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EXHIBIT 1
PURCHASE CONTRACT
PURCHASE CONTRACT dated March __, 2000 between WCA SHILOH LANDFILL, L.L.C,
("WCA") and XXXXXX XXXXXXX & COMPANY, INCORPORATED (the "Underwriter").
1. BACKGROUND.
(a) WCA proposes to issue and sell its $5,000,000 Senior Secured Bonds (the
"Bonds"). The Bonds will be issued to provide financing of general
operating expenses and working capital needs, and to repay advances made by
WCA's parent corporation, Waste Corporation of America, which advances were
used to fund the acquisition by WCA of a construction and demolition debris
landfill, known as the Shiloh Landfill, located in the Greenville, South
Carolina area (the said landfill and all other property acquired in
connection therewith being herein together called the "Project"). The Bonds
will be issued under and secured by a Trust Indenture dated as of March 1,
2000 (the "Indenture"), between WCA and Regions Bank, Montgomery, Alabama,
as Trustee (the said bank, together with its successors in trust, being
herein called the "Trustee.
(b) WCA proposes to sell the Bonds to the Underwriter and the Underwriter
proposes to offer the Bonds for resale, in reliance on the representations,
covenants and indemnities herein set forth. WCA has joined in this Purchase
Contract in order to induce the Underwriter to enter into the same and to
sell and purchase the Bonds under the terms herein set forth.
(c) WCA has heretofore caused to be prepared a Preliminary Prospectus (the
"Preliminary Prospectus"), and a definitive Prospectus dated ___________
__, 2000 (the "Prospectus"), which pertains to the Bonds. WCA hereby
approves and ratifies the use of the Preliminary Prospectus by the
Underwriter before the date hereof and its use of the Prospectus after the
date thereof, in connection with the resale of the Bonds. The terms and
conditions of the Bonds (including without limitation, the maturities, the
interest rates and the provisions for the redemption thereof prior to their
respective maturities) shall be as described in the Prospectus. The
Prospectus has been filed as part of WCA's registration statement with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities
Act of 1933 (the "Registration Statement"). The Registration Statement is
effective, and WCA has received no notice from the SEC that its approval of
the Registration Statement has been withdrawn.
(d) The attorneys referred to in this Purchase Contract are:
Counsel for WCA:
Mayor, Day, Xxxxxxxx & Xxxxxx, LLP
Houston, Texas
Counsel for the Underwriter:
X. Xxxxxxxx Simpler, Jr., P.C.
Montgomery, Alabama
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2. PURCHASES, SALE AND CLOSING.
Subject to the terms and conditions and in reliance on the representations,
warranties and covenants herein set forth, the Underwriter hereby agrees to
purchase all of the Bonds from WCA, and WCA hereby agrees to sell all of the
Bonds to the Underwriter, at a price of $_______________ (which price reflects
an underwriting discount of $_________, original issue discount of $___________
and accrued interest to, but not including the date of the Closing as
hereinafter defined of $__________). The sale and purchase of the Bonds shall
take place at a Closing (the "Closing"), which shall take place at 9:00 AM,
Central time, on ________ __, 2000, or on such other date or at such other time
as may be agreed on by WCA and the Underwriter, at the offices of counsel to
WCA, or at such other place, as shall be mutually agreeable to WCA and the
Underwriter. At the Closing, WCA will deliver to the Underwriter, or cause to be
delivered, the Bonds in definitive form, duly executed and authenticated, in
authorized denominations requested by the Underwriter, together with the other
documents herein required; and the Underwriter will accept delivery and pay the
purchase price of the Bonds in immediately available funds. If at the Closing
WCA fails to deliver the Bonds to the Underwriter as provided herein, or if at
the Closing any of the conditions specified in Section 8 hereof shall not have
been fulfilled to the satisfaction of the Underwriter, the Underwriter may elect
to be relieved of any further obligations under this Purchase Contract without
thereby waiving any other rights the Underwriter may have by reason of such
failure or non-fulfillment.
3. OFFERING; UNDERWRITER'S COVENANTS.
The Underwriter agrees to make an offering of all of the Bonds at not in excess
of 100% of the face value thereof.
The Underwriter has full power and authority under the laws of the State of
Alabama to enter into this Purchase Contract, and when executed and delivered,
this Purchase Contract will be a legal, valid and binding obligation of the
Underwriter enforceable in accordance with its terms. The Underwriter covenants
to offer and sell the Bonds in accordance with all applicable federal and state
laws including federal securities laws and the securities laws of each state in
which the Bonds are sold.
