175,000,000 WCA WASTE CORPORATION 7.50% Senior Notes due 2019 REGISTRATION RIGHTS AGREEMENT
Exhibit 10.1
June 7, 2011
Credit Suisse Securities (USA) LLC,
As Representative of the several Initial Purchasers
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
As Representative of the several Initial Purchasers
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
WCA Waste Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to
the several initial purchasers named in Schedule A of the Purchase Agreement (the “Initial
Purchasers”), upon the terms set forth in a purchase agreement dated as of May 26, 2011 (the
“Purchase Agreement”) by and among the Company, the Guarantors (as defined below) and Credit Suisse
Securities (USA) LLC, as representative (the “Representative”) of the several Initial Purchasers,
$175,000,000 aggregate principal amount of its 7.50% Senior Notes due 2019 (the “Initial
Securities”) to be unconditionally guaranteed (the “Guaranties”) by all existing and future
domestic restricted subsidiaries as set forth in Schedule A hereto (the “Guarantors”). The Initial
Securities will be issued pursuant to an Indenture, dated as of June 7, 2011 (the “Indenture”)
among the Company, the Guarantors and BOKF, NA dba Bank of Texas, as trustee (the “Trustee”). As an
inducement to the Initial Purchasers, the Company and the Guarantors agree with the Initial
Purchasers, for the benefit of the holders of the Initial Securities (including, without
limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private
Exchange Securities (as defined below) (collectively the “Holders”), as follows:
1. Registered Exchange Offer. The Company and the Guarantors shall, at their own cost, prepare
and use commercially reasonable efforts to file with the Securities and Exchange Commission (the
“Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an
appropriate form under the Securities Act of 1933, as amended (the “Securities Act”), with respect
to a proposed offer (the “Registered Exchange Offer”) to the Holders of Transfer Restricted
Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to issue and deliver to such
Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt
securities (the “Exchange Securities”) of the Company issued under the Indenture and identical in
all material respects to the Initial Securities (except for the transfer restrictions relating to
the Initial Securities and the provisions relating to the matters described in Section 6 hereof)
that would be registered under the Securities Act. The Company and the Guarantors shall use all
commercially reasonable efforts to cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 310 days (or if the 310th day is not a business day, the
first business day thereafter) after the date of original issue of the Initial Securities (the
“Issue Date”) and shall keep the Exchange Offer Registration Statement effective for not less than
30 business days (or longer, if required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration
Period”).
If the Company and the Guarantors effect the Registered Exchange Offer, the Company and the
Guarantors will close the Registered Exchange Offer and issue the Exchange Securities for all of
the Initial Securities theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer on or prior to 30 business days after the commencement thereof (or longer, if
required by applicable law).
Following the declaration of the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities
(as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the
Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business
and has no arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without
any limitations or restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States.
The Company and the Guarantors acknowledge that, pursuant to current interpretations by the
Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption
therefrom, (i) each Holder which is a broker-dealer electing to exchange Securities, acquired for
its own account as a result of market making activities or other trading activities, for Exchange
Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information
set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange Offer Procedures”
section and the “Purpose of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of
Distribution” section of such prospectus in connection with a sale of any such Exchange Securities
received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Securities acquired in exchange for Securities constituting
any portion of an unsold allotment is required to deliver a prospectus containing the information
required by Item 507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company and the Guarantors shall use their commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered by all persons
subject to the prospectus delivery requirements of the Securities Act for such period of time as
such persons must comply with such requirements in order to resell the Exchange Securities;
provided, however, that (i) in the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer or the Initial Purchasers, such period shall be
the lesser of 180 days and the date on which all Exchanging Dealers and an Initial Purchaser have
sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j)
below) and (ii) the Company and the Guarantors shall make such prospectus and any amendment or
supplement thereto available to any broker-dealer for use in connection with any resale of any
Exchange Securities for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the Company and the
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Guarantors, simultaneously with the delivery of the Exchange Securities pursuant to the Registered
Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such
Initial Purchaser, in exchange (the “Private Exchange”) for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company issued under the
Indenture and identical in all material respects (including the existence of restrictions on
transfer under the Securities Act and the securities laws of the several states of the United
States, but excluding provisions relating to the matters described in Section 6 hereof) to the
Initial Securities (the “Private Exchange Securities”). The Initial Securities, the Exchange
Securities and the Private Exchange Securities are herein collectively called the “Securities”.
