AMENDED AND RESTATED ASSET PURCHASE AGREEMENT dated as of April 1, 2009 by and among REPUBLIC SERVICES, INC., WASTE CONNECTIONS, INC. and THE OTHER ENTITIES PARTY HERETO
Exhibit 2.2
AMENDED
AND RESTATED ASSET PURCHASE AGREEMENT
dated
as of April 1, 2009
by
and among
REPUBLIC
SERVICES, INC.,
and
THE
OTHER ENTITIES PARTY HERETO
TABLE
OF CONTENTS
Page
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ARTICLE
I
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PURCHASE
AND SALE OF ASSETS
|
1
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1.1
|
Assets
|
1
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||
1.2
|
Excluded
Assets
|
5
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||
1.3
|
Assumed
Liabilities
|
6
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||
1.4
|
Excluded
Liabilities
|
7
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||
1.5
|
Non-Assignment
of Certain Contracts
|
8
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1.6
|
Allocation
of Purchase Price
|
8
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||
1.7
|
Certain
Customer Issues and Asset Reconciliations
|
9
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||
ARTICLE
II
|
PURCHASE
PRICE AND CLOSING
|
10
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2.1
|
Purchase
Price
|
10
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2.2
|
Pre-Closing
Adjustment
|
10
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||
2.3
|
Post-Closing
Adjustments
|
13
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||
2.4
|
Closing
|
16
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2.5
|
Closing
Deliveries by Sellers
|
16
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2.6
|
Closing
Deliveries by Buyers
|
18
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||
2.7
|
Unsecured
Consents from Governmental Authorities under Environmental
Laws
|
18
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ARTICLE
III
|
REPRESENTATIONS
AND WARRANTIES OF SELLERS
|
18
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||
3.1
|
Organization
and Qualification
|
19
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||
3.2
|
Authority;
Binding Effect
|
19
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||
3.3
|
Consents
and Approvals; No Violation
|
19
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||
3.4
|
Compliance
with Laws; Permits
|
20
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3.5
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Assets;
Personal Property
|
20
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3.6
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Real
Property
|
21
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3.7
|
Contracts
|
22
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||
3.8
|
Taxes
|
22
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||
3.9
|
Litigation
|
23
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||
3.10
|
Conduct
of Business Since December 4, 2008
|
23
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3.11
|
Environmental
Compliance; Hazardous Materials
|
23
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3.12
|
Employment
and Labor Matters
|
24
|
i
3.13
|
No
Broker’s or Finder’s Fees
|
25
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ARTICLE
IV
|
REPRESENTATIONS
AND WARRANTIES OF BUYERS
|
25
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4.1
|
Organization
and Qualification
|
25
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||
4.2
|
Authority;
Binding Effect
|
26
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||
4.3
|
Consents
and Approvals; No Violation
|
26
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||
4.4
|
Litigation
|
26
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||
4.5
|
No
Broker’s or Finder’s Fees
|
27
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||
4.6
|
Available
Funds
|
27
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ARTICLE
V
|
CONDUCT
OF BUSINESS PRIOR TO CLOSING
|
27
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5.1
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Activities
of Sellers Prior to Closing
|
27
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5.2
|
Activities
of Buyers Prior to Closing
|
27
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ARTICLE
VI
|
ADDITIONAL
AGREEMENTS
|
28
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6.1
|
Additional
Agreements
|
28
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6.2
|
Access
to Information; Confidentiality; Real Property Access
|
28
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6.3
|
Title
Insurance and Surveys
|
29
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6.4
|
Prorations
and Charges
|
29
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6.5
|
Condemnation
or Casualty
|
30
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6.6
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Fees
and Expenses
|
30
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6.7
|
Contact
with Government Officials, Customers and Employees
|
31
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6.8
|
Public
Announcements
|
31
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||
6.9
|
Supplements
to the Sellers’ Disclosure Schedules; Certain Pre-Closing
Matters.
|
31
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||
6.10
|
Employees
and Employee Benefits.
|
33
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||
6.11
|
Governmental
Approvals; Required Divestitures
|
34
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6.12
|
Notice
of Developments
|
35
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6.13
|
Reasonable
Commercial Efforts
|
35
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6.14
|
Waiver
of Bulk Sales Laws
|
35
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6.15
|
Certain
Deliveries by Sellers and Buyers
|
35
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6.16
|
Removal
of Identification
|
36
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6.17
|
Further
Assurances
|
36
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6.18
|
Blanket
Lien Releases
|
36
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6.19
|
Performance
Bonds
|
36
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||
6.20
|
Restrictive
Covenants
|
37
|
ii
6.21
|
Certain
Other Matters
|
38
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||
6.22
|
Exclusivity
Period
|
39
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6.23
|
Sellers’
and Buyers’ Representatives
|
39
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6.24
|
Lockboxes
and Cash Sweeps
|
40
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6.25
|
Specified
Title Requirements
|
40
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6.26
|
Lubbock
Deed Restriction
|
40
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ARTICLE
VII
|
CONDITIONS
PRECEDENT TO CLOSING
|
41
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7.1
|
Conditions
Precedent to the Obligations of the Parties to Effect the
Transactions
|
41
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7.2
|
Conditions
Precedent to Obligations of Buyers
|
41
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7.3
|
Conditions
Precedent to Obligations of Sellers
|
42
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ARTICLE
VIII
|
TERMINATION
OF AGREEMENT
|
43
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8.1
|
Termination
|
43
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8.2
|
Effect
of Termination
|
44
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ARTICLE
IX
|
INDEMNIFICATION
|
45
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9.1
|
Survival
of Representations, Warranties and Covenants
|
45
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9.2
|
Indemnification
by Sellers
|
45
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||
9.3
|
Indemnification
by Buyers
|
46
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||
9.4
|
Limitation
on Liability
|
46
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9.5
|
Indemnification
Procedure Between Buyers and Sellers
|
48
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9.6
|
Procedure
for Indemnification with Respect to Third-Party Claims
|
48
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9.7
|
Tax
Treatment of Payment
|
49
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9.8
|
Equity
Purchase Agreement Representations and Warranties
|
49
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ARTICLE
X
|
NONDISCLOSURE;
REMEDIES
|
49
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10.1
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Nondisclosure
by Buyers
|
49
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10.2
|
Confidential
Information
|
49
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10.3
|
Exclusivity
of Remedies
|
50
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10.4
|
Equitable
Relief for Violations
|
50
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ARTICLE
XI
|
DEFINITIONS
|
51
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ARTICLE
XII
|
GENERAL
|
60
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12.1
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Assignment;
Binding Effect; Amendment
|
60
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12.2
|
Entire
Agreement
|
61
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12.3
|
Counterparts
|
61
|
iii
12.4
|
Notices
|
61
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12.5
|
No
Waiver
|
62
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||
12.6
|
Captions
|
62
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12.7
|
No
Third-Party Beneficiaries
|
62
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12.8
|
Severability
|
62
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12.9
|
Construction
|
62
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ARTICLE
XIII
|
DISPUTE
RESOLUTION
|
63
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13.1
|
General
|
63
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13.2
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Governing
Law
|
63
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13.3
|
Attorneys’
Fees
|
63
|
Exhibits
Exhibit
A
|
Buyers
|
Exhibit
B
|
Sellers
|
Exhibit
C
|
Markets
|
Exhibit
D
|
Form
of Xxxx of Sale
|
Exhibit
E
|
Form
of Assignment and Assumption Agreements
|
Exhibit
F
|
Form
of Assignment, Assumption and Consent to Leased Real
Property
|
Exhibit
G
|
Form
of Estoppel Certificate
|
Exhibit
H
|
Houston
Disposal Agreement
|
Exhibit
I
|
Transition
Services Agreement
|
Exhibit
J
|
Legal
Opinion
|
Exhibit
K
|
Transition
Disposal Agreement
|
Schedule
1.1(a) - Real Property
Schedule
1.1(b)(i) - Rolling Stock
Schedule
1.1(b)(ii) – Containers at Customer Locations
Schedule
1.1(b)(iii) – Containers Stored on Real Property
Schedule
1.1(b)(iv) - Office Equipment
Schedule
1.1(b)(v) - Inventory
Schedule
1.1(c)(i) - Collection Accounts
Schedule
1.1(c)(ii) - Peachland/Angleton Accounts
Schedule
1.1(c)(iii) - Disposal Accounts/Contracts
Schedule
1.1(c)(iv) - Government Contracts
Schedule
1.1(c)(v) - Transfer Station Operating and Transportation Contracts
Schedule
1.1(c)(vi) - Rolling Stock Leases
Schedule
1.1(c)(vii) - Equipment Leases
Schedule
1.1(c)(viii) - Office Equipment Leases
Schedule
1.1(c)(ix) - Real Estate Leases
Schedule
1.1(c)(x) - Employment Contracts
Schedule
1.1(c)(xi) – Oil and Gas Leases; Gas Purchase Agreements; Royalty, Service,
Leachate and Other Agreements
Schedule
1.1(d) - Accounts Receivable
iv
Schedule
1.1(f) - Computer Hardware
Schedule
1.1(g) - IP Rights
Schedule
1.1(h) - Prepaid Assets
Schedule
1.1(j) - Telephone and Fax Numbers
Schedule
1.2(o) - Other Excluded Assets
Schedule
1.3(b) - Deferred Revenue and Customer Deposits
Schedule
1.3(f) - Other Assumed Liabilities
Schedule
1.6 - Purchase Price Allocation
Schedule
2.2(e) – Calculation of WCN Baseline EBITDA
Schedule
2.3(e) – Calculation of Post-Closing Disposal EBITDA
Schedule
3.3 - Consents and Approvals
Schedule
3.4(a) - Compliance With Laws; Permits
Schedule
3.4(b) - Compliance With Laws; Permits
Schedule
3.5 – Assets; Personal Property
Schedule
3.5(c) – Assets; Personal Property
Schedule
3.5(d) - Assets
Schedule
3.6(a) - Real Property
Schedule
3.6(b) - Real Property
Schedule
3.7(a) - Contracts
Schedule
3.7(b) - Contracts
Schedule
3.8 – Taxes
Schedule
3.9 - Litigation
Schedule
3.11(a) - Environmental Compliance
Schedule
3.11(b) - Environmental Compliance
Schedule
3.11(c) - Environmental Compliance
Schedule
3.12 - Employment and Labor Matter
Schedule
3.12(a) - Employment and Labor Matters
Schedule
3.12(b) - Employment and Labor Matters
Schedule
3.12(c) - Employment and Labor Matters
Schedule
3.12(d) - Employment and Labor Matters
Schedule
3.13 - Brokers and Finders
Schedule
4.3 - Consents and Approvals
Schedule
5.1 – Activities of Sellers Prior to Closing
Schedule
6.3(a) - Title Commitments
Schedule
6.3(b) - Surveys
Schedule
6.10(a) - Offered Employees
Schedule
6.10(b) - Assumed Severance and Retention Bonus Liabilities
Schedule
6.19 - Performance Bonds
Schedule
7.1(b) - Third Party Consents
v
AMENDED AND RESTATED ASSET
PURCHASE AGREEMENT
This
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (the “Agreement”) is
executed and delivered effective as of April 1, 2009, by and among WASTE
CONNECTIONS, INC., a Delaware corporation (“WCN”), and those
other entities set forth as Buyers on Exhibit A, as such
Exhibit may be amended from time to time by WCN prior to the Closing Date (each
a “Buyer” and
together, the “Buyers”), on the one
hand, and REPUBLIC SERVICES, INC., a Delaware corporation (“RSG”), those other
entities set forth as Sellers on Exhibit B (each a
“Seller” and
together, the “Sellers”) and those
other entities set forth as Equity Sellers on Exhibit B (each an
“Equity Seller”
and together, the “Equity Sellers”), on
the other hand, and amends and restates that certain Asset Purchase Agreement
executed and delivered effective as of February 6, 2009 (the “Original Agreement”),
by and among WCN, RSG and the other signatories thereto. All
capitalized terms used in this Agreement shall have the meanings ascribed to
them in Article
XI of this Agreement.
RECITALS
WHEREAS,
Buyers desire to purchase and acquire (i) certain designated Assets principally
used or held for use by Sellers and (ii) the Equity Interests owned by Equity
Sellers in connection with the Equity Sellers’ solid waste collection and
disposal business in the geographic markets listed and otherwise described on
Exhibit C (the
“Markets”),
subject to and in accordance with the terms and conditions set forth in this
Agreement;
WHEREAS,
Sellers desire to sell the Assets to Buyers, subject to and in accordance with
the terms and conditions set forth in this Agreement; and
WHEREAS,
WCN and the Equity Sellers are entering into the Equity Purchase Agreements
simultaneously herewith;
NOW,
THEREFORE, in consideration of the mutual promises and covenants in this
Agreement and other good and valuable consideration, received to the full
satisfaction of each of the parties, the parties agree as follows:
ARTICLE
I
PURCHASE AND SALE OF
ASSETS
1.1 Assets. On
the terms and subject to the conditions set forth in this Agreement (including
Section 1.7),
at the Closing, Sellers shall (and shall cause any Additional Vehicle Sellers
to) grant, convey, sell, transfer, deliver and assign to Buyers, and Buyers
shall purchase from Sellers, all of the right, title and interest that Sellers
possess and have the right to transfer in and to the following assets, as the
same shall exist on the Closing Date as contemplated by the final paragraph of
this Section
1.1 (collectively, the “Assets”), but
excluding the Excluded Assets, free and clear of all Encumbrances, except
Permitted Encumbrances and Blanket Liens (which Blanket Liens shall be released
by Sellers in accordance with Section
6.18):
(a) The real
property, improvements and fixtures owned by Sellers, and Sellers' leasehold
interests in certain real property and improvements, in each case which are
listed on Schedule
1.1(a) (such owned and leased assets of Sellers are referred to as the
“Owned Real
Property” and the “Leased Real
Property,” respectively, and collectively as the “Real
Property”);
(b) The
following tangible personal property owned or leased by Sellers as of the
Closing: (i) the automobiles, trucks, fork lifts, construction vehicles and
other motor vehicles listed on Schedule 1.1(b)(i),
together with all attachments and accessions thereto (collectively, the “Rolling Stock”) to
the extent registered with any Governmental Authority (collectively, the “Registered Rolling
Stock”); (ii) the number of containers and compactors located on-site
with a customer that relate to a Collection Account or Peachland/Angleton
Account and listed on Schedule 1.1(b)(ii) ;
(iii) that number of additional containers and compactors stored on the Real
Property and listed on Schedule 1.1(b)(iii)
(collectively, together with the containers and compactors listed on Schedule
1.1(b)(ii), the “Containers”); and
(iv) all of the furniture and office equipment listed on Schedule 1.1(b)(iv) (collectively,
the “Office
Equipment”), all inventory of supplies, fuel, parts, shop tools, nuts,
bolts, tires and maintenance accessories (collectively, the (“Inventory”) and other
tangible assets listed on Schedule
1.1(b)(iv);
(c) Subject
to Section 1.7,
the following Contracts:
(i) All
Contracts and other rights to provide small container municipal solid waste
commercial collection services to the active customers at the locations on the
service routes listed on Schedule 1.1(c)(i)
(the accounts to service such customers at the locations on such routes are
collectively referred to herein as the “Collection Accounts,”
and the Contracts or other rights to service the Collection Accounts are
collectively referred to herein as the “Collection
Contracts”); Schedule 1.1(c)(i) (A) will be provided within 30 days of
the date hereof to identify such Collection Accounts by customer number and zip
code and sets forth, with respect to each Collection Account, the
service requirements, container size and standard monthly charge; and (B) will
be updated within 5 Business Days prior to the Closing Date to identify the
Collection Accounts with respect to the Collection Contracts as of such date by
customer name, service address, billing address, number, zip code, service
requirements, container size and standard monthly charge; and (C)
will be updated within 5 Business Days following the Closing Date to identify
all customer information relating to the final Collection Accounts transferred
as of the Closing Date, including customer name, service address, billing
address, number, zip code, service requirements, container size and standard
monthly charge;
(ii) All
Contracts and other rights to provide collection services to the active
customers at the locations on the service routes listed on Schedule 1.1(c)(ii)
serviced by the Sellers' Peachland Hauling and Angleton Hauling divisions (the
accounts to service such customers at the locations on such routes are
collectively referred to herein as the “Peachland/Angleton
Accounts,” and the Contracts or other rights to service the
Peachland/Angleton Accounts are collectively referred to herein as the “Peachland/Angleton
Contracts”); Schedule 1.1(c)(ii) (A) identifies such Peachland/Angleton
Accounts by customer number and zip code and sets forth, with respect to each
Collection Account, the service requirements, container size and standard
monthly charge; and (B) separately identifies such accounts by type as
“Residential,” “Commercial” or “Roll-Off”; and (C) will be updated within 5
Business Days prior to the Closing Date to identify the Peachland/Angleton
Accounts as of such date by customer name, address, number, zip code, service
requirements, container size and standard monthly charge; and
(D) will be updated within 5 Business Days following the Closing Date
to identify all customer information relating to the final Peachland/Angleton
Accounts transferred to Buyers as of the Closing Date, including customer name,
service address, billing address, number, zip code, service requirements,
container size and standard monthly charge;
- 2
-
(iii) All
Contracts and other rights to provide disposal services to the active customers
identified on Schedule
1.1(c)(iii) at the disposal facilities included within the Assets (the
accounts to service such customers at such disposal facilities are collectively
referred to herein as the “Disposal Accounts,”
and the Contracts or other rights to service the Disposal Accounts are
collectively referred to herein as the “Disposal Contracts”);
Schedule 1.1(c)(iii) (A) identifies such Disposal Accounts by customer number,
disposal volume, rate, type of waste stream and revenue as of the most recent
month ended prior to the date hereof; (B) will be updated within 5 Business Days
prior to the Closing Date to identify the Disposal Accounts with respect to the
Disposal Contracts as of such date by customer name, billing address, number,
zip code, disposal volume, rate, type of waste stream and revenue as of the most
recent month ended prior to the Closing Date; and (C) will be updated within 5
Business Days following the Closing Date to identify all customer information
relating to the final Disposal Accounts transferred as of the Closing Date,
including customer name, billing address, number, zip code, disposal volume,
rate, type of waste stream and revenue as of the most recent month ended prior
to the Closing Date;
(iv) The
Contracts with Governmental Authorities listed on Schedule 1.1(c)(iv)
(collectively, the “Government
Contracts”);
(v) The
landfill management and operating agreements (collectively, the “Landfill Operating
Contracts”) and the transfer station loading, operating and
transportation agreements (collectively, the “Transfer Station Operating
and Transportation Contracts”) listed on Schedule
1.1(c)(v);
(vi) The
leases relating to the Rolling Stock listed on Schedule 1.1(c)(vi)
(collectively, the “Rolling Stock
Leases”);
(vii) The
leases relating to the machinery, heavy equipment and materials handling
equipment (in each case, other than Rolling Stock) (collectively, the “Equipment”) listed on
Schedule
1.1(c)(vii) (collectively, the “Equipment
Leases”);
(viii) The
leases relating to the Office Equipment listed on Schedule 1.1(c)(viii)
(collectively, the “Office Equipment Leases”);
(ix) The real
property-related leases, occupancy agreements, licenses or similar agreements,
and any amendments thereto, listed on Schedule 1.1(c)(ix)
(collectively, the “Real Estate
Leases”);
- 3
-
(x) The
employment agreements listed on Schedule 1.1(c)(x) (collectively, the
“Employment Contracts”); and
(xi) The oil
and gas leases, the gas purchase agreements and the royalty, service, leachate
and other agreements relating to the Assets listed on Schedule 1.1(c)(xi)
(together with all of the Contracts described in or listed on the Schedules
1.1(c)(i)-(x), collectively, the “Assumed
Contracts”).
(d) All
accounts receivable of Sellers arising from the Collection Accounts, the
Peachland/Angleton Accounts and the Disposal Accounts which will be listed on
Schedule 1.1(d)
(collectively, the “Accounts
Receivable”), which schedule will be delivered by Sellers to Buyers
within 5 Business Days following the Closing Date, provided, however, that
Accounts Receivable shall exclude any inter-company accounts receivable and
accounts receivable of Sellers related to any National Accounts;
(e) All of
the (i) operating records, customer records, maintenance files, engineering
studies, plans and specifications of Sellers to the extent related to any Assets
(in whatever format they exist, whether in hard copy or electronic format) and
(ii) to the extent transferable under Applicable Law, human resources records,
employee personnel files (including all employee benefit files and employee
investigation files, if applicable) and related files (collectively, the “Employee Records”)
related to employees of any Seller or any Affiliate of any Seller hired by
Buyers in connection with the Transactions, but excluding any such files,
documents, books and records that constitute Excluded Assets pursuant to Section 1.2 and
excluding past e-mails that are not part of such files, documents, books and
records and that instead may be stored on servers or networks of Sellers or
otherwise included in the Excluded Assets (collectively, the “Records”); provided, however, that Sellers
may retain copies of (A) all Employee Records and (B) all Records transferred to
Buyers pursuant to this Section 1.1(e) needed
to comply with any regulations, investigations, audits, or inquiries or for
ongoing matters relating to the Excluded Assets;
(f) The
computer hardware of Sellers that is listed and described on Schedule
1.1(f);
(g) All of
the IP Rights listed on Schedule
1.1(g);
(h) The
credits, deferred charges, prepaid expenses, deposits and other prepaid assets,
other than those related to Taxes (except for any prepaid sales Taxes and
property Taxes relating to the fixed assets included within the Assets), of
Sellers principally related to the Assets and listed and described on Schedule 1.1(h),
which schedule will be attached by Sellers hereto at Closing (collectively, the
“Prepaid
Assets”);
(i) All
goodwill relating to the Assets;
(j) All
right, title and interest in and to the dedicated telephone and fax numbers,
post office boxes and telephone listings of Sellers listed on Schedule 1.1(j);
and
(k) All
Permits related to the ownership, operation, management or use of the Assets
that are owned by, issued to, or held by or otherwise benefiting any Seller and
transferable by their respective terms to any Buyer.
- 4
-
Notwithstanding
anything in this Agreement to the contrary, and subject to Article V and Section 6.9,
Buyers agree that Sellers may acquire or dispose of (or, in the case of
Collection Accounts, experience additions to or attrition of) Assets in the
ordinary course of business between the date hereof and the Closing Date and
that such acquisitions or dispositions (or, in the case of Collection Accounts,
additions or attritions) shall not in any manner modify or limit Buyers’
obligations hereunder to purchase the Assets; provided, however, that such
acquisitions, dispositions, additions or attritions shall not, individually or
in the aggregate, have a Sellers’ Material Adverse Effect. Each of
the Schedules provided for in this Section 1.1 shall
specify the applicable Seller and Buyer for each Asset, provided that, to the
extent any Registered Rolling Stock is owned other than as set forth on Schedule 1.1(b)(i),
Sellers may at their option cause such Registered Rolling Stock to be sold to
the applicable Buyers at Closing by the entities holding title thereto
(collectively, the “Additional Vehicle
Sellers”) and the specification of a different Seller thereof on Schedule 1.1(b)(i)
shall not be deemed to violate any representation, warranty or covenant in this
Agreement.
