**Exhibit 10.40*******Indicates material has been omitted pursuant to a Confidential Treatment Request filed withthe Securities and Exchange Commission. A complete copy of this Agreement has been filed with theSecurities and Exchange Commission.** **EQUITY INTEREST AND ASSET PURCHASE AND SALE AGREEMENT****among****WCA WASTE CORPORATION,****WCA TEXAS MANAGEMENT GENERAL, INC.,****WCA MANAGEMENT LIMITED, INC.****WCA OF FLORIDA, LLC,****SOUTHWEST DUMPSTER, INC.,****WASTE SERVICES, INC.,****WASTE SERVICES OF FLORIDA, INC.,****WS GENERAL PARTNER, LLC****and****WASTE SERVICES LIMITED PARTNER, LLC** **June 29, 2007**
 

 
**EQUITY INTEREST AND ASSET PURCHASE AND SALE AGREEMENT**     THIS EQUITY INTEREST AND ASSET PURCHASE AND SALE AGREEMENT (this “Agreement”) is madeeffective the 29th day of June, 2007, among WCA Waste Corporation, a Delawarecorporation (“WCA Parent”), WCA Texas Management General, Inc., a Delaware corporation (“WCT GP”),WCA Management Limited, Inc., a Delaware corporation (“WCT LP”), WCA of Florida, LLC, a Delawarelimited liability company (“WCF”), Southwest Dumpster, Inc., a Florida corporation (“SW”), WasteServices, Inc., a Delaware corporation (“WSI Parent”), Waste Services of Florida, Inc., a Delawarecorporation (“WSF”), WS General Partner, LLC, a Texas limited liability company (“WSGP”) and WasteServices Limited Partner, LLC, a Delaware limited liability company (“WSLP”) (WCA Parent, WCT GP,WCT LP, WCF and SW are collectively referred to as the “WCA Parties;” and WSI Parent, WSF, WSGP andWSLP are collectively referred to as the “WSI Parties”).     WHEREAS, WSGP is the sole record and beneficial owner of all of the issued and outstandinggeneral partner interests (the “GP Interests”) of each of (a) Fort Bend Regional Landfill LP, aTexas limited partnership (“Fort Bend Landfill”) that owns and operates the Fort Bend RegionalLandfill, a municipal solid waste landfill (the “Landfill”); (b) Ruffino Hills Transfer Station LP,a Texas limited partnership (“Ruffino”) that operates a transfer station (the “Transfer Station”)that it leases from the City of Bellaire, Texas pursuant to a ground lease agreement dated October11, 1999 (as amended, the “Ruffino Lease”); and (c) WSI Waste Services of Texas, LP, a Texaslimited partnership (“WST”) that owns and operates a roll-off hauling business (the “HaulingBusiness”) in the Houston metropolitan area (the foregoing entities referred to collectively as the“WSI Companies”); WSLP is the sole record and beneficial owner of all of the issued and outstandinglimited partner interests (“LP Interests”) of each of the WSI Companies; and the GP Interests andthe LP Interests together represent all of the authorized, issued and outstanding equity interests(“Equity Interests”) of each of the WSI Companies; and     WHEREAS, WSGP wishes to sell and WCT GP wishes to buy all of the GP Interests in each of theWSI Companies; and WSLP wishes to sell and WCT LP wishes to buy all of the LP Interests in each ofthe WSI Companies; and     WHEREAS, WCF owns and operates a materials recovery facility (the “MRF”) in Fort Myers,Florida; WCF is the sole record and beneficial owner of all of the issued and outstanding stock ofSW, which owns and operates a collection business (the “Collection Business”) in Collier, Lee andCharlotte counties, Florida; and WCF wishes to sell, and WSF wishes to purchase substantially allof the businesses and assets of WCF owned and/or operating in Collier, Lee and Charlotte counties,Florida (the “Ft. Myers Assets”), including all issued and outstanding stock of SW;     NOW, THEREFORE, in consideration of the premises and of the mutual agreements set forth below,and for other good and valuable consideration, the receipt and sufficiency of which are herebyacknowledged, the Parties hereby agree as follows, intending to be legally bound hereby:
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**1.*****Transfer of Equity Interests and Transferred Assets; Delivery of Other Assets and Consideration»***     **1.1****Specified Interests and Assets**. Subject to the terms and conditions of this Agreement, effective as of the Closing Date (ashereinafter defined) the parties will take the following actions, and shall transfer ownership ofthe Equity Interests and Transferred Assets described herein, and shall further deliver theconsideration specified below and take the further actions required of them under this Agreement:     (a) WSGP shall assign, convey, transfer and deliver to WCT GP 100% of the GP Interestsin each of the WSI Companies.     (b) WSLP shall assign, convey, transfer and deliver to WCT LP 100% of the LP Interestsin each of the WSI Companies.     (c) WCF shall assign, convey, transfer and deliver to WSF substantially all of itsassets located in Collier, Lee and Charlotte counties, Florida (hereinafter, the “Ft. MyersAssets”), all of the issued and outstanding stock of SW (the “SW Shares”), and prior to theClosing shall have conveyed to SW the rights and obligations of WCF in and to that certainClosing and Stock Purchase Agreement among WCF, William N. Veloz and SW, dated January 3,2007 (the “SW Agreement”) as more particularly described on the Schedules attached hereto(the Ft. Myers Assets, the SW Shares and the SW Agreement are collectively referred toherein as the “Transferred Assets”).     (d) WCA Parent will deliver to WSI Parent, on behalf of WSGP and WSLP, by wire transferto an account designated by such Parties, cash in the amount of $22,704,329.00, representingin the aggregate an amount equal to (i) $23,700,000, less (ii) all amounts currently ondeposit with WSI Parent or any of its affiliated parties pursuant to that certain SolidWaste Disposal Agreement by and between Waste Corporation of Texas, L.P. and Fort BendLandfill dated March 23, 2005, plus the net amount due from the WCA Parties to the WSIParties pursuant to Section 2.2.     (e) WSI Parent and WSF will make and deliver to WCA Parent their joint and severalpromissory note (the “Note”), which shall be secured by a first priority purchase moneysecurity interest in the real estate being transferred by WCF to the WSI Parties, which Noteshall be paid in equal monthly installments of $125,000 per month for eighty-four (84)consecutive months, with the first payment thereof due on August 1, 2007 and on the firstday of each month thereafter.     **1.2****WSI Texas Assets***.*It is the Parties’ understanding and intent that all properties, assets and rights of everytype relating to facilities, operations or operating rights within the State of Texas(collectively, the “WSI Texas Assets”) are owned or leased by one or more of the WSI Companies; andby virtue of Sections 1.1(a) and 1.1(b) above, all such WSI Texas Assets shall remain in the WSICompanies, which shall from and after the Closing Date be owned by WCT GP and WCT LP.Notwithstanding the foregoing, in the event that any WSI Texas Assets exist that are owned byany of the WSI Parties or their Affiliates, the WSI Parties hereby jointly and severally convey,transfer, assign, set over and deliver to WCT GP, and shall cause their
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Affiliates to convey,transfer, assign, set over and deliver, the WSI Texas Assets to WCT GP, without any furtherconsideration.     **1.3****Transferred Assets**. It is the Parties’ understanding and intent that allproperties, assets and rights of every type relating to facilities, operations or operating rightswithin the counties of Collier, Lee and Charlotte, Florida (collectively, the “WCA Florida Assets”)are owned by either SW or WCF; and by virtue of Sections 1.1(c) and 1.1(d) above, all such WCAFlorida Assets shall remain in the aforementioned counties and after the Closing Date be owned byWSF. Notwithstanding the foregoing, in the event that any WCA Florida Assets exist that are ownedby any of the WCA Parties or their Affiliates, the WCA Parties hereby jointly and severally convey,transfer, assign, set over and deliver to WSF, and shall cause their Affiliates to convey,transfer, assign, set over and deliver, the WCA Florida Assets to WSF, without any furtherconsideration.     **1.4****Interests and Assets Free and Clear of Liens**. All of the Equity Interests, Transferred Assets, the WSI Texas Assets and all otherproperties and assets of all types to be conveyed or transferred hereunder or owned by SW shall bedelivered hereunder free and clear of all liens and encumbrances, except for (a) those encumbrancesto title listed on Exhibits 1.4(a) (i) and 1.4(a)(ii); and (b) the first priority purchase moneysecurity interest described in item 1.1(e) above.**2.*****Working Capital Adjustment»***     **2.1****Current Liabilities**.     Immediately prior to the Closing, (a) the WSI Companies will assign and transfer to WSGP allof the Current Liabilities of the WSI Companies, and (b) SW will transfer to WCF all of the CurrentLiabilities of SW. In addition, WCF will retain all of its Current Liabilities with respect to theFt. Myers Assets. To the extent that the consideration extended by third parties to any party tothis Agreement with respect to any Current Liability is partially utilized prior to the Closing andpartially utilized after the Closing (a “Cross-Over Liability”), then each of WSI Parent and WCAParent will be responsible for the pro rata share of such Current Liability applicable to itspre-closing subsidiaries.     **2.2****Trade Accounts Receivable**.     At Closing, (a) WCA Parent will pay WSI Parent an amount equal to the Trade AccountsReceivable of the WSI Companies as of the Closing Date, and (b) WSI Parent will pay WCA Parent anamount equal to the Trade Accounts Receivable of the Transferred Assets as of the Closing Date.     **2.3****Reconciliation**.     On each consecutive Friday immediately following Closing, (a) WSI Parent will pay over to WCAParent all sums received by WSI Parent with respect to the WSI Companies’ Trade AccountsReceivable, and (b) WCA Parent will pay over to WSI Parent all sums received by WCA Parent withrespect to the Trade Accounts Receivable of the Transferred Assets. Prior to August 31, 2007 WSIParent will prepare a statement reconciling each Parties’ pro rata share of
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the Cross-OverLiabilities applicable to the WSI Companies and WCA Parent will prepare a statement reconcilingeach Parties’ pro rata share of the Cross-Over Liabilities applicable to the Transferred Assets.Each of WCA Parent and WSI Parent will pay over to the other an amount equal to its pro rata shareof the Cross-Over Liabilities. In addition, to the extent that any Trade Account Payable purchasedby a Party is determined to have been improperly included as a Trade Account Payable, thetransferor of such Trade Account Payable shall reimburse the transferee for amounts paid therefore.**3.*****Representations and Warranties of the WSI Parties»***     The WSI Parties make the following representations and warranties jointly and severally, andrepresent and warrant that all of the following representations and warranties are true as of thedate of this Agreement and shall be true on the Closing Date:     **3.1****Due Organization**.     (a) Each of the WSI Companies is a limited partnership, duly formed, validly existingand in good standing under the laws of its state of formation, and is duly authorized,qualified and licensed under all applicable laws, regulations, ordinances and orders ofpublic authorities to carry on its business in the places and in the manner as nowconducted. Copies of the Certificates of Limited Partnership (certified by the Secretary ofState of each such WSI Company’s state of formation) and Agreement of Limited Partnership,each as amended, of each such WSI Company are all attached hereto as Schedule3.1(a). The records and minutes books of each of the WSI Companies, as heretofore madeavailable to the WCA Parties, are correct and complete, and will be delivered to the WCAParties at Closing.     (b) Each of WSGP and WSLP is a limited liability company duly organized, validlyexisting and in good standing under the laws of its state of organization, and is dulyauthorized, qualified and licensed under all applicable laws, regulations, ordinances andorders of public authorities to carry on its business in the places and in the manner as nowconducted or as proposed to be conducted. Copies of the Articles of Organization (certifiedby the Secretary of State of each of WSGP’s and WSLP’s state of organization) and OperatingAgreement (certified by the Secretary of each of WSGP and WSLP), as amended, of each of WSGPand WSLP, are attached hereto as Schedule 3.1(b). The records and minutes books ofeach of WSGP and WSLP, as heretofore made available to the WCA Parties, are correct andcomplete.     **3.2****Authorization, Validity and Effect of Agreements****.**     (a) This Agreement constitutes, and all agreements and documents contemplated herebywhen executed and delivered pursuant hereto for value received will constitute, the validand legally binding obligations of the WSI Parties enforceable in accordance with theirterms, subject to (i) applicable bankruptcy, insolvency or other similar laws relating tocreditor’s rights generally and (ii) general principles of equity, regardless of whetherconsidered in a proceeding in equity or at law.
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     (b) The execution and delivery of this Agreement by the WSI Parties does not, and theconsummation of the transactions contemplated hereby by the WSI Parties will not (i) exceptas set forth on Schedule 3.2 hereof, require the consent, approval or authorizationof, or declaration, filing or registration with, any governmental or regulatory authority orany third party; (ii) result in the breach of any term or provision of, or constitute adefault under, or result in the acceleration of or entitle any party to accelerate (whetherafter the giving of notice or the lapse of time or both) any obligation under, or result inthe creation or imposition of any Lien upon any part of the property of the WSI Parties orany of the WSI Companies pursuant to any provision of any order, judgment, arbitrationaward, injunction, decree, indenture, mortgage, lease, license, lien, or other agreement orinstrument to which any the WSI Parties or any WSI Company is a party or by which it isbound; or (iii) violate or conflict with any provision of the respective Certificates ofLimited Partnership, Articles of Organization, Agreements of Limited Partnership orOperating Agreement, each as amended to the date hereof and as applicable, of the WSIParties.     **3.3****Equity Interests of the WSI Companies**. All of the limited partnership interests ofthe WSI Companies is shown on Schedule 3.3. All of the limited partnership interests ofthe WSI Companies have been duly authorized and validly issued, are fully paid and nonassessable,are owned of record and beneficially by WSGP and WSLP in the percentages set forth in Schedule3.3, and are free and clear of all liens, encumbrances and claims of every kind. All suchlimited partnership interests were offered, issued, sold and delivered in compliance with allapplicable state and federal laws concerning the issuance of securities. Further, no such limitedpartnership interests were issued in violation of the preemptive rights of any past or presentpartner**.**     **3.4****Obligations to Issue or Sell Equity Interests**. No right of first refusal, option,warrant, call, conversion right or commitment of any kind exists which obligates any WSI Company toissue any of its authorized but unissued limited partnership interests or other securities orequity interests. In addition, there are no (a) outstanding securities or obligations which areconvertible into or exchangeable for any limited partnership interests or other securities of anyWSI Company, or (b) contracts, arrangements or commitments, written or otherwise, under which anyWSI Company is or may become bound to sell or otherwise issue any of its limited partnershipinterests or other securities or equity interests. Without limiting the generality of theforegoing, there is no valid basis upon which any person (other than WSGP and WSLP) may claim to bein any way the record or beneficial owner of, or to be entitled to acquire (of record orbeneficially), any limited partnership interest or other security or equity interest of any WSICompany, and no person has made or, to the WSI Parties’knowledge, threatened to make any such claim. In addition, no WSI Company has any obligation(contingent or otherwise) to purchase, redeem or otherwise acquire any of its limited partnershipinterests or other securities or equity interests therein or to pay any dividend or make anydistribution in respect thereof.     **3.5****Subsidiaries**. No WSI Company (a) presently owns, of record or beneficially, orcontrols, directly or indirectly, any capital stock, securities convertible into capital stock,membership interest, partnership interest, limited partnership interest or any other equityinterest in any corporation, limited liability company, partnership,limited partnership,