In connection with the Registered Exchange Offer, the Company and the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required
by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in
the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the
Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business,
New York time, on the last business day on which the Registered Exchange Offer shall remain open;
and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company and the Guarantors shall:
(x) accept for exchange all of the Securities validly tendered and not withdrawn pursuant to
the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all of the Initial Securities so accepted for
exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all of the Securities will vote and consent
together on all matters as one class and that none of the Securities will have the right to vote or
consent as a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued pursuant to the
Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment
date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if
no interest has been paid on the Initial Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be required to represent to
the Company that at the time of the consummation of the Registered Exchange Offer
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(i) any Exchange Securities received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangement or understanding with any person to participate
in the distribution of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under the
Securities Act, of the Company or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer,
that it will receive Exchange Securities for its own account in exchange for Initial Securities
that were acquired as a result of market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming
part thereof and any supplement thereto complies in all material respects with the Securities Act
and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, does not include an untrue statement
of a material fact or omit to state a 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.
2. Shelf Registration. If, (i) because of any change in law or in applicable interpretations
thereof by the staff of the Commission, the Company or any Guarantor is not permitted to effect a
Registered Exchange Offer, as contemplated by Section 1 hereof, (ii) the Registered Exchange Offer
is not consummated within 225 days after the Issue Date or (iii) any Holder of Transfer Restricted
Securities notifies the Company prior to the 20th business day following consummation of
the Registered Exchange Offer that (A) it is prohibited by applicable law or Commission policy from
participating in the Registered Exchange Offer, (B) it may not resell the Exchange Securities
acquired by it in the Registered Exchange Offer to the public without delivering a prospectus and
the prospectus contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales, or (C) it is a broker-dealer and owns Initial Securities acquired
directly from the Company or an affiliate of the Company, the Company and the Guarantors shall take
the following actions:
(a) The Company and the Guarantors shall, at their cost, as promptly as practicable (but in no
event more than 90 days after so required or requested pursuant to this Section 2) use commercially
reasonable efforts to file with the Commission and thereafter shall use its commercially reasonable
efforts to cause to be declared effective within 310 days after so required or requested pursuant
to this Section 2 (unless it becomes effective automatically upon filing) a registration statement
(the “Shelf Registration Statement” and, together with the Exchange Offer Registration Statement, a
“Registration Statement”) on an appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Securities (as defined in Section 6 hereof) by the Holders thereof
from time to time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter, the “Shelf
Registration”); provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such
Holder.
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(b) The Company and the Guarantors shall use their commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities, for a period of one
year (or for such longer period if extended pursuant to Section 3(j) below) from the Issue Date or
such shorter period that will terminate when all of the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any successor rule thereof) (such
period being called the “Shelf Registration Period”).
(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company and
the Guarantors shall cause the Shelf Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf Registration Statement,
amendment or supplement, (i) to comply in all material respects with the applicable requirements of
the Securities Act and the rules and regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration contemplated by Section
2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 1
hereof, the following provisions shall apply:
(a) The Company and the Guarantors shall (i) furnish to the Representative, prior to the
filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof
and each supplement, if any, to the prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment from the original offering) is
participating in the Registered Exchange Offer or the Shelf Registration Statement, the Company and
the Guarantors shall use their commercially reasonable efforts to reflect in each such document,
when so filed with the Commission, such comments as such Initial Purchaser reasonably may propose,
which are received by the Company within 3 business days after the receipt of such document; (ii)
include the information substantially in the form set forth in Annex A hereto on the cover, in
Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer”
section and in Annex C hereto in the “Plan of Distribution” section of the prospectus forming a
part of the Exchange Offer Registration Statement and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by an Initial Purchaser, include the information required by Item 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to
the Representative, which shall contain a summary statement of the positions taken or policies made
by the staff of the Commission with respect to the potential “underwriter” status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) of Exchange Securities received by such broker-dealer
in the Registered Exchange Offer (a “Participating Broker-Dealer”), whether such positions or
policies have been publicly disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Representative based upon advice of counsel (which may
be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the
case of a Shelf Registration Statement, include in the prospectus included in the Shelf
Registration Statement (or, if permitted by Rule 430B(b) under the Securities Act, in a prospectus
supplement that becomes a part thereof pursuant to Rule 430B(f) under the Securities Act) that is
delivered to any
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Holder pursuant to Sections 3(d) and (f), the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement, as selling securityholders.
