exv10w4



 







EXHIBIT 10.4




CORETRUST PURCHASING GROUP

PARTICIPATION AGREEMENT




     Participant Name: Allied Waste North America, Inc.



     Effective Date: July 1, 2006



 




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	1. Definitions
	 	 	1	 
	2. Purchase of Products and Services
	 	 	3	 
	3. Term
	 	 	4	 
	4. CPG’s Responsibilities
	 	 	4	 
	5. Representations, Warranties and Covenants of Participant
	 	 	5	 
	6. CPG Disclaimer and Participant Release
	 	 	7	 
	7. GPO Fees and Rebates
	 	 	8	 
	8. Termination
	 	 	8	 
	9. Confidentiality
	 	 	10	 
	10. Attorneys’ Fees
	 	 	10	 
	11. Force Majeure
	 	 	11	 
	12. Notices
	 	 	11	 
	13. Assignment
	 	 	11	 
	14. Severability
	 	 	12	 
	15. Governing Law
	 	 	12	 
	16. Consent to Jurisdiction
	 	 	12	 
	17. Counterparts
	 	 	12	 
	18. Audit Rights
	 	 	12	 
	19. Waiver of Jury Trial
	 	 	13	 
	20. Rights Cumulative; Waiver
	 	 	13	 
	21. Headings
	 	 	13	 
	22. Amendments
	 	 	14	 
	23. Data
	 	 	14	 
	Exhibits A-E
	 	 	 	 






 









 






PARTICIPATION AGREEMENT




     This Participation Agreement (together with all Exhibits, this “Agreement”), effective July 1,
2006 (the “Effective Date”), is between CoreTrust Purchasing Group, (“CPG”), a division of
HealthTrust Purchasing Group, LP, a Delaware limited partnership (“HPG”), with their principal
places of business located at 104 Continental Place, Suite 300, Brentwood, Tennessee 37027 and,



	 	 	 	 	 	 	 	 	 
	“Participant”:

	 	Allied Waste North America, Inc.
	 	Contact:
	 	Tom Piersa, Vice President
	 	 
	 	 	 	 	Purchasing and Supply Chain Management	 	 
	Phone #

	 	480-627-2213
	 	Fax #
	 	480-627-2206	 	 
	Address:

	 	15880 N. Greenway-Hayden Loop
	 	Email
	 	tom.piersa@awin.com	 	 
	 

	 	Suite 100	 	 	 	 	 	 
	 

	 	Scottsdale, AZ 85260
	 	FEIN No.
	 	860843596	 	 





for the purposes of permitting Participant and its Locations to obtain certain products and
services under Vendor Contracts between CPG and Vendors. CPG and Participant are each sometimes
referred to herein as a “party” and collectively, as the “parties”.




     WHEREAS, CPG is a “group purchasing organization” that maintains agreements with Vendors,
pursuant to which CPG members may purchase certain products and services as described in more
detail on its Internet website; and



     WHEREAS, Participant desires to participate in CPG’s group purchasing program, and to purchase
certain products and services under Vendor Agreements in accordance with the terms and conditions
thereof, subject to certain exceptions stated in this Agreement and listed in Exhibit A hereto.



     NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants
hereinafter set forth, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:




	1.	 	Definitions.
	 
	 	 	As used herein, the following terms have the following meanings:






	 	(a)	 	“Access Agreement” has the meaning set forth in Exhibit E.
	 
	 	(b)	 	“Affiliate” means, with respect to a specified person or entity, any person or
entity that directly or indirectly controls, is controlled by or is under common
control with the specified person or entity. A person or entity shall be deemed to
control another person or entity if such first person or entity has the power to direct
or cause the direction of the management and policies of such other person or entity,
whether through ownership of voting securities, by contract or otherwise.
	 
	 	(c)	 	“Blackstone” means, collectively, Blackstone GPO L.L.C. and its Affiliates.
	 
	 	(d)	 	“Calendar Quarter” means the three-month period commencing on the first day of
each of January, April, July and October.




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	 	(e)	 	“Competitor GPO” means a group purchasing organization that maintains
agreements with vendors pursuant to which members in such group purchasing organization
can purchase products and services that are the same or comparable to the Products and
Services.
	 
	 	(f)	 	“Compliance Level” means, subject to the provisions of Paragraph 5(d), with
respect to purchases of Products and Services in all of the Committed Categories, taken
as a whole, a dollar amount equal to at least eighty percent (80%) of the total dollar
volume of Participant’s requirements of products and services comparable to Products
and Services in the Committed Categories for the combined business operations of
Participant and its Locations (excluding all small, disadvantaged and minority business
purchases), taken as a whole.
	 
	 	(g)	 	“Committed Categories” means the specific lines of Products and Services listed
under the heading of “Committed Categories” in Exhibit D hereto.
	 
	 	(h)	 	“Committed Vendor Contracts” means Vendor Contracts for Products and/or
Services under Committed Categories.
	 
	 	(i)	 	“CPG Category” means either a Committed Category or a Non-committed Category,
and “CPG Categories” means both Committed Categories and Non-committed Categories, as
well as any other categories of products and services that CPG participants can obtain
under CPG Vendor Agreements.
	 
	 	(j)	 	“GPO Affiliation Certificate” means a certificate in the form set forth as
Exhibit C hereto.
	 
	 	(k)	 	“HPG” means, collectively, HealthTrust Purchasing Group, L.P. and its
Affiliates.
	 
	 	(l)	 	“Location” or “Locations” means Participant Affiliates identified on Exhibit B
hereto.
	 
	 	(m)	 	“Non-committed Categories” means the specific lines of Products and Services
that are offered to CPG participants, including Participant, without any compliance or
purchase obligations. A list of such Non-committed Categories and the associated
Non-committed Vendor Contracts will be provided by CPG and listed on CPG’s proprietary
website for its participants.
	 
