offering and sale of the Notes other than (i) the Preliminary Offering Memorandum, the Pricing
Disclosure Package, the Offering Memorandum, (ii) any written communication that contains no
“issuer information” (as defined in Rule 433(h)(2) under the Act) that was not included (including
through incorporation by reference) in the Preliminary Offering Memorandum or any Free Writing
Offering Document listed on Schedule IV hereto, (iii) the Free Writing Offering Documents listed on
Schedule IV hereto, (iv) any written communication prepared by such Initial Purchasers and approved
by the Company in writing, or (v) any written communication relating to or that contains the terms
of the Notes and/or other information that was included (including through incorporation by
reference) in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering
Memorandum.
(d) The Initial Purchasers hereby acknowledge that upon original issuance thereof, and until
such time as the same is no longer required under the applicable requirements of the Securities
Act, the Notes (and all securities issued in exchange therefore or in substitution thereof) shall
bear legends substantially in the forms as set forth in the “Notice to Investors” and “Transfer
Restrictions” sections of the Pricing Disclosure Package and Offering Memorandum (along with such
other legends as the Company and its counsel deem necessary).
The Initial Purchasers understand that the Company and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 7(c) and 7(d) hereof, counsel to the
Company and counsel to the Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations, warranties and agreements, and the Initial Purchasers hereby consent to
such reliance.
4. Delivery of the Notes and Payment Therefor. Delivery to the Initial Purchasers of and
payment for the Notes shall be made at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, 885 Third
▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ at 9:00 A.M., New York City time, on September 21, 2009 (the
“Closing Date”). The place of closing for the Notes and the Closing Date may be varied by
agreement between the Initial Purchasers and the Company.
The Notes will be delivered to the Initial Purchasers, or the Trustee as custodian for The
Depository Trust Company (“DTC”), against payment by or on behalf of the Initial Purchasers of the
purchase price therefor by wire transfer in immediately available funds, by causing DTC to credit
the Notes to the account of the Initial Purchasers at DTC. The Notes will be evidenced by one or
more global securities in definitive form (the “Global Notes”) and will be registered, in the case
of the Global Notes, in the name of Cede & Co. as nominee of DTC. The Notes to be delivered to the
Initial Purchasers shall be made available to the Initial Purchasers in New York City for
inspection and packaging not later than 5:00 P.M., New York City time, on the business day next
preceding the Closing Date.
5. Agreements of the Company and the Guarantors. The Company and the Guarantors, jointly and
severally, agree with the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge,
within one business day of the date of the Offering Memorandum, such number of copies of the
Offering Memorandum as may then be amended or supplemented as it may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Memorandum in a form approved by
the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure
Package or to the Offering Memorandum of which the Initial Purchasers shall not previously have
been advised or to which they shall reasonably object after being so advised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure
Package and the Offering Memorandum in accordance with the securities or Blue Sky laws of the
jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom
Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial
Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the
judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial
Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Memorandum so
that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented,
does not include any untrue statement of 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, or if it is necessary to supplement or amend the Pricing Disclosure Package
or the Offering Memorandum in order to comply with any law, the Company and the Guarantors will
forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to
the Initial Purchasers and dealers a reasonable number of copies thereof.
18
(e) None of the Company nor any Guarantor will make any offer to sell or solicitation of an
offer to buy the Notes that would constitute a Free Writing Offering Document without the prior
consent of the Initial Purchasers, which consent shall not be unreasonably withheld or delayed. If
at any time following issuance of a Free Writing Offering Document any event occurred or occurs as
a result of which such Free Writing Offering Document conflicts with the information in the
Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when
taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure
Package or the Offering Memorandum, includes an untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, as promptly as practicable after becoming aware
thereof, the Company will give notice thereof to the Initial Purchasers and, if requested by the
Initial Purchasers, will prepare and furnish without charge to the Initial Purchasers a Free
Writing Offering Document or other document which will correct such conflict, statement or
omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably
request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Notes; provided that in connection therewith the Company shall
not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not
otherwise be required to so qualify, (ii) file a general consent to service of process in any such
jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not
otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 180th day after the date of
the Offering Memorandum, the Company and the Guarantors agree not to, directly or indirectly,
(i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is
designed to, or would be expected to, result in the disposition by any person at any time in the
future of) any debt securities of the Company substantially similar to the Notes or securities
convertible into or exchangeable for such debt securities of the Company, or sell or grant options,
rights or warrants with respect to such debt securities of the Company or securities convertible
into or exchangeable for such debt securities of the Company, (ii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such debt securities of the Company, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of debt securities of the
Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration
statement, including any amendments, with respect to the registration of debt securities of the
Company substantially similar to the Notes or securities convertible, exercisable or exchangeable
into debt securities of the Company, or (iv) publicly announce an offering of any debt securities
of the Company substantially similar to the Notes or securities convertible or exchangeable into
such debt securities, in each case without the prior written consent of the Initial Purchasers,
except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the
Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, furnish
at their expense to the Initial Purchasers, and, upon request, to the
19
holders of the Notes and prospective purchasers of the Notes the information required by
Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to
be sold by it hereunder substantially in accordance with the description set forth in the Pricing
Disclosure Package and the Offering Memorandum under the caption “Use of Proceeds.”