(b) The Company and the Guarantors shall give written notice to the Representative and any
Participating Broker-Dealer from whom the Company has received prior written notice that it will be
a Participating Broker-Dealer in the Registered Exchange Offer, (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose, of the issuance by
the Commission of a notification of objection to the use of the form on which the Registration
Statement has been filed, and of the happening of any event that causes the Company to become an
“ineligible issuer,” as defined in Rule 405 under the Securities Act;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to
the suspension of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) except to the extent otherwise incorporated therein by reference, of the happening of any
event that requires the Company to make changes in the Registration Statement or the prospectus in
order that the Registration Statement or the prospectus do not contain an untrue statement of a
material fact nor omit to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus, in light of the circumstances under which
they were made) not misleading.
(c) The Company and the Guarantors shall use commercially reasonable efforts to obtain the
withdrawal at the earliest possible time, of any order suspending the effectiveness of the
Registration Statement.
(d) To the extent not available on the Commission’s website at xxx.xxx.xxx, the Company and
the Guarantors shall furnish to each Holder of Securities named in the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any post-effective amendment or
supplement thereto, including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by reference). The Company and
the Guarantors shall not, without the prior consent of the Representative, make any offer relating
to the Securities that would constitute a “free writing prospectus,” as defined in Rule 405 under
the Securities Act.
(e) To the extent not available on the Commission’s website at xxx.xxx.xxx, the Company and
the Guarantors shall deliver to each Exchanging Dealer and the Representative, and to any other
Holder who so requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial statements and schedules,
and, if the Representative or any such Holder requests, all exhibits thereto (including those
incorporated by reference).
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(f) The Company and the Guarantors shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf Registration, without charge,
as many copies of the prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person may reasonably
request. The Company and the Guarantors consent, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall deliver to each Initial Purchaser, any Exchanging
Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment or supplement thereto as
such persons may reasonably request. The Company and the Guarantors consent, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto
by any Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in connection with the
offering and sale of the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any Registration Statement, the
Company and the Guarantors shall use commercially reasonable efforts to register or qualify or
cooperate with the Holders of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities for offer and sale under the
securities or “blue sky” laws of such states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Company and the Guarantors shall not be
required to (i) qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(i) The Company and the Guarantors shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the Securities to be
sold pursuant to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a reasonable period of time
prior to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section
3(b) above during the period for which the Company and the Guarantors are required to maintain an
effective Registration Statement, the Company and the Guarantors shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to the related prospectus
and any other required document so that, as thereafter delivered to Holders of the Securities or
purchasers of Securities, the prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading. If the Company
notifies the Initial Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 3(b) above to suspend the
use of the prospectus until the requisite changes to the prospectus have been made, then the
Initial Purchasers, the Holders of the Securities and any such Participating Broker-Dealers shall
suspend use of such
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prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement provided for in Section 1 above
shall each be extended by the number of days from and including the date of the giving of such
notice to and including the date when the Initial Purchasers, the Holders of the Securities and any
known Participating Broker-Dealer shall have received such amended or supplemented prospectus
pursuant to this Section 3(j). During the period during which the Company and the Guarantors are
required to maintain an effective Shelf Registration Statement pursuant to this Agreement, the
Company and the Guarantors will prior to the three-year expiration of that Shelf Registration
Statement file, and use its commercially reasonable efforts to cause to be declared effective
(unless it becomes effective automatically upon filing) within a period that avoids any
interruption in the ability of Holders of Securities covered by the expiring Shelf Registration
Statement to make registered dispositions, a new registration statement relating to the Securities,
which shall be deemed the “Shelf Registration Statement” for purposes of this Agreement.
(k) Not later than the effective date of the applicable Registration Statement, the Company
and the Guarantors will provide a CUSIP number for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the
Shelf Registration and will make generally available to its security holders (or otherwise provide
in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the
Company’s first fiscal quarter commencing after the effective date of the Registration Statement,
which statement shall cover such 12-month period.