1.2 Excluded
Assets. Notwithstanding anything to the contrary in Section 1.1, but
subject to Section
1.7, the parties agree that the Assets shall exclude any assets of
Sellers that are not expressly designated as Assets pursuant to Section 1.1, which
excluded assets of Sellers shall remain the property of Sellers and shall not be
sold to Buyers at the Closing (collectively, the “Excluded Assets”),
including the following Excluded Assets:
(a) The
Purchase Price to be paid by Buyers to Sellers pursuant to Section 2.1 and
Sellers’ other rights under this Agreement or any Ancillary
Agreement;
(b) All cash
or cash equivalents on hand or held in any account of any Seller (including all
checking, savings, depository or other accounts), and all bank accounts and
escrow accounts of any Seller;
(c) All
accounts receivable and notes receivable of any Seller related to or arising out
of transactions between any Seller, on the one hand, and any other Seller or any
subsidiary or Affiliate of any Seller (any such subsidiaries or Affiliates of
Sellers are collectively referred to as the “Seller Companies”),
on the other hand;
(d) All
stock, membership interests, partnership interests or other ownership interests
in Sellers or any Seller Companies (it being understood that the Equity
Interests are being conveyed pursuant to the Equity Purchase
Agreements);
(e) Except as
otherwise provided in Section 1.1(e), all
corporate or other entity-level Records of Sellers or any Seller Companies,
including corporate charters, qualifications to conduct business as a foreign
corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute books,
stock transfer books, Tax Records, blank stock certificates and other documents
relating to the organization, maintenance and existence of Sellers or any Seller
Companies other than the Purchased Companies;
(f) Except as
otherwise provided in Section 1.1(e), any
Records of Sellers to the extent related to any Excluded Assets (other than the
Equity Interests) or Excluded Liabilities (including files relating to Taxes and
personnel files);
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(g) All
rights of Sellers with respect to any Proceedings, causes of action and claims
of every nature, kind and description relating to any Excluded Assets (other
than the Equity Interests) and not to any of the Assets, including all rights,
claims, liens, rights of setoff, offset or recoupment, defenses, lawsuits,
judgments and other claims or demands of any nature against third parties
whether liquidated or unliquidated, fixed or contingent or
otherwise;
(h) All
rights under any insurance policies of Sellers or any Seller Companies,
including any cash surrender value under any such insurance
policies;
(i) All
claims for any refunds of Taxes and other governmental charges attributable to
any period ending on or before the Closing Date;
(j) All
assets held under any employee benefit plans maintained by or for the benefit of
Sellers or the Equity Sellers;
(k) All prior
title insurance policies and commitments, deeds and surveys covering any Real
Property issued to, on behalf of or for the benefit of Seller or any Seller
Companies (including the Equity Sellers);
(l) Any
computer hardware and software owned or leased by, or licensed to, any Seller
that is not listed on Schedule 1.1(f)
(including all billing, route management and other software programs other than
basic operating systems);
(m) All
rights, title and interest in any financial responsibility, financial assurance
or similar mechanisms; and
(n) Such
other assets of Sellers that are listed on Schedule
1.2(n).
Notwithstanding anything to the
contrary set forth above, for purposes of Article IX, the Equity Interests shall
not constitute Excluded Assets.
1.3 Assumed
Liabilities. At the Closing, subject to Article IX, Buyers
shall jointly and severally assume from Sellers, and shall agree to pay, perform
and discharge when due, the following Liabilities of Sellers (the “Assumed
Liabilities”):
(a) All
Liabilities arising under or pursuant to the Assumed Contracts, the Collection
Accounts, the Peachland/Angleton Accounts, the Disposal Accounts and the Real
Property;
(b) All
Liabilities for the customer deposits (the “Customer Deposits”)
and deferred revenue obligations (the “Deferred Revenue”)
listed on Schedule
1.3(b), which schedule will be attached by Sellers hereto at
Closing;
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(c) Any and
all Liabilities relating to the Assets with respect to Environmental Laws and
Permits whether such Liabilities relate to periods preceding or following the
Closing, including all closure/post-closure Liabilities with respect to the
Assets (including such Permits) and all obligations under Applicable Laws
(including Environmental Laws) to establish accruals for such
Liabilities;
(d) All
Liabilities for Taxes relating to the Assets accruing on or after the Closing
Date, including Taxes relating to the Real Property (subject to the terms of
Section
6.4);
(e) All
Assumed Severance and Retention Bonus Liabilities, in accordance with the terms
of Section
6.10(b) of this Agreement;
(f) All
Liabilities listed on Schedule 1.3(f);
(g) All other
Liabilities which Buyers expressly agree to assume pursuant to this
Agreement;
(h) All
“Xxxxxxxx Company
Liabilities” as defined in Section 1.5 of the
Xxxxxxxx Purchase Agreement, all “Xxxxxxxx Company
Liabilities” as defined in Section 1.5 of the
Xxxxxxxx Purchase Agreement and all “Xxxxxxxx Company
Liabilities” as defined in Section 1.5 of the
Stock Purchase Agreement; and
(i) Any other
Liabilities (other than Excluded Liabilities) of any nature whatsoever, whether
legal or equitable, or matured or contingent, arising out of or in connection
with or related to the ownership, lease, operation, performance or use of the
Assets after the Closing Date.
1.4 Excluded
Liabilities. At the Closing, subject to Article IX, Buyers
shall not, by the execution and performance of this Agreement or otherwise,
assume, become responsible for or incur the following Liabilities of Sellers
(collectively, the “Excluded
Liabilities”):
(a) Except as
provided in Section
6.6, and except if taken into account in the calculation of the Actual
True-Up Amount, any Liabilities of Sellers or any Seller Companies for Taxes,
whether or not accrued, assessed or currently due and payable, including any
Taxes arising from the ownership, operation or use of the Assets for any
Pre-Closing Period;
(b) Subject
to the terms of Section 6.6, any
Liabilities of Sellers for expenses incurred in connection with the sale of the
Assets pursuant to this Agreement;
(c) Any
inter-company payables or receivables between Sellers and any Seller
Companies;
(d) All
Liabilities for accounts payable and other current liabilities owed or accruing
(as determined in accordance with GAAP) prior to the Closing Date that do not
constitute Assumed Liabilities (the “Accounts
Payable”);
(e) Any
Proceeding against any Seller or any Seller Company related to the ownership,
operation or use of any of the Assets arising on or prior to the Closing Date
(including any Proceeding set forth on Schedule 3.9 or Schedule 3.12 as of
the date hereof and litigation which has been filed and with respect to which
any Seller has received service of process as of the date hereof but excluding
Proceedings relating to the Assumed Liabilities);
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(f) Except
for any Assumed Contracts and Assumed Severance and Retention Bonus Liabilities,
any Liabilities arising from or related to (i) any employee wages or other
benefits due to or required to be contributed in respect of any employees,
directors or consultants of any Seller relating to any Assets on or prior to the
Closing Date or (ii) funding, contributions, benefits, payment
obligations, fees or expenses, including “withdrawal liability,” arising from or
relating to any Benefit Plans sponsored, made available, maintained, contributed
to or required to be contributed to by Sellers or any Seller Company for the
benefit of any current or former employee of Sellers or any Seller Company, it
being expressly understood that, except for any Assumed Contracts and the
Assumed Severance and Retention Bonus Liabilities, Buyers are not assuming any
Benefit Plans of Sellers, and Buyers shall not be deemed a successor employer
with respect to any of Sellers’ Benefit Plans;
(g) Subject
to Section 6.4,
any Encumbrances (other than Permitted Encumbrances) relating to the Assets;
and/or
(h) All
“Excluded
Liabilities” as defined in Section 1.6 of each
of the Equity Purchase Agreements;
(i) All
Liabilities listed on Schedule 1.4(i); and
(j) Subject
to Section 1.3,
any other Liabilities of any nature whatsoever, whether legal or equitable, or
matured or contingent, arising out of or in connection with or related to the
ownership, lease, operation, performance or use of the Assets on or prior to the
Closing Date that do not constitute Assumed Liabilities.
1.5 Non-Assignment of Certain
Contracts. Notwithstanding anything
to the contrary in this Agreement, to the extent that the assignment hereunder
of any Assumed Contract shall require the consent of any third party, neither
this Agreement nor any action taken pursuant to its provisions shall constitute
an assignment or an agreement to assign if such assignment or agreement to
assign would constitute a breach of such Assumed Contract or result in the loss
or material diminution thereof, provided, however, that Sellers
shall, at the request of the applicable Buyer, use commercially reasonable
efforts to obtain the consent of the other party to such Assumed Contract to an
assignment thereof in favor of the applicable Buyer; further provided, however, that if any
Assumed Contract requires consent for assignment in favor of such Buyer and such
consent is not obtained at or prior to Closing, the applicable Seller shall, to
the extent contractually permitted, enter into an operating agreement with the
applicable Buyer affording such Buyer the rights, benefits and obligations under
such Assumed Contract as if such consent to assignment had been obtained (each,
an “Operating
Agreement”). In the event that the consent to assign such
Assumed Contract is obtained, such Assumed Contract thereupon shall be
reasonably promptly assigned from the applicable Seller to the applicable
Buyer. Notwithstanding the foregoing, subject to Section 1.7, if such
accommodation to the applicable Seller under an Operating Agreement is not
contractually permitted, Sellers shall not have any obligations to provide
Buyers with the rights, benefits and obligations under such Assumed Contract
following the Closing. Notwithstanding anything in this Agreement to
the contrary, in no event shall Sellers be obligated to pay any fees,
commissions or other compensation to obtain the consent of a third party for the
assignment hereunder of any Assumed Contract.
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1.6 Allocation of Purchase
Price. The Purchase Price (including any liabilities that are
considered to be an increase to the Purchase Price for federal income tax
purposes) shall be allocated among the Assets in accordance with the allocation
set forth on Schedule
1.6. to be attached hereto at Closing, which allocation has been
determined in accordance with the requirements of Code Section 1060 and based on
the fair market value of the Assets as determined by arm’s length
negotiations. Within 45 days after the Actual True-Up Amount is
finally determined pursuant to Section 2.2, RSG will
make any adjustments to the Purchase Price allocation necessary to reflect such
Actual True-Up Amount. The parties agree to file (or cause to be
filed) (i) all required federal Forms 8594, Asset Acquisition Statement under
Section 1060, and (ii) all other Tax Returns (including amended Tax Returns and
claims for refund) in a manner consistent with such allocation of the Purchase
Price described in this Section
1.6. The parties agree to refrain from taking any position
that is inconsistent with such allocation, and to use their commercially
reasonable efforts to sustain such allocation in any subsequent Tax audit or Tax
dispute.
1.7 Certain Customer Issues and
Asset Reconciliations.
(a) Notwithstanding
anything to the contrary in this Agreement, following the date of this
Agreement, RSG will use its commercially reasonable efforts to identify any
customer overlap issues with respect to the Customer Accounts where such
customers are both serviced on a route to be divested pursuant to the
Republic/Allied Consent Decree and also are serviced on routes not being
divested, as well as any customer issues relating to National Accounts
(collectively, “Customer
Issues”). RSG and WCN agree to mutually cooperate in good
faith to take any actions reasonably necessary to resolve all Customer Issues
prior to the Closing in a manner that results in the receipt by Buyers of a
reasonably like-kind and amount of customers and revenue relating to the
Customer Accounts as is contemplated by this Agreement and the Republic/Allied
Consent Decree.
(b) If, at
any time after the Closing Date, either RSG or WCN determines in good faith that
any Contract (whether or not an Assumed Contract, and including any Contract
right related to a Collection Account, a Peachland/Angleton Account or a
Disposal Account) relates both to the Assets and to assets, facilities or
customers that are not included in the Assets, the parties will use their good
faith efforts to enter into arrangements, including subcontracting arrangements,
bifurcation arrangements, operating agreements and/or modifications of the
applicable Contract, to allocate reasonably and fairly the benefits and burdens
thereof based on the relationship of such Contract to the Assets and such
assets, facilities or customers. If, at any time prior to or after
the Closing Date, either RSG or WCN identifies any tangible personal property
(whether or not listed on the schedules hereto), Contract right or other asset
that RSG or WCN, as the case may be, reasonably concludes in good faith (i) was
included in the conveyances hereunder by Sellers to Buyers, (ii) was not used or
held in connection with the ownership or operation of the Assets during the Hold
Separate Period, and (iii) was inadvertently conveyed in error by Sellers to
Buyers, the parties will use good faith efforts to cause such tangible personal
property, Contract right or other asset to be reconveyed to a Seller or, if such
conveyance is not reasonably practicable, to enter into other arrangements
affording such Seller the benefit of such tangible personal property or Contract
right. If, at any time after the Closing Date, RSG or WCN identifies
any tangible personal property, Contract right (whether or not listed on the
schedules hereto) or other asset that that RSG or WCN, as the case may be,
reasonably concludes in good faith (i) was not included in the conveyances
hereunder by Sellers to Buyers, (ii) was used or held in connection with the
ownership or operation of the Assets during the Hold Separate Period, and (iii)
was inadvertently omitted in error from the conveyances hereunder by Sellers to
Buyers, the parties will use good faith efforts to cause such tangible personal
property, Contract right or other asset to be conveyed to a Buyer or, if such
conveyance is not reasonably practicable, to enter into other arrangements
affording such Buyer the benefit of such tangible personal property or Contract
right. Unless otherwise agreed, neither Buyers nor Sellers shall be
entitled to any additional compensation for any conveyances made pursuant to
this Section
1.7(b).
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ARTICLE
II
PURCHASE PRICE AND
CLOSING
2.1 Purchase
Price. Subject to adjustment as provided in this Article II and Section 9.7, at the
Closing, Buyers shall pay to Sellers the aggregate amount (the “Closing Purchase
Price”) of $313,160,000 (Three Hundred and Thirteen Million One Hundred
and Sixty Thousand Dollars) by wire transfer of immediately available funds,
plus or minus an amount equal
to the estimated net aggregate sum of the following items as of the Closing Date
as determined under Section 2.2(b)
(collectively, the “Estimated True-Up
Amount”): (a) the estimated A/R Value as of the Closing Date; plus (b) the
estimated total amount of Prepaid Assets as of the Closing Date; minus (c) the
estimated total amount of Deferred Revenue as of the Closing Date; and minus (d) the
estimated total amount of Customer Deposits as of the Closing Date. The Closing
Purchase Price, as adjusted pursuant to this Article II and Section 9.7, is
referred to herein as the “Purchase
Price.”
2.2 Pre-Closing Adjustment.
(a) The
following capitalized terms used in this Agreement shall have the following
meanings:
(i) “Baseline EBITDA
Amount” means the pro forma EBITDA projected to be generated by the
ownership and/or operation of the Assets during the one-year period immediately
following the Closing, as calculated in accordance with the terms of this Section 2.2 and Schedule 2.2(e)
hereto;
(ii) “EBITDA” means the
cumulative consolidated earnings generated from the ownership or operation of
the Assets before interest income, interest expense, Taxes, depreciation and
amortization, determined in accordance with GAAP, as calculated in accordance
with the provisions of this Section 2.2 and Schedules 2.2(e) and
2.3(e), as
applicable;
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(iii) “EBITDA Adjustment
Amount” means the amount (which may be positive or negative), if any, by
which the WCN Baseline EBITDA Amount is more than $1,500,000 greater than the
RSG Baseline EBITDA Amount (a “Positive EBITDA
Amount”) or more than $1,500,000 less than the RSG Baseline EBITDA Amount
(a “Negative EBITDA
Amount”). For instance, if the WCN Baseline EBITDA Amount is
$1,550,000 greater than the RSG Baseline EBITDA, then the Positive EBITDA Amount
would be $50,000; and if the WCN Baseline EBITDA Amount is $1,550,000 less than
the RSG Baseline EBITDA Amount, then the Negative EBITDA Amount would be
$50,000. For purposes of calculating the EBITDA Adjustment Amount, if
(A) a Positive EBITDA Amount exists, and the surplus is attributable to more
than one collection, transfer station or landfill Asset included within the
Assets, then such Positive EBITDA Amount shall automatically be deemed allocated
first to the individual collection, transfer station or landfill Asset that has
the largest EBITDA surplus and then such allocation shall automatically continue
in descending order to the remaining individual collection, transfer station or
landfill Assets that have an EBITDA surplus until such Positive EBITDA Amount
has been fully allocated to all such Assets; and (B) a Negative EBITDA Amount
exists, and the shortfall is attributable to more than one collection, transfer
station or landfill Asset included within the Assets, then such Negative EBITDA
Amount shall automatically be deemed allocated first to the individual
collection, transfer station or landfill Asset that has the largest EBITDA
shortfall and then such allocation shall automatically continue in descending
order to the remaining individual collection, transfer station or landfill
Assets that have an EBITDA shortfall until such Negative EBITDA Amount has been
fully allocated to all such Assets; and
(iv) “RSG Baseline EBITDA
Amount” means $48,840,000, which is RSG’s good faith estimate of the
Baseline EBITDA Amount as of the date of this Agreement.
(b) During
the 30-day period immediately following the date of this Agreement (the “EBITDA Due Diligence
Period”), RSG shall furnish WCN with all reasonably available information
related to the calculation of the RSG Baseline EBITDA Amount, and provide WCN
with access to the Assets to the extent reasonably relevant to the calculation
of the RSG Baseline EBITDA Amount. As promptly as practicable and in
any event prior to the end of the EBITDA Due Diligence Period, WCN shall,
subject to and in accordance with the terms of Section 2.2(e) and
Schedule
2.2(e), provide RSG in writing with its own good faith determination as
to the Baseline EBITDA Amount (the “WCN Baseline EBITDA
Amount”) allocable to each collection, transfer station and landfill
Asset, including the EBITDA allocable to the Gulf Coast Disposal Authority
Contract (the “Gulf
Coast EBITDA”), together with a reasonably detailed statement of how WCN
determined such WCN Baseline EBITDA Amount (the “WCN Baseline EBITDA
Statement”). The WCN Baseline EBITDA Statement shall
separately set forth the following (the “Pre-Closing Adjustment
Calculations”):
(i)
In
accordance with Section 2.2(a)(iii),
the portion of Positive EBITDA Amount or Negative EBITDA Amount allocable to
each collection, transfer station and landfill Asset (each, a “Specific EBITDA
Allocation”);
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(ii) with
respect to each Specific EBITDA Allocation, an adjustment multiple of (A) 5.5,
to the extent that such Specific EBITDA Allocation is comprised of EBITDA
attributable to business other than landfill special waste or landfill special
event volumes (the “Ordinary Multiple”),
or (B) 4.0, to the extent that such Specific EBITDA Allocation is comprised of
EBITDA attributable to landfill special waste or landfill special event volumes
(the “Special
Multiple”); provided, however, that to the extent any Specific EBITDA
Allocation is comprised of EBITDA subject to both the Ordinary Multiple and the
Special Multiple, then both the Ordinary Multiple and Special Multiple shall be
applied to such Specific EBITDA Allocation in the same proportion as each type
of waste comprises such Specific EBITDA Allocation; and
(iii) with
respect to any EBITDA Adjustment Amount, the Purchase Price adjustment
applicable shall be calculated as the aggregate of (A) each Specific EBITDA
Allocation multiplied
by (B) the Ordinary Multiple or Special Multiple, as
applicable.
(c) The WCN
Baseline EBITDA Statement shall be deemed accepted by RSG, unless RSG
establishes that WCN did not satisfy the requirements of Section 2.2(b) and
Schedule 2.2(e)
in any material respect and notifies WCN thereof, within 10 Business Days after
receiving the WCN Baseline EBITDA Statement. Such notice shall
include a reasonably detailed description of how RSG determined that the WCN
EBITDA Statement did not satisfy the requirements of Section 2.2(b) and
Schedule 2.2(e). RSG
and WCN shall thereafter negotiate in good faith and attempt to resolve their
disagreement relating to the WCN Baseline EBITDA Statement. Should
such negotiations not result in an agreement within 10 Business Days after
delivery of RSG’s notice, the issues remaining in dispute shall be submitted to
an industry expert knowledgeable in such matters and mutually agreeable to RSG
and WCN (the “Expert”). The
Expert shall resolve the Parties disagreements relating to the WCN Baseline
EBITDA Statement and adjust the Pre-Closing Adjustment Calculations to reflect
such resolution; provided, however, that the Expert’s determination shall not
result in an EBITDA determination (with respect to any collection, transfer
station or landfill Asset) outside of the EBITDA range for any such collection,
transfer station or landfill Asset established by RSG’s and WCN’s respective
EBITDA determinations. The Expert’s determination shall include a
worksheet setting forth all material calculations used in arriving at such
determination and shall be based solely on information provided to the Expert by
RSG and WCN or their respective Affiliates) of the disputed items, including the
WCN Baseline EBITDA Amount, the Pre-Closing Adjustment Calculations and the
related calculations set forth in the WCN Baseline EBITDA
Statement. The Expert shall deliver his written determination within
30 days of receipt of the matter, and the Expert’s determination shall be final,
binding and conclusive on the parties. RSG and WCN shall furnish or
cause to be furnished to the Expert such work papers and other documents and
information relating to the disputed issues as they may deem necessary or
appropriate or as the Expert may request and that are available to that Party or
its agents. Further, RSG and WCN shall be afforded the opportunity to
present to the Expert any material relating to the disputed issues and to
discuss the issues with the Expert, provided, however, that no
Party shall have any discussions with the Expert without first providing the
other parties with notice of such discussions and a reasonable opportunity to
attend, observe or otherwise participate in such discussions. All
fees and expenses relating to the work, if any, performed by the Expert will be
borne equally by RSG and WCN.
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(d) If the
EBITDA Adjustment Amount is a Positive EBITDA Amount, then the Purchase Price
payable by Buyers to Sellers at Closing shall be increased by the amount of the
net aggregate Purchase Price adjustments set forth in the Pre-Closing Adjustment
Calculations. If the EBITDA Adjustment Amount is a Negative EBITDA
Amount, then the Purchase Price payable by Buyers to Sellers at Closing shall be
decreased by the amount of the net aggregate Purchase Price adjustments set
forth in the Pre-Closing Adjustment Calculations.
(e) Notwithstanding
anything to the contrary in this Agreement, (i) there shall be no adjustment to
the Purchase Price pursuant to Section 2.2(d) if the
WCN Baseline EBITDA Amount is not more than $1,500,000 greater than or
$1,500,000 less than the RSG Baseline EBITDA Amount, (ii) in no event shall the
Closing Purchase Price as adjusted by this Section 2.2 and Sections 2.3(e) and
(f) be less than $290,000,000, and (iii) RSG and WCN agree that all
calculations, computations and determinations with respect to the WCN EBITDA
Baseline Amount pursuant to this Section 2.2 shall be
made strictly in accordance with the terms of Schedule 2.2(e)
hereto.
(f) Solely
for purposes of this Section 2.2 and Section 2.3, the
Assets shall be deemed to include the Purchased Company Assets.
2.3 Post-Closing
Adjustments.
(a) The
following capitalized terms used in this Agreement shall have the following
meanings:
(i) “Actual True-Up
Amount” means the net aggregate sum of the actual amounts of the
following items as of the Closing Date, as determined in accordance with this
Section 2.3:
(a) the actual A/R Value as of the Closing Date; plus (b) the actual
amount of the Prepaid Assets as of the Closing Date; minus (c) the actual
amount of the Deferred Revenue as of the Closing Date and minus (d) the actual
amount of the Customer Deposits as of the Closing Date;
(ii) “Adjustment Amount”
means an amount (which may be positive or negative) equal to the amount by which
the Actual True-Up Amount as of Closing is different from the Estimated True-Up
Amount;
(iii) “A/R Value” means,
with respect to a particular date, the value of the Accounts Receivable as of
such date reduced in accordance with the following formula: (A) for
all Accounts Receivable less than 90 days old, 0% reduction; (B) for all
Accounts Receivable from 90 to 120 days old, 50% reduction and (C) for all
Accounts Receivable more than 120 days old, 100% reduction; and
(iv) “Disposal EBITDA”
means, the EBITDA reflected in the WCN Baseline EBITDA Statement attributable to
a transfer station or landfill Asset.
(b) At least
5 Business Days prior to the Closing Date, Sellers shall deliver to Buyers a
worksheet setting forth their good faith estimate of the Estimated True-Up
Amount as of the Closing Date. If the Estimated True-Up Amount is a
positive number, as contemplated by Section 2.2, the
amount payable by Buyers to Sellers at Closing shall be increased in an amount
equal to the positive Estimated True-Up Amount. If the Estimated
True-up Amount is a negative number, as contemplated by Section 2.2, the
amount payable by Buyers to Sellers at Closing shall be decreased in an amount
equal to the negative Estimated True-Up Amount. Buyers and Sellers agree that,
solely for purposes of determining the Estimated True-Up Amount and the Actual
True-Up Amount, (i) Accounts Receivable shall be deemed to include “Accounts
Receivable” as defined in each of the Equity Purchase Agreements, (ii) Prepaid
Assets shall be deemed to include “Prepaid Assets” as defined in each of the
Equity Purchase Agreements, (iii) Deferred Revenue shall be deemed to include
“Deferred Revenue” as defined in each of the Equity Purchase Agreements and (iv)
Customer Deposits shall be deemed to include “Customer Deposits” as defined in
each of the Equity Purchase Agreements.