Not later than the Closing, the Underwriter will execute and deliver to WCA a
certificate or other document or instrument pursuant to which the Underwriter
represents and covenants to WCA factual matters reasonably necessary in order
for WCA to compute the amount, if any, of original issue discount to be included
as interest in its reports filed with the Internal Revenue Service.
4. WCA'S REPRESENTATIONS AND WARRANTIES.
WCA makes the following representations and warranties to the Underwriter:
(a) WCA is a duly organized and validly existing limited liability company
and is in good standing under the laws of the State of South Carolina and
qualified to do business in the State of South Carolina. WCA has the power
and authority to own its properties and assets and to carry on its
businesses as now being conducted and is duly qualified to do business in
every jurisdiction wherein the failure to qualify would have a material
adverse effect on WCA or its business (including, without limitation, the
State of South Carolina). WCA has all requisite power to enter into this
Purchase Contract and to consummate the transactions contemplated hereby.
(b) WCA has duly authorized all actions for the execution and delivery of
the Indenture, the Bonds and this Purchase Contract and has taken all
actions necessary or appropriate to insure that such documents, when
executed and delivered by WCA, will constitute valid and legally binding
obligations
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of WCA, enforceable in accordance with their terms, except to the extent
that their enforceability may be limited by bankruptcy, insolvency or other
laws affecting creditors' rights generally.
(c) With respect to the information concerning WCA, the Project, the Bonds,
the use of the proceeds of the Bonds, the Indenture, the Prospectus
(including all reports, documents or financial statements referred to in
the Prospectus) was and is, and all times subsequent hereto up to and
including the date of the Closing will be, true, correct and complete in
all material respects, and does not and will not contain 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
light of the circumstances under which they were made, not misleading.
(d) The Indenture and the Bonds conform in all material respects to the
descriptions thereof contained in the Prospectus.
(e) The execution and delivery of this Purchase Contract, the Indenture and
the Bonds and the compliance by WCA with the provisions hereof and thereof,
do not and will not conflict with or constitute by WCA a violation of,
breach of or default under (i) the Certificates of Organization or
Operating Agreement of WCA, (ii) any indenture, mortgage, deed of trust,
lease, note agreement or other agreement or instrument to which WCA is a
party or by which WCA is bound, or (iii) any constitutional provision or
statute or any order, rule, or regulations of any court or governmental
agency or body having jurisdiction over WCA or any of its activities or
property; and all consents, approvals, authorizations, and orders of
governmental or regulatory authorities which are required in connection
with the execution, delivery and performance by WCA of this Purchase
Contract, the Indenture and the Bonds has been duly obtained and remain in
full force and effect.
(f) There is no action, suit, proceeding, inquiry or investigation, at law
or in equity, before or by any court, public board or body, known to be
pending or threatened against or affecting the company nor to the best of
the knowledge of WCA is there any basis therefor, wherein an unfavorable
decision, ruling or finding would materially adversely affect the
transaction contemplated by this Purchase Contract or by the Prospectus or
would, in any way, adversely affect the validity or enforceability of the
Bonds, the Indenture, this Purchase Contract or any agreement or instrument
to which WCA is a party and which is used or contemplated for use in the
consummation of the transactions contemplated by this Purchase Contract or
by the Prospectus
(g) The Securities and Exchange Commission has not issued and, to the best
of WCA's knowledge, is not threatening to issue, any order preventing or
suspending the use of the Prospectus.
(h) Neither WCA nor anyone acting on its behalf has, directly or
indirectly, offered the Bonds or any similar securities of WCA in
connection with the Project for sale to, or solicited any offer to buy the
same from, anyone other than the Underwriter.
5. WCA'S COVENANTS.
WCA will faithfully perform and comply with the following covenants:
(a) WCA will indemnify and hold harmless the Underwriter and its directors
and officers and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, against any
and all losses, claims, damages, expenses of liabilities, joint or several,
to which they or any of them may
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become subject under any statute or at common law or otherwise, and, except
as hereinafter provided, WCA will reimburse the Underwriter and each such
director or officer and each such controlling persons, if any, for any
reasonable legal or other expense incurred by them in connection with
investigating or defending any actions, whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities
or actions (i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus or
(ii) arise out of or are based upon the omission or alleged omission to
state in that part of the Prospectus a material fact required to be stated
therein or necessary in order to make the statements made therein not
misleading in light of the circumstances under which they are made.
Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against WCA under this section,
the indemnifiable party will notify WCA in writing of the commencement
thereof, and, subject to the provisions hereinafter stated, WCA shall
assume the defense of such action: (including the employment of counsel,
who shall be counsel satisfactory to WCA or the Underwriter or such
indemnifiable person) shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall not be at the expense of WCA unless the
employment of such counsel has been specifically authorized by WCA. WCA
shall not be liable to indemnify any person for any settlement of any such
action effected without its consent. Any provisions of this section to the
contrary notwithstanding, WCA shall in no event be obligated to indemnify
or hold the Underwriter harmless against any loss or liability unless the
Underwriter furnishes or causes to be furnished a final Prospectus to each
person purchasing any of the bonds from the Underwriter, or in the event
the loss or liability results from any information provided by the
Underwriter to WCA in connection with its offering of the Bonds.
(b) WCA will notify the Underwriter of any material adverse change in the
business, properties or financial condition of WCA occurring before the
Closing or within six (6) months thereafter which would require a change in
the Prospectus, or in the Appendices thereto in order to make the
representations and warranties set forth in Section 5(c) hereof true and
correct.
(c) WCA will refrain from taking or omitting to take any action if such
action or omission would in any way cause the proceeds from the sale of the
Bonds to be applied in a manner contrary to that provided for in the
Indenture, as in effect from time to time.
(d) WCA will cooperate in qualifying the Bonds for offer and sale under the
securities laws of any jurisdiction of the United States designated by the
Underwriter, provided that WCA will not be required to qualify to do
business or consent to service of process in any state or jurisdiction
other than the State of South Carolina.
(e) WCA will pay all expenses and costs incident to the authorization,
issuance, printing, sale and delivery, as the case may be, of the Bonds,
the Indenture, the Prospectus and this Purchase Contract, including without
limitation, (i) fees and expenses of any counsel employed by the
Underwriter in connection with the qualification of the Bonds for sale
under the securities laws of various jurisdictions; (ii) the preparation of
any Blue Sky and legal investment memoranda; (iii) all filing, registration
and recording fees and expenses; (iv) Trustee's fees and expenses; (v) fees
and expenses of Underwriter's counsel and counsel to WCA; and (vi) the fees
and expenses of the Underwriter. The obligation of WCA to make payments
provided herein shall apply whether or not the Bonds are delivered by and
on behalf of WCA or the Underwriter, unless such delivery shall be
prevented by the default of the Underwriter hereunder.
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(f) Anything herein to the contrary notwithstanding, the provisions of
subparagraph (d) and clauses (i) and (ii) of subparagraph (e) of this
section shall apply only to the initial sale of the Bonds by the
Underwriter.
6. CONDITIONS OF UNDERWRITER'S OBLIGATION.
The Underwriter's obligation to purchase and pay for the Bonds as provided
herein is subject to the fulfillment of the following conditions at or before
Closing:
(a) The Prospectus, the Indenture, the Bonds and this Purchase Contract
shall have each been duly authorized, executed and delivered by the
respective parties thereto, in substantially the form heretofore approved
by the Underwriter, with only such changes therein as the Underwriter, WCA
and the Trustee shall mutually agree upon, and the registration of the
Bonds with the SEC and any states as determined by the Underwriter shall be
effective;
(b) The Bonds shall have been duly authorized, executed and authenticated
in accordance with the provisions of the Indenture;
(c) The Underwriter shall have received the following documents:
(i) Executed counterparts of the Indenture;
(ii) The opinions dated as of the date of closing of (A) Counsel for
WCA and (C) Counsel for the Underwriter, each such opinion to cover
such matters and to be in such form as shall be satisfactory to the
Underwriter;
(iii) A certificate or certificates, dated the date of the Closing,
signed by duly authorized member of WCA and in form and substance
satisfactory to the Underwriter, to the effect that:
(A) As of the Closing, the representations and warranties of WCA
contained in Section 4 hereof are true, accurate and complete in
all material respects and WCA has complied with its covenants and
agreements required in this Purchase Contract to be complied with
at or prior to the Closing;
(B) There is no action or proceeding pending or threatened
looking toward the dissolution or liquidation of WCA;
(C) The execution and delivery by WCA of the Indenture, the Bonds
and this Purchase Contract have been duly authorized and there
shall be attached to said certificate appropriate resolutions of
WCA in which such authorization was given;
(D) There has been no material adverse change in the business,
property or financial condition of WCA as described in the
Prospectus, and except as provided for or contemplated herein or
described in the Prospectus, WCA has not incurred any material
liabilities other than in the ordinary course of business;
(E) The member of WCA executing the certificates required by this
Section 6 has examined the Prospectus, and, in his opinion, with
respect to WCA , the Project and the use of bond proceeds,
neither the Prospectus nor any of the appendices thereto
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includes any untrue statement of a material fact or omits 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;
(iv) Such additional opinions, certificates, instruments and other
documents as the Underwriter or its counsel may reasonably require to
evidence compliance with applicable law; the truth and accuracy, as of
the time of the Closing, of the representations and warranties of WCA
contained herein and in the Prospectus; the performance or
satisfaction by WCA of all agreements to be performed and all
conditions to be satisfied by them; and the validity of the Bonds, the
Indenture, and this Purchase Contract.