(j) The Company, the Guarantors and their respective affiliates will not take, directly or
indirectly, any action designed to or that has constituted or that reasonably could be expected to
cause or result in the stabilization or manipulation of the price of any security of the Company or
the Guarantors in connection with the offering of the Notes.
(k) The Company and the Guarantors will use their best efforts to permit the Notes to be
eligible for clearance and settlement through DTC.
(l) The Company and the Guarantors will not, and will not permit any of their respective
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have
been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of
their respective affiliates and resold in a transaction registered under the Securities Act.
(m) The Company and the Guarantors agree not to sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be
integrated with the sale of the Notes in a manner that would require the registration under the
Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the
Registration Rights Agreement and all agreements set forth in the representation letters of the
Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry”
transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be
done and performed under this Agreement by them prior to the Closing Date, and to satisfy all
conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
6. Expenses. Whether or not the transactions contemplated by this Agreement are consummated
or this Agreement is terminated, the Company and the Guarantors, jointly and severally, agree, to
pay all expenses, costs, fees and taxes incident to and in connection with: (a) the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum, the Pricing Disclosure
Package and the Offering Memorandum (including, without limitation, financial statements and
exhibits) and all amendments and supplements thereto (including the fees, disbursements and
expenses of the Company’s and the Guarantors’ accountants and counsel, but not, however, legal fees
and expenses of the Initial Purchasers’ counsel incurred in connection therewith); (b) the
preparation, printing (including, without limitation, word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Registration
20
Rights Agreement, all Blue Sky memoranda and all other agreements, memoranda, correspondence
and other documents printed and delivered in connection therewith and with the Exempt Resales (but
not, however, legal fees and expenses of the Initial Purchasers’ counsel incurred in connection
with any of the foregoing other than fees of such counsel plus reasonable disbursements incurred in
connection with the preparation, printing and delivery of such Blue Sky memoranda); (c) the
issuance and delivery by the Company of the Notes and by the Guarantors of the Guarantees and any
taxes payable in connection therewith; (d) the qualification of the Notes and Exchange Notes for
offer and sale under the securities or Blue Sky laws of the several states and any foreign
jurisdictions as the Initial Purchasers may designate (including, without limitation, the
reasonable fees and disbursements of the Initial Purchasers’ counsel relating to such registration
or qualification); (e) the furnishing of such copies of the Preliminary Offering Memorandum, the
Pricing Disclosure Package and the Offering Memorandum, and all amendments and supplements thereto,
as may be reasonably requested for use in connection with the Exempt Resales; (f) the preparation
of certificates for the Notes (including, without limitation, printing and engraving thereof);
(g) the approval of the Notes by DTC for “book-entry” transfer (including fees and expenses of
counsel for the Initial Purchasers); (h) the rating of the Notes and the Exchange Notes; (i) the
obligations of the Trustee, any agent of the Trustee and the counsel for the Trustee in connection
with the Indenture, the Notes, the Guarantees, the Exchange Notes and the Exchange Guarantees;
(j) the performance by the Company and the Guarantors of their other obligations under this
Agreement; and (k) all travel expenses of the Company’s officers and employees and any other
expenses of the Initial Purchasers and the Company in connection with attending or hosting meetings
with prospective purchasers of the Notes, and expenses associated with any electronic road show.
7. Conditions to Initial Purchasers’ Obligations. The obligations of the Initial Purchasers
hereunder are subject to the accuracy, when made and on and as of the Closing Date, of the
representations and warranties of the Company and the Guarantors contained herein, to the
performance by the Company and the Guarantors of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior
to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum, or any
amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, is material or omits to state a fact
which, in the opinion of such counsel, is material and is necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not misleading.
(b) All corporate, partnership and limited liability company proceedings, as applicable, and
other legal matters incident to the authorization, form and validity of this Agreement, the Notes,
the Guarantees, the Exchange Notes, the Exchange Guarantees, the Registration Rights Agreement, the
Indenture, the Pricing Disclosure Package and the Offering Memorandum, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and
the Guarantors shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
21
(c) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Initial Purchasers its
written opinion, as counsel to the Company and certain of the Guarantors, addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, substantially in the form of Exhibit B hereto.
(d) Each of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇, McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
shall have furnished to the Initial Purchasers its written opinion, as counsel to certain of the
Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit C hereto.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have furnished to the Initial Purchasers his written opinion, as
general counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated
the Closing Date, substantially in the form of Exhibit D hereto.
