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EXHIBIT 10.1
EXECUTION COPY
$150,000,000
IESI CORPORATION
10 1/4% SENIOR SUBORDINATED NOTES DUE 2012
PURCHASE AGREEMENT
June 7, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.,
As Representatives of the Several Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. IESI Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S.$150,000,000 principal amount of its 10 1/4 % Senior
Subordinated Notes due 2012 (the "OFFERED NOTES") each to be issued under an
indenture, dated as of June 12, 2002 (the "INDENTURE"), among the Company, the
Guarantors (as defined below) and The Bank of New York, as Trustee. Each
wholly-owned subsidiary of the Company set forth on Schedule B hereto (each a
"GUARANTOR" and collectively the "GUARANTORS") will guarantee the monetary
obligations of the Company under the Indenture, on an unsecured senior
subordinated basis (each, an "OFFERED SUBSIDIARY GUARANTEE"). The Offered Notes
and the Offered Subsidiary Guarantees are together referred to as the "OFFERED
SECURITIES". The United States Securities Act of 1933 is herein referred to as
the "SECURITIES ACT."
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Holders (including subsequent transferees) of the Offered Securities will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date (as defined
herein), in substantially the form of Exhibit I hereto, for so long as such
Offered Securities constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company and the Guarantors will agree to file with the Securities
and Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the exchange, for the Offered Notes,
of Notes (the "EXCHANGE NOTES") in a like aggregate principal amount as the
Company issued under the Indenture, guaranteed by the Guarantors (the "EXCHANGE
GUARANTEES") and together identical in all material respects to the Offered
Securities and registered under the Securities Act (the Exchange Notes, together
with the Exchange Guarantees, being called the "EXCHANGE SECURITIES" and such
offer to exchange being referred to as the "EXCHANGE OFFER") and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Offered Securities and to use its reasonable best efforts to
cause such Registration Statements to be declared and remain effective and
usable for the periods specified in the Registration Rights Agreement and to
consummate the Exchange Offer.
The Company and the Guarantors hereby agree with the several Purchasers
as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS.
The Company and the Guarantors jointly and severally represent and warrant to,
and agree with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company and the Guarantors. Such preliminary
offering circular (the "PRELIMINARY OFFERING CIRCULAR") and offering
circular (the "OFFERING CIRCULAR"), as supplemented as of the date of
this Agreement, together with the documents listed in Schedule B hereto
and any other document approved by the Company for use in connection with
the contemplated resale of the Offered Securities are hereinafter
collectively referred to as the "OFFERING DOCUMENT". The Offering
Document, on the date of this Agreement, and the Offering Circular, on
the Closing Date, do not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Section 404 of the Indenture in accordance
with Rule 144A(d)(4) under the Securities Act (the "ADDITIONAL ISSUER
INFORMATION"), if any, does not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding two sentences do not apply to
(i) statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Purchaser
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof,
and (ii) any statements in or omissions from the Preliminary Offering
Circular that were corrected or included in the Offering Circular.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, individually or in
the aggregate have a material adverse effect on the condition (financial
or other), prospects, business, properties or results of the Company and
its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
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(c) The Company's authorized equity capitalization is as set
forth in the Offering Document and all of the outstanding shares of
capital stock of the Company conform in all material respects to the
descriptions of them set forth in the Offering Document.
(d) The entities listed on Schedule C hereto are the only
subsidiaries, direct or indirect, of the Company.
(e) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in
the Offering Document; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and all of the
capital stock of each subsidiary of the Company is owned by the Company,
directly or through subsidiaries, free from liens, encumbrances and
defects, other than under the company's Senior Credit Facility (as
defined in the Offering Document).
(f) The Indenture has been duly authorized by the Company and
the Guarantors; the Offered Notes have been duly authorized by the
Company; each Offered Subsidiary Guaranty has been duly authorized by the
relevant Guarantor; and when the Offered Securities are delivered and
paid for pursuant to this Agreement on the Closing Date (as defined
below), the Indenture will have been duly executed and delivered, the
Offered Securities will have been duly executed, authenticated, issued
and delivered and will conform to the description thereof contained in
the Offering Document and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company and the
Guarantors, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(g) On the Closing Date, the Exchange Securities will have been
duly authorized by the Company; each Exchange Guaranty will have been
duly authorized by the relevant Guarantor; and when the Exchange
Securities are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange Securities
will be entitled to the benefits of the Indenture and will be the valid
and legally binding obligations of the Company and the Guarantors,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(h) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939,
as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(i) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person that would give rise to a valid claim against
the Company or any Guarantor or any Purchaser for a brokerage commission,
finder's fee or other like payment.
