EXHIBIT 5.3
[LETTERHEAD OF KAVANAGH MALONEY & OSNATO LLP]
April 17, 2002
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Banc of America Securities LLC
231 South LaSalle Street
Chicago, Illinois 60697
Locke Liddell & Sapp LLP
600 Travis Street
Houston, Texas 77002
Alvin L. Thomas II, Esq.
Synagro Technologies, Inc.
1800 Bering Drive, Suite 1000
Houston, Texas 77507
Gentlemen:
We have acted as special New York counsel to New York Organic
Fertilizer Company, a New York general partnership (the "Company"), in
connection with the execution and delivery of that certain Purchase Agreement
(the "Agreement"), dated April 8, 2002, among Synagro Technologies, Inc. (the
"Parent"), the Company and certain other subsidiaries and affiliates of the
Parent (the "Guarantors") and Lehman Brothers Inc. and Banc of America
Securities LLC (the "Initial Purchasers").
This opinion is hereby furnished pursuant to Section 7(m) of the
Agreement. Terms used and not defined herein shall have the meaning given them
in the Agreement.
In connection with this opinion, we have examined and relied upon
executed copies of:
(a) the Agreement;
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(b) that certain Exchange and Registration Rights Agreement dated
April 17, 2002 among the Parent, the Guarantors and the
Initial Purchasers;
(c) 9 1/2% Senior Subordinated Notes No. A-1, A-2 and A-3 dated
April 17, 2002 in the principal amount of $149,400,000,
$600,000 and $0.00, respectively, made by Parent and payable
to Cede & Co.;
(d) those certain Note Guarantees by the Guarantors, endorsed on
each Senior Subordinated Note referred to in item (c) above,
pursuant to Article 11 of the Indenture;
(e) that certain Indenture dated as of April 17, 2002 among the
Parent, the Guarantors, and Wells Fargo Bank Minnesota, N.A.,
as trustee;
the foregoing being herein sometimes referred to as the "Subject Documents". We
have also examined and relied upon (a) such certificates of public officials,
(b) such certificates of the agents and certificates of the Company and its
officers and partners and of officers of general partners of the Company and (c)
such partnership documents and records of the Company, and of such other
documents, records and papers, as we have deemed relevant and necessary in order
to give the opinions hereinafter set forth.
As to questions of fact material to our opinions, we have relied upon
certificates of public officials, the Company and its officers and partners and
officers of the general partners of the Company and upon representations made in
the Subject Documents.
For purposes of the matters set forth herein, we have assumed:
(i) the genuineness of all signatures on all documents and the legal
capacity of natural persons;
(ii) the legal existence of all parties other than the Company;
(iii) the authenticity of all documents submitted to us as originals,
and the conformity to the originals of all documents submitted to us as copies
and the authenticity of such originals;
(iv) the correctness and accuracy of all facts set forth in all
certificates identified in this opinion, and the accuracy and completeness of
all public records reviewed by us; and
(v) that, except as stated in the Subject Documents, there are no
documents or oral or written agreements among the Initial Purchasers and the
Company, and there has been no waiver
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of any of the provisions of the Subject Documents which, in either case, would
have an effect on the opinions expressed herein.
With your permission, we advise you that regarding documents that have
been executed by parties other than the Company, we have no actual knowledge
that such documents have in fact been executed by such other parties.
We are admitted to the bar in New York, and we express no opinion as to
the laws of any other jurisdiction.
Based upon the foregoing and subject to the assumptions, limitations
and qualifications set forth herein we are of the opinion that:
1. The Company is validly existing under the laws of the State of New
York. The Company has the requisite partnership power and authority to
conduct the business in which it is engaged and own or hold its
properties.
2. The execution and delivery by the Company of the Subject Documents to
which the Company is a party will not (i) result in a breach of any
provision of the partnership agreement of the Company, or (ii) violate
any statute, rule or regulation of the State of New York or, to our
knowledge, any order of any court or governmental agency or body of the
State of New York, in either case, applicable to and having
jurisdiction over the Company or any of its properties.
3. The sole general partners of the Company are NYOFCO Holdings Inc. and
Synagro-WWT, Inc.
4. Except for such filings, consents, approvals, authorizations,
registrations and qualifications as may be required under state
securities laws, no consents, approvals, authorizations or orders of,
or filings or registrations with, any governmental authority of the
State of New York are required on the part of the Company in connection
with the execution and delivery by the Company of the Subject Documents
to which the Company is a party and the consummation of the
transactions thereunder.
5. The Subject Documents to which the Company is a party have been duly
authorized by the Company. The Subject Documents to which the Company
is a party have been executed and delivered by the Company.
6. To our knowledge, except as set forth in the Agreement, there are no
legal or governmental proceedings pending or threatened against the
Company in any court or before any governmental authority of the State
of New York which could reasonably be expected, if determined adversely
to the Company, to have a material adverse effect on
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the consolidated financial position, partners' equity, results of
operations, or business of the Company.
We have not been engaged by the Company to give substantive attention
to, and therefore we express no opinion with respect to any licenses,
trademarks, trade names, patents, copyrights, franchises or governmental
consents, approvals or authorizations which are necessary to the conduct of the
Company's business. Our opinions set forth in paragraphs 2.(ii) and 4. above are
limited to those New York laws, rules and regulations which, in our experience,
are normally applicable to transactions of the type provided for in the Subject
Documents (and, in no event, is any opinion provided herein as to environmental,
land use, "blue sky", securities, antitrust, unfair competition, taxation or
labor laws, rules or regulations) and those orders of courts, or governmental
agencies or bodies, if any, the existence of which have been specifically
disclosed to us by the Company, but without our having made any special
investigation concerning any other law, rule, regulation or order.
We neither express nor imply any opinion regarding the applicability,
or the effect of the applicability, of any federal or state law regarding
fraudulent conveyances or transfers or the solvency, adequacy of capital or
ability to pay indebtedness of the Company.
As used herein, the phrase "to our knowledge" or "known to us" (or
words of similar import) means the conscious awareness of information by any
attorney of this firm who has had active involvement in the preparation of this
opinion letter or who is primarily responsible for providing a response
concerning a particular issue herein or information regarding factual matters
and, in any event, any attorney of this firm who has given substantive legal
attention to the representation of the Company with respect to the matters
discussed herein, without undertaking any special investigation and without
searching or reviewing public records or the files of the Company or its
partners.
This opinion is given as of the date hereof and we disclaim any
responsibility to advise you of any change in law or fact that may arise after
the date hereof or of any fact that arose prior to the date hereof but was not
drawn to our attention until after the date hereof. Except for Locke Liddell &
Sapp LLP and Mr. Alvin Thomas in connection with their legal opinions issued in
connection with the Subject Documents, this opinion is for the sole benefit of
the Initial Purchasers in connection with the Subject Documents and the
transactions contemplated thereby and may not be delivered to or relied upon by
any other person, or be used or relied upon by the Initial Purchasers for any
other purpose, without our prior written consent.
Very truly yours,
/s/ Kavanagh Maloney & Osnato LLP
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