(f) The Initial Purchasers shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Notes, the Pricing Disclosure Package, the Offering Memorandum and other related
matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to
such counsel such documents and information as such counsel reasonably requests for the purpose of
enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Initial Purchasers shall have received
from BDO ▇▇▇▇▇▇▇, LLP a letter, in form and substance satisfactory to the Initial Purchasers,
addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of which specified
financial information is given in the Pricing Disclosure Package, as of a date not more than three
days prior to the date hereof), the conclusions and findings of such firm with respect to the
financial information and (iii) covering such other matters as are ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of BDO ▇▇▇▇▇▇▇, LLP referred to in the preceding paragraph and
delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial
letter”), the Company shall have furnished to the Initial Purchasers a “bring-down letter” of such
accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that
they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with
respect to matters involving changes or developments since the respective dates as of which
specified financial information is given in each of the Pricing Disclosure Package or the Offering
Memorandum, as of a date not more than three days prior to the date of the Closing Date), the
conclusions and findings of such firm with respect to the financial information and other matters
covered by the initial letter, and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
22
(i) Other than as disclosed in the Pricing Disclosure Package and the Offering Memorandum, (i)
neither the Company, any Guarantor nor any of their respective subsidiaries shall have sustained,
since the date of the latest audited financial statements included or incorporated by reference in
the Pricing Disclosure Package and the Offering Memorandum, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, or (ii) since such date,
there shall not have been any change in the capital stock or long-term debt of the Company, any
Guarantor or any of their respective subsidiaries or any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise), results of operations,
stockholders’ equity, properties, management, business or prospects of the Company, the Guarantors
and their respective subsidiaries, taken as a whole, the effect of which, in any such case
described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the
Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed
with the offering or the delivery of the Notes being delivered on the Closing Date on the terms and
in the manner contemplated in the Pricing Disclosure Package and the Offering Memorandum.
(j) The Company and each Guarantor shall have furnished or caused to be furnished to the
Initial Purchasers dated as of the Closing Date a certificate of the Chief Executive Officer and
Chief Financial Officer of the Company and each Guarantor, or other officers satisfactory to the
Initial Purchasers, as to such matters as the Initial Purchasers may reasonably request, including,
without limitation, a statement that:
(i) The representations, warranties and agreements of the Company and the
Guarantors in Section 2 are true and correct on and as of the Closing Date, and the
Company has complied with all its agreements contained herein and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date; and
(ii) They have examined the Pricing Disclosure Package and the Offering
Memorandum, and, in their opinion, (A) the Pricing Disclosure Package, as of the
Applicable Time, and the Offering Memorandum, as of its date and as of the Closing
Date, did not and do not contain any untrue statement of a material fact and did not
and do not 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 and
(B) since the date of the Pricing Disclosure Package and the Offering Memorandum, no
event has occurred which should have been set forth in a supplement or amendment to
the Pricing Disclosure Package and the Offering Memorandum.
(k) Subsequent to the earlier of the Applicable Time and the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt
securities or preferred stock by any “nationally recognized statistical rating organization,” as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and
(ii) no such organization shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company’s debt securities or
preferred stock.
23
(l) The Notes shall be eligible for clearance and settlement through DTC.
(m) The Company and the Guarantors shall have executed and delivered the Registration Rights
Agreement, and the Initial Purchasers shall have received an original copy thereof, duly executed
by the Company and the Guarantors.
(n) Subsequent to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange, the
NASDAQ or the American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall
have been declared by federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United States,
or (iv) there shall have occurred such a material adverse change in general economic, political or
financial conditions, including, without limitation, as a result of terrorist activities after the
date hereof (or the effect of international conditions on the financial markets in the United
States shall be such), as to make it, in the judgment of the Initial Purchasers, impracticable or
inadvisable to proceed with the offering or delivery of the Notes being delivered on the Closing
Date on the terms and in the manner contemplated in the Offering Memorandum or that, in the
judgment of the Initial Purchasers, could materially and adversely affect the financial markets or
the markets for the Notes and other debt securities.
(o) There shall exist at and as of the Closing Date no condition that would constitute a
default (or an event that with notice or the lapse of time, or both, would constitute a default)
under the Indenture (or an event that with notice or lapse of time, or both, would constitute such
a default or material breach).
(p) On or prior to the Closing Date, the Company and the Guarantors shall have furnished to
the Initial Purchasers such further certificates and documents as the Initial Purchasers may
reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Initial Purchasers.