(m) The Company and the Guarantors shall cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner and containing such changes, if any, as shall
be necessary for such qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company and the Guarantors may require each Holder of Securities to be sold pursuant
to the Shelf Registration Statement to furnish to the Company such information regarding the Holder
and the distribution of the Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude from such registration
the Securities of any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(o) The Company and the Guarantors shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form) and take all such other action, if any, as
any Holder of the Securities shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company and the Guarantors shall (i) make
reasonably available for inspection by the Holders of the Securities, any underwriter participating
in any disposition pursuant to the Shelf Registration Statement and any attorney,
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accountant or other agent retained by the Holders of the Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company
and the Guarantors and (ii) cause the Company’s officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders of the Securities
or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however,
that the foregoing inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by the Representative and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4 hereof.
(q) In the case of any Shelf Registration, the Company and the Guarantors, if requested by any
Holder of Securities covered thereby, shall cause (i) its counsel to deliver an opinion and updates
thereof relating to the Securities substantially in the forms provided pursuant to Sections 7(c)
and (d) of the Purchase Agreement with such changes as are customary in connection with the
preparation of a Registration Statement addressed to such Holders and the managing underwriters, if
any, thereof and dated, in the case of the initial opinion, the effective date of such Shelf
Registration Statement, (ii) its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the applicable Securities, dated
the date of the closing of such offering of such Securities, and (iii) its independent public
accountants to provide to the selling Holders of the applicable Securities and any underwriter
therefor a comfort letter dated the date of the closing of such offering of such Securities, in
customary form and covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement on Auditing Standards No. 72.
(r) [Intentionally Omitted].
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery
of the Initial Securities by Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case
may be, the Company and the Guarantors shall xxxx, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are being canceled in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall the
Initial Securities be marked as paid or otherwise satisfied.
(t) The Company and the Guarantors will use their commercially reasonable efforts to, if the
Initial Securities have been rated prior to the initial sale of such Initial Securities, confirm
such ratings will apply to the Securities covered by a Registration Statement.
(u) In the event that any broker-dealer registered under the Exchange Act shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling group or “assist in
the distribution” (within the meaning of the Conduct Rules (the “Rules”) of the Financial Industry
Regulatory Authority, Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company and
the Guarantors will assist such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a “qualified independent underwriter” (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is
9
made through a placement or sales agent,
to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with the requirements of
the Rules.
(v) The Company and the Guarantors shall use their commercially reasonable efforts to take all
other steps necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
4. Registration Expenses. The Company and the Guarantors shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1 through 3 hereof
(including the reasonable fees and expenses, if any, of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the
Initial Purchasers, incurred in connection with the Registered Exchange Offer), whether or not the
Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in the event
of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for
the reasonable fees and disbursements of one firm of counsel designated by the Holders of a
majority in principal amount of the Initial Securities covered thereby to act as counsel for the
Holders of the Initial Securities in connection therewith.
5. Indemnification. (a) The Company and the Guarantors agree to indemnify and hold harmless
each Holder of the Securities, any Participating Broker-Dealer and each person, if any, who
controls such Holder or such Participating Broker-Dealer within the meaning of the Securities Act
or the Exchange Act (each Holder, any Participating Broker-Dealer and such controlling persons are
referred to collectively as the “Indemnified Parties”) from and against any losses, claims, damages
or liabilities, joint or several, or any actions in respect thereof (including, but not limited to,
any losses, claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus or “issuer free writing prospectus,” as defined in Rule 433 under the
Securities Act (an “Issuer FWP”), relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company and the Guarantors shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus or Issuer FWP relating to a Shelf Registration in reliance upon and in
conformity with written information pertaining to such Holder and furnished to the Company or any
Guarantor by or on behalf of such Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or Participating Broker-Dealer from
whom the person asserting any such losses, claims, damages or liabilities purchased the Securities
concerned, to the extent that a prospectus relating to such Securities was required to be delivered
(including through satisfaction of the conditions of Rule 172 under the Securities Act) by such
Holder or Participating Broker-
10
Dealer under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such Holder or Participating Broker-Dealer results from the fact that there
was not conveyed to such person, at or prior to the time of the sale of such Securities to such
person, an amended or supplemented prospectus or, if permitted by Section 3(d), an Issuer FWP
correcting such untrue statement or omission or alleged untrue statement or omission if the Company
or any Guarantor had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will be in addition to any
liability which the Company or any Guarantor may otherwise have to such Indemnified Party. The
Company and the Guarantors shall also indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the Securities Act or the Exchange Act
to the same extent as provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold harmless
the Company and each Guarantor, their directors and officers and each person, if any, who controls
the Company or any Guarantor within the meaning of the Securities Act or the Exchange Act from and
against any losses, claims, damages or liabilities or any actions in respect thereof, to which the
Company or any Guarantor or any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus or Issuer FWP relating to a Shelf Registration, or arise out of or are
based upon the omission or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company or any Guarantor by or
on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the Company and the
Guarantors for any legal or other expenses reasonably incurred by the Company and each Guarantor,
their directors and officers or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement
will be in addition to any liability which such Holder may otherwise have to the Company or any of
its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve the indemnifying party from any liability that it may have
under subsection (a) or (b) above except to the extent that 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 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 (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying 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 5 for any legal or other expenses,
11
other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense thereof. 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 or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes 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
a failure to act by or on behalf of, any indemnified party.