(j) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any of
the holders of its capital stock (or any beneficial owners thereof) or,
to the Company's knowledge after due inquiry, between two or
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more holders of the Company's capital stock (or any beneficial owners
thereof) regarding the Company, the business of the Company or any of the
Company's assets.
(k) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person granting such person the right to require the
Company or such Guarantor to file a registration statement under the
Securities Act with respect to any securities of the Company or such
Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Subsidiary Guarantees registered
pursuant to any Registration Statement.
(l) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Company and the guarantee thereof by the
Guarantors except for the order of the Commission declaring the Exchange
Offer Registration Statement or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement) effective.
(m) Neither the Company nor any of its subsidiaries is in
violation of (i) its respective charter or by-laws or (ii) any statute,
rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, except, in the case of clause (ii), for
such violations as would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries or other affiliates is in default in
the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, except for such
defaults as would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect.
(n) The execution, delivery and performance of this Agreement
and the Registration Rights Agreement, and the issuance and sale of the
Offered Securities and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or (ii) any
agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject,
or (iii) the charter or by-laws or any other organizational document of
the Company or any such subsidiary, except, in the case of clauses (i)
and (ii), for such breaches, violations and defaults as would not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
(o) This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.
(p) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date, will
have been duly executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been duly executed
and delivered, the Registration Rights Agreement will be a valid and
binding agreement of the Company and each of the Guarantors, enforceable
against the Company and each Guarantor in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting
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creditors' rights and to general equity principles. On the Closing Date,
the Registration Rights Agreement will conform as to legal matters to the
description thereof in the Offering Circular.
(q) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to
be made thereof by them; and except as disclosed in the Offering
Document, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them.
(r) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them, all information furnished to such governmental agencies or bodies
in obtaining such certificates, authorities or permits was, at the time
furnished, complete and accurate in all material respects and the Company
and its subsidiaries have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(s) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company or any Guarantor,
is imminent that might have a Material Adverse Effect.
(t) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by them,
or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(u) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation in any material
respect of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or
is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(v) Except as disclosed in the Offering Document, there are no
costs or liabilities associated with environmental law (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with environmental law or
any permits, licenses, consents, exemptions, franchises, authorizations
and other approvals of all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, any
related constraints on operating activities and any potential liabilities
to third parties) which would, individually or in the aggregate, have a
Material Adverse Effect.
(w) There are no pending actions, suits or proceedings against
or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely
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to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, this Agreement or the Registration Rights Agreement,
or which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company's knowledge, threatened or contemplated.
(x) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and, except as otherwise disclosed in
the Offering Document, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements included in the Offering
Document provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(y) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the Offering
Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Offering Document, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(z) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed the Company or any
Guarantor that it is considering imposing) any condition (financial or
otherwise) on the Company's or any Guarantor's retaining any rating
assigned to the Company or any Guarantor, any securities of the Company
or any Guarantor or (ii) has indicated to the Company or any Guarantor
that it is considering (a) the downgrading, suspension, or withdrawal of,
or any review for a possible change that does not indicate the direction
of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any
securities of the Company or any Guarantor.
(aa) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States Investment
Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the Company is
not and, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described in
the Offering Document, will not be an "investment company" as defined in
the Investment Company Act.
(bb) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934 ("EXCHANGE ACT") or quoted
in a U.S. automated inter-dealer quotation system.
(cc) The Offered Securities satisfy the requirements set forth
in Rule 144A(d)(3) under the Securities Act.
(dd) Assuming the accuracy of the representations and warranties
of the Purchasers contained in Section 4 hereof and their compliance with
the agreements set forth herein, the offer and sale of the Offered
Securities in the manner contemplated by this Agreement will be exempt
from the registration requirements of the Securities Act by reason of
Section 4(2) thereof and
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Regulation S thereunder; and it is not necessary, prior to the
effectiveness of any Registration Statement, to qualify an indenture in
respect of the Offered Securities under the TIA.