	 	(n)	 	“Non-committed Vendor Contracts” means Vendor Contracts for Products and/or
Services under Non-committed Categories.
	 
	 	(o)	 	“Participant” means the entity indicated in the preamble paragraph of this
Agreement.
	 
	 	(p)	 	“Products and Services” means the equipment, products, supplies, and services
available pursuant to the Vendor Contracts.
	 
	 	(q)	 	“Program” means the group-purchasing program conducted by CPG, pursuant to
which Participant and the Locations are entitled to purchase Products and Services in
accordance with this Agreement and the Vendor Contracts.
	 
	 	(r)	 	“Term” shall be defined as the period this Agreement is in effect, including
the initial term and any renewal terms as provided in Section 3.




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	 	(s)	 	“Transition Period” has the meaning set forth in Paragraph 5(i).
	 
	 	(t)	 	“Vendor Contracts” means the purchasing agreements between Vendors and CPG for
the purchase of Products and Services, which are available to CPG participants, under
Committed Categories and Non-committed Categories.
	 
	 	(u)	 	“Vendor” or “Vendors” means the supplier of Products and Services under the
Vendor Contracts.






	2.	 	Purchase of Products and Services.






	 	(a)	 	Subject to the terms and conditions set forth in this Agreement, Participant,
on behalf of itself and its Locations, hereby designates CPG to act as its exclusive
group purchasing organization for the Committed Categories, subject to any exceptions
expressly stated in this Agreement or Exhibit A to this Agreement. Participant and its
Locations are hereby granted access to the Committed Vendor Contracts, pursuant to
which Participant and its Locations will purchase Products and Services available
thereunder for use by Participant and Locations, in compliance with the terms of such
Committed Vendor Contracts. Participant and its Locations are also granted access to
the Non-committed Vendor Contracts for Participant and its Locations to purchase
Products and Services available thereunder for use by Participant and Locations, on an
optional basis in compliance with the terms of such Non-committed Vendor Contracts.
Participant, on behalf of itself and its Locations, hereby authorizes CPG, as its agent
for such purposes, to (i) negotiate the terms of and enter into Vendor Contracts, and
to cancel or modify any Vendor Contracts as it deems necessary, advisable or
appropriate; (ii) receive rebates from Vendors based on purchases by Participant and
its Locations under Vendor Contracts, for payment by CPG to Participant, and (iii)
subject to the terms of Section 9 hereof, to receive from Vendors, distributors, and
e-commerce companies, data relating to purchases of Products and Services under Vendor
Contracts by Participant and Locations.
	 
	 	(b)	 	Before any Locations are granted access to the Program, upon request by CPG,
Participant shall provide a signed GPO Affiliation Certificate (a copy of which is
attached hereto as Exhibit C) for itself and its Locations that are to participate in
the Program, so that copies of such Certificate can be provided by CPG to Vendors to
indicate such Location is a participant in CPG and is bound by the terms of this
Agreement, and to further indicate the Committed Categories in which participation in
CPG will initially take place. Participant shall provide CPG with an electronic file
containing a list of all Locations along with additional relevant information for each
Location in a format designated by CPG. Participant shall provide to CPG an updated
electronic file of its Locations that are to participate in the Program on a periodic
basis. Participant and CPG hereby agree that upon Participant’s provision of each
updated electronic file or acceptable alternative listing of Locations, such will be
deemed to be an amendment to Exhibit B to this Agreement as well as to the GPO
Affiliation Certificate signed by Participant. Notwithstanding, CPG shall have the
right to deny addition of any Location if such would result in Participant being in
breach of any terms of this Agreement.
	 
	 	(c)	 	Participant and its Locations shall have the right to purchase Products and
Services under any Vendor Contracts within the Committed Categories and Non-committed




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	 	 	 	Categories. Participant and its Locations shall also have the right to purchase
products and services under any other Vendor Contracts CPG may have for CPG
Categories that are not listed in Exhibit D and which are not Non-committed
Categories, provided the Participant signs an amended or new GPO Affiliation
Certificate for its Locations (if so requested by CPG), as well as an amendment to
this Agreement to update the list of Committed Categories for Exhibit D.
	 
	 	(d)	 	Vendor Contracts in Non-committed Categories are available to Participant and
Locations without any compliance or purchase obligations. Participant may place
purchase orders for Products and Services available under any Vendor Contracts in
Non-committed Categories and even after having done so, Participant will not be
obligated to make any future purchases or meet any compliance levels for any
Non-committed Categories.






	3.	 	Term. 
	 
	 	 	Subject to termination under Section 8 hereof, the term of this Agreement shall be for a
period of five (5) years commencing on the Effective Date, with automatic renewals
thereafter for terms of one (1) year each unless either party gives written notice of
non-renewal of this Agreement at least ninety (90) days prior to the end of the initial term
or any subsequent renewal term.
	 
	4.	 	CPG’s Responsibilities. 






	 	(a)	 	CPG shall deliver, or cause to be delivered, on a timely basis to Participant a
brief summary of the Products and Services for Committed Vendor Contracts and
Non-committed Vendor Contracts, including pricing, delivery, ordering requirements and
other relevant contract terms to which Participant will be held accountable. Upon
request by Participant, CPG shall provide Participant with access to Committed Vendor
Contracts and Non-committed Vendor Contracts at CPG premises and any other information
related to the purchase of Products and Services thereunder reasonably requested by
Participant. CPG shall, on a timely basis, notify Participant of any changes thereto,
of any termination of any of such Vendor Contracts, and of any additional Vendor
Contracts that can be selected as Committed Vendor Contracts, as well as any additional
Non-committed Vendor Contracts. CPG shall periodically provide this information
directly to Participant and its Locations, or through a CPG website.
	 
	 	(b)	 	CPG shall provide information and documentation to assist Participant in its
transition to and participation in the Program.
	 