(d) If the indemnification provided for in this Section 5 is unavailable or insufficient to
hold harmless an indemnified party under subsections (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 (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on the other from the
exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation
provided by the foregoing clause (i) 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 indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties 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 or any
Guarantor on the one hand or such Holder or such other indemnified party, as the case may be, on
the other, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such 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 any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have 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 contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who controls the Company
or any Guarantor within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company or any Guarantor.
(e) The agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
6. Liquidated Damages Under Certain Circumstances. (a) Liquidated damages (the “Liquidated
Damages”) with respect to the Initial Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (v) below a “Registration Default”):
12
(i) If by April 12, 2012, the Exchange Offer Registration Statement is not declared effective
by the Commission;
(ii) If the Shelf Registration Statement is not filed on or prior to 90 days after such filing
obligation arises;
(iii) If the Shelf Registration Statement is not declared effective on or prior to 310 days
after such filing obligation arises;
(iv) If within 30 business days after becoming effective, the Registered Exchange Offer is not
consummated; or
(v) If after either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared (or becomes automatically) effective (A) such Registration Statement
thereafter ceases to be effective; or (B) such Registration Statement or the related prospectus
ceases to be usable (except as permitted in paragraph (b)) in connection with resales of Transfer
Restricted Securities during the periods specified herein.
With respect to the first 90-day period immediately following the occurrence of the first
Registration Default, Liquidated Damages shall accrue on the Transfer Restricted Securities over
and above the interest set forth in the title of the Securities from and including the date on
which any such Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, in an amount equal to $0.05 per week per $1,000 principal
amount of Transfer Restricted Securities. The amount of Liquidated Damages will increase by an
additional $0.05 per week per $1,000 principal amount of Transfer Restricted Securities with
respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a
maximum amount of Liquidated Damages for all Registration Defaults of $0.20 per week per $1,000
principal amount of Transfer Restricted Securities. Following the cure of all Registration Defaults
relating to any Transfer Restricted Securities, Liquidated Damages shall cease to accrue.
(b) A Registration Default referred to in Section 6(a)(v)(B) hereof shall be deemed
not to have occurred and be continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the related prospectus or (y)
other material events with respect to the Company that would need to be described in such Shelf
Registration Statement or the related prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; provided, however, that in any case, if such
Registration Default occurs for a continuous period in excess of 30 days, Liquidated Damages shall
be payable in accordance with the above paragraph from the day such Registration Default occurs
until such Registration Default is cured.
(c) Any amounts of Liquidated Damages due pursuant to clause (i), (ii), (iii) or (iv) of
Section 6(a) above will be payable in cash on the regular interest payment dates with respect to
the Initial Securities to The Depository Trust Company or its nominee by wire transfer of
immediately available funds or by federal funds check and to holders of certificated Securities by
wire transfer to the accounts specified by them or by mailing checks to their registered addresses
if no such accounts have been specified. The amount of Liquidated Damages will be determined by
multiplying the applicable Liquidated Damages rate by the principal amount of the Initial
Securities, multiplied by a fraction, the numerator of which is the
13
number of days such Liquidated
Damages rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is
360.
(d) “Transfer Restricted Securities” means each Initial Security until (i) the date on which
such Initial Security has been exchanged by a person other than a broker-dealer for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the
date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on
or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which the resale of such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Initial Security is distributed to the public
pursuant to Rule 144 under the Securities Act.