(ee) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month period
prior to the date hereof, offered or sold in the United States or to any
U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities, or any security of the same class
or series as the Offered Securities or (ii) has offered or will offer or
sell the Offered Securities (A) in the United States by means of any form
of general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S ("REGULATION S")
under the Securities Act, by means of any directed selling efforts within
the meaning of Rule 902(c) of Regulation S. The Company, its affiliates
and any person acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S. The
Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for this Agreement and the other agreements contemplated hereby.
(ff) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance or
sale of the Offered Securities to violate Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System.
(gg) No registration under the Securities Act of the Offered
Securities is required for the sale of the Offered Securities to the
Purchasers as contemplated hereby or for the resale of such Offered
Securities by the Purchasers as described in the Offering Circular
assuming the accuracy of the Purchasers' representations set forth in
Section 4 hereof and their compliance with the agreements contained
herein
(hh) To the Company's knowledge, none of the Company's Chief
Executive Officer, Chief Operating Officer and Chief Financial Officer
are a party to any criminal proceeding or investigation or material civil
litigation relating to the waste management industry, nor has any such
proceeding been threatened.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97% of the principal amount thereof
plus accrued interest from June 12, 2002 to the Closing Date (as hereinafter
defined), the respective principal amounts of Securities set forth opposite the
names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities to be offered and sold by the Purchasers in reliance on
Regulation S (the "REGULATION S SECURITIES") in the form of one or more
permanent global Securities in registered form without interest coupons (the
"OFFERED REGULATION S GLOBAL SECURITIES") which will be deposited with the
Trustee as custodian for The Depository Trust Company ("DTC") for the respective
accounts of the DTC participants for Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("EUROCLEAR"), and
Clearstream Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG") and registered
in the name of Cede & Co., as nominee for DTC. The Company will deliver against
payment of the purchase price the Offered Securities to be purchased by each
Purchaser hereunder and to be offered and sold by each Purchaser in reliance on
Rule 144A ("RULE 144A") under the Securities Act (the "144A SECURITIES") in the
form of one permanent global security in definitive form without interest
coupons (the "RESTRICTED GLOBAL SECURITIES") deposited with the Trustee as
custodian for DTC and registered in the name of Cede & Co., as nominee for DTC.
The Regulation S Global Securities and the Restricted Global Securities shall be
assigned separate CUSIP numbers. The Restricted Global Securities shall include
the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Document.
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Until the termination of the restricted period (as defined in Regulation S) with
respect to the offering of the Offered Securities, interests in the Regulation S
Global Securities may only be held by the DTC participants for Euroclear and
Clearstream, Luxembourg. Interests in any permanent global Securities will be
held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described in the
Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall be
made by the Purchasers in Federal (same day) funds by wire transfer to one or
more accounts at a bank or banks acceptable to Credit Suisse First Boston
Corporation and Salomon Smith Barney Inc. (the "REPRESENTATIVES") at the office
of Debevoise & Plimpton at 10:00 A.M., (New York time), on June 12, 2002, or at
such other time not later than seven full business days thereafter as The
Representatives and the Company mutually determine, such time being herein
referred to as the "Closing Date", against delivery to the Trustee as custodian
for DTC of (i) the Regulation S Global Securities representing all of the
Regulation S Securities for the respective accounts of the DTC participants for
Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Securities
representing all of the 144A Securities. The Regulation S Global Securities and
the Restricted Global Securities will be made available for checking at the
office of Debevoise & Plimpton at least 24 hours prior to the Closing Date.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS. The
Purchasers have advised the Company that they propose to offer the Securities
for resale upon the terms and subject to the conditions set forth herein and in
the Offering Document.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it
has offered and sold the Offered Securities and will offer and sell the
Offered Securities (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule
144A to persons whom it reasonably believes to be qualified institutional
buyers (as defined in Rule 144A). Accordingly, neither such Purchaser nor
its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect to
the Offered Securities and such Purchaser, its affiliates and all persons
acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. Each Purchaser
severally agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such Purchaser will
have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities
Act") and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the date
of the commencement of the offering and the closing
date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings given
to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
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(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or affiliates
of the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media
or broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales
made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such
Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that
(i) it has not offered or sold and prior to the date six months after the
date of issue of the Offered Securities will not offer or sell any
Offered Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of any notes in circumstances in which
section 21(1) of the FSMA does not apply to the Company or any Subsidiary
Guarantor; and (iii) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything
done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom.