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(c) Within 90
days after the Closing, RSG shall prepare a computation of the Actual True-Up
Amount and the Adjustment Amount as of the Closing Date and deliver such
computation to WCN. If within 30 days following delivery of such
computation, WCN does not deliver a written objection thereto to RSG, then the
Actual True-Up Amount and the Adjustment Amount shall be deemed to be agreed-to
between the parties as reflected on the computation provided pursuant to the
preceding sentence. If WCN object in writing to the computation
within 30 days following the delivery of such computation, then RSG and WCN
shall negotiate in good faith and attempt to resolve their
disagreement. Should such negotiations not result in an agreement
within 30 days after delivery of such written objection, the issues remaining in
dispute shall be submitted to a neutral auditor mutually agreeable to RSG and
WCN (the “Neutral
Auditor”). RSG and WCN shall furnish or cause to be furnished
to the Neutral Auditor such work papers and other documents and information
relating to the disputed issues as they may deem necessary or appropriate or as
the Neutral Auditor may request and that are available to that Party or its
agents. Further, RSG and WCN shall be afforded the opportunity to
present to the Neutral Auditor any material relating to the disputed issues and
to discuss the issues with the Neutral Auditor, provided, however, that no
Party shall have any discussions with the Neutral Auditor without first
providing the other parties with notice of such discussions and a reasonable
opportunity to attend, observe or otherwise participate in such
discussions. All fees and expenses relating to the work, if any,
performed by the Neutral Auditor will be borne equally by WCN and
RSG. The Neutral Auditor will deliver to WCN and RSG a written
determination (which determination shall include a worksheet setting forth all
material calculations used in arriving at such determination and shall be based
solely on information provided to the Neutral Auditor by WCN and RSG or their
respective Affiliates) of the disputed items, including the Actual True-Up
Amount and the Adjustment Amount, within 30 days of receipt of the disputed
items, which determination will be final, binding and conclusive on the
parties.
(d) Promptly
following agreement on, or delivery of the final, binding and conclusive
computation setting forth, the Actual True-Up Amount and the Adjustment Amount,
Buyers and Sellers shall account to each other as provided for in this Section
2.3(d). If the Adjustment Amount is a positive number, then
Buyers shall pay Sellers a cash payment equal to such difference as an increase
in the Purchase Price. If the Adjustment Amount is a negative number,
then Sellers shall pay Buyers a cash payment equal to such difference as
decrease in the Purchase Price. Any such payment shall be due and
payable within 10 days after the final determination of the Adjustment Amount
pursuant to Section
2.3(c) and shall be paid in immediately available funds by wire transfer
to an account designated by Buyers or Sellers, as applicable.
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(e) In the
event that (i) the Purchase Price is reduced pursuant to Section 2.2(d) and
(ii) some or all of such reduction is caused by a shortfall in EBITDA generated
by transfer station and landfill Assets, as reflected on the applicable Specific
EBITDA Allocation contained in the final WCN Baseline EBITDA Statement, then RSG
and WCN agree that they shall determine the actual EBITDA (“Post-Closing Disposal
EBITDA”) related to such assets. Within 45 days following the
expiration of the Post-Closing Measurement Period (as defined below), the
Post-Closing Disposal EBITDA shall be calculated, in accordance with the terms
of this Section
2.3(e) and Schedule 2.3(e), for
the 12-month period commencing on the first day of the month immediately
following the Closing Date and ending on the first anniversary thereof (the
“Post-Closing
Measurement Period”). In the event that the Post-Closing
Disposal EBITDA for any transfer station or landfill Asset is greater than the
Disposal EBITDA for such transfer station or landfill Asset, Buyers shall pay
Sellers a cash payment equal to the aggregate of the amount of each such
increase in EBITDA multiplied
by the Ordinary Multiple or Special Multiple, as
applicable. Any such payment shall be due and payable within 10
business days after the final determination of Post-Closing Disposal EBITDA
pursuant to this Section
2.3(e). WCN shall, on a quarterly basis during the
Post-Closing Measurement Period, provide RSG with interim statements of
Post-Closing Disposal EBITDA as of such dates, together with a reasonably
detailed description of how such Post-Closing Disposal EBITDA was calculated,
including any adjustments from actual historical financial
statements. For the avoidance of doubt, there shall only be upward
adjustments to the Purchase Price, if any, pursuant to this Section
2.3(e).
(f) Post-Closing Seabreeze/Gulf
Coast EBITDA Adjustment. The Parties acknowledge and agree
that if, as of the Closing Date or during the 12-month period following
immediately thereafter, the Buyers have not entered into (or become the
beneficiary of) a new disposal agreement (or extension of the existing disposal
agreement) with the Gulf Coast Disposal Authority for a minimum of 12 months
following the Closing Date, then the Parties agree that they shall determine the
actual EBITDA of the Seabreeze Landfill (the “Post-Closing Seabreeze
EBITDA”). Within 45 days following the expiration of the
Post-Closing Measurement Period, the Post-Closing Seabreeze EBITDA shall be
calculated, in accordance with the terms of this Section 2.3(f) and
Schedule
2.3(e), for the Post-Closing Measurement Period. In the event
that the Post-Closing Seabreeze EBITDA is greater than the Seabreeze EBITDA
included in the WCN Baseline EBITDA Statement, Buyers shall pay Sellers a cash
payment equal to the aggregate of the amount of such increase in EBITDA multiplied by the Ordinary
Multiple or Special Multiple, as applicable; provided, however, that appropriate
adjustment shall be made so that the foregoing increase in EBITDA (and any
payment made pursuant to this Section 2.3(f) in
respect thereof) shall not be counted twice for purposes of the EBITDA
calculation (and payment in respect thereof) to be made pursuant to Section
2.3(e). In the event that the Post-Closing Seabreeze EBITDA is
less than the Seabreeze EBITDA included in the WCN Baseline EBITDA Statement,
Sellers shall pay Buyers a cash payment equal to the aggregate of the amount of
such decrease in EBITDA multiplied by 4; provided,
however, that the amount of such decrease in EBITDA, for purposes of this Section 2.3(f), shall
not exceed the amount of the Prorated Gulf Coast EBITDA Loss. “Prorated Gulf Coast EBITDA
Loss” means the Gulf Coast EBITDA reflected in the WCN Baseline EBITDA
Statement multiplied by
a fraction, the numerator of which is the number of days during the 12-month
period following the Closing Date for which any Buyer was not a party to, or
beneficiary of, the Gulf Coast Contract, and the denominator of which is
365. Any such payment shall be due and payable within 10 Business
Days after the final determination of Post-Closing Seabreeze EBITDA for the
Post-Closing Measurement Period pursuant to this Section
2.3(f). Any payment due from Sellers to Buyers pursuant to
this Section shall be netted against any payment due from Buyers to Sellers
pursuant to Section
2.3(e). WCN shall, on a quarterly basis during the
Post-Closing Measurement Period, provide RSG with interim statements of
Post-Closing Seabreeze EBITDA as of such dates, together with a reasonably
detailed description of how such Post-Closing Seabreeze EBITDA was calculated,
including any adjustments from actual historical financial
statements. Notwithstanding anything to the contrary contained in
this Agreement, including this Section 2.3(f), in no
event shall Sellers be required to make any payments pursuant to this Section 2.3(f) that
would result in a Purchase Price of less than $290,000,000.
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(g) In
furtherance of Sections 2.3(e) and
2.3(f), WCN
covenants and agrees that, during the Post-Closing Measurement Period, it shall
cause Buyers and the Purchased Companies to (A) conduct business in a
commercially reasonable manner in order to maximize Post-Closing Disposal
EBITDA, including, without limitation, Post-Closing Seabreeze EBITDA, (B) not
divert landfill volumes or discount disposal rates other than in the ordinary
course of business or (C) otherwise take or fail to take any action outside the
ordinary course of business which is reasonably likely to reduce Post-Closing
Disposal EBITDA, including, without limitation, Post-Closing Seabreeze EBITDA,
below the amount it would otherwise be but for having taken or failed to take
such action.
2.4 Closing. The
closing of the Transactions (the “Closing”) shall take
place at the offices of Akerman Senterfitt & Xxxxxx, P.A., Xxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 at 10:00 a.m., local time, as
promptly as practicable (but in any event within 10 Business Days) following the
date on which the last of the conditions set forth in Article VII are
fulfilled, satisfied or waived or at such other time or place as RSG and WCN
shall agree in writing. The date on which the Closing occurs is
referred to as the “Closing
Date.” All proceedings to be taken and all documents to be
executed and delivered by all parties at the Closing will be deemed to have been
taken, executed and delivered simultaneously and no proceedings will be deemed
to have been taken nor documents executed or delivered until all have been
taken, executed and delivered; provided, however, that, for
financial reporting purposes only, the Closing shall be deemed to have occurred
effective as of 12:01 a.m. on the Closing Date.
2.5 Closing Deliveries by
Sellers. At the Closing, Sellers and the Equity Sellers shall
deliver or cause to be delivered to Buyers, all duly and properly executed
(where applicable):
(a) For each
parcel of Owned Real Property, a Deed from the applicable Seller conveying to
the applicable Buyer indefeasible, fee simple title to such parcel subject only
to the Permitted Encumbrances, in form and substance reasonably satisfactory to
Buyers;
(b) Bills of
Sale from each Seller to each Buyer, as applicable, in the form attached as
Exhibit D (the
“Bills of
Sale”);
(c) Affidavit
of Non-Foreign Status from each Seller of Owned Real Property and each Purchased
Company to each Buyer, as applicable, in form and substance reasonably
satisfactory to Buyers;
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(d) For each parcel of Owned Real Property
and each parcel of real property included in the Purchased Company Assets, an
owner’s affidavit from the applicable Seller or Equity Seller, as applicable,
and any other documents reasonably required by the Title Company or as otherwise
specified in the Title Commitments in order for the Title Company
to delete the Title
Requirements (excluding any Specified Title Requirements or any Title
Requirements that are (i) an obligation of a Buyer or (ii) Assumed Liabilities)
in order to issue the
corresponding Title Policies, which Title Commitments have been reviewed,
approved and accepted in full by Buyers on or prior
to the date hereof;
(e) Assignment
and assumption agreements executed by RSG or the applicable Seller Affiliate
thereof, in the form attached as Exhibit E, for
all of the Assumed Contracts other than the Real Estate Leases (the “Assignment and Assumption
Agreements”);
(f) (i) An
assignment and assumption agreement executed by RSG or the applicable Seller
Affiliate thereof, substantially in the form attached as Exhibit F, for each
parcel of Leased Real Property of all of the applicable Seller’s rights, title
and interest under each Real Estate Lease with respect thereto, together with
the consent of the landlord to such assignment and assumption if required by the
applicable Real Estate Lease or by Applicable Laws and the agreement by the
applicable Buyer to assume and pay, perform and discharge when due the
obligations of the lessee under such Real Estate Lease to the extent arising
from and after the Closing Date (the “Assignment, Assumption and
Consent to Leased Real Property”), and (ii) to the extent reasonably
available or required to be issued by the landlord under the applicable lease,
an Estoppel Certificate (which may be included within the Assignment, Assumption
and Consent to Leased Real Property) for each parcel of Leased Real Property,
substantially in the form attached as Exhibit
G;
(g) A letter
from Sellers’ (or their Affiliate’s or Affiliates’) lenders confirming that all
Blanket Liens on the Assets or the Purchased Company Assets will be released
concurrently with the Closing and that evidence thereof shall be delivered
within 60 days following the Closing Date and evidence reasonably satisfactory
to Buyers of satisfaction of all Encumbrances encumbering the Assets or the
Purchased Company Assets other than Permitted Encumbrances;
(h) A Houston
disposal agreement in accordance with the terms of the Republic/Allied Consent
Decree, in the form attached as Exhibit H (the “Houston Disposal
Agreement”);
(i) The
Transition Disposal Agreements, executed by RSG or the applicable Seller
Company;
(j) A
transition services agreement in the form of Exhibit I (the “Transition Services
Agreement”);
(k) A legal
opinion of Akerman Senterfitt, as counsel to the Sellers, in the form attached
hereto as Exhibit
J;
(l) The
Xxxxxxxx Purchase Agreement and an assignment of the Xxxxxxxx Membership
Interests;
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(m) The
Xxxxxxxx Purchase Agreement and an assignment of the RSCI Membership
Interests;
(n) The Stock
Purchase Agreement and (i) a stock certificate for the Xxxxxxxx Stock, duly
endorsed to WCN or accompanied by a stock power endorsed to WCN or (ii) an
affidavit of lost stock certificate accompanied by a stock power endorsed to
WCN; and
(o) Resignations
of each director of Xxxxxxxx and documents sufficient to effect the removal of
all managers and officers of each of the Purchased Companies, in each case
effective as of the Closing Date.
2.6 Closing Deliveries by
Buyers. At the Closing, Buyers shall deliver or cause to be
delivered to Sellers and the Equity Sellers, all duly and properly executed
(where applicable):
(a) The
Closing Purchase Price by wire transfer of immediately available funds to the
account specified by Sellers and the Equity Sellers;
(b) The
Assignment and Assumption Agreements executed by WCN or the applicable Buyer
Affiliate thereof;
(c) For each
parcel of Leased Real Property, the Assignment, Assumption and Consent to Leased
Real Property executed by WCN or the applicable Buyer;
(d) The
Houston Disposal Agreement executed by WCN or the applicable Buyer;
(e) Subject
to Section 2.7,
the Transition Disposal Agreement executed by WCN or the applicable Seller
Affiliate thereof;
(f) The
Equity Purchase Agreements; and
(g) The
Transition Services Agreement executed by WCN.
2.7 Unsecured Consents from
Governmental Authorities under Environmental Laws. If, despite
the parties’ commercially reasonable efforts, upon the satisfaction or waiver of
all of the closing conditions set forth in Article VII, the
consent from a Governmental Authority necessary to transfer or re-issue one or
more Environmental Permits to the applicable Buyer has not been obtained, then,
subject to the approval of such Governmental Authority, (a) the parties shall
consummate the Closing, and (b) the applicable Buyers and Sellers shall execute
and deliver a transition agreement substantially in the form attached hereto as
Exhibit K (the
“Transition Disposal
Agreement”) with respect to the Assets affected by any such Environmental
Permits at Closing. In the event that the execution and delivery of
any Transition Disposal Agreements are required pursuant to this Section 2.7, Buyers
and Sellers shall use their commercially reasonable efforts to obtain the
necessary consents from any such Governmental Authority as soon as reasonably
practicable following the Closing in order to transfer or re-issue one or more
of the Environmental Permits to the applicable Buyers.
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ARTICLE
III
REPRESENTATIONS AND
WARRANTIES OF SELLERS
Except as set forth in the Sellers’
Disclosure Schedules, Sellers, jointly and severally, make the following
representations and warranties to Buyers. For the purposes of this
Article
III and any other
representations and warranties herein, (i) matters reflected in the Sellers’
Disclosure Schedules are not necessarily limited to matters required by the
Agreement to be reflected in the Sellers’ Disclosure Schedules, any additional
matters are set forth in the Sellers’ Disclosure Schedules for informational
purposes, and other matters of a similar nature are not necessarily included,
(ii) any item or matter disclosed by Sellers in any section or subsection of the
Sellers’ Disclosure Schedules will also be deemed to be disclosed in any other
sections or subsections of the Sellers’ Disclosure Schedules to the extent that
it is reasonably apparent from the face of such disclosure that such item or
matter is applicable or relates to such other sections or subsections and (iii)
the Sellers’ Disclosure Schedules are qualified in their entirety by reference
to specific provisions of this Agreement. It is understood and agreed that
the inclusion of any specific item in the Sellers’ Disclosure Schedules is not
intended to imply that such items so included or other items are or are not
material.
3.1 Organization and
Qualification. Each Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization or
formation. Each Seller is duly authorized, qualified and licensed
under all Applicable Laws to carry on its business in the places and in the
manner in which its business is presently conducted, except for where the
failure to be so authorized, qualified or licensed would not have a Sellers’
Material Adverse Condition. Each Seller has full power and authority
to own or lease the Assets, as applicable.
3.2 Authority; Binding
Effect.
(a) Each
Seller has full power and, subject to obtaining any consents required hereunder,
authority (including full corporate or other entity power and authority) to
enter into this Agreement and the Ancillary Agreements to which it is a party,
to consummate the Transactions and to perform its obligations under this
Agreement and the Ancillary Agreements to which it is a party.
(b) The
execution, delivery and performance of this Agreement and the Ancillary
Agreements by Sellers are within their respective corporate, limited liability
company or partnership rights, powers and authority and such actions have been
approved by each Seller’s board of directors, managers or general partners (as
the case may be), and no other proceedings on the part of Sellers will be
necessary to authorize the execution and delivery of this Agreement and the
Ancillary Agreements or the consummation by Sellers of the Transactions and the
performance of their obligations under this Agreement and the Ancillary
Agreements to which they are parties. This Agreement has been, and
the Ancillary Agreements to which the Sellers are parties when executed and
delivered will be, duly and validly executed and delivered by the
Sellers. This Agreement is, and the Ancillary Agreements to which the
Sellers are parties when executed and delivered will be (assuming the due
authorization, execution and delivery of each by Buyers), the valid and legally
binding agreement of each Seller, enforceable against such Seller in accordance
with their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and the effects of general principles of equity.
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3.3 Consents and Approvals; No
Violation. Except (a) as set forth in Schedule 3.3, (b) for
the terms of the Republic/Allied Consent Decree, and (c) for such matters that
would not reasonably be expected to have a Sellers’ Material Adverse Condition,
the execution, delivery and performance of this Agreement and the Ancillary
Agreements, the consummation of the Transactions and the fulfillment of the
terms of this Agreement and the Ancillary Agreements by Sellers do not and will
not, after the giving of notice or lapse of time or otherwise:
(a) conflict
with, or result in a breach or violation of, their Organizational
Documents;
(b) result in
the creation or imposition of any Encumbrance on the Assets;
(c) except
for any notices, consents or approvals required under the HSR Act or with
respect to host community agreements listed on Schedule 1.1(c)(iv),
or Environmental Permits, (i) require Sellers obtain the consent or approval of,
any Governmental Authority or other third Person (including, with respect to the
transfer of any Permits), or (ii) conflict with, result in a material breach of
or default under or give rise to any material right of termination, cancellation
or acceleration of, or to a material loss of any benefit to which a Seller is
entitled under, such Assumed Contract; or
(d) conflict
with, violate or result in a breach of or default under any Applicable Law to
which Sellers are bound or to which the Assets are subject.
3.4 Compliance with Laws;
Permits.
(a) Except as
set forth in Schedule
3.4(a) and except for such matters that would not reasonably be expected
to have a Sellers’ Material Adverse Condition, (i) the Assets are being
maintained and operated in compliance with all Applicable Laws, (ii) Sellers are
not involved in any Proceeding relating to the Assets seeking to impose fines or
penalties or seeking injunctive relief for violation of any Applicable Laws and
Permits, nor has any Person asserted in writing that any Seller has violated or
is in violation of Applicable Laws, and (iii) there is no pending or, to
Sellers’ Knowledge, threatened Proceeding or other form of material review
relating to Sellers or the Assets with respect to any Applicable Law or
Permit.
(b) To
Sellers’ Knowledge, the Permits listed on Schedule 3.4(b)
comprise all material Permits (excluding Environmental Permits) necessary to
enable Sellers to own and use the Assets and conduct the Assets as currently
conducted. Except as set forth on Schedule 3.4(b),
Sellers are in compliance with the terms and conditions of all such Permits,
except for such failures which would not reasonably be expected to have a
Sellers’ Material Adverse Condition, and no Proceedings are pending or, to
Sellers’ Knowledge, threatened that may result in the revocation, cancellation,
suspension, limitation or adverse modification of any of the
same. Except for matters that would not reasonably be expected to
have a Sellers’ Material Adverse Condition, there are no defects in any of such
Permits. All of the Permits are currently valid, in good standing and
in full force and effect in all material respects, except for such failures
which would not reasonably be expected to have a Sellers’ Material Adverse
Condition. To Sellers’ Knowledge, there are no material defects in
any of the Permits, except for such defects which would not reasonably be
expected to have a Sellers’ Material Adverse Condition.
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3.5 Assets; Personal
Property. Except as set forth in Schedule 3.5, the
Assets and the Purchased Company Assets include all of the assets required to be
divested by the Sellers with respect to the Markets pursuant to the
Republic/Allied Consent Decree. Except for such matters that would
not reasonably be expected to have a Sellers’ Material Adverse Condition: (a)
all of the Assets are either owned by Sellers or leased by Sellers under an
Assumed Contract; (b) at the Closing, upon the consummation of the Transactions,
the applicable Sellers shall convey to the applicable Buyers good and marketable
title to or valid leasehold interests in the personal property Assets, free and
clear of all Encumbrances (other than Encumbrances created by any Buyer,
Permitted Encumbrances and the Blanket Liens that will be released as provided
in Section 6.18); (c) except as
set forth in Schedule
3.5(c), the Equipment is in operating condition in all material respects,
ordinary wear and tear excepted; and (d) except as set forth in Schedule 3.5(d), the
automobiles, trucks, fork lifts, construction vehicles and other motor vehicles
and the attachments, accessories and materials handling equipment comprising the
Rolling Stock are in operating condition in all material respects, ordinary wear
and tear excepted.
3.6 Real
Property.
(a) Except
for the Permitted Encumbrances, as set forth on Schedule 3.6(a), or
the requirements listed in the Title Commitments, (i) Sellers have good and
marketable indefeasible fee simple title to the Owned Real Property and, to
Sellers’ Knowledge, a legal, valid, binding and enforceable leasehold interest
in the Leased Real Property, and (ii) assuming that an Assignment,
Assumption and Consent to Leased Real Property is received by Sellers with
respect to each parcel of Leased Real Property in accordance with Section 2.5(d), at
Closing, all of Sellers’ right, title and interest to the Owned Real Property
and leasehold interest in the Leased Real Property shall be conveyed to Buyers,
free and clear of all Encumbrances, subject to Encumbrances by any
Buyer.
(b) Except
for the Permitted Encumbrances, the Blanket Liens that will be released as
provided in Section 6.18, as set forth
on Schedule
3.6(b):
(i) Except
for matters that would not reasonably be expected to have a Sellers’ Material
Adverse Condition, there are no Proceedings pending and brought by or, to
Sellers’ Knowledge, threatened by, any third party which would reasonably be
expected to result in a material change in the allowable uses of the Real
Property;
(ii) Sellers
have not leased or otherwise granted a present or future right to possession or
occupancy or use of all or any part of the Owned Real Property;
(iii) There are
no outstanding options, rights of first offer or rights of first refusal to
purchase, right to acquire or right to lease the Owned Real Property or, to
Sellers’ Knowledge, the Leased Real Property or any portion
thereof;
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(iv) Except
for matters that would not reasonably be expected to have a Sellers’ Material
Adverse Condition, Sellers have delivered to Buyers true and complete copies of
all Real Estate Leases, and in case of any oral Real Estate Lease, a summary of
the material terms of such Real Estate Lease. Neither Sellers nor, to
Sellers’ Knowledge, the landlords, are in material breach or default under any
Real Estate Lease that has not been cured, and no event has occurred or
circumstance exists that, with the delivery of notice, the passage of time or
both, would constitute such a breach or default or would permit the termination,
modification or acceleration of rent under such Real Estate Lease;
(v) Except
for matters that would not reasonably be expected to have a Sellers’ Material
Adverse Condition, there are no Proceedings (including condemnation or eminent
domain proceedings) pending or, to Sellers’ Knowledge, threatened against all or
any part of the Real Property;
(vi) Except
for matters that would not reasonably be expected to have a Sellers’ Material
Adverse Condition, Sellers have not received any written notice of (A) any
material violation of any applicable zoning ordinance, building code, use or
occupancy restriction, covenant, condition or restriction of record or any other
violation of Applicable Law relating to the Real Property or the improvements
thereon or (B) any material pending special assessments affecting all or any
part of the Real Property (except as shown on the Title Commitments);
and
(vii) To
Sellers’ Knowledge, there are no unrecorded material contracts, leases,
easements or other agreements, rights or claims of third parties affecting the
use, title, access to, occupancy or development of the Owned Real
Property.
(c) Neither
any Seller nor any Seller Company (directly or indirectly) owns or has any
interest in or any rights to acquire, lease or otherwise use any land or other
real property that (a) (i) is situated within a one (1) mile radius of any
landfill Asset and (ii) would be reasonably expected to interfere with any
Buyer’s prospective ownership, use, operation or expansion of such Asset, or (b)
is adjacent to any transfer station or hauling Asset.
(d) Sellers
have completed the capping of approximately 69 acres of the Xxxxxxxx Canyon
Landfill. Such capping has been performed and completed in accordance
with all Applicable Laws.
3.7 Contracts.
(a) Listed on
Schedule 3.7(a)
is a complete and accurate list of each Material Collection Contract and each
Material Disposal Contract.