7. EVENTS PERMITTING UNDERWRITER TO TERMINATE.
The Underwriter shall have the right to cancel and terminate their obligations
under this Purchase Contract at any time before the Closing if any of the
following occurs:
(a) A stop order, ruling, regulation or Prospectus by or on behalf of the
Securities and Exchange Commission shall be issued or made to the effect
that the issuance, offering or sale of the Bonds, or of obligations of the
general character of the Bonds as contemplated hereby, is in violation of
any provisions of the Securities Act or 1933, as amended, or the Trust
Indenture Act of 1939, as amended; or
(b) (i) Any restriction on, or general suspension of trading in securities
on the New York Stock Exchange or any banking moratorium, or the
establishment by the New York Stock Exchange, by the Securities and
Exchange Commission, by any federal or state agency, or by decision of any
court, or any limitation on prices for such trading, (ii) any outbreak of
hostilities or other national or international calamity or crisis, the
effect of which on the financial markets of the United States shall be such
as to make it impracticable, in the reasonable judgment of the Underwriter,
for the Underwriter to enforce contracts for the sale of Bonds, or (iii) a
fire, flood, accident or other calamity resulting in a substantial loss to
WCA which renders it impracticable, in the reasonable judgment of the
Underwriter, to consummate the sale of the Bonds and the delivery of the
Bonds by the Underwriter at the initial offering price; or
(c) Any event or condition which, in the judgment of the Underwriter,
renders untrue or incorrect, in any material respect as of the time the
same purports to speak, the information contained in the Preliminary
Prospectus or the Prospectus, in the Appendices thereto, or in any of the
reports, documents or financial statements referred to in the said
Appendices, or which requires that information not reflected in the
Preliminary Prospectus or the Prospectus, in the said Appendices or in said
reports, documents or financial statements should be reflected therein in
order to make the statements therein not misleading in any material respect
as of such time; provided that WCA and the Underwriter will use their best
efforts to amend or supplement the Preliminary Prospectus, the Prospectus,
the Appendices thereto or the reports, documents and financial statements
and projections referred to in the said Appendices so as to reflect
therein, to the satisfaction of the Underwriter, any information needed to
make the Preliminary Prospectus, the Prospectus, the said Appendices and
said reports, documents and financial statements and projections not
misleading.
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8. NOTICES AND OTHER ACTIONS.
All notices, demands and formal actions hereunder will be in writing, mailed,
telegraphed or delivered to:
(a)If to WCA:
WCA Shiloh Landfill, LLC
c/o Waste Corporation of America, Inc.
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b)If to the Trustee:
Regions Bank
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
(c)If to the Underwriter:
Xxxxxx Xxxxxxx & Company, Incorporated
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations, warranties and agreements of WCA contained herein shall
remain operative and in full force and shall survive (a) the execution and
delivery of this Purchase Contract, (b) any investigation made by or on behalf
of the Underwriter, (c) the purchase of the Bonds hereunder and (d) any
disposition of or payment for the Bonds.
10. COUNTERPARTS.
This Purchase Contract may be executed in any number of counterparts with each
executed counterpart constituting an original but all of which together shall
constitute one and the same instrument.
11. SUCCESSORS, GOVERNING LAW.
This Purchase Contract will inure to the benefit of any be binding upon the
parties hereto and their successors, and will not confer any rights upon any
other person (except other persons specifically entitled to the benefit of the
indemnity provisions contained in Section 4 hereof). This Purchase Contract
shall be governed by and construed in accordance with the laws of the State of
Alabama.
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IN WITNESS WHEREOF, WCA and the Underwriter have caused this Purchase Contract
to be executed in their respective corporate names by their duly authorized
officers and have caused this Purchase Contract to be dated March __, 2000.
XXXXXX XXXXXXX & COMPANY, INCORPORATED
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By:
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Its duly authorized representative
WCA SHILOH LANDFILL, LLC
By: WASTE CORPORATION OF AMERICA, INC.
Its Sole Member
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By: Xxx X. Xxxxx, Xx.
Its Chief Executive Officer
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