(f) Each Purchaser severally agrees that, prior to or
simultaneously with the confirmation of sale by such Purchaser to any
purchaser of the Securities purchased by such Purchaser from the Company
pursuant hereto, such Purchaser shall furnish to that purchaser a copy of
the Offering Circular (and any amendment or supplement thereto that the
Company shall have furnished to the Purchaser prior to the date of such
confirmation of sale). In addition, each Purchaser acknowledges and
agrees that the Company, and, for purposes of the opinions to be
delivered to the Purchaser pursuant to Sections 6(c) and 6(d) hereof,
outside counsel for, and the general counsel of the Company shall be
entitled to rely on the representations and warranties of the Purchasers
under this Section 4 and their compliance with their agreement contained
herein, and each Purchaser consents to such reliance.
(g) Each Purchaser severally represents and warrants that this
Agreement has been duly authorized, executed and delivered by or on
behalf of such Purchaser
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE GUARANTORS. The Company
and the Guarantors agree with the several Purchasers that:
(a) The Company and the Guarantors will advise CSFBC promptly
of any proposal to amend or supplement the Offering Document and, except
as contemplated by the next sentence, will not effect such amendment or
supplementation without the consent of the Representatives. If, at any
time prior to the completion of the resale of the Offered Securities by
the Purchasers, any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order
9
<Page>
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any such
time to amend or supplement the Offering Document to comply with any
applicable law, the Company and the Guarantors promptly will notify the
Representatives of such event and promptly will prepare, at their own
expense, an amendment or supplement which will correct such statement or
omission or effect such compliance. Neither the Representatives' consent
to, nor the Purchasers' delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(b) The Company and the Guarantors will furnish to the
Representatives copies of the Preliminary Offering Circular, the Offering
Circular and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Representatives
shall reasonably request, and the Company and the Guarantors will furnish
to the Representatives on the date hereof three copies of the Offering
Document signed by a duly authorized officer of the Company, one of which
will include the independent accountants' reports therein manually signed
by such independent accountants. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to the Representatives (and,
upon written request, to each of the other Purchasers) and, upon written
request of holders and prospective purchasers of the Offered Securities,
to such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Offered Securities under
Rule 144A. the Company will pay the expenses of printing and distributing
to the Purchasers all such documents.
(c) The Company and the Guarantors will arrange for the
qualification of the Offered Securities for sale and the determination of
their eligibility for investment under the laws of such jurisdictions in
the United States and Canada as the Representatives designate and will
continue such qualifications in effect so long as required for the resale
of the Offered Securities by the Purchasers, provided that neither the
Company nor any Guarantor will be required to qualify as a foreign
corporation or to file a general consent to service of process or
taxation in any such state.
(d) For so long as any of the Securities are outstanding, the
Company and the Guarantors will furnish to the Representatives and, upon
written request, to each of the other Purchasers copies of all reports,
notices or communications that are required to be filed with the
Commission pursuant to the Securities Act, the Exchange Act or the
Indenture by the deadlines specified in the Indenture.
(e) During the period of two years after the Closing Date, the
Company and the Guarantors will, upon request, furnish to the
Representatives, each of the other Purchasers and any holder of Offered
Securities a copy of the restrictions on transfer applicable to the
Offered Securities.
(f) During the period of two years after the Closing Date, 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 Offered Securities that have been reacquired by any
of them.
(g) During the period of two years after the Closing Date, the
Company and the Guarantors will not be or become, an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses of
the Trustee and its professional advisers; (ii) all expenses in
10
<Page>
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities (as defined in the Registration Rights Agreement),
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indenture, the Offering Document
and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Offered Securities and
as applicable, the Exchange Securities; (iii) the cost of listing the
Offered Securities and qualifying the Offered Securities for trading in
The Portal(SM) Market ("PORTAL") and any expenses incidental thereto;
(iv) for any reasonable expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities or the Exchange Securities for sale under the laws of such
jurisdictions in the United States and Canada as the Representatives
reasonably designate and the printing of memoranda relating thereto, (v)
for any fees charged by investment rating agencies for the rating of the
Securities or the Exchange Securities, and (vi) for expenses incurred in
distributing the Preliminary Offering Circular and the Offering Circular
(including any amendments and supplements thereto) to the Purchasers. The
Company will also pay or reimburse the Purchasers (to the extent incurred
by them) for all reasonable travel expenses of the Purchasers and the
Company's officers and employees and any other expenses of the Purchasers
and the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities from the Purchasers. In
addition to any expenses, the Company will pay $50,000 to each of the
Representatives on the Closing Date as consideration for their role as
Representatives. Except as otherwise contained herein, the Purchasers
shall bear all of their expenses related to the transactions contemplated
hereby.