(b) Except as
set forth in Schedule
3.7(b), Sellers are in compliance with all Material Collection Contracts
and all Material Disposal Contracts, except where the failure to comply would
not reasonably be expected to result in a Sellers’ Material Adverse Condition,
and, to Sellers’ Knowledge, all Material Collection Contracts and Material
Disposal Contracts are in full force and effect in all material respects and are
valid, binding and enforceable against any Seller a party thereto in accordance
with their respective provisions. Sellers have not received any
written notice that any Person intends or desires to modify, waive, amend,
rescind, release, cancel or terminate any Material Collection Contracts or
Material Disposal Contracts.
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3.8 Taxes. Except
as set forth on Schedule 3.8 or for
matters that would not reasonably be expected to have a Sellers’ Material
Adverse Condition, with respect to the Assets:
(a) Sellers,
either separately or as members of an Affiliated Group, (i) have completed and
timely filed all Tax Returns required to be filed with any Tax authority for any
Pre-Closing Period and (ii) have paid (or have had paid on their behalf)
all Taxes shown as due and payable thereon. Such Tax Returns
accurately reflect in all material respects all Taxes due and payable with
respect to the periods covered by them. There is no Tax Return filed
by Sellers either separately or as a member of an Affiliated Group, and there
are no outstanding assessments or Taxes otherwise due, for any Pre-Closing
Period, that will result, on or after the Closing Date, in any Taxes or other
governmental charges upon the Assets or Buyers, whether as transferees of the
transferred assets or otherwise. There are no Encumbrances for Taxes
on any of the Assets other than Encumbrances for Taxes not yet due and
payable.
(b) There is
no actual, pending or, to Sellers’ Knowledge, threatened claim, audit,
investigation, dispute or other proceeding concerning any Taxes of Sellers that
may result in a material Encumbrance against any of the Assets after
Closing.
3.9 Litigation. Except
as set forth on Schedule 3.9 and
except for matters that would not reasonably be expected to have a Sellers’
Material Adverse Condition, (a) there are no Proceedings pending or, to Sellers’
Knowledge, threatened against the Assets or against the Sellers relating to the
Assets, at law or in equity, before any federal, state or local court or
regulatory agency or other Governmental Authority, (b) there are no existing
orders, judgments or decrees of any Governmental Authority affecting any of the
Assets, nor, to Sellers’ Knowledge, are there any such orders, judgments or
decrees threatened, and (c) there are no Proceedings pending or, to Sellers’
Knowledge, threatened, against Sellers that could result in an Encumbrance on
any of the Real Property.
3.10 Conduct of Business Since
December 4, 2008. Except for matters that would not reasonably
be expected to result in a Sellers’ Material Adverse Condition, since December
4, 2008, the Sellers have operated the Assets in accordance with the
Republic/Allied Consent Decree.
3.11 Environmental Compliance;
Hazardous Materials.
(a) Except as
set forth in Schedule
3.11(a) or for matters that would not reasonably be expected to have a
Sellers’ Material Adverse Condition:
(i) To
Sellers’ Knowledge, the Assets are being operated in compliance with all
Environmental Laws and Environmental Permits;
(ii) To
Sellers’ Knowledge, during the period that Sellers have operated the Assets,
there have been no Releases of any Hazardous Materials into the environment or
onto or under any Owned Real Property or Leased Real Property in connection with
the ownership or operation of the Assets, except in compliance with all
Environmental Laws;
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(iii) No
portion of the Owned Real Property and Leased Real Property is on a CERCLA,
CERCLIS or RCRIS list or the National Priorities List of Hazardous Waste Sites
or any similar list or database maintained by the states in which the Assets are
located, and Sellers are not listed as, nor have they been notified that any of
them is a “potentially responsible person” with respect to the Assets;
and
(iv) No
Encumbrances with respect to a Release have been imposed against or on any of
the Assets under CERCLA, any comparable state statute or other Applicable
Law.
(b) Except as
set forth in Schedule
3.11(b) or for matters that would not reasonably be expected to have a
Sellers’ Material Adverse Condition, with respect to the Assets, (i) no Seller has received any
written notice or other written communication from any Governmental Authority or
unaffiliated third Person alleging or relating to the investigation of any
alleged (A) violation of Environmental Law or (B) liability or potential
liability for any Release, other than, in each case, those that have been fully
resolved without further liability or obligation to Sellers, (ii) there is no
Proceeding pending or, to Sellers’ Knowledge, threatened against either the
Sellers or the Assets relating to a violation or failure to comply with
Environmental Law or involving remediation of any condition of any Real Property
pursuant to any Environmental Law, and (iii) there are no matters, circumstances
or violations of any Environmental Permits the effect of which would prevent
Buyers from continuing to operate and use the Assets for their intended
purposes.
(c) Schedule 3.11(c) contains a complete list
of all of Seller’s material Environmental Permits. Such Environmental Permits
comprise all of the Environmental Permits required to operate the Assets
required as currently operated, and Seller is in compliance with each such
Environmental Permit, except for where the failure to have, or be in compliance
with, such Environmental Permits would not have a Sellers’ Material Adverse
Condition.
(d) The
representations and warranties made in this Section 3.11 are the
sole and exclusive representations and warranties of Sellers with respect to
environmental matters.
3.12 Employment and Labor
Matters.
(a) Schedule 3.12(a),
when delivered by Sellers to Buyers within 20 Business Days before the Closing,
will list all of Sellers’ employees who are employed in connection with the
operation of the Assets (including any employees who are out on leave), together
with each such person’s (i) employment type or classification, (ii)
compensation, including hourly or monthly base compensation and any bonus to
which the employee is entitled and (iii) contact information, tax identification
number and driver’s license number (for each driver of Seller’s motor vehicles
only). Prior to Closing, Sellers will deliver to Buyers as Schedule 3.12 copies
of all employment agreements with such employees.
(b) Schedule 3.12(b),
when delivered by Sellers to Buyers reasonably promptly following the Closing,
will list, for each employee of any Seller who is employed in connection with
the operation of any of the Assets as of the Closing, the following information
for the period from January 1, 2009 through the end of the last pay period prior
to the Closing: (i) gross earnings; (ii) federal income taxes withheld; (iii)
state income taxes withheld; (iv) state unemployment and disability taxes
withheld; (v) federal unemployment taxes withheld; (v) FICA taxes withheld; and
(vi) 401(k) contributions withheld.
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(c) Except as
set forth in Schedule
3.12(c), with respect to each of the Assets, (i) no Seller is a party to
any collective bargaining agreement and (ii) within the last 3 years, Sellers
have not experienced any material labor disputes, union organization attempts or
any work stoppage due to labor disagreements in connection with any of the
Assets. Except as set forth in Schedule 3.12(c) or for matters
that would not reasonably be expected to have a Sellers’ Material Adverse
Condition,
no Seller is a party to any agreement for the provision of consulting or other
professional services which is not cancelable without penalty on less than 30
days’ notice.
(d) Except to
the extent set forth in Schedule 3.12(d) or for
matters that would not reasonably be expected to have a Sellers’ Material
Adverse Condition, with respect to the Assets, (i) there is no unfair labor
practice charge or complaint against Sellers pending or, to Sellers’ Knowledge,
threatened, (ii) there is no labor strike, dispute, request for representation,
slowdown or stoppage actually pending or, to Sellers’ Knowledge, threatened
against or affecting Sellers, (iii) no question concerning labor representation
has been raised to Sellers or, to Sellers’ Knowledge, is threatened respecting
the Offered Employees, (iv) no grievance, nor any arbitration proceedings
arising out of or under collective bargaining agreements, is pending or, to
Sellers’ Knowledge, threatened, (v) there are no administrative charges, court
complaints or threatened complaints against Sellers concerning alleged
employment discrimination or other employment related matters pending or, to
Sellers’ Knowledge, threatened before the U.S. Equal Employment Opportunity
Commission, the U.S. Department of Labor or any other Governmental Authority,
(vi) Sellers have complied with all applicable labor and employment laws, (vii)
Sellers are not liable for any arrears of wages or any penalty for failure to
comply with any of the foregoing and are not liable for any payment to any trust
or other fund or to any Governmental Authority, with respect to unemployment
compensation benefits, social security or other benefits for employees (other
than routine payments to be made in the normal course of business and consistent
with past practice), and (viii) there are no pending or, to Sellers’ Knowledge,
threatened charges, complaints, claims or grievances alleging wage and hour
violations including allegations of unpaid hours worked, unpaid wages, unpaid
overtime, or violations of meal periods or break period rules, regulations or
statutes.
3.13 No Broker’s or Finder’s
Fees. Except as set forth on Schedule 3.13, no
agent, broker, investment banker, finder, financial advisor or other Person is
or will be entitled to any brokerage commissions, finder’s fees or similar
compensation in connection with the Transactions based on any agreement,
arrangement or understanding made by or on behalf of any Seller or any Affiliate
thereof or to which any Seller or any Affiliate thereof is subject.
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ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES OF BUYERS
Except as set forth in the Buyers’
Disclosure Schedules, Buyers, jointly and severally, make the following
representations and warranties to Sellers. For the purposes of this
Article
IV and any other
representations and warranties herein, (i) matters reflected in the Buyers’
Disclosure Schedules are not necessarily limited to matters required by the
Agreement to be reflected in the Buyers’ Disclosure Schedules, any additional
matters are set forth in the Buyers’ Disclosure Schedules for informational
purposes, and other matters of a similar nature are not necessarily included,
(ii) any item or matter disclosed by Buyers in any section or subsection of the
Buyers’ Disclosure Schedules will also be deemed to be disclosed in any other
sections or subsections of the Buyers’ Disclosure Schedules to the extent that
it is reasonably apparent from the face of such disclosure that such item or
matter is applicable or relates to such other sections or subsections and (iii)
the Buyers’ Disclosure Schedules are qualified in their entirety by reference to
specific provisions of this Agreement. It is understood and agreed that
the inclusion of any specific item in the Buyers’ Disclosure Schedules is not
intended to imply that such items so included or other items are or are not
material. Any representations and warranties of any Buyer that may be
formed by WCN between the date hereof and the Closing Date shall be deemed to
have been made as of the Closing Date and not as of the date
hereof.
4.1 Organization and
Qualification. Each Buyer is duly organized, validly existing
and in good standing under the laws of the state of its organization or
formation.
4.2 Authority; Binding
Effect.
(a) Each
Buyer has full power and, subject to obtaining any consents required hereunder,
authority (including full corporate or other entity power and authority) to
enter into this Agreement and the Ancillary Agreements to which it is a party,
to consummate the Transactions and to perform its obligations under this
Agreement and the Ancillary Agreements to which it is a party.
(b) The
execution, delivery and performance of this Agreement and the Ancillary
Agreements by Buyers is within their respective corporate, limited liability
company or partnership rights, powers and authority and such actions have been
approved by each Buyer’s board of directors, managers or general partners (as
the case may be), and no other proceedings on the part of Buyers will be
necessary to authorize the execution and delivery of this Agreement and the
Ancillary Agreements or the consummation by Buyers of the Transactions and the
performance of their obligations under this Agreement and the Ancillary
Agreements to which they are parties. This Agreement is, and the
Ancillary Agreements to which the Buyers are parties when executed and delivered
will be (assuming the due authorization, execution and delivery of each by
Sellers), the valid and legally binding agreement of each Buyer, enforceable
against such Buyer in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors’ rights generally and the effects of general principles
of equity.
4.3 Consents and Approvals; No
Violation. Except as set forth in Schedule 4.3, the
execution, delivery and performance of this Agreement and the Ancillary
Agreements, the consummation of the Transactions and the fulfillment of the
terms of this Agreement and the Ancillary Agreements by Buyers do not and will
not:
(a) conflict
with, or result in a breach or violation of, their Organizational
Documents;
(b) result in
the creation or imposition of any Encumbrance on the Assets;
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(c) except
for any notices, consents or approvals required under the HSR Act, (i) require
Buyers to obtain the consent or approval of, any Governmental Authority or other
third Person (including with respect to the transfer of any Permits), or (ii)
constitute a material default under or give rise to any material right of
termination, cancellation or acceleration of, or to a material loss of any
benefit under, any contract, agreement, arrangement or instrument to which any
Buyer is a party or by which any Buyer or any of its properties or assets may be
bound; or
(d) conflict
with, or result in a material breach of or default under any Applicable Law to
which any Buyer is bound or its material assets are subject.
4.4 Litigation. There
are no Proceedings pending or, to Buyers’ Knowledge, threatened against Buyers
that would reasonably be expected to have a Buyers’ Material Adverse Effect or
to otherwise interfere with the consummation of the Transactions, at law or in
equity, before any federal, state or local court, regulatory agency or other
Governmental Authority.
4.5 No Broker’s or Finder’s
Fees. No agent, broker, investment banker, finder, financial
advisor or other Person is or will be entitled to any brokerage commissions,
finder’s fees or similar compensation in connection with the Transactions based
on any agreement, arrangement or understanding made by or on behalf of any Buyer
or any Affiliate thereof or to which any Buyer or any Affiliate thereof is
subject.
4.6 Available
Funds. As of the date of this Agreement, Buyers have
sufficient funds to pay the full Purchase Price payable hereunder at the
Closing. Buyers will have sufficient funds to pay the full Purchase
Price payable hereunder at the Closing.
ARTICLE
V
CONDUCT OF BUSINESS PRIOR TO
CLOSING
5.1 Activities of Sellers Prior
to Closing. Except as provided by the terms of this Agreement
or as required by the terms of the Republic/Allied Consent Decree or as set
forth on Schedule
5.1, between the date of this Agreement and the earlier of the Closing or
the termination of this Agreement, Sellers shall own and/or operate the Assets
in the ordinary and usual course of business consistent with past practice,
provided, however, that Sellers
shall have no obligation to purchase any vehicles, purchase any yellow iron or
(except as provided in Schedule 5.1) engage
in any long-term landfill cell development or otherwise incur any material
capital expenditures with respect to the Assets pursuant to this Section 5.1 or
otherwise. Without limiting the generality of the foregoing, Sellers
agree that, between the date of this Agreement and the earlier of the Closing or
the termination of this Agreement, except as provided by the terms of this
Agreement, they shall (a) own and operate the Assets in compliance with the
Republic/Allied Consent Decree, (b) use commercially reasonable efforts to
preserve intact and keep available the services of the employees primarily
responsible and necessary for operating the Assets (including “shared” employees
and “available” employees previously identified to Buyers), and (c) use
commercially reasonable efforts to maintain relationships in the ordinary course
of business with suppliers, customers, consultants, independent contractors,
government agencies, communities and others having business relations with
Sellers in the operation of the Assets.
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5.2 Activities of Buyers Prior
to Closing. Between the date of this Agreement and the earlier
of the Closing or the termination of this Agreement, except as contemplated by
this Agreement, Buyers shall not, directly or indirectly, (a) engage in any
practice, take any action, fail to take any action or enter into any transaction
which could reasonably be expected to cause any representation or warranty of
Buyers in this Agreement to be untrue or inaccurate or result in a breach of any
covenant made by Buyers in this Agreement or (b) take any actions that would
reasonably be likely to materially prevent or delay the consummation of the
Transactions.
ARTICLE
VI
ADDITIONAL
AGREEMENTS
6.1 Additional
Agreements. Subject to the terms and conditions herein
provided, but subject to the obligation to act in good faith, each of the
parties hereto agrees to use its reasonable best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
Transactions and to cooperate with each other in connection with the foregoing,
including the taking of such commercially reasonable actions as are necessary to
(a) obtain any necessary consents, approvals, orders, exemptions and
authorizations by or from any public or private third party, including any that
are required to be obtained under any Applicable Laws or any Assumed Contracts,
Contracts included in the Purchased Company Assets or Permits, (b) defend all
Proceedings challenging this Agreement or any of the Equity Purchase Agreements
or the consummation of the Transactions, (c) effect all necessary registrations
and other filings and submissions of information requested by a Governmental
Authority, including Environmental Permits and (d) use its best efforts to cause
to be lifted or rescinded any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the
Transactions. For so long as the terms of the Republic/Allied Consent
remain in effect, Sellers agree not to undertake, directly or indirectly, any
challenges to any Permits (including Environmental Permits) relating to the
operation of the Assets or the Purchased Company
Assets.
6.2 Access to Information;
Confidentiality; Real Property Access. Subject to compliance
with Applicable Laws, Sellers shall afford to Buyers reasonable access during
normal business hours during the period prior to the Closing to all of Sellers’
respective properties, books, contracts, commitments, personnel and Records
relating to the Assets, and all other information concerning the Assets as
Buyers may reasonably request and receive consistent with the provisions of
Applicable Law. All information exchanged with any of the Buyers
pursuant to this Section 6.2 shall be
subject to the confidentiality agreement, dated November 6, 2008, between
Sellers and the Buyer party thereto (the “Confidentiality
Agreement”). Without limiting the generality of the foregoing,
Buyers shall have the right to conduct Phase I environmental investigations of
the Real Property, and may conduct Phase II investigations upon Sellers’ prior
written consent, which may not be unreasonably withheld or
delayed. Any access to the Real Property requested by Buyers pursuant
to this Section
6.2 shall be granted in accordance with an access agreement containing
customary terms and conditions to be agreed upon by the parties. All
access and testing shall be coordinated with Sellers, and Buyers and their
agents and employees shall not enter the Real Property or perform inspections or
meet with employees unless accompanied by a representative of
Sellers. Sellers shall have the right to delay access or testing
until such time that the access or testing, in the reasonable judgment of
Sellers, will not materially interfere with the operations of the
Assets. Sellers shall have the right to require that access and
testing be conducted on weekends or after normal business hours and shall have
the right to limit access to employees to only those who are designated by
Sellers. In addition to the terms of any access agreement, Buyers
agree to return the Real Property in all material respects to its condition as
of the date of this Agreement to the extent there are any material alterations
to the Real Property attributable to their exercise of their rights pursuant to
this Section
6.2, and Buyers shall indemnify and save harmless Sellers from any damage
caused as a result of Buyers’ activities under this Section 6.2 and all
costs of returning the Real Property to such condition as it existed prior to
Buyers’ activities under this Section
6.2. If Buyers do not promptly perform such work, Sellers
shall have the right to perform, or cause to be performed, such work and to
obtain reimbursement for the costs of such work (including legal and consulting
fees) from Buyers, which costs shall be payable by Buyers to Sellers upon
demand.
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6.3 Title Insurance and
Surveys.
(a) Buyers
have received title commitments (the “Title Commitments”)
issued by the Title Company for the issuance of an ALTA (or, where applicable, a
TLTA) policy of title insurance for each parcel of Real Property (each, a “Title Policy”). The
Title Commitments are described on Schedule 6.3(a) and
have been reviewed and approved by Buyers. The base premium (and any
extra cost for any deletions, modifications or endorsements) for each Title
Policy shall be paid for by Buyers at the Closing.
(b) Buyers
have received a survey of each parcel of Owned Real Property (the “Surveys”) prepared by
a registered land surveyor or engineer. The Surveys are described on
Schedule 6.3(b)
and have been reviewed and approved by Buyers. The cost of the
Surveys shall be paid for by Buyers at the Closing.
(c) Except
for any Title Requirements, any matters shown and disclosed in the Title
Commitments and Surveys, including any Encumbrances (except for Blanket Liens),
encroachments, overlaps, boundary disputes or gaps shall, from and after the
date hereof, be deemed approved by Buyers and shall constitute Permitted
Encumbrances under this Agreement.
6.4 Prorations and
Charges. All Taxes and assessments relating to the Owned Real
Property for any Tax year prior to the real estate Tax year in which the Closing
occurs shall be paid in full by Sellers on or before the Closing Date or an
amount sufficient to fully discharge the same shall be deposited in escrow with
the Title Company for payment to the relevant Tax authority. Real
Property Taxes for the current Tax year shall be prorated between Sellers and
Buyers as of the Closing Date on a daily, pro-rata basis based upon the latest
available estimates of the amount thereof or the actual amount of such
Taxes. With respect to the Leased Real Property, rent, real estate
Taxes, operating costs (e.g., CAMs) and any other amounts (other than payments
attributable to a breach of the lease by Sellers) due or payable by any Seller
under each Real Estate Lease shall be prorated as of the Closing
Date. In the event that the actual amount of any such Taxes for an
applicable Tax period is not known as of the Closing Date, the proration of such
Taxes shall be made based upon the latest available Tax figures, and when the
actual Tax bills for such Taxes for the applicable Tax period is received by
either Buyers or Sellers, such party shall provide notice of its receipt and a
copy of such bills to the other party and, if necessary, the parties shall
thereafter promptly make a cash settlement based upon the actual Tax
bills. In addition, all other operating expenses associated with the
Owned Real Property shall be prorated as of the Closing Date. Any
such operating expenses relating to the Leased Real Property or Owned Real
Property which are not prorated at Closing by the Title Company shall constitute
Excluded Liabilities
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6.5 Condemnation or
Casualty. If prior to the Closing, the Owned Real Property or
any part thereof is subject to an eminent domain or condemnation proceeding or
any improvement thereon is damaged by fire, flood or other casualty, Sellers
shall give written notice thereof to Buyers, and Buyers shall be entitled to any
condemnation award or insurance proceeds resulting from any such event. At the
Closing, Sellers shall execute and deliver all documents reasonably requested by
Buyers to effectuate such assignment. Upon any assignment of a
condemnation award or insurance proceeds, all risk of collection with respect
thereto shall be on Buyers and not Sellers.
6.6 Fees and
Expenses.
(a) Except as
otherwise provided in this Agreement, whether or not the Transactions shall be
consummated, (i) Buyers will pay the aggregate of all fees, expenses and
disbursements of Buyers and their agents, representatives, accountants and
counsel incurred in connection with the subject matter of this Agreement and any
amendments to it and all other costs and expenses incurred in the performance
and compliance with all conditions to be performed by Buyers under this
Agreement and (ii) Sellers will pay the aggregate of all fees, expenses and
disbursements of Sellers and their respective agents, representatives,
accountants and counsel incurred in connection with the subject matter of this
Agreement and any amendments to it and all other costs and expenses incurred in
the performance and compliance with all conditions to be performed by Sellers
under this Agreement, including legal fees, investment banking and advisory
fees, accounting fees and any other out-of-pocket documented expenses
(collectively, the “Sellers’
Expenses”).
(b) All
transfer, documentary, sales (including any bulk sales), use, stamp,
registration and other Taxes and all conveyance fees, recording charges and
other fees and charges (including any penalties and interest) incurred in
connection with the consummation of the Transactions, shall be paid by Buyers
when due to the applicable Tax authority or remit to Sellers at Closing all
sales, transfer, conveyance or other Taxes associated with the transfer of the
Assets to Buyers pursuant to this Agreement. Buyers will, at their
own expense, file all necessary Tax Returns and other documentation with respect
to all such Taxes, fees and charges, and, if required by Applicable Law, the
parties will, and will cause their Affiliates to, join in the execution of any
such Tax Returns and other documentation. Without limiting the
generality of the foregoing, Buyers shall bear the payment of all transfer and
sales and use Taxes and title fees related to the transfer of the Rolling Stock
included in the Assets and incurred as a result of the
Transactions.
(c) Except as
may be otherwise provided in this Agreement, all costs of closing the sale and
purchase of the Real Property shall be borne as follows: (i) all costs of any
kind associated with any financing obtained by Buyers shall be borne by Buyers,
including any recording fees, documentary fees and/or stamp Taxes and (ii) all
costs to obtain the Title Commitments and all Title Policy premiums, fees and
costs and all other closing costs related to the sale and purchase of the Real
Property shall be borne by Buyers.
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6.7 Contact with Government
Officials, Customers and Employees. Upon the request of
Buyers, Sellers shall use their commercially reasonable efforts to cooperate
with Buyers in making contact with the appropriate Governmental Authorities,
customers and other third parties as may be reasonably necessary to obtain all
consents to the consummation of the Transactions listed on Schedule
7.1(b). Buyers acknowledge and agree that they shall not
contact any customers relating to the Assets prior to the Closing; provided, however, that within
10 Business Days prior to the scheduled date of the Closing, Buyers may contact
customers of Sellers that are counterparties to Material Collection Contracts or
Material Disposal Contracts for customary due diligence or transitional
purposes. Buyers further agree that, without the prior written
consent of Sellers, which shall not be unreasonably withheld or delayed, they
will not contact any Offered Employees (including managers, supervisors and
other personnel key to the management and operations of the Assets) prior to the
Closing; provided,
however, that Sellers shall make reasonably available to Buyers all of
Sellers’ non-management employees (and their respective Employee Records) who
are employed in connection with the operations of the Assets no later than 10
Business Days prior to the scheduled Closing Date and shall make reasonably
available to Buyers all of Sellers’ management employees who are employed in
connection with the operations of the Assets no later than 20 Business Days
prior to the scheduled Closing Date.