(e) Notwithstanding the foregoing in this Section 6: (1) the amount of Liquidated Damages
payable shall not increase because more than one Registration Default has occurred and is pending,
and a Holder of a Transfer Restricted Security who is not entitled to the benefits of the Shelf
Registration Statement (i.e., such Holder has not elected to furnish information to the Company in
accordance with Section 3(n) hereof) shall not be entitled to Liquidated Damages with respect to a
Shelf Registration Default; and (2) no Holder who (x) was eligible to exchange such Holder’s
outstanding Securities at the time the Exchange Offer was pending and consummated and (y) failed to
validly tender such Securities for exchange pursuant to the Exchange Offer shall be entitled to
receive any Liquidated Damages that would otherwise accrue subsequent to the date the Exchange
Offer is consummated.
7. Rules 144 and 144A. The Company and the Guarantors shall use their commercially reasonable
efforts to file the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company and the Guarantors are not required to file
such reports, they will, upon the request of any Holder of Initial Securities, make publicly
available other information so long as necessary to permit sales of their securities pursuant to
Rules 144 and 144A under the Securities Act. The Company and the Guarantors covenant that they will
take such further action as any Holder of Initial Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Initial Securities without
registration under the Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Company and the Guarantors will
provide a copy of this Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. Upon the request of any Holder of Initial
Securities, the Company and the Guarantors shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering (“Managing Underwriters”) will be
selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering.
No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney,
14
indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous.
(a) 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 written consent of the Holders of a majority in principal amount of
the Securities affected by such amendment, modification, supplement, waiver or consent.
(b) Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address given by such Holder to the
Company.
(2) if to the Initial Purchasers:
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with
a copy to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
(3) if to the Company, at its address as follows:
WCA Waste Corporation
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxx
with a copy to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxx
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile
15
machine operator,
if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. Neither the Company nor any Guarantor has, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any agreement with
respect to its securities that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the Company and the
Guarantors and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
(h) Severability. If any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of Holders of a specified
percentage of principal amount of Securities is required hereunder, Securities held by the Company
or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of such required
percentage.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the several Initial Purchasers and the Company and the
Guarantors in accordance with its terms.
16
Very truly yours, WCA Waste Corporation |
||||
By: | /s/ Xxxxxxx X. Xxx | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Vice President and General Counsel |
American Waste, LLC Boxer Realty Redevelopment, LLC Burnt Poplar Transfer, LLC Champion City Recovery, LLC Eagle Ridge Landfill, LLC Emerald Waste Services, LLC EWS Central Florida Hauling, LLC Material Recovery, LLC Material Reclamation, LLC N.E. Land Fill, LLC New Amsterdam & Seneca Railroad Company, LLC Pauls Valley Landfill, LLC Sooner Waste, LLC Sunny Farms Landfill LLC Texas Environmental Waste Services, LLC Transit Waste, LLC Translift, LLC Waste Corporation of Arkansas, LLC Waste Corporation of Kansas, Inc. Waste Corporation of Missouri, Inc. Waste Corporation of Tennessee, Inc. WCA Capital, Inc. WCA Holdings Corporation WCA Management General, Inc. WCA Management Limited, Inc. WCA of Alabama, LLC WCA of Central Florida, Inc. WCA of Chickasha, Inc. WCA of Florida, LLC WCA of High Point, LLC WCA of Massachusetts, LLC WCA of Mississippi, LLC WCA of North Carolina, LLC WCA of Ohio, LLC WCA of Oklahoma, LLC WCA of St. Lucie, LLC WCA Shiloh Landfill, LLC WCA Texas Management General, Inc. WCA Wake Transfer Station, LLC WCA Waste Systems, Inc. WRH Gainesville Holdings, LLC WRH Gainesville, LLC WRH Orange City, LLC |
||||
By: | /s/ Xxxxxxx X. Xxx | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Vice President of each of the foregoing entities |
18
WCA Management Company, L.P. |
||||
By: | WCA Management General, Inc, | |||
its sole general partner | ||||
By: | /s/ Xxxxxxx X. Xxx | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Vice President | |||
Waste Corporation of Texas, L.P., Fort Bend Regional Landfill L.P. and Xxxxxxx Hills Transfer Station, L.P. |
||||
By: | WCA Texas Management General, Inc., their sole general partner |
|||
By: | /s/ Xxxxxxx X. Xxx | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Vice President | |||
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
Acting on behalf of itself
and as the Representative
of the several Initial Purchasers
and as the Representative
of the several Initial Purchasers
Credit Suisse Securities (USA) LLC |
||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Managing Director |
19
SCHEDULE A1
American Waste, LLC
Boxer Realty Redevelopment, LLC
Burnt Poplar Transfer, LLC
Champion City Recovery, LLC
Eagle Ridge Landfill, LLC
Fort Bend Regional Landfill, LP
Material Recovery, LLC
Material Reclamation, LLC
N.E. Land Fill, LLC
New Amsterdam & Seneca Railroad Company, LLC
Pauls Valley Landfill, LLC
Xxxxxxx Hills Transfer Station, LP
Sooner Waste, LLC
Sunny Farms Landfill LLC
Texas Environmental Waste Services, LLC
Transit Waste, LLC
TransLift, LLC
Waste Corporation of Texas, LP
Waste Corporation of Arkansas, LLC
Waste Corporation of Kansas, Inc.