8. Indemnification and Contribution.
(a) The Company and each Guarantor, hereby agree, jointly and severally, to indemnify and hold
harmless the Initial Purchasers, their respective affiliates, directors, officers and employees and
each person, if any, who controls any of the Initial Purchasers within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
24
Notes), to which any Initial Purchaser, affiliate, director, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Free Writing Offering Document, the
Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or in
any amendment or supplement thereto, (B) in any Blue Sky application or other document prepared or
executed by the Company or any Guarantor (or based upon any written information furnished by the
Company or any Guarantor) specifically for the purpose of qualifying any or all of the Notes under
the securities laws of any state or other jurisdiction (any such application, document or
information being hereinafter called a “Blue Sky Application”), or (C) in any materials or
information provided to investors by, or with the approval of, the Company or any Guarantor in
connection with the marketing of the offering of the Notes (“Marketing Materials”), including any
road show or investor presentations made to investors by the Company (whether in person or
electronically), or (ii) the omission or alleged omission to state in any Free Writing Offering
Document, the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering
Memorandum, or in any amendment or supplement thereto, or in any Blue Sky Application or in any
Marketing Materials, any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and shall reimburse the
Initial Purchasers and each such director, officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by any Initial Purchaser, director,
officer, employee or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Guarantors shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Offering Memorandum, the Pricing Disclosure Package or Offering Memorandum, or in any
such amendment or supplement thereto, or in any Blue Sky Application or in any Marketing Materials,
in reliance upon and in conformity with written information concerning the Initial Purchasers
furnished to the Company through the Initial Purchasers specifically for inclusion therein, which
information consists solely of the information specified in Section 8(e). The foregoing indemnity
agreement is in addition to any liability that the Company or the Guarantors may otherwise have to
the Initial Purchasers or to any affiliate, director, officer, employee or controlling person of
any Initial Purchaser.
(b) The Initial Purchasers hereby agree to indemnify and hold harmless the Company, each
Guarantor, their respective officers and employees, each of their respective directors, and each
person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the Company, any Guarantor
or any such director, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Free Writing Offering Document, Preliminary Offering Memorandum, the Pricing
Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto, (B) in any
Blue Sky Application, or (C) in any Marketing Materials, or (ii) the omission or alleged omission
to state in any Free Writing Offering
25
Document, Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering
Memorandum, or in any amendment or supplement thereto, or in any Blue Sky Application or in any
Marketing Materials any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning the Initial Purchasers
furnished to the Company through the Initial Purchasers specifically for inclusion therein, which
information is limited to the information set forth in Section 8(e). The foregoing indemnity
agreement is in addition to any liability that the Initial Purchasers may otherwise have to the
Company, any Guarantor or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability that it may have under this
Section 8 except to the extent it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure and; provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Initial Purchasers shall have the
right to employ counsel to represent jointly the Initial Purchasers and their respective directors,
officers, employees and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Initial Purchasers against the Company or
any Guarantor under this Section 8, if (i) the Company, the Guarantors and the Initial Purchasers
shall have so mutually agreed; (ii) the Company and the Guarantors have failed within a reasonable
time to retain counsel reasonably satisfactory to the Initial Purchasers; (iii) the Initial
Purchasers and their respective directors, officers, employees and controlling persons shall have
reasonably concluded, based on the advice of counsel, that there may be legal defenses available to
them that are different from or in addition to those available to the Company and the Guarantors;
or (iv) the named parties in any such proceeding (including any impleaded parties) include both the
Initial Purchasers or their respective directors, officers, employees or controlling persons, on
the one hand, and the Company and the Guarantors, on the other hand, and representation of both
sets of parties by the same counsel would present a conflict due to actual or potential differing
interests between them, and in any such event the fees and expenses of such separate counsel shall
be paid by the Company and the Guarantors. No indemnifying party shall (x) without the prior
written consent of the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or
26
proceeding in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding and does not include
a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party, or (y) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable
to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of
any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other, from the offering of the Notes, 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 Guarantors, on the one hand, and the Initial Purchasers, on the other, with
respect to the statements or omissions that resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand, and the Initial Purchasers,
on the other, with respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased under this Agreement (before deducting
expenses) received by the Company and the Guarantors, on the one hand, and the total underwriting
discounts and commissions received by the Initial Purchasers with respect to the Notes purchased
under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the
Notes under this Agreement as set forth on the cover page of the Offering Memorandum. The relative
fault shall be determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company, the Guarantors, or the Initial Purchasers, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be
received by the Company shall be deemed to be also for the benefit of the Guarantors, and
information supplied by the Company shall also be deemed to have been supplied by the Guarantors.
The Company, the Guarantors, and the Initial Purchasers agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof, referred to above in this
Section 8(d) shall be deemed to include, for purposes of this Section 8(d), 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 8(d), the
Initial Purchasers shall not be required to contribute any
27
amount in excess of the amount by which the net proceeds from the sale to Eligible Purchasers
of the Notes initially purchased by it exceeds the amount of any damages that the Initial
Purchasers has otherwise paid or become liable to pay by reason of any 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The Initial Purchasers confirm and the Company and the Guarantors acknowledge and agree
that the statements with respect to the offering of the Notes by the Initial Purchasers set forth
in the last paragraph on the front cover of the Offering Memorandum and in the sixth paragraph of
the section entitled “Plan of Distribution” in the Pricing Disclosure Package and the Offering
Memorandum are correct and constitute the only information concerning such Initial Purchasers
furnished in writing to the Company or any Guarantor by or on behalf of the Initial Purchasers
specifically for inclusion in the Preliminary Offering Memorandum, the Pricing Disclosure Package
and the Offering Memorandum or in any amendment or supplement thereto.