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association or business entity; or (b) is, directly or indirectly, a participant in any jointventure, partnership or other non-corporate entity, save and except any joint venture solely withanother WSI Company.     **3.6****Predecessor Status; etc**. Set forth on Schedule 3.6 is a list of all ofthe names of all predecessors of each WSI Company, including the names of any entities from whomeach WSI Company previously acquired significant assets or with whom each WSI Company merged.Except as disclosed in Schedule 3.6, no WSI Company has ever been a subsidiary or divisionof another company nor been a part of an acquisition which was later rescinded.     **3.7****Financial Statements*****.***     (a) the WSI Parties have furnished to the WCA Parties (and copies of which are attachedhereto as Schedule 3.7(a)) the statements of operations of the WSI Companies for theyears ending December 31, 2004, December 31, 2005 and December 31, 2006. The financialstatements referred to in this subsection are herein collectively referred to as the“WSI Financial Statements.”     (b) the WSI Parties have furnished to the WCA Parties (and copies of which are attachedhereto as Schedule 3.7(b)) the statements of operations of the WSI Companies for theperiod beginning January 1, 2007 and ending May 31, 2007. The financial statements referredto in this subsection are herein collectively referred to as the “Interim WSI FinancialStatements.”     (c) The Financial Statements and the Interim Financial Statements, collectively, in allmaterial respects fairly set forth the financial condition of the WSI Companies as of thedates indicated, and the results of its operations for the periods indicated, and are inaccordance with generally accepted accounting principles consistently applied, except asotherwise stated therein or in any attachment to Schedules 3.7(a) and 3.7(b)attached hereto.     **3.8****[Intentionally Omitted]**.     **3.9****Approvals**. Except as set forth on Schedule 3.9, no authorization, consentor approval of, or registration or filing with, any governmental authority or any other person isor was required to be obtained or made by the WSI Parties or any WSI Company in connection with theexecution, delivery or performance of this Agreement. All authorizations, consents and approvalsset forth on Schedule 3.9 have been obtained, and all registrations and filings have beenaccomplished.     **3.10****Accounts and Notes Receivable**. The WSI Parties have delivered to the WCA Partieson Schedule 3.10 an accurate list of the WSI Companies’ accounts and notes receivable as ofJune 27, 2007 and as of the Closing Date, including receivables from and advances to theirrespective employees and to any other WSI Party or an Affiliate thereof. The WSI Parties shallprovide the WCA Parties with an aging of all accounts and notes receivable showing amounts due in30-day aging categories for each WSI Company. To the best knowledge of the WSI Parties, suchaccounts and notes of the WSI Companies are collectible in the amounts shown on Schedule3.10.
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     **3.11****Permits and Intangibles**.     (a) The WSI Parties have delivered to the WCA Parties on Schedule 3.11(a) anaccurate list and summary description as of the Closing Date of all of the certificates ofneed, permits, titles (including motor vehicle titles and current registrations), fuelpermits, licenses, orders, approvals, franchises, certificates, trademarks, trade names,patents, patent applications, copyrights and similar rights of approvals owned or held byeach WSI Company, all of which are now valid, in good standing and in full force and effect.     (b) Except as set forth on Schedule 3.11(b), such permits, titles, fuelpermits, licenses, orders, approvals, franchises, certificates, trademarks, trade names,patents, patent applications, copyrights and similar rights of approvals are adequate forthe operation of the WSI Companies, as presently constituted.     (c) Except as set forth on Schedule 3.11(c), the WSI Parties have delivered tothe WCA Parties a description and copies as of the date of this Agreement, of all of the WSICompanies’ material records, reports, notifications, pending permit applications,engineering studies, environmental impact studies filed or submitted or required to be filedor submitted to governmental agencies, other governmental approvals or applications forapproval and of all material notifications from such governmental agencies.     **3.12****Personal Property, Options and Leases**. The WSI Parties have delivered to the WCAParties on Schedule 3.12 an accurate list and a complete description as of the Closing Dateof all of the personal property, leases for equipment and real properties on which are situatedbuildings, warehouses, workshops, garages and other structures used by the WSI Companies, and anyoption to purchase real property and including an indication as to which assets were formerly ownedby business or personal Affiliates of each WSI Company. All leases set forth on Schedule3.12 are in full force and effect, constitute valid and binding agreements of the parties (andtheir successors) thereto in accordance with their respective terms, and do not require the assentof any party thereto or any third party in order to remain in full force and effect after theClosing. All assets used by the WSI Companies are either owned by a WSI Company or leased under anagreement indicated on Schedule 3.12. Except as described on Schedule 3.12, thereare no liens, mortgages, charges, restrictions, pledges, security interests, options, leases,claims, easements, encroachments or encumbrances on any property or assets owned or used by any WSICompany.     **3.13****Customers; Contracts and Commitments****.**     (a) Schedule 3.13(a) sets forth the names and addresses of all of the customersof the WSI Companies as of the date hereof, and sets forth monthly billing informationrelated to such customers. None of the customers, to the knowledge of the WSI Parties,intends to terminate or change significantly, its relationship as presently existing, andthe WSI Parties have received no notice to such effect.