Waste Corporation of Missouri, Inc.
Waste Corporation of Tennessee, Inc.
WCA Capital, Inc.
WCA Holdings Corporation
WCA Management Company, LP
WCA Management General, Inc.
WCA Management Limited, Inc.
WCA of Alabama, LLC
WCA of Central Florida, Inc.
WCA of Chickasha, Inc.
WCA of Florida, LLC
WCA of High Point, LLC
WCA of Massachusetts, LLC
WCA of Mississippi, LLC
WCA of North Carolina, LLC
WCA of Ohio, LLC
WCA of Oklahoma, LLC
WCA of St. Lucie, LLC
WCA Shiloh Landfill, LLC
WCA Texas Management General, Inc.
WCA Wake Transfer Station, LLC
WCA Waste Systems, Inc.
Boxer Realty Redevelopment, LLC
Burnt Poplar Transfer, LLC
Champion City Recovery, LLC
Eagle Ridge Landfill, LLC
Fort Bend Regional Landfill, LP
Material Recovery, LLC
Material Reclamation, LLC
N.E. Land Fill, LLC
New Amsterdam & Seneca Railroad Company, LLC
Pauls Valley Landfill, LLC
Xxxxxxx Hills Transfer Station, LP
Sooner Waste, LLC
Sunny Farms Landfill LLC
Texas Environmental Waste Services, LLC
Transit Waste, LLC
TransLift, LLC
Waste Corporation of Texas, LP
Waste Corporation of Arkansas, LLC
Waste Corporation of Kansas, Inc.
Waste Corporation of Missouri, Inc.
Waste Corporation of Tennessee, Inc.
WCA Capital, Inc.
WCA Holdings Corporation
WCA Management Company, LP
WCA Management General, Inc.
WCA Management Limited, Inc.
WCA of Alabama, LLC
WCA of Central Florida, Inc.
WCA of Chickasha, Inc.
WCA of Florida, LLC
WCA of High Point, LLC
WCA of Massachusetts, LLC
WCA of Mississippi, LLC
WCA of North Carolina, LLC
WCA of Ohio, LLC
WCA of Oklahoma, LLC
WCA of St. Lucie, LLC
WCA Shiloh Landfill, LLC
WCA Texas Management General, Inc.
WCA Wake Transfer Station, LLC
WCA Waste Systems, Inc.
20
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading activities. The Company and
the Guarantors have agreed that, for a period of 180 days after the Expiration Date (as defined
herein), it will make this Prospectus available to any broker-dealer for use in connection with any
such resale. See “Plan of Distribution.”
21
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for
Securities, where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”
22
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company and the Guarantors have agreed
that, for a period of 180 days after the Expiration Date, it will make this prospectus, as amended
or supplemented, available to any broker-dealer for use in connection with any such resale. In
addition, until , 20 , all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.(1)
The Company and the Guarantors will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company and the Guarantors will
promptly send additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The
Company and the Guarantors have agreed to pay all reasonable expenses incident to the Exchange
Offer (including the reasonable expenses of one counsel for the Holders of the Securities) other
than commissions or concessions of any brokers or dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities, including liabilities under
the Securities Act.
(1) | In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus. |
23
ANNEX D
o | CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. | |
Name: | ||
Address: |
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
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