9. Defaulting Initial Purchasers.
(a) If, on the Closing Date, any Initial Purchaser defaults in its obligations to purchase the
Notes that it has agreed to purchase under this Agreement, the remaining non-defaulting Initial
Purchasers may in their discretion arrange for the purchase of such Notes by the non-defaulting
Initial Purchasers or other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Notes, then the Company shall be
entitled to a further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Initial Purchasers to purchase such Notes on such terms. In the event that within
the respective prescribed periods, the non-defaulting Initial Purchasers notify the Company that
they have so arranged for the purchase of such Notes, or the Company notifies the non-defaulting
Initial Purchasers that it has so arranged for the purchase of such Notes, either the
non-defaulting Initial Purchasers or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Initial Purchasers may be necessary in the Pricing Disclosure Package, the Offering
Memorandum or in any other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Pricing Disclosure Package or the Offering Memorandum that effects
any such changes. As used in this Agreement, the term “Initial Purchaser” includes, for all
purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule
I hereto that, pursuant to this Section 9, purchases Notes that a defaulting Initial Purchaser
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Notes that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Notes, then
the Company shall have the right to require each non-defaulting Initial Purchaser to purchase the
principal amount of Notes that such Initial Purchaser agreed to purchase hereunder plus such
Initial Purchaser’s pro rata share (based on the principal amount of Notes
28
that such Initial Purchaser agreed to purchase hereunder) of the Notes of such defaulting
Initial Purchaser or Initial Purchasers for which such arrangements have not been made; provided
that the non-defaulting Initial Purchasers shall not be obligated to purchase more than 110% of the
aggregate principal amount of Notes that it agreed to purchase on the Closing Date pursuant to the
terms of Section 3.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Notes that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Notes, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Initial Purchasers. Any termination
of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company
or the Guarantors, except that the Company and each of the Guarantors will continue to be liable
for the payment of expenses as set forth in Sections 6 and 11 and except that the provisions of
Section 8 shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it
may have to the Company, the Guarantors or any non-defaulting Initial Purchaser for damages caused
by its default.
10. Termination. The obligations of the Initial Purchasers hereunder may be terminated by the
Initial Purchasers by notice given to and received by the Company prior to delivery of and payment
for the Notes if, prior to that time, any of the events described in Sections 7(i), (k) or (n)
shall have occurred or if the Initial Purchasers shall decline to purchase the Notes for any reason
permitted under this Agreement.
11. Reimbursement of Initial Purchasers’ Expenses. If (a) the Company for any reason fails to
tender the Notes for delivery to the Initial Purchasers, or (b) the Initial Purchasers shall
decline to purchase the Notes for any reason permitted under this Agreement, the Company and the
Guarantors shall reimburse the Initial Purchasers for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel for the Initial Purchasers) incurred by the Initial
Purchasers in connection with this Agreement and the proposed purchase of the Notes, and upon
demand the Company and the Guarantors shall pay the full amount thereof to the Initial Purchasers.
12. Notices, etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by hand delivery, mail, telex,
overnight courier or facsimile transmission to Barclays Capital Inc., as representative of the
Initial Purchasers, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Registration
(Fax: (▇▇▇) ▇▇▇-▇▇▇▇) with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇), and with a copy, in the case of any notice
pursuant to Section 8(c), to Director of Litigation, Office of the General Counsel, at Barclays
Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
29
(b) if to the Company or any Guarantor, shall be delivered or sent by mail, telex, overnight
courier or facsimile transmission to Waste Services, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy
to Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇);
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, the Company, the Guarantors and their respective
successors. This Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that the representations, warranties, indemnities and agreements of the
Company and the Guarantors contained in this Agreement shall also be deemed to be for the benefit
of directors, officers and employees of the Initial Purchasers and each person or persons, if any,
controlling the Initial Purchasers within the meaning of Section 15 of the Securities Act. Nothing
in this Agreement is intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, rights of contribution, representations, warranties
and agreements of the Company, the Guarantors and the Initial Purchasers contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Notes and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of any of them or any
person controlling any of them.