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     (b) Schedule 3.13(b) sets forth a true and complete list of all of the WSICompanies’ contracts, agreements and other instruments and arrangements (whether written ororal) (i) by which any WSI Company is bound or affected or (ii) to which any WSI Companyis a party (the “Contracts”), including but not limited to: (A) arrangementsrelating to providing solid waste collection, transportation or disposal services to anyperson or entity; (B) licenses, permits, insurance policies and other arrangementsconcerning or relating to real estate; (C) employment, consulting, collective bargaining orother similar arrangements relating to or for the benefit of current, future or formeremployees, agents, and independent contractors or consultants; (D) agreements andinstruments relating to the borrowing of money or obtaining of or extension of credit, (E)brokerage or finder’s agreements; (F) contracts involving a sharing of profits or expenses;(G) acquisition or divestiture agreements; (H) service or operating agreements,manufacturer’s representative agreements or distributorship agreements; (I) arrangementslimiting or restraining any WSI Company from engaging or competing in any lines of businessor with any person; (J) documents granting a power of attorney; and (K) any other agreementsor arrangements that are material to the operation of the WSI Companies.     (c) Except as set forth on Schedule 3.13(c): (i) this Agreement will not giverise to the right of any WSI Party to terminate or modify any contract or agreement, (ii) noWSI Company is a party to any contract, agreement or other instrument or commitment which,singly or in the aggregate, materially and adversely affects such WSI Company’s business,operations, properties, assets or condition (financial or otherwise); and (iii) no WSICompany is bound by or subject to (and none of their respective assets or properties isbound by or subject to) any arrangement with any labor union.     **3.14****Real Property**. Except as set forth on Schedule 3.14 attached hereto:     (a) the WSI Companies own good and marketable title to their respective real propertydescribed on Schedule 3.14 (respectively, each “WSI Company’s Real Property”), freeand clear of any lien, mortgage, charge, restriction, pledge, security interest, option,lease, claim, easement, encroachment or encumbrance (“Lien”), other than the Permitted TitleEncumbrances, and no person has an option to purchase all or any portion of such realproperty;     (b) No WSI Company’s Real Property is subject to any pending or threatened condemnationProceedings against all or part thereof;     (c) No WSI Company has ever granted any person or entity a lease, sublease, license,concession, or other right, written or oral, to use or occupy such WSI Company’s RealProperty, nor has any WSI Company ever entered into an option, right of first refusal, orother agreement that would permit any person or entity to purchase all or part of such WSICompany’s Real Property; and     (d) No WSI Company has ever owned, occupied, or conducted operations on any lands,other than that respective WSI Company’s Real Property.
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     **3.15****Insurance**. The WSI Parties have delivered to the WCA Parties on Schedule3.15 an accurate list of all of the insurance policies of the WSI Companies, as well as anaccurate list of: (a) all of their respective insurance loss runs and worker’s compensation claimsreceived for the past three (3) policy years; (b) all open claims; and (c) all known circumstancesreasonably likely to result in a claim. Such insurance policies are currently in full force andeffect and shall remain in full force and effect through the Closing Date. None of any WSICompany’s insurance has ever been canceled, and no WSI Company has ever been denied coverage.     **3.16****Employment Matters**. Schedule 3.16 contains a list of all employeesengaged to perform services for the WSI Companies, including the annual compensation, hourly wages,daily rate of pay, vacation, sick pay and other benefits for all such employees. The WSI Companieshave paid in full to all of their respective employees all wages, salaries, commissions on jobsfinished, bonuses and other direct compensation for all services performed (including accruedvacation) by them prior to the Closing and all amounts required to be reimbursed to the employees,and the WCA Parties will not, by reason of anything done prior to the Closing, be liable to anyemployee for “severance pay” or any other payment. The WSI Companies are in material compliancewith all federal, state, local and foreign laws and regulations respecting employment andemployment practices, terms and conditions of employment and wages and hours.     **3.17****Parachute Provisions**. The WSI Parties have delivered to the WCA Parties onSchedule 3.17 an accurate schedule showing all of the WSI Companies’ employment agreementsand any other agreements containing “parachute” provisions, and deferred compensation agreements(which shall be considered “liabilities” and assigned to WSGP pursuant to Section 3.8), togetherwith copies of such plans, agreements and any trusts related thereto, and classifications ofemployees covered thereby as of the Closing Date.     **3.18****Benefit Plans; ERISA Compliance**.     (a) The WSI Parties are Affiliates of Waste Services, Inc. The WSI Companiesparticipate in, but do not sponsor or maintain any “employee pension benefit plans” (asdefined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended(“ERISA”)) (sometimes referred to in this Section 3.18 as “Pension Plans”),“employee welfare benefit plans” (as defined in Section 3(1) of ERISA) (sometimes referredto in this Section 3.18 as “Welfare Plans”) or any other Benefit Plans, as definedbelow.     (b) No WSI Company maintains any Pension Plan or Benefit Plan intended to be a taxqualified plan described Section 401(a) of the Code, and no such plan is or has been subjectto the minimum funding rules of Code Section 412 or ERISA Section 302, or the plantermination insurance provisions of Title IV of ERISA.     (c) There are no voluntary employee benefit associations maintained by any WSI Companyand intended to be exempt from federal income tax under Section 501(c)(9) of the Code.