	 	(c)	 	CPG shall notify each of the Vendors under the Committed Vendor Contracts that
Participant and its Locations are participating in those Vendor Contracts.
	 
	 	(d)	 	CPG shall use its best efforts to negotiate terms with Vendors concerning the
purchases of Products and Services that are beneficial to the Participant.
	 
	 	(e)	 	CPG shall use its best efforts to require that all Vendors agree in their
respective Vendor Contracts that CPG participants purchasing under such contracts be
third party beneficiaries under such Vendor Contracts.




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	5.	 	Representations, Warranties and Covenants of Participant. 
	 
	 	 	Participant, for itself and each Location hereby covenants with CPG as follows:






	 	(a)	 	Indemnity and Limitation of Liability. Participant and each Location
shall indemnify and hold CPG, and the equity owners of CPG, and CPG’s respective
Affiliates, agents, officers, directors and employees (the “Indemnitees”) harmless from
and against Participant’s and/or each Location’s allocable share of any and all losses,
liabilities, damages, costs and expenses (whatsoever, including, without limitation,
reasonable attorneys’ fees,) that are awarded against or incurred after the date hereof
by any of them (“Damages”) to the extent that the Damages relate to acts or omissions
of Participant and/or any Location with respect to Products and Services obtained by
Participant, including, without limitation, any claims resulting from a failure to pay
for any Products and Services purchased by Participant and any Location. CPG agrees to
provide Participant notice in the event it receives any claim for which Participant and
Locations have indemnity obligations hereunder. Notwithstanding the foregoing,






	 	(i)	 	in no event will Participant or any of its Affiliates, agents,
officers, directors and employees be liable for any indirect, punitive, special,
incidental or consequential damage in connection with or arising out of this
Agreement (including loss of profits, use, data or other economic advantage),
however it arises, whether for breach of this Agreement, or in tort, even if the
Participant has been previously advised of the possibility of such damage; and
	 
	 	(ii)	 	Participant shall not be liable hereunder for any settlement made
by any Indemnitee without Participant’s advance written approval or for any
award from any action in which Participant was not granted the opportunity to
control the defense.






	 	(b)	 	Compliance with Contract Terms. Subject to CPG’s compliance with its
obligations under Paragraph 4(a), Participant agrees to cause each of its Locations:
(i) to comply with all terms of this Agreement as if such Location was a party hereto,
(ii) to comply with all commercially reasonable terms of the Vendor Contracts,
including without limitation, payment terms, own use requirements, arbitration of
dispute requirements and compliance level requirements contained therein, and (iii) to
execute the necessary acknowledgements or other legal documentation as reasonably
requested by CPG or any particular Vendor in writing evidencing such Location’s
agreement to comply with the terms of the relevant Vendor Contract, provided that any
such acknowledgements or documents shall not be inconsistent with the Vendor Contract
information provided by CPG pursuant to Paragraph 4(a) above and this Participation
Agreement.
	 
	 	(c)	 	Exclusive GPO Relationship. Except as provided in Paragraph 5(f) below
or as otherwise provided herein, during the term of this Agreement, neither Participant
nor any of its Locations shall utilize, participate in or maintain membership in any
other group purchasing organization, or other similar agreement or arrangement, for
purchasing Products and Services within the selected Committed Categories and
Non-committed Categories. Subject to any exceptions provided herein, the parties intend
that this Agreement shall be the exclusive arrangement that Participant and its
Locations utilize for the purchase through a group purchasing organization or similar
entity of Products and Services and other products and services within a CPG Category.




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	 	 	 	Notwithstanding the foregoing, CPG acknowledges that Participant may enter into a
group purchasing arrangement for the purchase of products or services that may be
comparable to products or services under any vendor contracts with CPG that could
qualify for the Non-committed Category, provided, that Participant agrees to provide
CPG reasonable notice of its intent to enter into such a group purchasing
arrangement, and Participant further agrees to provide CPG with the opportunity to
demonstrate the benefits of participating in any such Non-committed Category under
the Program rather than purchasing such products and/or services through such other
group purchasing arrangement.
	 
	 	(d)	 	Meeting the Compliance Level. Except as provided in Paragraph 5(f)
below, Participant and its Locations shall purchase Products and Services pursuant to
the Vendor Contracts in (i) the twelve-month period commencing on the Effective Date
and (ii) each twelve-month period commencing on the first day of each Calendar Quarter
during the term of this Agreement, an amount of Products and Services under each of the
Committed Categories equal to at least the Compliance Level, as applicable; provided,
however, that if Participant or any of its Locations purchase any Products and Services
under a Vendor Contract under any Committed Category that requires the purchase of (x)
a higher percentage of the Products and Services than would otherwise be necessary for
the Participant to comply with the Compliance Level, then Participant shall comply with
such requirement for such Committed Vendor Contract(s); or (y) a lower percentage or no
percentage of Products and Services, then CPG shall make appropriate downward
adjustments to the Compliance Level applicable to Participant to reflect such lower or
no Compliance Level under such Committed Vendor Contract. Adjustments shall also be
made in cases where Participant purchases more than just its needs for a calendar
quarter from a supplier (e.g., purchases of yearly needs in Q1 which result in no other
purchases in Q2, Q3, or Q4). If Participant advises that it and/or certain of its
Locations are unable to meet a Compliance Level applicable to any Vendor Contract, then
CPG shall make a commercially reasonable effort to arrange for a Compliance Level with
respect to purchases of Products and/or Services under such Vendor Contract that is
mutually acceptable to CPG, Participant and the applicable Vendor. In the event that
such mutually acceptable arrangement cannot be reached by the parties, appropriate
adjustments shall be made by excluding such non-compliant Locations for which despite
the commercially reasonable efforts of Participant such Locations cause Participant and
all Locations as a whole to not meet the Compliance Level.
	 