15. Definition of the Terms “Business Day”, “Affiliate”, and “Subsidiary”. For purposes of
this Agreement, (a) “business day” means any day on which the New York Stock Exchange, Inc. is open
for trading, and (b) “affiliate” and “subsidiary” have the meanings set forth in Rule 405 under the
Securities Act.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
17. Waiver of Jury Trial. The Company and the Initial Purchasers hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18. No Fiduciary Duty. The Company and the Guarantors acknowledge and agree that in
connection with this offering, or any other services the Initial Purchasers may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or subsequently made by the
Initial Purchasers: (a) no fiduciary or agency relationship between the Company, any Guarantor and
any other person, on the one hand, and the Initial Purchasers, on the other, exists;
30
(b) none of the Initial Purchasers are acting as advisor, expert or otherwise, to the Company
or the Guarantors, including, without limitation, with respect to the determination of the purchase
price of the Notes, and such relationship between the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other, is entirely and solely commercial, based on arms-length
negotiations; (c) any duties and obligations that the Initial Purchasers may have to the Company
and the Guarantors shall be limited to those duties and obligations specifically stated herein; (d)
the Initial Purchasers and their affiliates may have interests that differ from those of the
Company and the Guarantors; and (e) the Company and the Guarantors have consulted their own legal
and financial advisors to the extent they deemed appropriate. The Company and the Guarantors
hereby waive any claims that the Company and the Guarantors may have against the Initial Purchasers
with respect to any breach of fiduciary duty in connection with the Notes.
19. Counterparts. This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each be deemed to be an original but
all such counterparts shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
31
If the foregoing correctly sets forth the agreement among the Company, the Guarantors, and the
Initial Purchasers, please indicate your acceptance in the space provided for that purpose below.
| Very truly yours, WASTE SERVICES, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Executive Vice President, General Counsel and Secretary | |||
| FREEDOM RECYCLING HOLDINGS, LLC |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| OMNI WASTE OF OSCEOLA COUNTY LLC |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Manager | |||
| RAM-PAK COMPACTION SYSTEMS LTD. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| RIP, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
32
| SLD LANDFILL, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| ▇▇▇▇▇▇▇ RECYCLING AND TRANSFER, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| SUN COUNTRY MATERIALS, LLC |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| ▇▇▇▇ RECYCLING, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| WASTE SERVICES (CA) INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
| WASTE SERVICES OF ARIZONA, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
33
| WASTE SERVICES OF FLORIDA, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President & Secretary | |||
34
| Accepted: BARCLAYS CAPITAL INC. |
||||
| By | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Notes | ||||
| to be | ||||
| Initial Purchasers | Purchased | |||
Barclays Capital Inc. |
$ | 45,000,000 | ||
Scotia Capital USA Inc. |
$ | 2,500,000 | ||
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. |
$ | 2,500,000 | ||
Total |
$ | 50,000,000 | ||
SCHEDULE II
GUARANTORS
FREEDOM RECYCLING HOLDINGS, LLC
OMNI WASTE OF OSCEOLA COUNTY LLC
RAM-PAK COMPACTION SYSTEMS LTD.
RIP, INC.
▇▇▇▇▇▇▇ RECYCLING AND TRANSFER, INC.
SLD LANDFILL, INC.
SUN COUNTRY MATERIALS, LLC
▇▇▇▇ RECYCLING, INC.
WASTE SERVICES (CA) INC.
WASTE SERVICES OF ARIZONA, INC.
WASTE SERVICES OF FLORIDA, INC.
SCHEDULE III
| Confidential—Summary Pricing Term Sheet | September 16, 2009 |
$50,000,000
91/2% Senior Subordinated Notes due 2014
This summary pricing term sheet relates only to the securities described below and should only be
read together with the Offering Memorandum, subject to completion, dated September 16, 2009,
relating to these securities. This summary pricing sheet supersedes the information in the
Offering Memorandum to the extent inconsistent with the information in the Offering Memorandum.
This summary pricing term sheet is qualified in its entirety by reference to the Offering
Memorandum. Capitalized terms not defined herein have the meanings assigned to them in the Offering
Memorandum.
Issuer
|
Waste Services, Inc. | |
Security Description
|
91/2% Senior Subordinated Notes due 2014 | |
Distribution
|
144A/Regulation S—with Registration Rights | |
Aggregate Principal Amount
|
$50,000,000 | |
Issue Price
|
99.01% of principal amount plus accrued interest from April 15, 2009 | |
Gross Proceeds
|
$49,505,000 | |
Net Proceeds
|
$48,505,000 | |
Coupon
|
91/2% | |
Maturity Date
|
April 15, 2014 | |
Spread to Benchmark
|
749 basis points | |
Benchmark Treasury
|
1.875% due April 30, 2014 | |
Yield to Maturity
|
9.770% | |
Interest Payment Dates
|
April 15 and October 15, commencing October 15, 2009 | |
Coupon Record Dates
|
April 1 and October 1 | |
Call Features
|
Callable beginning on April 15 of the years indicated below at the following prices: |
| Year | Percentage | |
| 2009 | 104.750% | |
| 2010 | 103.167% | |
| 2011 | 101.583% | |
| 2012 and thereafter | 100.000% |
Change of Control Offer
|
101% of principal plus accrued and unpaid interest | |
Trade Date
|
September 16, 2009 | |
Settlement Date
|
September 21, 2009 (T+3) | |
CUSIP Numbers
|
144A: 94107U AD0 |
| Regulation S: U94124 AB7 | ||
ISIN Numbers
|
144A: US94107UAD00 | |
| Regulation S: USU94124AB79 | ||
Sole-Book Running Manager
|
Barclays Capital Inc. | |
Co-Managers
|
Scotia Capital (USA) Inc. and SunTrust ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇, Inc. |
The offering is being made to qualified institutional buyers pursuant to Rule 144A and Regulation S
under the Securities Act of 1933, as amended (the “Securities Act”). These securities have not
been registered under the Securities Act or under any state securities laws and, unless so
registered, may not be offered or sold in the United Stales or to U.S. persons except pursuant to
an exemption from, or in a transaction not subject to the registration requirements of the
Securities Act and applicable state securities laws.