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     (e) Neither the execution of this Agreement nor the consummation of the transactionscontemplated by this Agreement will give rise to, or trigger, any change of control,severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan thatwill obligate the WSI Companies to make such payment. The consummation of any transactioncontemplated by this Agreement will not result in any: (i) payment (whether of severancepay or otherwise) becoming due from the WSI Companies to any of their respective officers,employees, former employees or directors or to the trustee under any “rabbi trust” orsimilar arrangement; (ii) benefit under any Benefit Plan applicable to the WSI Companiesbeing established or becoming accelerated, vested or payable; or (iii) payment or series ofpayments by any WSI Company, directly or indirectly, to any person that would constitute a“parachute payment” within the meaning of Section 280G of the Code.     (f) No WSI Company provides any material post-retirement medical, health, disability ordeath protection coverage or contribute to or maintain any employee welfare benefit planwhich provides for medical, health, disability or death benefit coverage followingtermination of employment by any officer, director or employee except as is required bySection 4980B(f) of the Code or other applicable statute, nor has any WSI Company made anyrepresentations, agreements, covenants or commitments to provide that coverage.     (g) With respect to any Welfare Plan applicable to the WSI Companies, (i) each suchWelfare Plan that is a group health plan, as such term is defined in Section 5000(b)(1) ofthe Code, complies in all material respects with any applicable requirements of Part 6 ofTitle I of ERISA and Section 4980B(f) of the Code and (ii) each such Welfare Plan (includingany such plan covering retirees or other former employees) may be amended or terminated withrespect to health benefits without material liability to any WSI Company on or at any timeafter the Closing Date.     (h) All contributions by any WSI Company required by law or by a collective bargainingor other agreement to be made under any Pension Plan, Welfare Plan or Benefit Plan withrespect to all periods through the Closing Date, including a pro rata share of contributionsdue for the current plan year, will have been made by such date.     (i) No WSI Company has, nor will any WSI Company have, any liability or obligation fortaxes, penalties, contributions, losses, claims, damages, judgments, settlement costs,expenses, costs, or any other liability or liabilities of any nature whatsoever arising outof or in any manner relating to any Pension Plan, Welfare Plan orBenefit Plan (including but not limited to employee benefit plans such as foreign planswhich are not subject to ERISA), that has been, or is, contributed to by any entity, whetheror not incorporated, which is deemed to be under common control (as defined in Section 414of the Code), with any such WSI Company.     **3.19****Conformity with Law**.     (a) Each WSI Company has complied in all material respects with, and no WSI Company isin material default under, any law, rule, ordinance, ruling, directive, or
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regulation or anyorder, award, judgment or decree of any court or federal, state, municipal or othergovernmental department, commission, board, bureau, agency or instrumentality havingjurisdiction over such WSI Company or any of their respective assets or businesses; thereare no claims, actions, suits or Proceedings, pending or threatened, against or affectingany WSI Company, at law or in equity, or before or by any federal, state, municipal or othergovernmental department, commission, board, bureau, agency or instrumentality havingjurisdiction over such WSI Company or their respective businesses; and no notice of anyclaim, action, suit or Proceeding, whether pending or threatened, has been received by anyWSI Company.     (b) The WSI Companies have conducted and are conducting their respective operations inmaterial compliance with the requirements, standards, criteria and conditions set forth inapplicable federal, state and local statutes, ordinances, permits, licenses, orders,approvals, variances, rules and regulations, including, without limitation, all such laws,rules, ordinances, decrees and orders relating to intellectual property protection,transportation, wage and hour, antitrust matters, consumer protection, currency exchange,environmental protection, equal employment opportunity, health and occupational safety,pension and employee benefit matters, securities and investor protection matters, labor andemployment matters, and trading-with-the-enemy matters.     (c) No WSI Company has received any notification of any asserted present or pastunremedied failure by it to comply with any of such laws, rules, ordinances, decrees ororders.     **3.20****Taxes**.     (a) Except as set forth on Schedule 3.20, each WSI Company has timely filed allrequisite federal and other Tax Returns for all fiscal periods ended on or before theClosing Date; there are no open years, examinations in progress or claims against any WSICompany for federal and other Taxes (including penalties and interest) for any period orperiods prior to and including the Closing Date; and, except as set forth on Schedule3.20, no notice of any claim, whether pending or threatened, for Taxes has beenreceived. After the Closing, no WSI Company will be obligated or liable in respect of anyTax pursuant to any Tax allocation or sharing agreement (i.e., any agreement or arrangementfor the payment of Tax liabilities or payment for Tax benefits with respect to aconsolidated, combined or unitary Tax Return which includes any such WSI Company) forperiods ending prior to the Closing Date; there are no requests for rulings in respect ofany Tax pending by any WSI Company with any taxauthority; except as set forth on Schedule 3.20, no penalty or deficiency inrespect of any Taxes which has been assessed against any WSI Company remains unpaid; and,except as set forth on Schedule 3.20, all Taxes (whether or not shown on any TaxReturn) for all fiscal years ending on or before the Closing Date will be paid in the normalcourse of business by the WSI Parties.     (b) No WSI Company is a subchapter S corporation within the meaning of sections 1361and 1362 of the Internal Revenue Code of 1986, as amended (“Code”),