	 	(e)	 	Notice of Compliance. At the written request of CPG, to the extent
Participant is able to obtain such with reasonable efforts, within sixty (60) days
after the last day of any Calendar Quarter, Participant shall deliver to CPG (i) a
notice setting forth the percentage of purchases of Products and Services in all of the
Committed Categories, taken as a whole, over the total dollar volume of Participant’s
requirements of products and services comparable to Products and Services in the
Committed Categories for the combined business operations of Participant and its
Locations (excluding all small, disadvantaged and minority businesses purchases), taken
as a whole and (ii) such additional information as CPG shall reasonably request to
evidence compliance with any Compliance Level.
	 
	 	(f)	 	Exception for Conversion to Committed Vendor Contracts. In the event
that




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	 	 	 	Participant’s existing vendor agreements set forth on Exhibit A hereto do not permit
Participant and/or its Locations to comply with Paragraphs 5(c) and 5(d) hereof with
respect to one or more particular Committed Vendor Contracts, Participant shall,
and/or cause such Location(s) to, unless a consent by CPG is provided in Exhibit A,
promptly transition such Location or Locations to the Committed Vendor Contracts in
the Program supplying such comparable Products and Services upon the termination of
such existing vendor agreements. In the event that Participant identifies on Exhibit
A any existing group purchasing arrangement in which Participant purchases products
and/or services comparable to Products and Services under any Vendor Contracts for
any CPG Category, such relationship shall be an exception to Participant’s
designation of CPG as its exclusive group purchasing organization with respect to
Committed Categories and any Non-committed Categories selected by Participant, for
the Term of this Agreement. Nothing in this Paragraph 5(f) shall be construed to
require or encourage Participant or any of its Locations to improperly terminate or
breach in any way any existing vendor agreement to which Participant or any of its
Locations is a party.
	 
	 	(g)	 	Purchases are for own use. Participant covenants that all products
purchased by it and Locations under the Vendor Contracts will be for use by Participant
and/or Locations and not for resale or distribution to third parties other than as part
of an end product sold to Participant’s customers.
	 
	 	(h)	 	Location divestiture. Any Locations divested by Participant or its
Affiliate, or which no longer qualify as an Affiliate, shall be removed from
participation under this Agreement at the conclusion of the Transition Period (defined
below). Upon any divestiture of any of its Locations, Participant shall provide CPG
with written notice thereof on the date such Location ceases to be an Affiliate of
Participant (“Divestiture Date”), or thirty (30) days prior to the Divestiture Date if
such divestiture is publicly known, whichever first occurs. Such divested Location
shall have the right to continue to participate under this Agreement for the ninety
(90) day transition period following the Divestiture Date (the “Transition Period”),
unless otherwise agreed to by CPG and such Location.





6. CPG Disclaimer and Participant Release. 





	 	(a)	 	CPG DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO ANY
PRODUCTS AND SERVICES SOLD BY ANY VENDOR; AND PARTICIPANT HEREBY EXPRESSLY RELEASES CPG
AND ITS AFFILIATES FROM ANY AND ALL LIABILITY AND CLAIMS RELATING TO THE PRODUCTS AND
SERVICES, AND ANY BREACH OR ALLEGED BREACH OF WARRANTY IN CONNECTION WITH THE PRODUCTS
AND SERVICES.
	 
	 	(b)	 	In no event will CPG, HPG or any of their Affiliates, agents, officers,
directors and employees be liable for any indirect, punitive, special, incidental or
consequential damage in connection with or arising out of this Agreement (including
loss of profits, use, data or other economic advantage), however it arises, whether for
breach of this Agreement, or in tort, even if CPG or HPG has been previously advised of
the possibility of such damage.




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	7.	 	GPO Fees and Rebates. 






	 	(a)	 	Participant acknowledges that CPG will receive payment of fees for
administrative and other services provided by CPG from one or more Vendors based on
Products and Services, purchased, licensed or leased by Participant pursuant to the
Program. Participant also acknowledges that CPG will share a portion of such fees with
Blackstone on the terms set forth in Exhibit E.
	 
	 	(b)	 	CPG agrees to pay to Participant any funds received from Vendors designated as
Vendor rebates based on purchases of Products and Services by Participant.






	8.	 	Termination.






	 	(a)	 	CPG, as its sole and exclusive remedy, may terminate this Agreement on one
hundred twenty (120) days prior written notice to Participant if (i) Participant and
its Locations, taken as a whole, fail to maintain the Compliance Level for any two
consecutive Calendar Quarters (provided, that, notwithstanding the right of CPG to
terminate this Agreement under this clause (i), any such failure by Participant and its
Locations to comply with this clause (i) shall not be considered a breach of this
Agreement and CPG shall have no right to claim damages, equitable or other relief as a
result of such failure), (ii) Participant and any Location fails to comply with the
terms and conditions of any of the Vendor Contracts, or (iii) Participant or any
Location otherwise breaches any provision of this Agreement, provided, however, that
CPG may so terminate this Agreement in the event of failure by Participant and/or any
Locations to comply with the foregoing clauses (i) or (ii), or a breach described in
the foregoing clause (iii) only if CPG shall have given Participant written notice of
the specifics of such failure or breach and Participant (or Location) shall not have
cured such failure or breach or caused such failure or breach to be cured within
fifteen (15) days after such notice.
	 