6.8 Public
Announcements. RSG and WCN shall mutually agree on a form of
press release to be issued in connection with this Agreement, the Equity
Purchase Agreements and the Transactions. Except as otherwise
required by Applicable Law or the rules of the New York Stock Exchange, the
parties agree that, prior to the Closing, no press release, written
communication, public announcement, statement or filing shall be issued or made
by any Seller, on the one hand, or any Buyer, on the other hand, containing
information regarding this Agreement, the Equity Purchase Agreements or the
Transactions (including the fact that the Transactions are being discussed or
the terms of the Transactions) without the prior written approval of both RSG
and WCN, which approval may not be unreasonably withheld, conditioned or
delayed. The parties shall consult with each other concerning the
means by which Sellers’ employees, customers and suppliers and others having
dealings with Sellers will be informed of the Transactions. Nothing
in this Section
6.8 shall restrict Buyers’ ability to contact the parties listed or
otherwise described in Section 6.7 who are
permitted to be contacted pursuant to Section 6.7 with
respect to the Transactions.
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6.9 Supplements to the Sellers’
Disclosure Schedules; Certain Pre-Closing Matters.
(a) Except
for Schedules
1.1(c)(i), 1.1(c)(ii) and 1.1(c)(iii) to this
Agreement and Schedule
1.2(c)(i) to each of the Equity Purchase Agreements, which will be
updated within 5 Business Days following the Closing Date in accordance with
Sections
1.1(c)(i), 1.1(c)(ii) and 1.1(c)(iii) of this
Agreement and Section 1.2(c)(i) of each of the Equity Purchase Agreements,
respectively, at any time prior to the date that is 5 Business Days prior to the
Closing and upon written notice thereof to Buyers, Sellers and the Equity
Sellers may, in their sole discretion, deliver to Buyers (i) one or more
supplements to the Sellers’ Disclosure Schedule annexed to the Original
Agreement (the “Base
Disclosure Schedule”) with respect to any fact(s), circumstance(s) or
matter(s) arising after the date of the Original Agreement that, if existing or
known by Sellers or Equity Sellers prior to the date of the Original Agreement,
would have been required to be set forth or described in the Base Disclosure
Schedule and (ii) one or more supplements to the Xxxxxxxx Company Disclosure
Schedule, the Xxxxxxxx Company Disclosure Schedule or the Xxxxxxxx Company
Disclosure Schedule with respect to any fact(s), circumstance(s) or matter(s)
arising after the date of the Original Agreement that, if existing or known by
Sellers or Equity Sellers prior to the date of the Original Agreement, would
have been required to be set forth or described in the Base Disclosure Schedule
under the terms of the Original Agreement. Each such supplement to
the Base Disclosure Schedule, the Xxxxxxxx Company Disclosure Schedule, the
Xxxxxxxx Company Disclosure Schedule or the Xxxxxxxx Company Disclosure
Schedule, respectively, shall be referred to as a “Supplemental Sellers’
Disclosure Schedule”. Without limitation, any disclosure in
the Sellers' Disclosure Schedule annexed to this Agreement, the Xxxxxxxx Company
Disclosure Schedule, the Xxxxxxxx Company Disclosure Schedule or the Xxxxxxxx
Company Disclosure Schedule that was not set forth or described in the Base
Disclosure Schedule shall be deemed to be a Supplemental Sellers’ Disclosure
Schedule. With respect to any fact, circumstance or matter disclosed in a
Supplemental Sellers’ Disclosure Schedule, subject to this Section 6.9(a): (i)
any such fact, circumstance or matter (A) that first arose after the date of the
Original Agreement, and (B) of which no Seller or Equity Seller had any
Knowledge on or prior to the date of the Original Agreement, shall become an
Assumed Liability and shall be treated as if it had been fully disclosed on the
Sellers' Disclosure Schedule annexed to this Agreement, the Xxxxxxxx Company
Disclosure Schedule, the Xxxxxxxx Company Disclosure Schedule or the Xxxxxxxx
Company Disclosure Schedule, as applicable, for the purposes of determining
whether any representation or warranty of Sellers or Equity Sellers has been
breached for indemnification purposes under Article IX hereof;
(ii) any such fact, circumstance or matter (A) that first arose on or prior the
date of the Original Agreement, or (B) of which a Seller or Equity Seller had or
should have had Knowledge on or prior to the date of the Original Agreement,
shall be treated as if it had not been disclosed on the Sellers' Disclosure
Schedule annexed to this Agreement, the Xxxxxxxx Company Disclosure Schedule,
the Xxxxxxxx Company Disclosure Schedule or the Xxxxxxxx Company Disclosure
Schedule, as applicable, for the purposes of determining whether any
representation or warranty of Sellers or Equity Sellers has been breached for
indemnification purposes under Article IX hereof;
and (iii) any fact(s), circumstance(s) or matter(s) disclosed by a Supplemental
Sellers’ Disclosure Schedule may be disregarded by Buyers for purposes of
determining whether the condition set forth in Section 7.2(a) has
been satisfied, and may be taken into account by Buyers for purposes of
determining whether the condition set forth in Section 7.2(e) has
been satisfied. Notwithstanding any provision of this Section 6.9(a) to the
contrary, regardless of any disclosure made by Sellers or Equity Sellers on the
Base Disclosure Schedule, the Sellers' Disclosure Schedule annexed to this
Agreement, the Xxxxxxxx Company Disclosure Schedule, the Xxxxxxxx Company
Disclosure Schedule, the Xxxxxxxx Company Disclosure Schedule or any
Supplemental Sellers’ Disclosure Schedule, in no event shall Buyers be liable
(and Sellers and Equity Sellers shall remain solely liable) for any fact,
circumstance or matter that is an Excluded Liability (within the meaning of this
Agreement or any of the Equity Purchase Agreements), an Absolute Obligation or
constitutes a breach of any covenant or obligation, in each case under this
Agreement or any Equity Purchase Agreement.
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(b) Notwithstanding
anything to the contrary in this Agreement, if (i) any fact(s), circumstance(s)
or matter(s) that were not disclosed in the Base Disclosure Schedule as of the
date of the Original Agreement and that arise after the date of the Original
Agreement and on or prior to the Closing Date, (ii) such fact(s),
circumstance(s) or matter(s) result in, or could reasonably be expected to
result in, Liabilities arising from Proceedings, Permits (within the meaning of
this Agreement or any of the Equity Purchase Agreements), Assumed Contracts,
Contracts included in the Purchased Company Assets, Real Property, real property
included in the Purchased Company Assets, Taxes or Environmental Laws, and (iii)
such Liabilities would constitute Assumed Liabilities (within the meaning of
this Agreement or any of the Equity Purchase Agreements) upon the consummation
of the Closing, then RSG shall promptly (but in any event within 15 days),
notify WCN in writing that it has learned of such fact(s), circumstance(s) or
matter(s). If WCN concludes in good faith, after reasonably diligent
review, that such fact(s), circumstance(s) or matter(s) described in the
immediately preceding sentence have resulted in, or could reasonably be expected
to result in, Liabilities equal to or in excess of $5 million individually or
$10 million in the aggregate (the “Pre-Closing Caps”),
then WCN shall have 15 days from the receipt of such written notice from RSG to
notify RSG that it intends to terminate this Agreement (the “WCN Pre-Closing Termination
Notice”) unless RSG, in its sole discretion, provides written notice to
WCN within 10 days of RSG’s receipt of the WCN Pre-Closing Termination Notice
stating that it agrees to fully indemnify WCN for such Liabilities under the
terms of Article
IX (the “RSG
Pre-Closing Indemnification Notice”). Such WCN Pre-Closing
Termination Notice shall set forth in reasonable detail WCN’s basis for
determining that such Liabilities have equaled or exceeded, or could reasonably
be expected to equal or exceed, the Pre-Closing Caps. In the event
that RSG timely provides the RSG Pre-Closing Indemnification Notice pursuant to
the immediately preceding sentence, the Liabilities described in this Section 6.9(b) shall
be deemed to be Absolute Obligations of Sellers and the Equity
Sellers. In the event that RSG, in its sole discretion, elects not to
provide the RSG Pre-Closing Indemnification Notice, WCN may, in its sole
discretion, elect to terminate this Agreement pursuant to Section 8.1(f).
Notwithstanding the foregoing, in no event shall this Section 6.9(b) apply
to any fact, circumstance or matter that is an Excluded Liability, an Absolute
Obligation (without giving effect to this Section 6.9(b)) or
constitutes a breach of any covenant or obligation, in each case under this
Agreement or any of the Equity Purchase Agreements.
6.10 Employees and Employee
Benefits.
(a) Effective
as of the Closing Date, Buyers shall offer employment to the employees of
Sellers listed on Schedule 6.10(a) and
who remain actively employed by a Seller as of such date (each, an “Offered Employee”) on
terms (position, salary or hourly wage rate, bonus, health and welfare benefits,
etc.) similar to those in effect immediately prior to Closing for similarly
situated employees of Buyers; provided, however, that,
notwithstanding the foregoing, Buyers may decline to offer employment to (i) up
to an aggregate of 5 of the employees of Sellers listed on Schedule 6.10(a) so
long as Buyers have valid business reasons (which may include any position that
WCN deems redundant or unnecessary) for doing so as reasonably approved by RSG
and (ii) an unlimited number of such employees who fail to satisfy Buyers’
pre-employment screening policies (provided that WCN shall provide RSG with a
reasonably detailed description of the circumstances with respect to such
failure for each such employee). For purposes of this Agreement, any
Offered Employee who is not actively at work on the Closing Date because of
vacation, holiday, personal leave, sick or medical leave, maternity, paternity
or other family-related leave, military leave, jury duty, bereavement leave or
any other leave shall be deemed an Offered Employee. Each Offered
Employee who accepts any Buyer’s offer of employment is referred to as a “Transferred
Employee.” On or prior to the Closing Date, each Seller shall
have terminated each of its Transferred Employees. Sellers shall
update Schedule
6.10(a) at Closing to reflect those Offered Employees who remain actively
employed by Sellers as of such date (including any Offered Employees on leave as
of such date).
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(b) As of the
Closing, Buyer shall assume the severance and retention and stay bonus
obligations for the Transferred Employees described on Schedule 6.10(b) (the
“Assumed Severance and
Retention Bonus Liabilities”), which Schedule 6.10(b)
shall be updated by Sellers at Closing. Except for the Assumed
Severance and Retention Bonus Liabilities, Sellers shall retain sole
responsibility for all (i) accrued payroll and bonuses and accrued but unused
vacation, sick or personal days of each Offered Employee as of the Closing Date
and (ii) obligations, claims, liabilities and commitments under Sellers’ Benefit
Plans and compensation practices, including severance benefits, if any, payable
to Offered Employees who are not Transferred Employees as a result of the
Transactions. Sellers shall retain all liabilities and obligations to
all of Sellers’ employees and former employees, including Offered Employees and
their eligible dependents in respect of health insurance continuation coverage
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, the
Health Insurance Portability and Accountability Act of 1996 and similar state
Applicable Law.
(c) Buyers
agree to use commercially reasonable efforts to cooperate with and assist
Sellers in eliminating the need for Worker Adjustment and Retraining
Notification Act and any similar state Applicable Law (collectively, the “WARN Act”)
notifications. If, notwithstanding Buyers’ compliance with the
preceding sentence of this Section 6.10(c), WARN
Act notification is nonetheless required, Sellers agree to provide any required
notice under the WARN Act, and any similar state Applicable Law, and to
otherwise comply with any such Applicable Law with respect to any “plant
closing” or “mass layoff” (as defined in the WARN Act) or group termination or
similar event affecting Offered Employees occurring prior to or as a result of
the consummation of the Transactions (without taking into account any
termination by Buyers of the employment of any Transferred Employees following
the Closing).
(d) All
Offered Employees who are employed by Buyers from and after the Closing shall be
given credit for their years of service with Sellers in determining their
entitlement to Buyers’ severance and other length-of-service related employee
benefits. Buyers shall take all actions reasonably necessary to
ensure that all Transferred Employees are eligible to be enrolled in all
applicable Benefit Plans of Buyers effective as of the Closing and are enrolled
as soon as reasonably practicable following the Closing (but in no event later
than 15 Business Days following the Closing Date), and shall take all actions
reasonably necessary to ensure that, to the fullest extent permitted under such
Benefit Plans, any probationary or waiting periods, or eligibility requirements,
applicable under any such Benefit Plans are waived with respect to the
Transferred Employees. Notwithstanding the foregoing, Buyers shall
take all actions reasonably necessary to ensure that all Transferred Employees
are enrolled in all applicable Benefit Plans of Buyers providing health, medical
and similar benefits (the “Medical Plans”)
effective as of the Closing and shall take all actions reasonably necessary to
ensure that any probationary or waiting periods, or eligibility requirements,
applicable under any such Medical Plans are waived with respect to the
Transferred Employees.
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(e) Pursuant
to the “Standard Procedure” provided in Section 4 of Revenue Procedure 2004-53,
2004-34-IRB-320, to the extent permitted by Applicable Laws, (i) Sellers will
file (or cause to be filed) a Form W-2 with respect to any Transferred Employees
for the period of 2009 ending on the day prior to the Closing Date, (ii) Buyers
will file (or cause to be filed) a Form W-2 with respect to each such
Transferred Employee for the period of 2009 from and after the Closing Date, and
(iii) Sellers and Buyers will cooperate with each other in connection the
foregoing filings.
6.11 Governmental Approvals;
Required Divestitures.
(a) Each
party shall (i) subject to Applicable Laws, promptly notify the other party of
any written communication to that party from the U.S. Department of Justice,
Antitrust Division or any other Governmental Authority relating to this
Agreement and, subject to Applicable Laws, permit the other party to review in
advance any proposed written communication to any of the foregoing relating to
this Agreement, (ii) to the extent permitted by Applicable Laws, not agree to
participate in any substantive meeting or discussion with any Governmental
Authority in respect of any filings, investigation or inquiry concerning this
Agreement or the Transactions unless it consults with the other party in advance
and, to the extent permitted by such Governmental Authority, gives the other
party the opportunity to attend and participate at any such meeting or
discussion and (iii) to the extent permitted by Applicable Laws, furnish the
other party with copies of all correspondence, filings and communications
between them and their Affiliates and their respective representatives, on the
one hand, and any government or regulatory authority or members or their
respective staffs, on the other hand, with respect to this Agreement and the
Transactions.
(b) Buyers
undertake and agree to make any asset divestitures required and take any other
actions necessary in order to obtain the consent of the U.S.
Department of Justice (the “DOJ”) to Buyers’
purchase of the Assets and the consummation of the Transactions (the “DOJ
Consent”).
6.12 Notice of
Developments. Sellers shall promptly notify Buyers of any
facts, circumstances or matters arising after the date of this Agreement that
Sellers become aware of that could reasonably be expected to have a Sellers’
Material Adverse Effect. The parties hereto agree to give prompt
notice to each other of, and to use commercially reasonable efforts to, remedy
(a) the occurrence or failure to occur of any event which occurrence or failure
to occur would be likely to cause any of its or their representations or
warranties in this Agreement to be untrue or inaccurate in any material respect
at the Closing Date (with respect to Sellers, after giving effect to Section 6.9), and (b)
any material failure on its or their part to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it or them
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 6.12
shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice. During the period between the date
hereof and the Closing Date, Sellers’ Representative shall provide written
notice to Buyers in the event that (i) any transfer station or landfill (other
than the Xxxxx Run Landfill) receives notice of the loss or termination of any
Material Disposal Contract or (ii) the Seller that operates the Xxxxx Run
Landfill receives notice of the loss or termination of any Disposal Contract
from which such Seller billed revenues of more than $250,000 for the twelve (12)
months ended December 31, 2008.
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6.13 Reasonable Commercial
Efforts. Buyers and Sellers shall each use their reasonable
commercial efforts to cause the conditions in Article VII to be
satisfied, on the terms and subject to the conditions set forth in this
Agreement.
6.14 Waiver of Bulk Sales
Laws. Buyers and Sellers hereby waive compliance with the
bulk-transfer provisions of the Uniform Commercial Code (or any similar law) in
connection with the Transactions.
6.15 Certain Deliveries by
Sellers and Buyers.
(a) At the
Closing or as promptly as reasonably practicable thereafter, Sellers shall use
their commercially reasonable efforts to deliver to Buyers the
following:
(i) Notices
from the applicable Sellers of the change in ownership of each parcel of Real
Property to (A) all utility companies serving such Real Property and (B) any
other party providing services to such Real Property;
(ii) All motor
vehicle registrations and ownership documents for the Rolling
Stock;
(iii) Such
other separate documents or instruments of sale, assignment or transfer as
Buyers and Sellers shall mutually agree upon or as may otherwise be reasonably
required for the transfer of any Assets as contemplated by this Agreement;
and
(iv) Certificates
of recent date (with respect to the Closing) as to the good standing of each
Seller.
(b) At the
Closing or as promptly as reasonably practicable thereafter, Buyers shall use
their commercially reasonable efforts to deliver to Sellers certificates of
recent date (with respect to the Closing) as to the good standing of each
Buyer.
6.16 Removal of
Identification. Within 6 months after the Closing, Buyers
shall remove or otherwise conceal all visible usage of the Retained IP on all
Assets other than those Containers included in the Assets.
6.17 Further
Assurances. From time to time on and after the Closing and
without further consideration except as provided in this Agreement, the parties
shall each deliver or cause to be delivered to any other party or parties, at
such times and places as shall be reasonably requested, such additional
instruments as such other party or parties may reasonably request for the
purpose of carrying out this Agreement and the Transactions. Sellers,
also without further consideration, agree to cooperate with Buyers and to use
Sellers’ commercially reasonable efforts to have their officers and employees
cooperate on and after the Closing Date in furnishing to Buyers or their
advisors (a) information requested by Buyers with respect to the Assets and (b)
information and other assistance in connection with obtaining all necessary
Permits (including Environmental Permits) and approvals and in connection with
any third-party actions, proceedings, arrangements or disputes of any nature
with respect to the Assets, provided, however, that these
obligations shall not apply to disputes among the parties and that Sellers shall
not be required to expend any sum of money toward such efforts beyond
commercially reasonable and typical overhead expenditures and commercially
reasonable outside counsel and adviser fees and costs. Buyers, also
without further consideration, agree to cooperate with Sellers and to use
Buyers’ commercially reasonable efforts to have their officers and employees
cooperate on and after the Closing Date in furnishing to Sellers or their
advisors information and other assistance (including reasonable access to the
Assets, including the Real Property) in connection with any third-party actions,
proceedings, arrangements or disputes of any nature with respect to the Assets,
provided, however, that this
obligation shall not apply to disputes among the parties and that Buyers shall
not be required to expend any sum of money toward that end beyond commercially
reasonable and typical overhead expenditures and commercially reasonable outside
counsel and adviser fees and expenses.
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6.18 Blanket Lien
Releases. The Assets are encumbered by blanket liens in favor
of various lenders to Sellers and/or Sellers’ Affiliates (the “Blanket Liens”), all
of which liens will be released concurrently with the Closing. Within
60 days after the Closing Date, Sellers shall deliver evidence to Buyers of the
release of any security interests reflecting such Blanket Liens.
6.19 Performance
Bonds. Within 30 days following the Closing, Buyers will post
performance bonds, letters of credit and other financial assurances for the
performance bonds, letters of credit and other financial assurances of Sellers
set forth on Schedule
6.19, and will promptly furnish to Sellers a copy of each such
replacement performance bond, letter of credit or other financial assurance as
it is issued. From and after the Closing Date and until such time as
such Buyer posts a replacement performance bond, letter of credit or other
financial assurance, such Buyer will (a) during such initial 30-day period,
reimburse the applicable Seller for the costs incurred by such Seller in keeping
the applicable performance bond, letter of credit or other financial assurance
in place (as prorated based upon when Buyers provide such Seller written notice
of having posted such performance bonds, letters of credit or other financial
assurances), (b) during the following 30-day period, pay such Seller costs
incurred by such Seller in keeping the applicable performance bond, letter of
credit or other financial assurance in place plus 200 basis points of the face
amount of such performance bond, letter of credit or other financial assurance
(as prorated based upon when Buyers provide such Seller written notice of having
posted such performance bonds, letters of credit or other financial assurances),
and (c) for each 30-day period thereafter, reimburse the applicable Seller for
the costs incurred by such Seller in keeping the applicable performance bond,
letter of credit or other financial assurance in place plus interest with
respect to such performance bond, letter of credit or other financial assurance
at a rate equal to the lesser of (i) 1% higher than the rate paid during the
immediately preceding 30-day period, or (ii) the maximum rate permitted under
Applicable Law as prorated based upon when Buyers provide such Seller written
notice of having posted such performance bonds, letters of credit or other
financial assurances).
6.20 Restrictive
Covenants. Each of the Sellers, for itself and on behalf of
its Affiliates, covenants and agrees as follows:
(a) For the
period commencing on the date hereof and terminating on the 2nd
anniversary of the Closing Date, none of the Sellers nor any of their respective
Affiliates will (i) solicit any small container municipal solid waste commercial
collection business from any Collection Accounts, (ii) solicit any municipal
solid waste collection or disposal business from any Peachland/Angleton
Accounts, (iii) solicit any municipal solid waste disposal business from any
Disposal Accounts or (iv) solicit from any counterparty to a Landfill Operating
Contract or Government Contract that are included in the Assets on the date
hereof, the disposal services provided by Sellers under such Contract, provided, however, that,
subject to Section 6.20(b)
below, the foregoing restrictions set forth in this Section 6.20 shall
not prohibit Sellers or any of their Affiliates from (A) accepting disposal
business from customers willing to pay the posted gate disposal fees (without
providing any broker, trucking or other refund, deduction, credit or discount of
any kind), (B) responding to, or executing a contract with any customer
solicited through, a request for proposals or other bidding process (whether
public or private), (C) responding to inquiries or solicitations made by any
customers (including pricing inquiries) and providing waste collection or
disposal services to the customers that are derived as a result of such
inquiries or solicitations, or (D) continuing to do business with any customers
of Sellers or any of their Affiliates at locations not included in the Assets,
so long as such business does not include the solicitation of any business
included in the Collection Accounts or the Disposal Accounts as of the date
hereof.
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(b) Notwithstanding
anything to the contrary set forth in Section 6.20(a)
above, for the period commencing on the date hereof and terminating on the 1st
anniversary of the Closing Date, the Sellers and their respective Affiliates
agree not to accept any municipal solid waste disposal business from any
Disposal Accounts; provided, however, that the
foregoing restriction set forth in this Section 6.20(b) shall
not prohibit Sellers or any Affiliate from accepting disposal business in the
event that the customer with respect to such Disposal Account asserts that any
of the key disposal terms offered by the Buyers or their Affiliates to such
Disposal Account following the Closing are materially less favorable than the
disposal terms in existence as of the Closing Date with respect to such Disposal
Account; provided
further, however, that the
foregoing restrictions set forth in this Section 6.20(b) shall
not prohibit Seller or any Affiliate from (i) accepting disposal business from
customers willing to pay the posted gate disposal fees (without providing any
broker, trucking or other refund, deduction, credit or discount of any kind),
(ii) responding to, or executing a contract with any customer solicited through,
a request for proposals or other bidding process (public but not private), or
(iii) continuing to do business with any existing customers of
Sellers or any of their Affiliates at locations not included in the
Assets, so long as such business does not include the solicitation or acceptance
of any business included in the Disposal Accounts as of the date
hereof. For purposes of clarifying clause (iii) above, contracts in
place as of the date hereof with existing customers of the Sellers of their
Affiliates shall not be considered a solicitation or acceptance of existing
Disposal Account business.
(c) In
addition to any other rights or remedies available to Buyers pursuant to this
Agreement or any other agreement, at law or in equity, Buyers shall be entitled
to injunctive relief requiring specific performance by Sellers and their
respective Affiliates of this Section and each of the Sellers, for itself and
its Affiliates, consents to the entry thereof.