2
SCHEDULE IV
A. None.
B. None.
SCHEDULE V
LIST OF SUBSIDIARIES
FREEDOM RECYCLING HOLDINGS, LLC
OMNI WASTE OF OSCEOLA COUNTY LLC
RAM-PAK COMPACTION SYSTEMS LTD.
RIP, INC.
▇▇▇▇▇▇▇ RECYCLING AND TRANSFER, INC.
SLD LANDFILL, INC.
SUN COUNTRY MATERIALS, LLC
▇▇▇▇ RECYCLING, INC.
WASTE SERVICES (CA) INC.
WASTE SERVICES OF ARIZONA, INC.
WASTE SERVICES OF FLORIDA, INC.
Exhibit A
Form of Registration Rights Agreement
Exhibit A-1
Exhibit B
1. Each Delaware Issuer Party is validly existing and in good standing as a corporation or
limited liability company under the laws of the State of Delaware.
2. Each Delaware Issuer Party has the corporate or limited liability company, as applicable,
power necessary to own or hold its properties and conduct its business, in each case as described
in each of the Pricing Disclosure Package and the Offering Memorandum.
3. Each Delaware Issuer Party has all necessary corporate or limited liability company, as
applicable, power and authority to execute, deliver and perform its obligations under the
Transaction Documents to which it is a party. The Company has all necessary corporate power and
authority to issue, sell and deliver the Securities to the Initial Purchasers and to engage in the
Exchange Offer and to issue and deliver the Exchange Notes. Each of the Delaware Guarantors has all
necessary corporate or limited liability company, as applicable, power and authority to issue and
perform the Guarantees and to engage in the Exchange Offer and to issue and perform the Exchange
Guarantees.
4. The execution and delivery by each Delaware Issuer Party of the Purchase Agreement, the
Registration Rights Agreement and the Indenture (including, with respect to the Delaware
Guarantors, the Guarantees included therein) and the performance by each Issuer Party of its
respective obligations thereunder have been duly authorized by all necessary corporate or limited
liability company, as applicable, action on the part of each such Delaware Issuer Party. The
execution, issuance and delivery by the Company of the Securities and, in accordance with the
Exchange Offer and the Registration Rights Agreement, the Exchange Notes and the performance by the
Company of its obligations thereunder have been duly authorized by all necessary corporate action
on the part of the Company. The issuance by each Delaware Guarantor of the Guarantees and, in
accordance with the Exchange Offer and the Registration Rights Agreement, the Exchange Guarantees
and the performance by each Delaware Guarantor of its respective obligations thereunder have been
duly authorized by all necessary corporate or limited liability company, as applicable, action on
the part of such Delaware Guarantor.
5. Each of the Purchase Agreement, the Registration Rights Agreement and the Indenture has
been duly executed and delivered by each Delaware Issuer Party.
6. (a) Each of the Indenture (including, with respect to the Guarantors, the Guarantees
included therein) and the Registration Rights Agreement constitutes the valid and binding
obligation of each Issuer Party, enforceable against such Issuer Party in accordance with its terms
under the Laws of the State of New York.
(b) The Securities have been executed and issued by the Company, and when authenticated and
delivered in accordance with the Indenture and payment therefor has been made by the Initial
Purchasers in accordance with the Purchase Agreement, the Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture, enforceable against
the Company in accordance with their terms under the Laws of the State of New York.
Exhibit B-1
(c) If and when the Exchange Notes are executed, issued, authenticated and delivered in
accordance with the terms of the Exchange Offer, the Registration Rights Agreement and the
Indenture, the Exchange Notes will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture, enforceable against the Company in accordance with their terms
under the Laws of the State of New York.
7. No consent, approval, authorization, order, registration or filing of or with any
governmental authority (each, a “Filing”) is required under any Included Law (as defined below) for
the due execution and delivery of the Transaction Documents and the due execution, delivery and
issuance of the Securities and the Exchange Notes by the Company, the due execution and delivery by
each Guarantor of the Transaction Documents to which it is a party, the due issuance by each
Guarantor of the Guarantees and the Exchange Guarantees, or the performance by the Company and the
Guarantors of their respective obligations thereunder, except (i) such as have been obtained or
made, (ii) such as may be required under any foreign securities laws, state securities laws or Blue
Sky laws in connection with the purchase and distribution of the Securities by the Initial
Purchasers as to which we express no opinion, and (iii) with respect to the transactions
contemplated by the Registration Rights Agreement, such as may be required under the Securities
Act, the Exchange Act, the Trust Indenture Act and the various rules and regulations under each of
the foregoing.