	 	(b)	 	CPG shall also have the right to terminate this Agreement in its entirety upon
one hundred twenty (120) days prior written notice (i) upon the transfer, directly or
indirectly, by sale, merger or otherwise, of substantially all of the assets of
Participant or its ultimate parent or any permitted assignee to an independent third
party if such independent third party is an Affiliate of, or a participant in a
Competitor GPO; (ii) in the event that more than forty-nine percent (49%) of
Participant’s capital stock or equity ownership, or the capital stock or equity
ownership of its ultimate parent, or any such permitted assignee is transferred to an
independent third party entity if such independent third party is an Affiliate of, or a
participant in a Competitor GPO; (iii) upon Participant filing for protection under any
bankruptcy laws or being the subject of any involuntary bankruptcy proceeding; or (iv)
upon Participant and all Locations failing to make any purchases under any Vendor
Contracts over any sixty (60) day period; provided, that CPG shall only have the right
to terminate this Agreement pursuant to the foregoing clause (i) or (ii) of this
Paragraph 8(b) for the thirty (30) day period commencing on the closing of the transfer
of assets or capital stock or equity ownership, as applicable, described in such
clauses (provided written notice of such closing is provided to CPG on or before the
closing date). If Participant or any Location ceases to do business as a going
concern, CPG shall have the right to terminate this Agreement effective fifteen (15)
days after sending notice of termination to Participant and the Location.
	 
	 	(c)	 	CPG shall also have the right to terminate this Agreement with respect to any
particular




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	 	 	 	Location, upon one hundred twenty (120) days prior written notice to Participant and
such Location (i) upon the transfer, directly or indirectly, by sale, merger or
otherwise, of substantially all of the assets of the Location to an independent third
party if such independent third party is an Affiliate of, or a participant in a
Competitor GPO; (ii) in the event that more than forty-nine percent (49%) of the
Location’s capital stock or equity ownership is transferred to an independent third
party entity if such independent third party is an Affiliate of, or a participant in
a Competitor GPO; (iii) upon Location filing for protection under any bankruptcy laws
or being the subject of any involuntary bankruptcy proceeding; or (iv) upon Location
failing to make any purchases under any Vendor Contracts over any sixty (60) day
period; provided, that CPG shall only have the right to terminate this Agreement
pursuant to the foregoing clause (i) or (ii) of this Paragraph 8(c) for the thirty
(30) day period commencing on the closing of the transfer of assets or capital stock
or equity ownership, as applicable, described in such clauses (provided written
notice of such closing is provided to CPG on or before the closing date). Subject to
the foregoing, a Location shall be entitled to remain a CPG Participant provided it
enters into its own participation agreement with CPG. If a Location ceases to do
business as a going concern at the address (addresses) listed in Exhibit A to this
Agreement, CPG shall have the right to terminate this Agreement with respect to such
Location effective fifteen (15) days after sending notice of termination to
Participant and the Location.
	 
	 	(d)	 	Participant shall have the right to terminate this Agreement upon thirty (30)
days prior notice to CPG if CPG is in breach of a material provision of this Agreement
(including, without limitation any provision in Section 4 hereof), and fails to cure
such breach within the thirty (30) days of receipt of written notice specifying the
breach of this Agreement. Errors in pricing or other information provided by CPG to
Participant and Locations shall not be deemed to be a breach of this Agreement provided
appropriate steps are taken by CPG to correct the error.
	 
	 	(e)	 	If (i) Participant provides CPG with written notice of a reasonable business
justification for Participant to no longer be in a position to purchase Products and
Services in any single Committed Category at any time (such as, but not limited to,
pricing or other terms of Products and Services is not competitive; customer service
from Vendor or CPG is not satisfactory; Participant enters into a major transaction and
its management believes participation in CPG is no longer in Participant’s best
interest following such major transaction; costs and/or time of administration of
participation in CPG becomes uneconomical; participation in CPG materially and
negatively impacts Participant’s corporate governance or compliance policies); and (ii)
CPG, Participant and the Vendor (from which such Products and Services in such
Committed Category are purchased) are unable to mutually agree on the terms of
Participant’s continued participation in such Committed Category, then Participant
shall have the right to terminate this Agreement ninety (90) days after the notice
referred to in the foregoing clause (i). Participant acknowledges that any termination
pursuant to this Section 8(e) shall completely terminate Participant’s participation in
CPG, including its participation in all CPG Categories and any right to purchase
Products and Services under any Vendor Contract.
	 
	 	(f)	 	If CPG or HPG shall file for protection under any bankruptcy laws or is the
subject of any involuntary bankruptcy proceeding, Participant shall have the right to
terminate this




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	 	 	 	Agreement upon thirty (30) days prior written notice provided such notice is given no
later than ninety (90) days following Participant’s receipt of notice such filing.
In such event, Participant have access to all CPG vendor contracts to allow
facilitate transition during the thirty (30) day period.
	 
	 	(g)	 	If CPG terminates it’s Access Agreement with Blackstone other than for an
uncured breach, Participant shall have the right to terminate this Agreement on thirty
(30) days notice provided such notice is given within ninety (90) days following the
later of either Participant’s receipt of notice of the date of termination of the
Access Agreement or ninety (90) days following the date of termination of the Access
Agreement.
	 
	 	(h)	 	In the event of a termination of this Agreement in accordance with the
provisions herein, for any reason, by either CPG or Participant, the terminating party
shall have no direct or indirect financial responsibility to the other party or such
party’s equity owners or Affiliates, arising from the termination, either in the form
of a termination fee, cancellation fee, or penalty, either liquidated or otherwise, or
in the nature of lost profits or benefit of the Agreement.