6.21 Certain Other
Matters. Sellers and Buyers hereby acknowledge and agree as
follows: (a) Buyers have conducted an independent investigation of the Assets
and, except for the representations, warranties, covenants and obligations of
Sellers expressly set forth in this Agreement, are purchasing the Assets on an
“as-is, where-is” basis, (b) except as expressly set forth in Article III, Sellers
make no representations or warranties, express or implied, at law or in equity,
in respect of the Assets or otherwise in connection with this Agreement
including with respect to merchantability or fitness for any particular purpose,
and any such other representations or warranties are hereby expressly
disclaimed, (c) except as expressly set forth in Article III, Buyers
have not relied on any representations or warranties by or on behalf of Sellers
in connection with their execution of this Agreement or the consummation of the
Transactions, and any such other representations or warranties shall not be
implied at law or in equity, (d) except as expressly set forth in Article IV, Buyers
make no representations or warranties, express or implied, at law or in equity,
in connection with this Agreement, and any such other representations or
warranties are hereby expressly disclaimed, and (e) except as expressly set
forth in Article
IV, Sellers have not relied on any representations or warranties by or on
behalf of Buyers in connection with their execution of this Agreement or the
consummation of the Transactions, and any such other representations or
warranties shall not be implied at law or in equity. The terms and
provisions of this paragraph shall survive the Closing hereunder.
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6.22 Exclusivity
Period. Following the date of this Agreement through the
Closing Date (the “Exclusivity Period”),
neither Sellers nor any of their respective Affiliates shall initiate, solicit,
negotiate, encourage or provide information to facilitate, and neither Sellers
nor any of their respective Affiliates shall, and shall use its or their
reasonable efforts to cause any officer, director or employee of Sellers and
their respective Affiliates, or any counsel, accountant, investment banker,
financial advisor or other agent retained by it or them not to, initiate,
solicit, negotiate, encourage or provide information to facilitate, any proposal
or offer to acquire all or any substantial part of the Assets, whether for cash,
securities or any other consideration or combination thereof (any such
transactions being referred to herein as an “Acquisition
Transaction”), nor shall Sellers or any of their respective Affiliates
enter into or consummate any agreement or commitment with respect to
an Acquisition Transaction; provided, however, that the foregoing obligations of
Sellers pursuant this Section 6.22 and the
Exclusivity Period shall immediately terminate and be of no further effect upon
the earlier to occur of any of the following: (a) the right of RSG to terminate
this Agreement pursuant to Section 8.1(d) is
triggered; (b) the right of WCN to terminate this Agreement pursuant to Section 8.1(c) is
triggered; or (c) the DOJ at any time indicates to RSG and WCN verbally or in
writing that the DOJ Consent is being withheld or materially
delayed.
6.23 Sellers’ and Buyers’
Representatives.
(a) Sellers’
Representatives. In order to administer efficiently the rights
and obligations of Sellers and the Equity Sellers under this Agreement, each
Seller and Equity Seller hereby designates and appoints RSG as such Seller or
Equity Seller’s representative (the “Sellers’
Representative”) to serve as Sellers and the Equity Sellers’ agent and
attorney-in-fact for the limited purposes set forth in this Agreement and the
Equity Purchase Agreements. Each Seller and Equity Seller hereby
appoints the Sellers’ Representative as such Seller or Equity Seller’s agent,
proxy and attorney-in-fact, with full power of substitution, for all purposes
set forth in this Agreement, including the full power and authority on such
Seller or Equity Seller’s behalf: (i) to consummate the transactions
contemplated by this Agreement and the Equity Purchase Agreements; (ii) to
disburse any funds received hereunder to Sellers and the Equity Sellers; (iii)
to execute and deliver on behalf of each Seller and Equity Seller any amendment
of or waiver under this Agreement, and to agree to resolution of all Claims
hereunder; (iv) to retain legal counsel and other professional services, at the
expense of Sellers and the Equity Sellers, in connection with the performance by
the Sellers’ Representative of this Agreement including all actions taken on
behalf of Sellers or the Equity Sellers as Indemnifying Party pursuant to Article IX; and (v)
to do each and every act and exercise any and all rights which such Sellers and
the Equity Sellers are permitted or required to do or exercise under this
Agreement and the other agreements, documents and certificates executed in
connection herewith. Each Seller and Equity Seller agrees that such
agency and proxy are coupled with an interest, are therefore irrevocable without
the consent of the Sellers’ Representative and shall survive the bankruptcy or
other incapacity of any Seller or Equity Seller. Each Seller and
Equity Seller hereby agrees that any amendment or waiver under this Agreement,
and any action taken on behalf of Sellers or the Equity Sellers to enforce the
rights of Sellers and the Equity Sellers under this Agreement, and any action
taken with respect to any claim subject to indemnification by any Seller or
Equity Seller pursuant to Article IX (including
any action taken to object to, defend, compromise or agree to the payment of
such claim), shall be effective if approved in writing by the Sellers’
Representative, and that each and every action so taken shall be binding and
conclusive on each Seller and Equity Seller, whether or not such Seller or
Equity Seller had notice of, or approved, such amendment or waiver.
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(b) Buyers’
Representatives. In order to administer efficiently the rights
and obligations of Buyers under this Agreement, each Buyer hereby designates and
appoints WCN as such Buyer’s representative (the “Buyers’
Representative”) to serve as Buyers’ agent and attorney-in-fact for the
limited purposes set forth in this Agreement. Each Buyer hereby
appoints the Buyers’ Representative as such Buyer’s agent, proxy and
attorney-in-fact, with full power of substitution, for all purposes set forth in
this Agreement, including the full power and authority on such Buyer’s behalf:
(i) to consummate the transactions contemplated by this Agreement; (ii) to
disburse any funds received hereunder to Buyers; (iii) to execute and deliver on
behalf of each Buyer any amendment of or waiver under this Agreement, and to
agree to resolution of all Claims hereunder; (iv) to retain legal counsel and
other professional services, at the expense of Buyers, in connection with the
performance by the Buyers’ Representative of this Agreement including all
actions taken on behalf of Buyers as Indemnifying Party pursuant to Article IX; and (v)
to do each and every act and exercise any and all rights which such Buyers are
permitted or required to do or exercise under this Agreement and the other
agreements, documents and certificates executed in connection
herewith. Each Buyer agrees that such agency and proxy are coupled
with an interest, are therefore irrevocable without the consent of the Buyers’
Representative and shall survive the bankruptcy or other incapacity of any
Buyer. Each Buyer hereby agrees that any amendment or waiver under
this Agreement, and any action taken on behalf of Buyers to enforce the rights
of Buyers under this Agreement, and any action taken with respect to any claim
subject to indemnification by any Buyer pursuant to Article IX (including
any action taken to object to, defend, compromise or agree to the payment of
such claim), shall be effective if approved in writing by the Buyers’
Representative, and that each and every action so taken shall be binding and
conclusive on each Buyer, whether or not such Buyer had notice of, or approved,
such amendment or waiver.
6.24 Lockboxes and Cash
Sweeps. During the 180-day period following Closing, at least
once during every 5 Business Days, RSG shall provide to WCN through ACH payment,
to an account designed in writing by WCN, cash collected by Sellers or the
Seller Companies (other than the Purchased Companies) that is due to Buyers
pursuant to Section
1.1(d): (i) paid or sent to Sellers’ or any Seller Company’s lock boxes;
(ii) made through any “ez-pay” or other electronic or telephonic payment system
of Sellers or the Seller Companies (other than the Purchased Companies); or
(iii) via automatic bank payment or electronic funds
transfer. Following such 180-day period, RSG shall provide any such
further cash amounts received by RSG to WCN on a periodic basis as may be
reasonably mutually agreed upon by RSG and WCN.
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6.25 Specified Title
Requirements. Sellers shall use commercially reasonable
efforts to satisfy the Specified Title Requirements.
6.26 Lubbock Deed
Restriction. Prior to the Closing Date, Sellers may cause a
deed restriction to be placed on the Owned Real Property within Lubbock, Texas
conveyed to Buyers hereunder providing that such Owned Real Property shall not
be used as a site where solid waste (including yard waste, demolition materials
and household or commercial refuse) is loaded, unloaded, collected, sorted or
transferred in preparation for processing or transfer to landfills and/or other
waste disposal sites. The foregoing deed restriction (the “Lubbock Deed
Restriction”) shall be a covenant running with the land and binding upon
the parties hereto and their successors and assigns in perpetuity or until
revoked or modified in whole or in part by grantor, its successors or assigns,
in its sole and absolute discretion.
ARTICLE
VII
CONDITIONS PRECEDENT TO
CLOSING
7.1
Conditions Precedent to the
Obligations of the Parties to Effect the
Transactions. The respective obligations of each of the
parties to effect the Transactions are subject to the satisfaction or waiver by
consent of the other parties, at or prior to the Closing, of each of the
following conditions:
(a) No Legal
Prohibition. No injunction or order shall be in effect
prohibiting the consummation of the Transactions or making the consummation of
the Transactions unlawful.
(b) Third-Party Consents and
Approvals. All of the material governmental, regulatory and
third-party consents and approvals that are listed on Schedule 7.1(b) shall
have been obtained.
(c) DOJ
Approval. The DOJ Consent shall have been obtained in
accordance with the terms of the Republic/Allied Consent Decree.
7.2
Conditions Precedent to
Obligations of Buyers. The obligations of Buyers to consummate
the Transactions are subject to the completion, satisfaction or, at their
option, waiver, on or prior to the Closing Date, of each of the following
conditions:
(a) Representations and
Warranties. Each of the representations and warranties made by
Sellers in this Agreement and by the Equity Sellers in each of the Equity
Purchase Agreements shall be true and correct (determined without regard to any
qualifications and exceptions contained herein relating to materiality or
Sellers’ Material Adverse Effect or words of similar import (other than any such
qualifications or exceptions set forth in the Sellers’ Disclosure Schedule, the
Xxxxxxxx Company Disclosure Schedule, the Xxxxxxxx Company Disclosure Schedule
and the Xxxxxxxx Company Disclosure Schedule)) on the Closing Date as if made on
and as of such date (except for representations and warranties that are made as
of a specified date, which shall be true and correct only as of such specified
date), except, in each case, where the failure of any such representations and
warranties to be true and correct would not, individually or in the aggregate,
reasonably be expected to have a Sellers’ Material Adverse Effect.
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(b) Covenants. Each
and all of the terms, covenants and conditions of this Agreement and the Equity
Purchase Agreements to be complied with and performed by Sellers and the Equity
Sellers on or before the Closing Date shall have been duly complied with and
performed in all material respects.
(c) Officer’s
Certificate. Buyers shall have received a certificate of
Sellers and the Equity Sellers, dated as of the Closing Date, signed by an
executive officer of Sellers and the Equity Sellers to the effect that the
conditions set forth in Section 7.2(a) and
Section 7.2(b)
have been satisfied.
(d) Deliveries. Sellers
and the Equity Sellers shall make or cause to be made the deliveries described
in Section
2.5.
(e) No Seller’s Material Adverse
Effect. Since the date of this Agreement, there shall not have
occurred any events, facts, circumstances or matters that would, individually or
in the aggregate, reasonably be expected to have a Sellers’ Material Adverse
Effect.
(f) Closing under the Equity
Purchase Agreements. The Equity Sellers shall have executed
and delivered the Equity Purchase Agreements to which they are party and must be
ready to consummate the closings under the Equity Purchase Agreements
concurrently with the closing of the Transactions, provided that the closing
under the Stock Purchase Agreement shall be conducted in accordance with the
Closing Side Letter.
7.3
Conditions Precedent to
Obligations of Sellers. The obligations of Sellers to
consummate the Transactions and the obligations of the Equity Sellers to
consummate the transactions contemplated by the Equity Purchase Agreements are
subject to the completion, satisfaction, or at their option, waiver, on or prior
to the Closing Date, of each of the following conditions:
(a) Representations and
Warranties. (i) The representations and warranties made by
Buyers in Section
4.6 of this Agreement and in each of the Equity Purchase Agreements shall
be true and correct in all respects and (ii) all other representations and
warranties made by Buyers in this Agreement and each of the Equity Purchase
Agreements shall be true and correct (determined without regard to any
qualifications and exceptions contained herein relating to materiality or words
of similar import (other than any such qualifications or exceptions set forth in
the Buyers’ Disclosure Schedule or the Buyers’ Disclosure Schedule annexed to an
Equity Purchase Agreement)) on the Closing Date as if made on and as of such
date (except for representations and warranties that are made as of a specified
date, which shall be true and correct only as of such specified date), except,
in each case, where the failure of any such representations and warranties to be
true and correct would not, individually or in the aggregate, reasonably be
expected to have a Buyers’ Material Adverse Effect.
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(b) Covenants. Each
and all of the terms, covenants and conditions of this Agreement and the Equity
Purchase Agreements to be complied with and performed by Buyers on or before the
Closing Date shall have been duly complied with and performed in all material
respects.
(c) Officer’s
Certificate. Sellers and the Equity Sellers shall have
received a certificate of Buyers, dated as of the Closing Date, signed by an
executive officer of Buyers to the effect that the conditions set forth in Section 7.3(a) and
Section 7.3(b)
have been satisfied.
(d) Closing under the Equity
Purchase Agreements. WCN shall have executed and delivered the
Equity Purchase Agreements and must be ready to consummate the closings under
the Equity Purchase Agreements concurrently with the closing of the
Transactions, provided that the closing under the Stock Purchase Agreement shall
be conducted in accordance with the Closing Side Letter;
(e) Deliveries. Buyers
shall make or cause to be made the deliveries described in Section
2.6.
ARTICLE
VIII
TERMINATION OF
AGREEMENT
8.1
Termination. This
Agreement may be terminated and abandoned at any time prior to the Closing
effective immediately in each case:
(a) By the
mutual written consent of WCN and RSG; or
(b) By either
WCN or RSG by written notice to the other:
(i) if any
Governmental Authority of competent jurisdiction shall have issued an order,
decree, judgment or injunction or taken any other action (which order, decree,
judgment, injunction or other action the parties hereto shall have used their
best efforts to lift), which permanently restrains, enjoins or otherwise
prohibits or makes illegal the consummation of the Transactions, and such order,
decree, judgment, injunction or other action shall have become final and
non-appealable; or
(ii) if the
Closing shall not have occurred on or before August 15, 2009 (the “Outside Date”), provided, however, that the
right to terminate this Agreement under this Section 8.1(b)(ii)
shall not be available to any party whose failure to comply with any provision
of this Agreement in a material respect has been the principal cause of, or has
resulted in, the failure of the Closing to occur on or before the Outside Date,
and provided
further, however, that Sellers
may extend the Outside Date by an additional period of up to 90 days in their
sole discretion;
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(c) By
written notice from WCN to RSG, if either (i) Buyers are not in material breach
of their representations, warranties, covenants or agreements contained in this
Agreement and if any Seller or Equity Seller breaches or fails to perform in any
material respect any of its representations, warranties, covenants or agreements
contained in this Agreement or the Equity Purchase Agreements, which breach or
failure to perform (A) would give rise to the failure of a condition set forth
in Section 7.2(a)
or Section
7.2(b) and (B) cannot be cured by the Outside Date or, if capable of
being cured, has not been cured within 30 days after the giving by WCN of
written notice to RSG of such breach or failure or (ii) Sellers fail to
consummate the Closing within 10 Business Days of written notice from WCN to RSG
that all of the conditions set forth in Section 7.1 have been
satisfied and that all of the conditions set forth in Section 7.2 have been
satisfied or waived by WCN;
(d) By
written notice from RSG to WCN, if either (i) Sellers or the Equity Sellers are
not in material breach of their representations, warranties, covenants or
agreements contained in this Agreement or the Equity Purchase Agreements and if
any Buyer breaches or fails to perform in any material respect any of its
representations, warranties, covenants or agreements contained in this Agreement
or the Equity Purchase Agreements, which breach or failure to perform (A) would
give rise to the failure of a condition set forth in Section 7.3(a)
or Section
7.3(b) and (B) cannot be cured by the Outside Date or, if capable of
being cured, has not been cured within 30 days after the giving by RSG of
written notice to WCN of such breach or failure, or (ii) Buyers fail to
consummate the Closing within 10 Business Days of written notice from RSG to WCN
that all of the conditions set forth in Section 7.1 have been
satisfied and that all of the conditions set forth in Section 7.3 have been
satisfied or waived by RSG;
(e) By
written notice from RSG to WCN, if either (i) the DOJ Consent shall not have
been obtained on or before May 1, 2009 (provided, however, that Sellers
may extend this date by an additional period of up to 90 days in their sole
discretion) or (ii) the Antitrust Division at any time indicates to Sellers that
the DOJ Consent with respect to Buyers will not be granted, will be materially
delayed and/or will be subject to material restrictions which could impair the
consummation of the Transactions or the value of the Assets or the value of the
Purchased Company Assets; and/or
(f) By
written notice from WCN to RSG pursuant to the terms of Section 6.9(b).
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8.2
Effect of
Termination. If this Agreement is validly terminated pursuant
to Sections
8.1(a), 8.1(b) or 8.1(e), this
Agreement and the Equity Purchase Agreements shall thereafter become null and
void, and there shall be no liability or obligation on the part of any of the
parties (or any of their respective officers, directors, employees, agents or
other representatives or Affiliates), except that (a) the provisions of
Article X,
Section 12.4
and Article
XIII of this Agreement and Article VIII of each
of the Equity Purchase Agreements shall survive such termination, and
(b) such termination shall not relieve any party of any liability for any
willful material breach of this Agreement or any Equity Purchase Agreement or
for Fraud Claims. If this Agreement is validly terminated pursuant to Section 8.1(d),
(a) the provisions of Article X, Section 12.4 and
Article XIII of
this Agreement and Article VIII of each
of the Equity Purchase Agreements shall survive such termination, (b) Buyers
shall have no further rights and may assert no Liabilities whatsoever against
Sellers or the Equity Sellers or any of their respective assets, trustees,
directors, officers, employees, partners, managers, members or shareholders with
respect to this Agreement, the Equity Purchase Agreements, the Transactions or
the transactions contemplated by the Equity Purchase Agreements and
(c) Sellers and the Equity Sellers shall be entitled to recover from Buyers
and any other parties liable therefor (whether directly, by way of guaranty, by
or through piercing of the corporate veil, by the enforcement of any assessment,
by any legal or equitable proceeding, by virtue of any statute, regulation or
Applicable Law or theory of recovery, or otherwise) any damages caused by such
breach, and to obtain any and all other legal and equitable relief whatsoever,
including specific performance, against Buyers and any such other parties that
may be available to them at law or in equity. If this Agreement is
validly terminated pursuant to Section 8.1(c),
(a) the provisions of Article X, Section 12.4 and
Article XIII of
this Agreement and Article VIII of each of the Equity Purchase Agreements shall
survive such termination, (b) Sellers and the Equity Sellers shall have no
further rights and may assert no Liabilities whatsoever against Buyers or any of
their respective assets, trustees, directors, officers, employees, partners,
managers, members or shareholders with respect to this Agreement, the
Transactions or the transactions contemplated by the Equity Purchase Agreements,
and (c) Buyers shall be entitled to recover from Sellers and the Equity
Sellers and any other parties liable therefor (whether directly, by way of
guaranty, by or through piercing of the corporate veil, by the enforcement of
any assessment, by any legal or equitable proceeding, by virtue of any statute,
regulation or Applicable Law or theory of recovery, or otherwise) any damages
caused by such breach, and to obtain any and all other legal and equitable
relief whatsoever, including specific performance, against Sellers and the
Equity Sellers and any such other parties that may be available to them at law
or in equity. The breaching party shall further be liable to and
reimburse the non-breaching party for all reasonable costs and expenses incurred
or accrued by the non-breaching party (including reasonable attorneys’ fees and
expenses) in connection with the collection under and enforcement of this Section 8.2,
including reasonable costs and expenses of collecting amounts due pursuant to
this sentence. In no event shall any party be liable under any legal
theory for any special, indirect, punitive, incidental, consequential or
exemplary damages, however caused, arising out of or relating to this Agreement
or the Equity Purchase Agreements, even if such party has been advised of the
possibility of such damages; provided, however, that
notwithstanding the immediately foregoing sentence, nothing in this Agreement or
the Equity Purchase Agreements shall be deemed to prevent either Buyers, on the
one hand, or Sellers and the Equity Sellers, on the other, from recovering
against Sellers and Equity Sellers, on the one hand, or Buyers, on the other,
their full respective benefit of the bargain as contemplated under the terms of
this Agreement and the Equity Purchase Agreements in the event of a breach
hereof or thereof (including, in the event of a breach by Buyers, any damages
Sellers or the Equity Sellers may incur as a result of the future resale of the
Assets and the Purchased Company Assets in one or more transactions at a price
lower than the Purchase Price). Each of Buyers, Sellers and the
Equity Sellers acknowledge that the agreements contained in this Section 8.2 are an
integral part of the Transactions and the transactions contemplated by the
Equity Purchase Agreements.
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ARTICLE
IX
INDEMNIFICATION
9.1
Survival of Representations,
Warranties and Covenants.
(a) The
representations, warranties and covenants of Buyers and of Sellers contained
herein and in the Equity Purchase Agreements shall survive the Closing as
follows:
(i) The
representations and warranties made (x) by Sellers in Sections 3.1, 3.2, 3.3,
3.5 (excluding clauses (c) and (d) thereof), 3.6(a), 3.6(b)(ii), 3.6(b)(iii),
3.6(b)(vii), 3.6(c), 3.6(d), 3.8 and 3.13 of this Agreement and (y) by the
Equity Sellers and the Purchased Companies in Sections 3.1, 3.2, 3.3, 3.5
(excluding clauses (c) and (d) thereof), 3.6(a), 3.6(b)(ii), 3.6(b)(iii),
3.6(b)(vii), 3.6(c), 3.8 and 3.17 of each of the Equity Purchase Agreements
(collectively, the “Seller Fundamental
Representations”), and the representation and warranties made by Buyers
in Article IV of this Agreement and Article IV of each of the Equity Purchase
Agreements (collectively, the “Buyer Fundamental
Representations”), shall survive for 30 days past the date of expiration
of the applicable statute of limitations relating to the subject matter
thereof;
(ii) All other
representations and warranties of Sellers and the Equity Sellers shall survive
Closing for a period of (18) (eighteen) months; and
(iii) Except as
otherwise specifically provided herein, the covenants of Sellers, the Equity
Sellers and Buyers shall survive Closing without limitation as to time until
such covenants shall have been performed in full.
(b) Sellers,
the Equity Sellers and Buyers shall not have any liability under Sections 9.2 and
9.3,
respectively, unless a claim for losses, liabilities or damages for which
indemnification is sought thereunder is asserted by the respective party within
the survival period set forth above, provided, however, that the
timely written assertion of any claim by any such party against the Sellers, the
Equity Sellers or Buyers hereunder with respect to the breach or alleged breach
of any representation, warranty or covenant shall extend the survival period
with respect to such claim through the date such claim is conclusively
resolved.
9.2
Indemnification by
Sellers. Subject to the terms of Sections 9.4, 10.3 and
10.4, RSG and the other Sellers and the Equity Sellers shall, jointly and
severally, indemnify, defend (as to Third-Party Claims only), protect, and hold
harmless WCN and the other Buyers and their respective Affiliates at all times
from and after the Closing Date from and against all Liabilities, whether
equitable or legal, matured or contingent, known or unknown, foreseen or
unforeseen, ordinary or extraordinary or patent or latent, incurred by WCN and
the other Buyers as a result of or incident to (a) any breach of,
misrepresentation in, untruth in or inaccuracy in any of the representations and
warranties of any Seller, Equity Seller or Purchased Company in this Agreement
or the Equity Purchase Agreements or any agreement, document, instrument or
certificate delivered pursuant to this Agreement or the Equity Purchase
Agreements, (b) the breach or nonperformance of any covenant or agreement of any
Seller, Equity Seller or Purchased Company in this Agreement or the Equity
Purchase Agreements, (c) any Excluded Asset (within the meaning of this
Agreement or any Equity Purchase Agreement), (d) any Excluded Liability (within
the meaning of this Agreement or any Equity Purchase Agreement), (e) the failure
to satisfy the Specified Title Requirements in accordance with Section 6.25, or (f)
the costs of implementing the proposal for extending the landfill gas monitoring
network as described in a letter dated August 7, 2008, from Xxxxx &
Associates to the South Carolina Department of Health and Environmental Control
(“SC-DHEC”),
and such other corrective measures as SC-DHEC may deem necessary to address
those groundwater issues raised in a letter dated July 23, 2008, from the
SC-DHEC to Xxxxxxxx Regional Landfill.