(i) In connection with the offering, until the Representatives
shall have notified the Company and the other Purchasers of the
completion of the resale of the Offered Securities, neither the Company
nor any of its affiliates has or will, either alone or with one or more
other persons, bid for or purchase for any account in which it or any of
its affiliates has a beneficial interest any Offered Securities or
attempt to induce any person to purchase any Offered Securities; and
neither it nor any of its affiliates will make bids or purchases for the
purpose of creating actual, or apparent, active trading in, or of raising
the price of, the Offered Securities.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations
of the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors herein, to the accuracy of the statements of officers
of the Company and the Guarantors made pursuant to the provisions hereof, to the
performance by the Company and the Guarantors of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received (i) a letter, dated the
date of this Agreement, of Ernst & Young LLP in form and substance
satisfactory to the Purchasers concerning the financial information with
respect to the Company and the Guarantors set forth in the Offering
Document and (ii) a letter, dated the date of this Agreement, of Howard
McElroy and Co., P.C. in form and substance satisfactory to the
Purchasers concerning the financial information with respect to Capital
City Roll-Offs, Inc. set forth in the Offering Document.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of the Representatives, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market, or (ii) (A) any change,
or any development or event involving a prospective change, in the
condition (financial or other), prospects, business, properties or
results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the
Purchasers including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (B) any
downgrading in the rating of any debt securities of the Company or any
11
<Page>
Guarantor by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Securities Act), or any
public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company or any Guarantor
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(C) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company or any Guarantor on any exchange or in
the over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of
the Purchasers including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or
sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of McDermott, Will & Emery, counsel for the Company, (or,
with respect to the Guarantors such local counsel to the Company as is
reasonably acceptable to the Purchasers) substantially in the form of
Exhibit 1 attached hereto.
(d) The purchasers shall have received an opinion, dated the
Closing Date, of Christopher Della Pietra, General Counsel of the
Company, substantially in the form of Exhibit 2 attached hereto.
(e) The Purchasers shall have received from Debevoise &
Plimpton, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Indenture and the
Securities, and such other related matters as the Initial Purchasers may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters.
(f) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company and of each Guarantor in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company and such Guarantor in this Agreement are true and correct, that
the Company and such Guarantor have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
dates of the most recent financial statements in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth in
or contemplated by the Offering Document or as described in such
certificate.
(g) The Purchasers shall have received a letter, dated the
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
the Closing Date for the purposes of this subsection.
(h) On or prior to the Closing Date, the Company and the
Guarantors shall have furnished to the Purchasers such further
certificates and documents as the Purchasers shall reasonably request.
(i) The Purchasers shall have received a counterpart of the
Registration Rights Agreement that shall have been executed and delivered
by a duly authorized officer of the Company and each of the Guarantors
12
<Page>
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. The Representatives may in their joint discretion waive on behalf of
the Purchasers compliance with any conditions to the obligations of the
Purchasers hereunder.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Guarantors will jointly and severally
agree to indemnify and hold harmless each Purchaser, its partners,
directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which
such Purchaser may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any breach of any of the representations and warranties of the
Company and the Guarantors contained herein or any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Purchaser
specifically for use therein, it being understood and agreed that the
only such information consists of the information described as such in
subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and
hold harmless the Company and the Guarantors, their respective directors
and officers and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities to which the Company may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Offering Document, or any amendment or
supplement thereto, or any related preliminary offering circular, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Purchaser specifically for
use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company and the Guarantors in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Purchaser consists of the
following information in the Offering Document furnished on behalf of
each Purchaser: under the caption "Plan of Distribution" paragraphs
three, eight, twelve, thirteen and fourteen; provided, however, that the
Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company's failure to perform
its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not
13
<Page>
relieve it from any liability which it may have to any indemnified party