	9.	 	Confidentiality. 
	 
	 	 	CPG and Participant (on behalf of itself and its Locations) hereby acknowledge that the
terms and Exhibits of this Agreement, and all information, documents and instruments
(including, without limitation, all information regarding (x) the pricing, rebates, customer
lists, discounts, shipping terms and other terms and conditions of the Vendor Contracts or
(y) the Participant’s purchasing of Products and Services in any CPG Category or otherwise)
delivered or otherwise provided to Participant or CPG in connection with this Agreement, or
any of their respective agents, directors, officers or employees, is confidential
(hereinafter, “Confidential Information”). CPG and Participant (on behalf of itself and its
Locations) agree that throughout the term of this Agreement and for a period of three (3)
years thereafter it shall maintain all Confidential Information in strict confidence and
shall not disclose such Confidential Information to any third parties (including competing
vendors) but may disclose such Confidential Information, (i) on a “need to know” basis to
its duly authorized officers, directors, representatives, consultants, accountants,
attorneys and agents, and (ii) in respect of any legal, tax or regulatory obligation or
requirement; provided, that, the foregoing shall not be construed to prohibit CPG from
disclosing certain Confidential Information regarding Participant’s purchasing volume of
Products and Services as permitted under Section 23. CPG shall have no right to use or
publicly disclose the name of the Participant or any derivation thereof in any advertisement
or promotion of CPG without the prior written consent of Participant. The foregoing shall
not be construed to prevent CPG from disclosing to Vendors and others that Participant is a
member of CPG without any confidentiality requirement attached. Participant acknowledges
that Confidential Information related to Vendor Contracts, including pricing thereunder, is
highly sensitive and confidential information, and the unauthorized disclosure or use of
which may potentially be damaging to CPG and Vendors. This Agreement supersedes the
Confidentiality Agreement between Participant and HPG covering the substance of this
Participation Agreement, it being understood by the parties that the confidentiality
provisions of this Agreement shall apply to any Confidential Information received from the
other prior to the Effective Date.
	 
	10.	 	Attorneys’ Fees.




Page 10 of 14









 






	 	 	If either party commences legal action related to any claim or controversy between the
parties for any matter arising out of this Agreement, the non-prevailing party shall pay all
costs and reasonable attorneys’ fees incurred by the prevailing party in connection
therewith.
	 
	11.	 	Force Majeure.
	 
	 	 	Neither party shall be liable to the other party for any delay or failure to perform its
obligations hereunder if such delay or failure results from causes beyond its reasonable
control. Such causes may include, without limitation, acts of God, fires or other
catastrophes, telecommunications failures, equipment failures, power failures, labor
disputes, strikes, delays in transportation, riots, war, governmental regulations,
non-performance by suppliers and Vendors, or problems experienced by CPG’s computer software
or hardware failures (an “Event of Force Majeure”). Each party shall give the other party
prompt notice of any Event of Force Majeure that may cause delay or non-performance of its
obligations hereunder.
	 
	12.	 	Notices. 
	 
	 	 	All notices or other communications required or permitted under this Agreement shall be in
writing and sent by registered or certified mail, postage prepaid, or by express delivery
service, or delivered personally, by private courier or fax, and followed by such mailing.
Notice shall be deemed to have been given upon receipt. Notices shall be addressed to each
party as set forth below:





          CPG:


CoreTrust Purchasing Group

104 Continental Place, Suite 300

Brentwood, Tennessee 37027

Fax No. (615) 344-3161

Attn: Assistant Vice President, GPO Operations




          With a copy to:


Managing Counsel

CoreTrust Purchasing Group

104 Continental Place, Suite 300

Brentwood, TN 37027




          Participant: to the address provided in the preamble with a copy to:


Allied Waste Industries, Inc.

15880 N. Greenway-Hayden Loop

Suite 100

Scottsdale, Arizona 85260

Attn: General Counsel





	13.	 	Assignment. 
	 
	 	 	Except as otherwise indicated in this Agreement, neither party may assign this Agreement or
any of its rights or duties set forth herein, without the prior written consent of the other
party (which consent shall not be unreasonably withheld, conditioned or delayed); no
assignment in




Page 11 of 14









 






	 	 	violation of the provisions of this Agreement, shall vest any rights in any purported
assignee. Notwithstanding, CPG shall have the right to subcontract or outsource to third
parties specific obligations of CPG hereunder provided that CPG shall remain obligated for
performance of such obligations. None of a sale of all or substantially all of the assets or
securities of Participant, the public offering and sale, or subsequent public trading, of
all or a portion any class of equity securities of Participant or any Affiliate of
Participant, shall constitute an assignment for the purposes of this Agreement. Either
party may assign without consent from the other, their rights and obligations under this
Agreement to a successor entity as part of an internal reorganization which results in being
organized in a different legal entity or corporate form, whether through conversion, merger,
or otherwise.
	 
	14.	 	Severability. 
	 
	 	 	This Agreement shall be construed to be in accordance with any and all applicable federal
and state laws and regulations. In the event there is a change in such laws and regulation,
whether by statute, regulation, agency or judicial decision that has any material effect on
the legality of any provision of this Agreement (“Affected Provision”) then the Affected
Provision shall be deemed ineffective to the extent of such change in law or holding without
invalidating the remaining provisions hereof or affecting the validity or enforceability of
such Affected Provision in any other jurisdiction.
	 
	15.	 	Governing Law. 
	 
	 	 	This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Tennessee without regard to the conflict of laws and principles thereof.
	 
	16.	 	Consent to Jurisdiction and Venue. 
	 
	 	 	Participant and CPG on a non-exclusive basis each hereby expressly (a) submits and consents
to the non-exclusive jurisdiction and venue of the United States District Court for the
Middle District of Tennessee with respect to any legal proceedings arising out of or
relating to this Agreement; (b) waives any objection which it may have based upon lack of
personal jurisdiction, improper venue or forum non conveniens; (c) agrees that all claims
with respect to such legal proceedings may be heard and determined in any Tennessee State
Court sitting in Nashville, Tennessee or the United States District Court for the Middle
District of Tennessee.
	 
	17.	 	Counterparts. 
	 
	 	 	This Agreement may be executed in any number of separate counterparts, each of which shall
be deemed to constitute an original, but which together shall constitute one and the same
instrument.
	 