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9.3
Indemnification by
Buyers. Subject to the terms of Sections 9.4, 10.3 and
10.4, WCN and the other Buyers shall, jointly and severally, indemnify,
defend (as to Third-Party Claims only), protect and hold harmless RSG and the
other Sellers and Equity Sellers and their respective Affiliates at all times
from and after the Closing Date from and against all Liabilities, whether
equitable or legal, matured or contingent, known or unknown, foreseen or
unforeseen, ordinary or extraordinary, patent or latent, incurred by RSG and the
other Sellers and Equity Sellers as a result of or incident to (a) any breach
of, misrepresentation in, untruth in or inaccuracy in any of the representations
and warranties of any Buyer in this Agreement or any Equity Purchase Agreement
or any agreement, document, instrument or certificate delivered pursuant to this
Agreement or any Equity Purchase Agreement, (b) the breach or nonperformance of
any covenant or agreement of Buyers in this Agreement or any Equity Purchase
Agreement, (c) from and after the Closing Date, any Asset, any Equity Interest
or any Purchased Company Asset or (d) any Assumed Liability (within the meaning
of this Agreement or any Equity Purchase Agreement).
9.4
Limitation on
Liability.
(a) The
indemnification obligations set forth in Article IX shall (i)
apply only if a Closing occurs, (ii) apply only after the aggregate amount of
claims for indemnification from the Indemnifying Party under this Agreement
exceeds 1% of the Purchase Price (the “Deductible”), and
thereafter the Indemnifying Party shall solely be liable for indemnification
obligations in excess of the Deductible, provided, however, that only
claims, or series of related claims, equal to or in excess of $150,000 shall
apply toward the Deductible and/or be indemnifiable after the Deductible has
been exceeded (the “Minimum Claim
Amount”). Notwithstanding the foregoing, neither the
Deductible nor the Minimum Claim Amount shall apply to any indemnification
obligations on account of Fraud Claims or any breach or nonperformance of any
Absolute Obligations. “Absolute Obligations”
means, collectively, the Seller Fundamental Representations, the Buyer
Fundamental Representations and the covenants and obligations set forth in Sections 1.7, 6.9(b), 6.20,
9.2(c), (d), (e) and (f) and 9.3(c) and (d) of
this Agreement and in Section 6.12 of each
of the Equity Purchase Agreements.
(b) Notwithstanding
anything in this Agreement or the Equity Purchase Agreements to the contrary,
except with respect to indemnification obligations arising from or in connection
with Fraud Claims or any breach or nonperformance of any Absolute Obligations,
the maximum aggregate liability of Sellers and the Equity Sellers, on the one
hand, and Buyers, on the other, for Liabilities under this Article IX shall be
15% of the Purchase Price (the “Cap”).
(c) Notwithstanding
anything in this Agreement or the Equity Purchase Agreements to the contrary,
there shall be a single Deductible, Minimum Claim Amount and Cap (without
duplication), respectively, under this Agreement for Buyers, on the one hand,
and Sellers and the Equity Sellers, on the other, so that any indemnification
obligations incurred by any Indemnifying Party who is a Seller or Equity Seller,
on the one hand, or a Buyer, on the other, shall be cumulatively applied against
the Deductible, Minimum Claim Amount and Cap for the Sellers and the Equity
Sellers, on the other, and Buyers, on the other, subject in each case to the
express conditions, exceptions and limitations set forth in this
Agreement.
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(d) Notwithstanding
anything to the contrary contained in this Agreement, Buyers shall not be
entitled to any indemnification for any amounts reflected in the final Actual
True-Up Amount calculation pursuant to Section 2.3.
(e) Any
indemnification payment due and owing by an Indemnifying Party to an Indemnified
Party pursuant to this Article IX shall be
reduced by (i) any insurance, indemnity, or other payments or recoveries of a
like nature with respect thereto realized by an Indemnified Party (and no right
of subrogation shall accrue hereunder to any insurer) and (ii) the amount of any
tax benefit to the Indemnified Party (or any of its Affiliates) with respect to
the matter for which indemnification would otherwise be available hereunder
(after giving effect to the tax effect of receipt of the indemnification
payments).
(f) Notwithstanding
any disclosure contained on any Schedule attached hereto or to any Equity
Purchase Agreement (or otherwise made by any Seller, Equity Seller or Purchased
Company to any Buyer) to qualify any representation, warranty, covenant or
obligation, any Liability arising from or in connection with the subject matter
so disclosed that constitutes a Fraud Claim or any breach or nonperformance of
any Absolute Obligations shall be subject to indemnification by Sellers and the
Equity Sellers pursuant to Section 9.2 on
the same basis as if the disclosure had not been made. In the event
that a representation contained in this Agreement or any Equity Purchase
Agreement is breached and such representation is qualified by words or phrases
such as “material,” “Sellers’ Material Adverse Effect,” “Sellers’ Material
Adverse Condition,” “materially,” “immaterial,” “immaterially,” “nonmaterial,”
“substantially,” or words of similar import, such qualifiers shall be
disregarded with respect to such breach for purposes of calculating the amount
of any obligation of indemnity arising pursuant to this Article
IX.
(g) Subject
to the terms of Section 8.2, in no
event shall any Indemnifying Party have any Liability under this Agreement or
any Equity Purchase Agreement resulting from, arising out of, or relating to the
breach of inaccuracy of any representation and warranty for incidental,
punitive, indirect or consequential damages, except to the extent that such
damages are owed or payable to a third party as a result of or in relation to
such breach.
9.5
Indemnification Procedure
Between Buyers and Sellers. Upon the occurrence of any claim
for which indemnification is believed to be due under this Agreement, the
Indemnified Party shall provide notice of such claim to the Indemnifying Party,
stating in general terms the circumstances giving rise to the claim, specifying
the amount of the claim (or an estimate thereof) and making a request for any
payment then believed due (subject to the limitations in this
Agreement). Upon receipt of any such notice, both the Indemnified
Party and the Indemnifying Party shall use all reasonable efforts to cooperate
and arrive at a mutually acceptable resolution of such dispute within the next
30 days. If a resolution is not reached within such 30-day period,
either party may commence the dispute resolution procedures set forth in Article
XIII. If all or a portion of such claim amount is owed
to the Indemnified Party, the Indemnifying Party shall (subject to the terms of
Section 9.4),
within 10 days of such determination, pay the Indemnified Party such amount owed
in cash.
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9.6
Procedure for
Indemnification with Respect to Third-Party Claims. Except as
set forth in Section 6.22 of the Equity Purchase Agreements with respect to Tax
Contests:
(a) If any
third Person shall notify an Indemnified Party with respect to any matter that
may give rise to a claim for indemnification against an Indemnifying Party (a
“Third-Party
Claim”) or if any party who may make a claim for indemnification under
this Agreement otherwise becomes aware of any matter that may give rise to such
a claim or wishes to make such a claim (whether or not related to a Third-Party
Claim), then the Indemnified Party shall promptly notify each Indemnifying Party
thereof in writing, provided, however, that no
delay on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any obligation under this Agreement
unless (and then solely to the extent) the Indemnifying Party is prejudiced by
such delay.
(b) If an
Indemnified Party gives notice to the Indemnifying Party pursuant to Section 9.6(a) of the
assertion of a Third-Party Claim, the Indemnifying Party shall be entitled to
participate in the defense of such Third-Party Claim and, to the extent that it
wishes (unless the Indemnifying Party is also a Person against whom the
Third-Party Claim is made joint representation would be inappropriate due to
conflicts of interest), to assume the defense of such Third-Party Claim with
counsel reasonably satisfactory to the Indemnified Party. Except with
the prior written consent of the Indemnified Party, no Indemnifying Party, in
the defense of any such claim or litigation, shall consent to entry of any
judgment or order, interim or otherwise, or enter into any settlement that
provides for injunctive or other nonmonetary relief affecting the Indemnified
Party or that does not include as an unconditional term thereof the giving by
each claimant or plaintiff to such Indemnified Party of a release from all
liability with respect to such claim or litigation. In the event that
the Indemnifying Party does not accept the defense of any matter as above
provided, the Indemnified Party shall have the full right to defend against any
such claim or demand and shall be entitled to settle or agree to pay in full
such claim or demand. In any event, the Indemnifying Party and the
Indemnified Party shall cooperate in the defense of any claim or litigation
subject to this Article IX, and the
records and personnel of each shall be reasonably available to the other with
respect to such defense. With respect to any Third-Party Claim
subject to indemnification under this Article IX, the
parties agree to cooperate in such a manner as to preserve in full (to the
extent possible) the confidentiality of all Confidential Information and the
attorney-client and attorney work product privileges. In connection
therewith, each party agrees that (i) it will use its commercially reasonable
efforts, in respect of any Third-Party Claim in which it has assumed or
participated in the defense, to avoid production of Confidential Information
(consistent with Applicable Law and rules of procedure) and (ii) all
communications between any party hereto and counsel responsible for
or participating in the defense of any Third-Party Claim shall, to the extent
possible, be made so as to preserve any applicable attorney-client or attorney
work product privilege.
9.7
Tax Treatment of
Payment. Unless otherwise required by Applicable Law or unless
Sellers, the Equity Sellers and Buyers otherwise mutually agree, any payment
made under this Article IX shall be
treated as an adjustment to the Purchase Price.
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9.8
Effect of Equity Purchase
Agreements. The parties acknowledge that, subject to the terms
of the Closing Side Letter, the execution by the parties of this Agreement and
the Equity Purchase Agreements is not intended to alter the liabilities or risk
allocations set forth in the Original Agreement. Accordingly, except
as set forth in the second paragraph of Section 9.2, if any
fact, circumstance or occurrence exists or arises with respect to a Purchased
Company or a Purchased Company Asset that would result in or be deemed a breach
of the representations and warranties of Sellers under Article III if
Sellers sold to Buyers the Purchased Company Assets hereunder rather than the
Equity Interests under the Equity Purchase Agreements, then such fact,
circumstance or occurrence shall be deemed a breach of Article III hereof to
the same extent, and subject to the same conditions and limitations, and Buyers
shall have the rights and remedies afforded it under this Article
IX. Similarly, if any fact, circumstance or occurrence exists
or arises with respect to a Purchased Company or a Purchased Company Asset that
would not result in or be deemed a breach of the representations and warranties
of Sellers under Article III if
Sellers or Equity Sellers sold to Buyers the Purchased Company Assets hereunder
rather than the Equity Interests under the Equity Purchase Agreements, then such
fact, circumstance or occurrence shall not be deemed a breach of any
representation in the applicable Equity Purchase Agreement (except for any
breach of the additional representations and warranties contained in Sections 3.1, 3.2, 3.8,
3.13, 3.14, 3.15 and 3.17 of each of the Equity Purchase Agreements) and
Buyers shall not have the rights and remedies afforded it under this Article
IX.
ARTICLE
X
NONDISCLOSURE;
REMEDIES
10.1 Nondisclosure by
Buyers. Buyers recognize and acknowledge that, in connection
with the Transactions, Sellers have provided to Buyers and will provide to them
prior to the Closing Date Confidential Information of Sellers, including lists
of customers, operational policies and pricing and cost policies that are
valuable, special and unique assets of Sellers. Buyers agree that
they will not, except as may be required by law or valid legal process, disclose
such Confidential Information to any Person for any purpose or reason
whatsoever, prior to the Closing Date except to authorized representatives of
Buyer, unless such information is or becomes known to the public generally
through no fault of Buyers. The provisions of this Section 10.1 shall
apply at all times prior to the Closing Date and for a period of one year
following the earlier of (i) the Closing Date and (ii) termination of this
Agreement without a Closing having occurred.
10.2 Confidential
Information. Neither Sellers nor any of their respective
Affiliates shall at any time subsequent to the Closing, except as explicitly
requested by Buyers or as otherwise provided in this Agreement, use for any
purpose or disclose to any Person any Confidential Information relating
primarily to the Assets or the Assumed Liabilities, all such information being
deemed to be transferred to Buyers under this Agreement. For purposes
of this Agreement, “Confidential
Information” shall mean proprietary, non-public information relating
primarily to the Assets or the Assumed Liabilities. The foregoing
provisions shall not apply to any information which is or relates to an Excluded
Asset or to the Excluded Liabilities or which relates to Tax matters of
Sellers. Both Sellers and Buyers shall maintain Confidential
Information that relates to both Assumed Liabilities and Excluded Liabilities in
duplicate. If, at any time after the Closing, Sellers should discover
that they are in possession of any records and files containing the Confidential
Information of Buyers, then the party making such discovery shall immediately
turn such records and files over to Buyers, which shall upon request make
available to the surrendering party any information contained therein which is
not Confidential Information. Sellers agree that they will not assert
a waiver of loss of confidential or privileged status of the information based
upon such possession or discovery.
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10.3 Exclusivity of
Remedies. Notwithstanding anything in this Agreement to the
contrary, except for the terms of Section 8.2, Fraud
Claims (except as otherwise provided in Section 8.2) and
equitable or injunctive relief or claims for specific performance, as
applicable, in accordance with the terms of Section 10.4,
following the Closing:
(a) the sole
and exclusive remedies of the Sellers and the Equity Sellers and their
respective Affiliates for (i) any breach or inaccuracy of, or failure to
perform, any representation, warranty, covenant or agreement of Buyers contained
in this Agreement or the Equity Purchase Agreements, the Schedules attached
hereto or thereto or any certificated delivered in connection herewith or
therewith, and/or (ii) any other Liabilities incurred by Sellers and the Equity
Sellers in connection with this Agreement or the Equity Purchase Agreements
shall be the indemnification provisions provided in Article
IX.
(b) the sole
and exclusive remedies of the Buyers and their respective Affiliates for (i) any
breach or inaccuracy of, or failure to perform, any representation, warranty,
covenant or agreement of Sellers, the Equity Sellers or the Purchased Companies
contained in this Agreement or the Equity Purchase Agreements, the Schedules
attached hereto or thereto or any certificated delivered in connection herewith
or therewith, and/or (ii) any other Liabilities incurred by Buyers in connection
with this Agreement or the Equity Purchase Agreements, shall be the
indemnification provisions provided in Article
IX.
10.4 Equitable Relief for
Violations. The parties acknowledge that an irreparable injury
may result to the non-violating party and its business in the event of a breach
by the violating party of any provision in this Article
X. The parties also acknowledge and agree that the damages or
injuries that a non-violating party sustains as a result of such a breach are
difficult to ascertain and money damages alone may not be an adequate remedy to
a non-violating party. The parties therefore expressly agree that if
a controversy arises concerning the rights or obligations of a party under this
Article X, such
rights or obligations shall be enforceable by a court decree of specific
performance and a non-violating party shall also be entitled to any injunctive
relief from the court pursuant to Article XIII
necessary to prevent or restrain any such breach. Such relief shall
be granted without the necessity of a showing of irreparable harm and without
the posting of a bond or other security. Such relief, however, shall
be cumulative and non-exclusive and shall be in addition to any other remedy to
which the parties may be entitled in accordance with this
Agreement.
ARTICLE
XI
DEFINITIONS
As used
in this Agreement, the following capitalized terms shall have the meanings given
to them below:
“Absolute Obligations”
has the meaning specified in Section
9.4(a).
“Accounts Payable” has
the meaning specified in Section
1.4(d).
“Accounts Receivable”
means the meaning specified in Section
1.1(d).
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“Acquisition
Transaction” has the meaning specified in Section
6.22.
“Actual True-Up
Amount” has the meaning specified in Section
2.3(a)(i).
“Additional Vehicle
Sellers” has the meaning specified in Section
1.1.
“Adjustment Amount”
has the meaning specified in Section
2.3(a)(ii).
“Affiliate” means,
with respect to any specified Person, any other Person directly or indirectly
controlled by, controlling or under common control with such
Person. For purposes of this definition, a Person shall be deemed to
control another Person if such first Person directly or indirectly owns or holds
10% or more of the ownership interest in such other Person.
“Affiliated Group”
means an affiliated group as defined in Code Section 1504(a) or any similar
group defined under a similar provision of state or local Tax law.
“Agreement” has the
meaning specified in the introductory paragraph of this Agreement.
“Ancillary Agreements”
means those documents and agreements to be delivered by the parties pursuant to
Sections 2.5
and 2.6 and any
other documents and agreements delivered by the parties pursuant to the terms of
this Agreement.
“Xxxxxxxx” means
Xxxxxxxx Regional Landfill, LLC.
“Xxxxxxxx Company
Assets” has the meaning assigned to such term in Section 1.2 of the
Xxxxxxxx Purchase Agreement.
“Xxxxxxxx Company Disclosure
Schedules” has the meaning specified in the Xxxxxxxx Purchase
Agreement.
“Xxxxxxxx Membership
Interests” means all of the outstanding membership interests of
Xxxxxxxx.
“Xxxxxxxx Purchase
Agreement” means the Purchase Agreement dated as of April 1, 2009 among
RSG, AWNA, Allied Waste Landfill Holdings, Inc., Xxxxxxxx Regional Landfill, LLC
and WCN.
“Anson County
Landfill” means the landfill owned and operated by Xxxxxxxx located at
000 Xxxxxx Xxxx, Xxxxxxx, XX 00000.
“Antitrust Division”
means the Antitrust Division of the United States Department of
Justice.
“Applicable Laws”
means all federal, state, local and foreign statutes, laws, rules, regulations,
orders, ordinances (including zoning restrictions and land use requirements and
Environmental Laws and regulations) and all administrative and judicial
judgments, rulings, decisions and orders applicable to Sellers, the Equity
Sellers, Buyers or the Assets.
“A/R Value” has the
meaning specified in Section
2.3(a)(iii).
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“Assets” has the
meaning specified in Section
1.1.
“Assignment and Assumption
Agreements” has the meaning specified in Section
2.5(e).
“Assignment, Assumption and
Consent to Leased Real Property” has the meaning specified in Section
2.5(f).
“Assumed Contracts”
has the meaning specified in Section
1.1(c)(xi).
“Assumed Liabilities”
has the meaning specified in Section
1.3.
“Assumed Severance and
Retention Bonus Liabilities” has the meaning specified in Section
6.10(b).
“AWNA” means Allied
Waste North America, Inc.
“Base Disclosure
Schedule” has the meaning in Section
6.9.
“Baseline EBITDA
Amount” has the meaning in Section
2.2(a)(i).
“Benefit Plans” shall
mean any (i) “cafeteria plan” as described in Code Section 125,
(ii) “employee welfare benefit plan,” as defined in ERISA Section 3(1), or
(iii) “employee pension benefit plan” as defined in ERISA Section 3(2), whether
insured or otherwise including any multiemployer pension plan(s) to which the
Sellers may be obligated to contribute. Benefit Plans shall include,
without limitation, any bonus, deferred compensation, incentive compensation,
equity appreciation right, equity-based, incentive, severance,
change-in-control, termination pay, hospitalization, medical, disability, life,
supplemental unemployment, profit-sharing, pension or retirement plan, program,
agreement or arrangement.
“Bills of Sale” means
a general conveyance, assignment and xxxx of sale, providing for the conveyance,
sale, transfer and assignment to Buyers of all of the Assets (other than the
Real Property).
“Blanket Liens” has
the meaning specified in Section
6.18.
“Business Day” means
any day that is not a Saturday, a Sunday or any other day on which banks are
authorized or required by law to be closed in New York, New York.
“Buyer” and “Buyers” have the
meanings specified in the introductory paragraph of the Agreement.
“Buyer Fundamental
Representations” has the meaning specified in Section
9.1(a)(i).
“Buyers’ Assumption
Agreements” means an assumption agreement providing for the assumption by
Buyers of the Assumed Liabilities.
“Buyers’ Disclosure
Schedules” means the schedules to the specific Sections of the Agreement
delivered by Buyers to Sellers and the Equity Sellers.
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“Buyers’ Material Adverse
Effect” means, with respect to the Buyers, an effect, event or change
which materially adversely affects the ability of the Buyers to perform their
obligations hereunder and/or to otherwise consummate the Transactions and other
transactions contemplated hereby in accordance with the terms
hereof.
“Buyers’
Representative” has the meaning specified in Section
6.23(b).
“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of
1980.
“Xxxxxxxx” means
Xxxxxxxx Development of North Carolina, Inc.
“Xxxxxxxx Company
Assets” has the meaning assigned to such term in Section 1.2 of the Stock
Purchase Agreement.
“Xxxxxxxx Company Disclosure
Schedules” has the meaning specified in the Stock Purchase
Agreement.
“Xxxxxxxx Stock” means
all of the outstanding capital stock of Xxxxxxxx, consisting of 100 shares of
common stock, par value $10.00 per share.
“Xxxxxxxx Company
Assets” has the meaning assigned to such term in Section 1.2 of the
Xxxxxxxx Purchase Agreement.
“Xxxxxxxx Company Disclosure
Schedules” has the meaning specified in the Xxxxxxxx Purchase
Agreement.
“Xxxxxxxx Purchase
Agreement” means the Purchase Agreement dated as of Xxxxx 0, 0000 xxxxx
XXX, Xxxxxxxx Services of California Holding Company, Inc., Republic Services of
California I, LLC and WCN.
“Closing” and “Closing Date” have
the meanings specified in Section
2.4.
“Closing Purchase
Price” has
the meaning specified in Section
2.1.
“Closing Side Letter”
means that certain letter agreement between RSG and WCN, dated as of the date of
this Agreement, and delivered in connection herewith.
“Code” means the
Internal Revenue Code of 1986.
“Collection Accounts”
has the meaning specified in Section
1.1(c)(i).
“Collection Contracts”
has the meaning specified in Section
1.1(c)(i).
“Confidential
Information” has the meaning specified in Section
10.2.
“Confidentiality
Agreement” has the meaning specified in Section
6.2.
“Containers” has the
meaning specified in Section
1.1(b).
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“Contract” means any
agreement, contract, arrangement, understanding, lease, note, bond, mortgage,
indenture, loan agreement, franchise agreement, covenant, employment agreement,
license, instrument, purchase and sales order, commitment, undertaking,
obligation, or other legally binding agreement, whether written or oral, and
including all amendments thereto.
“Customer Deposits”
has the meaning specified in Section
1.3(b).
“Customer Issues” has
the meaning specified in Section
1.7(a).
“Deductible” has the
meaning specified in Section
9.4(a).
“Deed” means a special
warranty deed, or its closest equivalent depending on Applicable Laws, in form
and substance reasonably acceptable to Buyers.
“Deferred Revenue” has
the meaning specified in Section
1.3(b).
“Disposal Accounts”
has the meaning specified in Section
1.1(c)(iii).
“Disposal Contracts”
has the meaning specified in Section
1.1(c)(iii).
“Disposal EBITDA” has
the meaning specified in Section
2.3(a)(iv).
“DOJ” and “DOJ Consent” have the
meanings specified in Section
6.11(b).
“EBITDA” has the
meaning specified in Section
2.2(a)(ii).
“EBITDA Adjustment
Amount” has the meaning specified in Section
2.2(a)(iii).
“EBITDA Due Diligence
Period” has the meaning specified in Section
2.2(b).
“Employee Records” has
the meaning specified in Section
1.1(e).
“Employment Contracts”
has the meaning specified in Section
1.1(c)(x).
“Encumbrances” means
liens, security interests, encumbrances, adverse claims, leases, rights of
repurchase or purchase, rights of first refusal, pledges, voting trusts,
equities and other restrictions, limitations or conditions on transfer of any
nature whatsoever.
“Environmental Laws”
means all Applicable Laws relating to pollution or protection of human health or
the environment (including ambient air, surface water, ground water, land
surface or subsurface strata), including laws and regulations relating to
workplace or worker safety and health or emissions, discharges, Releases or
threatened Releases of Hazardous Materials or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
“Environmental
Permits” means any environmental permits, license approval, consent, or
authorization issued by a federal, state, or local government or regulatory
entity, to the extent related to the Assets.
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“Equipment” has the
meaning specified in Section
1.1(c)(vii).
“Equipment Leases” has
the meaning specified in Section
1.1(c)(vii).
“Equity Interests”
means the Xxxxxxxx Membership Interests, the RSCI Membership Interests and the
Xxxxxxxx Stock.
“Equity Purchase
Agreements” means the Xxxxxxxx Purchase Agreement, the Xxxxxxxx Purchase
Agreement and the Stock Purchase Agreement.
“Equity Sellers” means
RSG, Allied Waste North America, Inc., Republic Services of California Holding
Company, Inc. and Allied Waste Landfill Holdings, Inc.
“Estimated True-Up
Amount” has the meaning specified in Section
2.1.
“Estoppel Certificate”
means an estoppel certificate from (i) the landlord of any Leased Real Property,
(ii) the tenant of any Owned Real Property leased to third parties, but not
including tenants of residential dwellings, or (iii) a Government Authority that
is party to a franchise or other governmental agreement, in form and substance
reasonably acceptable to Buyers, certifying as to matters reasonably requested
by Buyers.