other than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof. In any
such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the contrary; (ii)
the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to the indemnified party; (iii) the
indemnified party shall have concluded upon the advice of counsel that
there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party; or (iv) the named
parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood and
agreed that all fees and expenses shall be reimbursed to the indemnified
party as they are incurred. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified
party is a party and indemnity was sought hereunder by such indemnified
party unless such settlement includes (i) an unconditional release of
such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to
or an admission of fault, culpability or failure to act by or on behalf
of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantors
on the one hand and the Purchasers on the other from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Guarantors on the one
hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors on the one hand and
the Purchasers on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Guarantors bear to the total discounts
and commissions received by the Purchasers from the Company and the
Guarantors under this Agreement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the
Guarantors or the Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Purchaser shall be required to contribute any
amount in excess of the amount by which the total discounts, fees and
commission received by such Purchaser exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
14
<Page>
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of the Company and the Guarantors under
this Section shall be in addition to any liability which the Company and
the Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Purchaser within
the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to
any liability which the respective Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount Offered Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to the Representatives and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "Purchaser" includes any person substituted for
a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Guarantors or their respective officers and of
the several Purchasers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Purchaser, the Company
and the Guarantors or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the Purchasers
is not consummated, the Company and the Guarantors shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Guarantors and the Purchasers
pursuant to Section 7 shall remain in effect If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (C), (D) or (E) of Section 6(b)(ii),
the Company and the Guarantors will reimburse the Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Representatives at Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at IESI Corporation, 6125 Airport
Freeway, Suite 202, Haltom City, TX 76117, Attention: Chief Executive Officer,
with a copy to: IESI Corporation, 2 Commerce Street, 2nd Floor, Bayonne, NJ
07002, Attention: General Counsel; provided, however, that any notice to a
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other
15
<Page>
person will have any right or obligation hereunder, except that holders of
Offered Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Company as if such holders were parties thereto.
12. REPRESENTATION OF PURCHASERS. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you will be binding upon all the Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the Guarantors
and the written consent of the Representatives.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
16
<Page>
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
IESI Corporation
By
--------------------------------------
Name: Thomas J. Cowee
Title: Vice President, Chief Financial
Officer and Treasurer
IESI AR Corporation
IESI AR Landfill Corporation
IESI LA Corporation
IESI LA Landfill Corporation
IESI MO Corporation
IESI NJ Corporation
IESI NJ Recycling Corporation
IESI NY Corporation
IESI OK Corporation
IESI PA Bethlehem Landfill Corporation
IESI PA Blue Ridge Landfill Corporation
IESI PA Corporation
IESI TX Corporation
IESI TX GP Corporation
By
--------------------------------------
Name: Thomas J. Cowee
Title: Vice President, Chief Financial
Officer and Treasurer
IESI DE Corporation
IESI DE LP Corporation
By
--------------------------------------
Name: Christopher V. Della Pietra
Title: Vice President
IESI TX Landfill LP
By: IESI TX GP Corporation, its General
Partner
By
--------------------------------------
Name: Thomas J. Cowee
Title: Vice President, Chief Financial
Officer and Treasurer
17
<Page>
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By
-------------------------
Name:
Title:
Acting on behalf of itself
and as a Representative of
the several Purchasers
18
<Page>
SCHEDULE A
<Table>
<Caption>
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
- ------------------------------------------------------------------------ -------------------
Credit Suisse First Boston Corporation................................ $ 61,500,000
Salomon Smith Barney Inc.............................................. 61,500,000
Fleet Securities, Inc................................................. 13,500,000
J.P. Morgan Securities Inc............................................ 13,500,000
-------------------
Total........................................ $150,000,000
===================
</Table>
<Page>
SCHEDULE B
Subsidiary Guarantors
IESI AR Corporation
IESI AR Landfill Corporation
IESI DE Corporation
IESI DE LP Corporation
IESI LA Corporation
IESI LA Landfill Corporation
IESI MO Corporation
IESI NJ Corporation
IESI NJ Recycling Corporation
IESI NY Corporation
IESI OK Corporation
IESI PA Bethlehem Landfill Corporation
IESI PA Blue Ridge Landfill Corporation
IESI PA Corporation
IESI TX Corporation
IESI TX GP Corporation
IESI TX Landfill LP
<Page>
EXHIBIT 1
OPINION OF McDERMOTT, WILL & EMERY
<Page>
EXHIBIT 2
OPINION OF CHRISTOPHER DELLA PIETRA
<Page>
EXHIBIT I
FORM OF REGISTRATION RIGHTS AGREEMENT