	18.	 	Audit Rights. 
	 
	 	 	In the event CPG of reasonable evidence of the failure to meet the Compliance Level by
Participant, CPG and Participant shall jointly review such evidence to assess its integrity
and relevance. Participant may, at its election, provide CPG with additional evidence
supporting its belief that it meets the Compliance Level or disputing the integrity or
relevance of such claims of inaccuracy. Following such review and after further evaluation
of the additional evidence from Participant, in the event CPG reasonably determines that
substantial evidence




Page 12 of 14









 






	 	 	exists to support the likelihood that Participant doesn’t meet the Compliance Level, CPG
shall have the right, at its expense, to review and audit the books, records, and documents
(whether in hardcopy, electronic or other form) of Participant to verify compliance with
their obligations under this Agreement, the volumes of purchases of Products and Services
under Vendor Contracts, and to obtain, upon written request, any data and information
directly related to the purchases of Products and Services by the Participant and Locations
pursuant to this Agreement, required for CPG to fulfill its responsibilities as a group
purchasing organization. The audit shall be conducted only after reasonable notice and
during normal business hours, and may be conducted by CPG’s employees or agents, or by a
third party auditor, subject to mutually agreed to reasonable terms. This right of audit
may be exercised no more than one (1) time per year by CPG.
	 
	19.	 	Waiver of Jury Trial.
	 
	 	 	PARTICIPANT AND CPG EACH HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT WHICH SUCH PARTY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) EACH PARTY MAKES THIS WAIVER VOLUNTARILY
AND, (d) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
	 
	20.	 	Rights Cumulative; Waiver; Merger Clause.
	 
	 	 	Subject to the provisions in Section 8(a), all rights and remedies conferred under this
Agreement or by any other instrument or law shall be cumulative and may be exercised
singularly or concurrently. The failure by either party to enforce any term shall not be
deemed to be a waiver of future enforcement of that or any other term of this Agreement.
This Agreement, together with the exhibits thereto, as such exhibits may be modified or
supplemented from time to time pursuant to the terms of this Agreement, sets forth the
entire agreement and understanding of the parties hereto in respect of the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof. No party hereto has relied upon any oral or written
statement, representation, warranty, covenant, condition, understanding or agreement made by
any other party or any representative, agent or employee thereof, except for those expressly
set forth in this Agreement or in the exhibits hereto.
	 
	21.	 	Headings.  
	 
	 	 	The section headings contained in this Agreement are inserted for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement.




Page 13 of 14









 






	22.	 	Amendments.
	 
	 	 	This Agreement may only be amended, modified, superseded or supplemented by a written
instrument expressly amending, modifying, superseding, or supplementing this Agreement,
executed and delivered by each of the parties hereto.
	 
	23.	 	Data. 
	 
	 	 	CPG shall be the exclusive owner of the compilation of pricing data related to Vendor
Products and Services. All purchasing transaction data (other than pricing data related to
Vendor Products and Services) resulting from purchase of Vendor Products and Services by
Participant shall be owned by Participant. Participant hereby authorizes CPG and Blackstone
to have access to Participant’s purchasing transaction data, whether through Vendors,
distributors, or any business-to-business e-commerce companies through which orders for
Vendor Products and Services are placed by Participant. Participant further authorizes CPG
to aggregate Participant purchasing transaction data with purchasing transaction data from
other Participants of CPG for statistical analysis and other similar purposes, and to
provide such aggregate data to third parties, provided, that, in connection with providing
such aggregate data to third parties, in no event shall CPG identify or otherwise disclose
specific data as being related to Participant.




IN WITNESS WHEREOF, each party hereto has duly executed, or has caused this Agreement to be duly
executed, as of the date first above written.




	 	 	 	 	 	 	 	 	 
	CoreTrust Purchasing Group	 	Allied Waste North America, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	a Division of HealthTrust Purchasing Group, LP	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	by CMS GP, LLC, its general partner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	 	 	Name:
	 	Thomas J. Piersa	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	Title:
	 	Vice President, Procurement and
Supply Chain Management	 	 
	Date:

	 	 	 	Date:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 





Page 14 of 14









 






LIST OF EXHIBITS




	 	 	 
	Exhibit A

	 	Product/Services Exclusion List
	 
	 	 
	Exhibit B

	 	Location List
	 
	 	 
	Exhibit C

	 	GPO Affiliation Certificate
	 
	 	 
	Exhibit D

	 	List of selected Committed Categories
	 
	 	 
	Exhibit E

	 	Terms of Fee Sharing Arrangement between CPG and Blackstone







 









 








EXHIBIT A




GPO Participation Agreement




GPO: CoreTrust Purchasing Group




Participant: Allied Waste North America, Inc.




Date of Participation Agreement: July 1, 2006




Product/Services Exclusion List



Participant currently has an agreement with Staples for office supplies which is scheduled to
expire on March or 2008. Participant agrees to commence purchasing under the CPG Vendor
Contract(s) for the office supplies category after this expiration date.



Participant currently has an agreement with Global Office Solutions for copiers which is scheduled
to expire in February of 2008. Participant agrees to commence purchasing under the CPG Vendor
Contract(s) for the copiers category after this expiration date.




Page A-1




 









 








EXHIBIT B




GPO Participation Agreement




GPO: CoreTrust Purchasing Group




Participant: Allied Waste North America, Inc.




Date of Participation Agreement: July 1, 2006




Location List



Included and provided herein as “Attachment A”, dated June 12, 2006 and consisting of nine (9)
pages, file named, “CPG Site List_Allied Waste_Print Version.xls”.