“Excluded Assets” has
the meaning specified in Section 1.2.
“Excluded Liabilities”
has the meaning specified in Section
1.4.
“Exclusivity Period”
has the meaning specified in Section
6.22.
“Expert” has the
meaning specified in Section
2.2(c).
“Fraud Claims” means
indemnity claims based upon a willful, fraudulent or intentional
misrepresentation or concealment of any Party contained in this Agreement or the
Equity Purchase Agreements or in Buyers’ Disclosure Schedules (within the
meaning of this Agreement or the Equity Purchase Agreements), Sellers’
Disclosure Schedules, the Xxxxxxxx Company Disclosure Schedules, the Xxxxxxxx
Company Disclosure Schedules or the Xxxxxxxx Company Disclosure Schedules, as
applicable.
“FTC” means the United
States Federal Trade Commission.
“Government Contracts”
has the meaning specified in Section
1.1(c)(iv).
“Governmental
Authority” means the Antitrust Division, any State of the United States
of America, any local authority and any political subdivision of any of the
foregoing, any multi-national organization or body, any agency, department,
commission, board, bureau, court or other authority of any of the foregoing, or
any quasi-governmental or private body exercising, or purporting to exercise,
any executive, legislative, judicial, administrative, police, regulatory or
taxing authority or power of any nature.
“Gulf Coast EBITDA”
has the meaning specified in Section
2.2(b).
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“Hazardous Materials”
means any chemicals, pollutants, contaminants, wastes and toxic substances,
including: (A) the presence of which requires reporting, investigation, removal
or remediation under any Environmental Law; (B) that is defined as a “hazardous
waste,” “hazardous substance,” “hazardous material,” “pollutant” or “toxic
substance” under any Environmental Law; (C) that is toxic, explosive, corrosive,
flammable, ignitable, infectious, radioactive, reactive, carcinogenic, mutagenic
or otherwise hazardous and is regulated as such under any Environmental Law; or
(D) that contains gasoline or any other petroleum product or byproduct,
polychlorinated biphenyls, asbestos and urea formaldehyde.
“Hold
Separate Period” means the
period beginning on December 4, 2008 and ending on the Closing Date pursuant to
and in accordance with the Republic/Allied Consent Decree.
“Houston Disposal
Agreement” has the meaning specified in Section
2.5(h).
“HSR
Act” means the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as
amended.
“Indemnified Party”
means a party seeking indemnification under Article
IX.
“Indemnifying Party”
means a party from whom indemnification is sought under Article IX.
“Inventory” has the
meaning specified in Section
1.1(b).
“IP Rights” means all
intangible rights and property, including all customer information and symbols,
trademarks, service marks, logos and trade names, but expressly excluding the
Retained IP.
“Knowledge”, whether
capitalized or not, means: (a) with respect to Sellers, Equity Sellers and the
Purchased Companies, the actual, subjective knowledge of the following persons,
without any duty of inquiry on their part: (a) Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxx
Xxx Xxxxxxx, Regional Senior Vice Presidents and, solely with respect to the
representations and warranties set forth in Sections 3.4(b),
3.5(c) and
(d), 3.7, 3.9 and 3.11 of this
Agreement and in Sections 3.4(b),
3.5(c) and
(d), 3.7, 3.9 and 3.11 of the Equity
Purchase Agreements, the Regional Director of Engineering and Environmental
Management in each region where the Assets or Purchased Company Assets are
located; and (b) with respect to any other Person, the actual, subjective
knowledge, without any duty of inquiry, of such Person.
“Landfill Operating
Contracts” has the meaning specified in Section
1.1(c)(v).
“Leased Real Property”
has the meaning specified in Section
1.1(a).
“Liabilities” means
any claims, obligations, damages, actions, suits, Proceedings, demands,
assessments, adjustments, penalties, losses, debts, costs and expenses and any
other liabilities of any kind or nature whatsoever (including court costs,
reasonable attorneys’ and expert witness fees and expenses, consulting fees and
expenses of investigation), whether equitable or legal, matured or contingent,
known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or
latent, asserted or unasserted, liquidated or unliquidated, accrued or unaccrued
or due or to become due, and expressly including punitive damages, consequential
damages, treble damages and any damages as a result of or relating to a loss of
profits.
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“Lubbock Deed
Restriction” has the meaning specified in Section
6.26.
“Material Collection
Contract” means a Collection Contract or Peachland/Angleton Contract from
which a Seller or Sellers billed revenues for the twelve (12) months ended
December 31, 2008 equal to or greater than $250,000.
“Material Disposal
Contract” means a Disposal Contract from which a Seller or Sellers billed
revenues for the twelve (12) months ended December 31, 2008 equal to or greater
than $500,000.
“Medical Plans” has
the meaning specified in Section
6.10(d).
“Minimum Claim Amount”
has the meaning specified in Section
9.4(a).
“National Accounts”
means customer accounts that involve a broader area than the area served by the
Assets and that are managed by a Seller or by an Affiliate of a Seller pursuant
to a national or regional account program, and that are not assignable pursuant
to the terms of such program.
“Neutral Auditor” has
the meaning specified in Section
2.3(c).
“Offered Employee” has
the meaning specified in Section
6.10(a).
“Office Equipment” has
the meaning specified in Section
1.1(b).
“Office Equipment
Leases” has the meaning specified in Section
1.1(c)(viii).
“Operating Agreement”
has the meaning specified in Section
1.5.
“Ordinary Multiple”
has the meaning specified in Section
2.2(b)(ii).
“Organizational
Documents” means the certificates or articles of incorporation,
certificates of formation or articles of organization and the bylaws, LLC
operating agreements or partnership agreements, as applicable, of
Sellers.
“Original Agreement”
has the meaning specified in the introductory paragraph of this
Agreement.
“Outside Date” has the
meaning specified in Section
8.1(b)(ii).
“Owned Real Property”
has the meaning specified in Section
1.1(a).
“Peachland/Angleton
Accounts” has the meaning specified in Section
1.1(c)(ii)
“Peachland/Angleton
Contracts” has the meaning specified in Section
1.1(c)(ii)
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“Permits” means any
permits, grants, filings, notices of intent, exemptions, licenses,
authorizations, registrations, franchises, consents, approvals and related
applications of every kind from or with any federal, state, local or foreign
government or regulatory authorities or industrial bodies, including all FCC
radio licenses or call signs, to the extent related to the Assets.
“Permitted
Encumbrances” means: (i) zoning ordinances and regulations which do not
materially adversely affect Buyers’ use or marketability of the Owned Real
Property for its current uses; (ii) real estate taxes and assessments, both
general and special, which are a lien but are not yet due and payable at the
Closing Date; (iii) easements, encroachments, Encumbrances, covenants,
conditions, reservations, restrictions and other matters identified on Schedule
B or Schedule B-II of the Title Commitments or on the Surveys; (iv) Assumed
Liabilities; and (v) the Lubbock Deed Restriction.
“Person” means any
individual, firm, partnership, association, trust, corporation, joint venture,
unincorporated organization, limited liability company, Governmental Authority
or other entity.
“Post-Closing Disposal
EBITDA” has the meaning specified in Section
2.3(e).
“Post –Closing Measurement
Period” has the meaning specified in Section
2.3(e).
“Post-Closing Seabreeze
EBITDA” has the meaning specified in Section
2.3(f).
“Pre-Closing Adjustment
Calculations” has the meaning specified in Section
2.2(b).
“Pre-Closing Caps” has
the meaning specified in Section
6.9(b).
“Pre-Closing Period”
means any Tax period or portion thereof ending on or before the Closing Date
(including the portion of any Straddle Period ending on the Closing
Date).
“Prepaid Assets” has
the meaning set forth in Section
1.1(h).
“Proceedings” means
any claim, investigation, litigation, action, suit or proceeding, formal
arbitration, informal arbitration or mediation, administrative, judicial or
otherwise.
“Prorated Gulf Coast EBITDA
Loss” has the meaning specified in Section
2.3(f).
“Purchase Price” has
the meaning specified in Section
2.1.
“Purchased Companies”
means Xxxxxxxx, RSCI and Xxxxxxxx.
“Purchased Company
Assets” means the Xxxxxxxx Company Assets, the Xxxxxxxx Company Assets
and the Xxxxxxxx Company Assets.
“Real Estate Leases”
has the meaning specified in Section
1.1(c)(ix).
“Real Property” has
the meaning specified in Section
1.1(a).
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“Records” has the
meaning specified in Section
1.1(e).
“Registered Rolling
Stock” has the meaning specified in Section
1.1(b).
“Release” means
release, spill, leak, discharge, dispose of, pump, pour, emit, empty, inject,
xxxxx, dump or allow to escape into or through the environment.
“Republic/Allied Consent
Decree” means that certain Proposed Final Judgment in U.S. et. al v.
Republic Services, Inc. and Allied Waste Industries, Inc. and the Hold Separate
Stipulation and Order (Civil Action No.: 1:08-cv-02076-RWR) as filed on December
4, 2008 in the District Court for the District of Columbia.
“Retained IP” means
any and all symbols, trademarks, service marks, logos, trade names and other IP
Rights of Sellers that are not listed on Schedule
1.1(g).
“Rolling Stock” has
the meaning specified in Section
1.1(b).
“Rolling Stock Leases”
has the meaning specified in Section
1.1(c)(vi).
“RSCI” means Republic
Services of California I, LLC.
“RSCI Membership
Interests” means all of the outstanding membership interests of
RSCI.
“RSG Baseline EBITDA
Amount” has the meaning specified in Section
2.2(a)(iv).
“RSG
Pre-Closing Indemnification Notice” has the meaning specified in
Section
6.9(b).
“SC-DHEC” has the
meaning specified in Section
9.2.
“Seller” and “Sellers” have the
meanings specified in the introductory paragraph of the Agreement.
“Seller Fundamental
Representations” has the meaning specified in Section
9.1(a)(i).
“Sellers’ Disclosure
Schedules” means the schedules to the specific Sections of the Agreement
delivered by Sellers to Buyers, as supplemented pursuant to Section
6.9.
“Sellers’ Expenses”
has the meaning specified in Section
6.6(a).
“Sellers’ Material Adverse
Condition” means any effect, event, liability, circumstance, occurrence
or change that, individually or when taken with all other related effects,
events, liabilities, circumstances, occurrences or changes, adversely affects
(or is reasonably likely to adversely affect) any of the Assets and/or the
Purchased Company Assets in an amount greater than the Minimum Claim
Amount.
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“Sellers’ Material Adverse
Effect” means any effect, event, liability, circumstance, occurrence or
change that, individually or in the aggregate, has, or is reasonably likely to
have, a material adverse effect on the business, results of operations or
financial condition of the Assets and the Purchased Company Assets, taken as a
whole, other than effects, events or changes arising out of or resulting from
(a) changes in conditions in the U.S. or global economy or capital or
financial markets generally, including changes in interest or exchange rates,
(b) changes in general legal, regulatory, political, economic or business
conditions or changes in generally accepted accounting principles that, in each
case, generally affect industries in which the Sellers and the Purchased
Companies conduct business, (c) the negotiation, execution, announcement or
performance of this Agreement or the consummation of the Transactions, including
the impact thereof on relationships, contractual or otherwise, with customers,
suppliers, lenders, partners or employees, (d) acts of war, sabotage or
terrorism, or any escalation or worsening of any such acts of war, sabotage or
terrorism threatened or underway as of the date of this Agreement or
(e) earthquakes, hurricanes or other natural disasters, but only to the
extent any such effect, event or change described in clauses (a) through (e) do
not materially disproportionately impact (I) Sellers and the Purchased Companies
collectively or (II) the Assets and the Xxxxxxxx Company Assets.
“Sellers’
Representative” has the meaning specified in Section
6.23(a).
“Special Multiple” has
the meaning specified in Section
2.2(b)(ii).
“Specific
EBITDA Allocation”
has the meaning specified in Section
2.2(b)(i).
“Specified Title
Requirements” means (i) requirement No. 8 listed on Schedule C of Title
Commitment 08500333 for the Seabreeze Landfill and/or (ii) requirements No. 7
and 8 listed on Schedule B, Part 1 of Title Commitment 8-078A for the XX Xxxxxx
hauling facility.
“Stock Purchase
Agreement” means the Stock Purchase Agreement dated as of April 1, 2009
among RSG, AWNA, Xxxxxxxx and WCN.
“Straddle Period”
means any Tax period beginning before and ending after the Closing
Date.
“Supplemental Sellers’
Disclosure Schedule” has the meaning specified in Section
6.9(a).
“Surveys” has the
meaning specified in Section
6.3(b).
“Tax” or “Taxes” means any
federal, state, local, foreign, and other income, gross receipts, sales, use, ad
valorem, transfer, franchise, real property, profits, payroll, withholding,
unemployment, excise, customs, duties and other taxes, fees, assessments and
charges of any kind whatsoever, together with any interest and any penalties and
additions to tax with respect thereto.
“Tax Contest” has the
meaning specified in Section 6.22(b) of the Equity Purchase
Agreements.
“Tax Returns” means
any report, statement, form, return or other document or information required to
be supplied to a taxing authority in connection with Taxes.
“Third-Party Claim”
has the meaning specified in Section
9.6(a).
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“Title Commitments”
has the meaning specified in Section
6.3(a).
“Title Company” means
Xxxxxxx Title Guaranty Company.
“Title Policy” has the
meaning specified in Section
6.3(a).
“Title Requirements”
means those matters shown on Schedule B-1 or Schedule C of the Title
Commitments.
“Transactions” means
the purchase by Buyers of the Assets from Sellers and the other related
transactions contemplated by this Agreement.
“Transfer Station Operating
and Transportation Contracts” has the meaning specified in Section
1.1(c)(v).
“Transferred Employee”
has the meaning specified in Section
6.10(a).
“Transition Disposal
Agreement” has the meaning specified in Section
2.7.
“Transition Services
Agreement” has the meaning specified in Section
2.5(j).
“WARN Act” has the
meaning specified in Section
6.10(c).
“WCN Baseline EBITDA
Amount” has the meaning specified in Section
2.2(b).
“WCN Baseline EBITDA
Amount” has the meaning specified in Section
2.2(b).
“WCN Pre-Closing Termination
Notice” has the meaning specified in Section
6.9(b).
ARTICLE
XII
GENERAL
12.1 Assignment; Binding Effect;
Amendment. This Agreement and the rights of the parties under
it may not be assigned (except by operation of law) by Sellers or the Equity
Sellers without the prior written consent of Buyers or by Buyers without the
prior written consent of the Sellers and the Equity Sellers. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their successors and permitted assigns. This Agreement may be
modified or amended only by a written instrument executed by all
parties.
12.2 Entire
Agreement. This Agreement, the Equity Purchase Agreements, the
Closing Side Letter and the other agreements executed herewith or therewith,
together with their respective exhibits and schedules, are the final, complete
and exclusive statement and expression of the agreement among the parties with
relation to the subject matter of this Agreement, the Equity Purchase
Agreements, the Closing Side Letter and such other agreements. This
Agreement, the Equity Purchase Agreements, the Closing Side Letter and such
other agreements supersede, and cannot be varied, contradicted or supplemented
by evidence of, any prior or contemporaneous discussions, correspondence, or
oral or written agreements of any kind, related to the subject matter hereof or
thereof.
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12.3 Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute but
one and the same instrument.
12.4 Notices.
(a) All
notices or other communications required or permitted hereunder shall be in
writing and shall be deemed given and effective the day personally delivered 1
day after being sent by overnight courier, subject to signature verification,
and 3 Business Days after the deposit in the U.S. mail of a writing addressed as
below and sent first class mail, registered or certified, return receipt
requested. Any party may change the address for notice by notifying
the other parties of such change in accordance with this Section
12.4.
(b) Notices
to Buyers shall be addressed to them at:
0000 Xxxx
Xxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000-0000
Phone
No.: (000) 000-0000
Fax
No.: (000) 000-0000
Attention: Xxxxxx
X. Xxxxxxxxxxxx
and a
copy to:
Shartsis
Xxxxxx LLP
Xxx
Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Phone
No.: (000) 000-0000
Fax
No.: (000) 000-0000
Attention: Xxxxx
X. Xxxxxx
(c) Notices
to Sellers or the Equity Sellers shall be addressed to them at:
Republic
Services, Inc.
00000 X.
Xxxxxx Xxx
Xxxxxxx,
Xxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Attention:
General Counsel, Xxxxx Xxxxx and Xxx Xxxxxx
with a
copy to:
Akerman
Senterfitt
Xxx X.X.
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx,
Xxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Attention: Xxxxxxxx
X. Xxxxx and Xxxx Gordo
- 63
-
12.5 No
Waiver. No delay of or omission in the exercise of any right,
power or remedy accruing to any party as a result of any breach or default by
any other party under this Agreement shall impair any such right, power or
remedy, nor shall any such delay or omission be construed as a waiver of or
acquiescence in any such breach or as a waiver of or acquiescence in any similar
breach or default occurring later; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach of default occurring before or
after such waiver.
12.6 Captions. The
headings of this Agreement are inserted for convenience only and shall not
constitute a part of this Agreement or be used to construe or interpret any of
its provisions.
12.7 No Third-Party
Beneficiaries. Except for the provisions of Article IX relating
to indemnified parties, nothing contained in this Agreement is intended or shall
confer upon any other Person, including any union or employee or former employee
of any Seller, any legal or equitable right, benefit or remedy of any nature
whatsoever, including any rights of employment for any specified period, under
or by reason of this Agreement.
12.8 Severability. In
case any provision of this Agreement shall be deemed to be invalid, illegal or
unenforceable, such provision shall, to the extent possible, be modified in such
manner as to be valid, legal and enforceable but so as most nearly to retain the
intent of the parties. If such modification is not possible, such
provision shall be severed from this Agreement. In either case, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
12.9 Construction. The
parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local or foreign
statute shall be deemed to refer to such statute as amended and to all rules and
regulations promulgated thereunder, unless the context requires
otherwise. The word “include” or “including” means include or
including, without limitation. All references in this Agreement to
Articles, Sections, Exhibits and Schedules shall be deemed references to
articles and sections of, and exhibits and schedules to, this Agreement,
respectively, unless the context shall otherwise require.
- 64
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ARTICLE
XIII
DISPUTE
RESOLUTION
13.1 General. Except
with respect to disputes regarding the Actual True-Up Amount (which shall be
governed by Section
2.2(c)), and except as provided in Article IX, the
parties agree that any disputes arising out of or related in any way to this
Agreement or any Equity Purchase Agreement, including a breach of this Agreement
or any Equity Purchase Agreement, shall be brought exclusively in the state or
federal courts located in Wilmington, Delaware. By execution and
delivery of this Agreement and any Equity Purchase Agreement, with respect to
any dispute, each of the parties knowingly, voluntarily and irrevocably
(a) consents, for itself and in respect of its property, to the exclusive
jurisdiction of these courts, (b) waives any immunity or objection, including
any objection to personal jurisdiction or the laying of venue or based on the
grounds of forum non conveniens, which it may have from or to the bringing of
the dispute in such jurisdiction, (c) waives any personal service of any
summons, complaint or other process that may be made by any other means
permitted by the State of Delaware, (d) waives any right to trial by jury, (e)
agrees that any such dispute will be decided by court trial without a jury, (f)
understands that it is giving up valuable legal rights under this Section 13.1,
including the right to trial by jury, and that it voluntarily and knowingly
waives those rights and (g) agrees that any party to this Agreement or any
Equity Purchase Agreement may file an original counterpart or a copy of this
Section 13.1
with any court as written evidence of the consents, waivers and agreements of
the parties set forth in this Section
13.1.
13.2 Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Delaware or of any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
13.3 Attorneys’
Fees. Should any litigation or proceeding be commenced under
this Agreement or any Equity Purchase Agreement, the successful party in such
litigation or proceeding shall be entitled to recover, in addition to such other
relief as the court may award, its reasonable attorneys’ fees, expert witness
fees, litigation related expenses and court or other costs incurred in such
litigation or proceeding. For purposes of this clause, the term
“successful party” means the net winner of the dispute, taking into account the
claims pursued, the claims on which the pursuing party was successful, the
amount of money sought, the amount of money awarded and offsets or counterclaims
pursued (successfully or unsuccessfully) by the other party. If a
written settlement offer is rejected and the judgment or award finally obtained
is equal to or more favorable to the offeror than an offer made in writing to
settle, the offeror is deemed to be the successful party from the date of the
offer forward.
[Signatures
appear on the following pages.]
- 65
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above
written.
BUYERS:
|
|||
By:
|
/s/ Xxx Xxxx | ||
Name:
Xxx Xxxx
|
|||
Title:
VP, General Counsel
|
|||
WASTE
CONNECTIONS OF NORTH CAROLINA, INC.
|
|||
By:
|
/s/ Xxx Xxxx | ||
Name:
Xxx Xxxx
|
|||
Title:
VP, General Counsel
|
|||
FRONT
RANGE LANDFILL, INC.
|
|||
By:
|
/s/ Xxx Xxxx | ||
Name:
Xxx Xxxx
|
|||
Title:
VP, General Counsel
|
|||
XXXXX
RUN LANDFILL, INC.
|
|||
By:
|
/s/ Xxx Xxxx | ||
Name:
Xxx Xxxx
|
|||
Title:
VP, General Counsel
|
|||
WASTE
CONNECTIONS OF SOUTH CAROLINA, INC.
|
|||
By:
|
/s/ Xxx Xxxx | ||
Name:
Xxx Xxxx
|
|||
Title:
VP, General Counsel
|
|||
SEABREEZE
RECOVERY, INC.
|
|||
By:
|
/s/ Xxx Xxxx | ||
Name:
Xxx Xxxx
|
|||
Title:
VP, General Counsel
|
S-1
WASTE CONNECTIONS OF TEXAS, LLC | ||||||
By:
|
Waste
Connections Management Services, Inc., its Manager
|
|||||
By:
|
/s/ Xxx Xxxx | |||||
Name:
|
Xxx Xxxx | |||||
Title:
|
Secretary |
XXXXXXXX
CANYON, INC.
|
||||
By:
|
/s/ Xxx Xxxx | |||
Name:
|
Xxx Xxxx | |||
Title:
|
VP, General Counsel | |||
SELLERS:
|
||||
REPUBLIC
SERVICES, INC.
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President and Assistant Secretary
|
|||
REPUBLIC
SERVICES OF NORTH CAROLINA, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
REPUBLIC
SERVICES REAL ESTATE HOLDINGS, INC.
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
S-2
ALLIED
SERVICES, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
BFI
WASTE SERVICES, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
BFI
WASTE SYSTEMS OF NORTH AMERICA, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
REPUBLIC
SERVICES OF COLORADO I, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
REPUBLIC
SERVICES OF COLORADO HAULING, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
REPUBLIC SERVICES OF MICHIGAN III, LLC | ||||
By: | /s/ Xxx X. Xxxxxx | |||
Name: | Xxx X. Xxxxxx | |||
Title: | Vice President | |||
S-3
ALLIED
WASTE INDUSTRIES, INC
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
|||||
REPUBLIC
WASTE SERVICES OF TEXAS,
LTD.
|
By:
|
Republic
Waste Services of Texas GP, Inc.,
|
|||||
its
general partner
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
|||||
BLUE
RIDGE LANDFILL TX, LP
|
||||||
By:
|
Allied
Waste Landfill Holdings, Inc.,
|
|||||
its
general partner
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
|||||
CONSOLIDATED
DSIPOSAL SERVICE, LLC
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
BFI
WASTE SERVICES OF TEXAS, L.P
|
||||||
By:
|
Allied
Waste Landfill Holdings, Inc.,
|
|||||
its
general partner
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
|||||
S-4
ALLIED
WASTE NORTH AMERICA, INC.
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
AWIN
LEASING COMPANY, INC.
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
H
LEASING COMPANY, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
E
LEASING COMPANY, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
N
LEASING COMPANY, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
|||
S
LEASING COMPANY, LLC
|
||||
By:
|
/s/ Xxx X. Xxxxxx | |||
Name:
|
Xxx
X. Xxxxxx
|
|||
Title:
|
Vice
President
|
S-5
ALLIED
WASTE LANDFILL HOLDINGSM INC.
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
REPUBLIC
SERVICES OF CALIFORNIA HOLDING COMPANY, INC.
|
||||||
By:
|
/s/ Xxx X. Xxxxxx | |||||
Name:
|
Xxx
X. Xxxxxx
|
|||||
Title:
|
Vice
President
|
S-6