8. None of (i) the execution, delivery and performance by the Issuer Parties of the Purchase
Agreement, the Indenture and the Registration Rights Agreement, compliance by the Issuer Parties
with the terms and provisions thereof and the consummation by the Issuer Parties of the
transactions contemplated thereby, (ii) the issuance and sale of the Securities and the Exchange
Notes by the Company in the manner contemplated in the Purchase Agreement, or (iii) the issuance of
the Guarantees and the Exchange Guarantees by the Guarantors in the manner contemplated in the
Purchase Agreement and the Registration Rights Agreement, will (1) result in a violation of any
law, rule or regulation of any Included Law (except that we express no opinion in this subclause
(1) with respect to antifraud provisions of federal or state securities laws), (2) result in a
breach or default under any Reviewed Agreement, (3) result in a violation of any Reviewed Order or
(4) result in a violation of the Organizational Documents of any Delaware Issuer Party.
9. The statements in each of the Pricing Disclosure Package and the Offering Memorandum under
the captions “Description of Notes” insofar as they purport to constitute summaries of the terms of
the Indenture, the Registration Rights Agreement and the Securities fairly present, in all material
respects, the information purported to be included therein, subject to the qualifications and
assumptions stated therein.
10. 10. The statements in each of the Pricing Disclosure Package and the Offering Memorandum
under the captions “Plan of Distribution” insofar as they purport to constitute a summary of the
terms of the Purchase Agreement fairly present, in all material respects, the information purported
to be included therein, subject to the qualifications and assumptions stated therein.
11. The statements in each of the Pricing Disclosure Package and the Offering Memorandum under
the caption “Certain United States Federal Income Tax Considerations,”
Exhibit B-2
insofar as such statements describe federal or state statutes, rules and regulations that
constitute Included Laws, fairly present, in all material respects, the information purported to be
included therein, subject to the qualifications and assumptions stated therein.
12. No registration of the Securities or the Guarantees under the Securities Act, and no
qualification of the Indenture under the Trust Indenture Act, is required in connection with the
offer, sale and delivery of the Securities and the Guarantees to the Initial Purchasers or the
reoffer and resale of the Securities by the Initial Purchasers to the initial purchasers therefrom
in the manner contemplated by the Pricing Disclosure Package, the Offering Memorandum, the Purchase
Agreement and the Indenture.
13. Neither the Company nor any of the Guarantors is and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in the Pricing
Disclosure Package and the Offering Memorandum, will be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
Negative Assurances
Based on our participation in such conferences and conversations, our review of the
documents described above, our understanding of the U.S. federal securities laws and the experience we have gained in our practice
thereunder, we advise you that:
(a) No information has come to our attention that causes us to believe that the
Offering Memorandum (except the financial statements and other financial and accounting data contained
or incorporated by reference therein, as to which we express no view), as of the date of the Offering Memorandum and as of the
Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(b) No information has come to our attention that causes us to believe that the
Pricing Disclosure Package (except the financial statements and other financial and
accounting data contained or incorporated by reference therein, as to which we express no view),
as of 12:00 p.m. on September, 16, 2009 (which you have informed us is a time prior to the time of the first sale of the Securities by the Initial Purchasers) when
considered together with the offering price of the Securities on the cover page of the Offering Memorandum, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
Exhibit B-3
Exhibit C
Form of Local Counsel Opinion
Local counsel shall have furnished to the Initial Purchaser its written opinion, as counsel to
certain of the Guarantors, addressed to the Initial Purchaser and dated the Closing Date, in form
and substance reasonably satisfactory to Barclays Capital Inc., to the effect that:
(a) Each of the Guarantors and each of their respective subsidiaries has been duly
organized, is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good standing
could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Each
of the Guarantors and each of their respective subsidiaries has all power and authority
necessary to own or hold its properties and to conduct the businesses in which it is
engaged;
(b) Each Guarantor has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement, the Registration Rights Agreement, the
Indenture, the Guarantees and the Exchange Guarantees;
(c) This Agreement has been duly authorized, executed and delivered by the Guarantors;
(d) The Guarantees of the Exchange Notes have been duly authorized by the Guarantors;
(e) The Registration Rights Agreement has been duly authorized, executed and delivered
by each of the Guarantors and, assuming the due authorization, execution and delivery
thereof by the Initial Purchaser;
In rendering such opinion, such counsel may state that its opinion is limited to matters
governed by laws of Canada.
Exhibit C-1
Exhibit D
General Counsel Opinion
To such counsel’s knowledge there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject that could, in the aggregate, reasonably be expected to
have a Material Adverse Effect; and to such counsel’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or others.
Exhibit D-1