Page B-1




 









 








EXHIBIT C




[Type on Location Letterhead]




GPO Affiliation Certificate

CoreTrust Purchasing Group




     ___(“Participant”) hereby confirms that it has entered into a group
purchasing organization relationship with CoreTrust Purchasing Group (“CPG”), a division of
HealthTrust Purchasing Group, pursuant to a written Participation Agreement having an effective
date of ___. Under the terms of the Participation Agreement, Participant has
agreed that it and each of its locations (“Locations”) listed in the Participation Agreement, as
amended from time to time, will purchase products and/or services under CPG products and/or
services categories designated in the Participation Agreement (a list of Locations and designated
categories to be provided by CPG to applicable vendors). Vendors having contracts with CPG that
fall within these categories are hereby instructed and authorized to remove Participant and each
Location from any other GPO affiliations for products and/or services in the designated categories.
CPG is hereby authorized to provide copies of this certificate to CPG Vendors and such Vendors
shall be entitled to rely on the contents of this Certificate. This Certificate shall remain in
effect until written notice signed by Participant or any Location is provided to Vendors.



     Participant and each Location will comply with all terms and conditions of Vendor Contracts in
the designated categories, including without limitation payment terms, compliance levels, and
arbitration or other dispute resolution provisions. Each Location recognizes that failure to
comply with these obligations could result in termination of the Participation Agreement with
respect to Participant or such Location.



     Participant acknowledges for itself and on behalf of the Locations, for the purposes of the
Participation Agreement, (i) that CPG is acting as a group purchasing organization for which it
will earn fees to be paid by the Vendors, and (ii) that, from time to time, it may receive rebates
from Vendors either directly or through CPG.



	 	 	 	 	 	 	 	 	 
	[PARTICIPANT LEGAL ENTITY NAME]	 	 	 	GPOID: CPG Use Only	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Contact Name:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Mailing Address:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Phone:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Fax:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	E-mail:	 	 
	 

	 	 	 	 	 	 	 	 





Page C-1




 









 








EXHIBIT D




GPO Participation Agreement




GPO: CoreTrust Purchasing Group




Participant: Allied Waste North America




Date of Participation Agreement: July 1, 2006




List of Committed Categories




Committed Categories:





	1.	 	Desktop computers, laptops (only those used for truck diagnostics) and peripherals.
	 
	2.	 	Small Parcel shipment services (when made available by CPG)
	 
	3.	 	Rental cars (when made available by CPG)





	 	 	 	 	 	 	 	 	 
	CoreTrust Purchasing Group	 	Participant	 	 
	 
	 	 	 	 	 	 	 	 
	a Division of HealthTrust Purchasing Group, LP	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	by CMS GP, LLC, its general partner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	 	 	Name:
	 	Thomas J. Piersa	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	Title:
	 	Vice President, Procurement and
Supply Chain Management	 	 
	Date:

	 	 	 	Date:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 





Page C-1




 









 








EXHIBIT E




Terms of Fee Sharing Arrangement between CPG and Blackstone



CPG and Blackstone shall enter into a GPO Access Agreement (the “Access Agreement”)
pursuant to which Blackstone will receive a portion of the gross fees CPG and/or any affiliate
receives from vendors (“GPO Fees”) in respect of purchases by the Participant under the
Agreement, as set forth below. Distributions of amounts owed to Blackstone under the Access
Agreement will occur periodically (but no less frequently than quarterly) based on actual GPO Fees
received as a result of purchases by Portfolio Participants under CPG and/or any affiliate
(non-clinical) vendor agreements. The Access Agreement shall have an initial term of five (5)
years.



Blackstone’s fee for purchasing volume by the Participant and other participants in CPG that are or
were Blackstone portfolio companies (collectively “Portfolio Participants”) under CPG
and/or any affiliate (non-clinical) vendor agreements shall be equal to the sum of (i) fifty
percent (50%) of the GPO Fees received in respect of purchasing volume under the CPG and/or any
affiliate (non-clinical) vendor agreements by the Portfolio Participant for annual purchasing
volume by Portfolio Participants up to Two Hundred Fifty Million Dollars ($250,000,000) and (ii)
sixty percent (60%) of the GPO Fees received in respect of purchasing volume under the CPG and/or
any affiliate (non-clinical) vendor agreements by Portfolio Participants for annual purchasing
volume by Portfolio Participants in excess of Two Hundred Fifty Million Dollars ($250,000,000).



Blackstone’s fee for purchasing volume by participants in CPG that are not Blackstone portfolio
companies but were previously identified and solicited by Blackstone for participation in CPG
(“Blackstone Targets”) who become CPG Participants under CPG and/or any affiliate
(non-clinical) vendor agreements shall be forty percent (40%) of the GPO Fees received in respect
of purchasing volume under the CPG and/or any affiliate (non-clinical) vendor agreements by such
Blackstone Targets.



Blackstone’s fee for purchasing volume by participants that are not Portfolio Participants or
Blackstone Targets (“Non-Portfolio Participants” and together with Portfolio Participants
and Blackstone Targets “Blackstone Participants”) under CPG and/or any affiliate
(non-clinical) vendor agreements shall be a mutually agreed to percentage of the GPO Fees received
in respect of purchasing volume under the CPG and/or any affiliate (non-clinical) vendor agreements
by such Non-Portfolio Participants.



Blackstone shall not have any right to any GPO Fees related to purchases by GPO Participants that
are not Blackstone Participants and shall only have a right to GPO Fees related to purchases by
Non-Portfolio Participants, if applicable, as is set forth in a subsequent agreement between
Blackstone and CPG.



Either CPG or Blackstone shall have the right to terminate the Access Agreement without cause on
one hundred eighty (180) days prior written notice. CPG shall also have the right to terminate the
Access Agreement on sixty (60) days prior notice given prior to July 31, 2006, if six (6) Portfolio
Companies including Blackstone have not become Portfolio Participants. If termination is by CPG
(other than for material, uncured breach by Blackstone) CPG shall continue to pay Blackstone the
fees as set forth above in respect of Blackstone Participants after the effective date of
termination. If termination is by Blackstone (other than for a material, uncured breach by CPG)
Blackstone will forfeit the right to continue to receive fees as set forth above in respect of
Blackstone Participants after the effective date of termination.




Page E-1