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and no WSI Company is,or owns any equity interests in, any “qualified subchapter S subsidiary” within the meaningof sections 1361(b)(3)(B) and 1362 of the Code.     **3.21****Completeness**. The certified copies of the Certificates of Limited Partnershipand Agreement of Limited Partnership, each as amended to date, of the WSI Companies and the copiesof all leases, instruments, agreements, licenses, permits, certificates or other documents whichare included on schedules attached hereto or which have been delivered to the WCA Parties inconnection with the transactions contemplated hereby are complete and correct; no WSI Company norany other WSI Party hereto is in material default thereunder; except as set forth in the schedulesand documents attached to this Agreement, the rights and benefits of each WSI Company thereunderwill not be adversely affected by the transactions contemplated hereby; and the execution of thisAgreement and the performance of the obligations hereunder will not violate or result in a breachor constitute a default under any of the terms or provisions thereof.     **3.22****Government Contracts**. Except as set forth on Schedule 3.22, no WSICompany is now, and none has ever been, a party to any governmental contract subject to priceredetermination or renegotiation.     **3.23****Absence of Changes**. Except as set forth in Schedule 3.23, since May 31,2007, there has not been:     (a) any material adverse change in the financial condition, assets, liabilities(contingent or otherwise), income or business of any WSI Company;     (b) any damage, destruction or loss (whether or not covered by insurance), change inzoning, or change in any law, rule, regulation, ordinance, or permit condition, materiallyadversely affecting the properties or business of any WSI Company;     (c) any change in the authorized or outstanding limited partnership interests of anyWSI Company or any grant of any options, warrants, calls, conversion rights or commitments;     (d) any declaration or payment of any dividend or distribution in respect of thelimited partnership interests or any direct or indirect redemption, purchase or otheracquisition of any of the limited partnership interests of any WSI Company;     (e) any bonus or any increase in the compensation, sales commissions, fringe benefitsor fee arrangement payable or to become payable by any WSI Company to anyof its officers, directors, employees, consultants or agents or any change in the method bywhich sales commissions are calculated and paid;     (f) any work interruptions, labor grievances or claims filed or, to any WSI Company’sknowledge, any proposed law or regulation or any event or condition of any character,materially adversely affecting the business or future prospects of the WSI Companies;
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     (g) any sale or transfer, or any agreement to sell or transfer, any assets, property orrights of any WSI Company to any person;     (h) any cancellation, or agreement to cancel, any indebtedness or other obligationowing to any WSI Company;     (i) any plan, agreement or arrangement granting any preferential rights to purchase oracquire any interest in the assets, property or rights of any WSI Company or requiringconsent of any party to the transfer and assignment of any such assets, property or rights;     (j) any purchase or acquisition, or agreement, plan or arrangement to purchase oracquire, any property, rights or assets of any WSI Company;     (k) any waiver of any material rights or claims of any WSI Company;     (l) any breach, amendment or termination of any material contract, agreement, license,permit or other right to which any WSI Company is a party; or     (m) any transaction by any WSI Company outside the ordinary course of its business.**3.24****Deposit Accounts; Powers of Attorney**. Each WSI Company has delivered to theWCA Parties on Schedule 3.24 an accurate list as of the date of this Agreement, of:     (a) the name of each financial institution in which each such WSI Company has accountsor safe deposit boxes;     (b) the names in which such accounts or boxes are held;     (c) the type of accounts; and     (d) the name of each person authorized to draw thereon or have access thereto.     (e) Schedule 3.24 also sets forth the name of each person, corporation, firm orother entity holding a general or special power of attorney from each such WSI Company orany of its subsidiaries and a description of the terms of such power. Each such power hasbeen or will be canceled on or before the Closing Date.     (f) Schedule 3.24 also sets forth a list of all financial assurance instrumentsissued by or on behalf of each WSI Company, including the names of the surety, the obligeeand the obligor for each such instrument, the penal sum for each such instrument, thepurpose of such instrument, and the termination or renewal date of each such instrument.     **3.25****Proprietary Rights**. Except as set forth on Schedule 3.25, no WSI Companyowns or has any right or interest in any Intellectual Property, or any license or assignment with
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respect thereto. No WSI Company has granted to any third party a license or other authorization touse any Intellectual Property of such WSI Company (except to any other one or more of the WSICompanies), and no third party owns any ownership interest in or holds any claim, lien or otherencumbrance, on any WSI Company’s Intellectual Property. Neither any WSI Company nor the WSIParties has received any notification that any WSI Company has infringed upon or is infringingupon, or has engaged in or is engaging in any unauthorized use or misappropriation of, anyIntellectual Property owned by or belonging to any other person; and there is no pending orthreatened claim, and no basis for the assertion of any valid claim, against any WSI Company withrespect to any such infringement, unauthorized use or misappropriation. Except for software used inconnection with the operation of the WSI Companies, no WSI Company has entered into any licensingagreements to use the Intellectual Property of third parties, and no WSI Company owes to any thirdparties royalties for the use of Intellectual Property.     **3.26****Validity of Obligations**. The execution and delivery of this Agreement by eachWSI Company and the performance of the transactions contemplated herein have been duly and validlyauthorized by the partners of each WSI Company, and this Agreement has been duly and validlyauthorized by all necessary limited partnership action and is a legal, valid and binding obligationof each WSI Company and the WSI Parties.     **3.27****Relations with Governments**. Neither any WSI Company, nor any shareholder,member, manager, director, officer, agent, employee or other person acting on behalf of any WSICompany, has used any funds of any WSI Company for improper or unlawful contributions, payments,gifts or entertainment, or made any improper or unlawful expenditures relating to politicalactivity to domestic or foreign government officials or others. Each WSI Company has adequatefinancial controls to prevent such improper or unlawful contributions, payments, gifts,entertainment or expenditures. Neither any WSI Company, nor any partner, shareholder, member,manager, director, officer, agent, employee or other person acting on behalf of any WSI Company,has accepted or received any improper or unlawful contributions, payments, gifts or expenditures.The WSI Companies have at all times complied, and are in compliance, in all material respects, withthe Foreign Corrupt Practices Act and in all material respects with all foreign laws andregulations relating to prevention of corrupt practices.     **3.28****Environmental Matters**. The WSI Companies and the WSI Parties have delivered tothe WCA Parties all of the correspondence, agreements, notices or other documents related to theitems set forth on Schedule 3.28.     Except as set forth in Schedule 3.28:     (a) the WSI Companies and all property (whether real or personal) which is or wasformerly leased, used, operated, owned or managed in whole or in part in any manner by anyWSI Company or any of its organizational predecessors (individually, any “BusinessFacility”, and collectively, the “Business Facilities”) and all operations of the WSICompanies and their respective Business Facilities, are in material compliance and have beenin material compliance with all applicable Environmental Laws;
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     (b) each WSI Company and its Business Facilities has obtained and is in materialcompliance with all permits, licenses, registrations, approvals and other authorizations(including all applications for all of the foregoing) required under any Environmental Lawfor the business of such WSI Company as currently conducted (collectively, “EnvironmentalPermits”), and Schedule 3.28 contains an accurate and complete listing of all of theBusiness Facilities and all of the Environmental Permits of each WSI Company;     (c) there is no past or present event, condition or circumstance that may interferewith the conduct of any WSI Company’s business in the manner now conducted relating to suchWSI Company’s compliance with Environmental Laws or which constitutes a material violationthereof, or which could have a material adverse effect upon such WSI Company’s business orfinancial condition;     (d) during the term of each WSI Company’s ownership of or control of its BusinessFacilities (“Ownership Term”), each WSI Company and its respective Business Facilities, andany operations thereon, have not been and are not currently subject to an EnvironmentalClaim;     (e) there are no Environmental Claims or investigations pending or threatened,involving the release or threat of release of any Polluting Substances from or on (i) anyBusiness Facility of any WSI Company, or (ii) any other property where Polluting Substancesgenerated by any WSI Company or originating from any Business Facility of any WSI Companyhave been recycled, stored, treated, released or disposed, or (iii) any property to whichPolluting Substances were transported by any WSI Company or (iv) any property on which anyWSI Company performs or performed or may be required to perform Remediation;     (f) there are no Polluting Substances on any Business Facility of any WSI Company in anamount or concentration which would require reporting to any governmental authority orRemediation to comply with the requirements of Environmental Laws and which have not been soreported;     (g) no WSI Company has undertaken Remediation or other decontamination or cleanup ofany facility or site or entered into any agreement or extended any offer for the payment ofcosts associated with such activity;     (h) each WSI Company has filed all notices, notifications, financial assurance,applications and all similar documents which are required to be obtained or filed for theoperation of its business or the use or operation of any of its Business Facilities and hasnot received any notification that such filings are incomplete or insufficient;     (i) there are no Environmental Claims for which any WSI Company has failed to notifyits insurers within contractually required notice periods or for which insurers have deniedcoverage or reserved their rights to deny coverage;     (j) there are no false or misleading statements in any current or prior EnvironmentalPermit relating to any WSI Company or any of its Business Facilities;
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     (k) the transactions contemplated by this Agreement will not require the amendment ortransfer of any of the Environmental Permits;     (l) no WSI Company is now, and to the best of the WSI Companies’ and the WSI Parties’knowledge, no WSI Company will be in the future (based solely upon the Environmental Laws asthey exist on the Closing Date), as a result of the operation or condition of any BusinessFacility of any WSI Company or the businesses thereon as conducted prior to or at Closing,subject to any: (i) contingent liability in connection with any release or threatenedrelease of Polluting Substances into the environment other than the normal or routinedisposal of solid waste, whether on or off the Properties or any Business Facility of anyWSI Company; (ii) reclamation, decontamination or Remediation requirements underEnvironmental Laws, or any reporting requirements related thereto, except for ordinaryclosure requirements under Environmental Laws; or (iii) consent order, compliance order oradministrative order relating to or issued under any Environmental Law;     (m) there are no obligations, undertakings or liabilities arising out of or relating toEnvironmental Laws which any WSI Company has agreed to, assumed or retained, by contract orotherwise, except as referenced in the Environmental Permits;     (n) there are no, nor to any WSI Company’s or the WSI Parties’ respective knowledge,have there ever been any, storage tanks on or under any Business Facility of any WSICompany, and all Business Facilities of the WSI Companies containing such tanks during theOwnership Term has been remediated in compliance with all Environmental Laws; and     (o) to the knowledge of the WSI Parties:     (i) no drinking water intakes or water wells exist within a two-mile radius ofany Business Facility of any WSI Company, which could have an adverse affect on theEnvironmental Permits or any other governmental authorization;     (ii) there are no polychlorinated biphenyls on or in the Properties or anyBusiness Facility of any WSI Company or any equipment or fixtures thereon; and     (iii) there are no airports, flood plains, wetlands, fault areas or seismicimpact zones on or near any property of any WSI Company which could have a materialeffect on the Environmental Permits, any governmental authorization or the assets ofany WSI Company.     **3.29****No Broker’s or Finder’s Fees**. No agent, broker, investment banker, person orfirm has acted directly or indirectly on behalf of the WSI Parties or any WSI Company in connectionwith this Agreement or the transactions contemplated herein who will be entitled to any broker’s orfinder’s fee or any other commission or similar fee or expense, directly or indirectly, inconnection with this Agreement or the transactions contemplated herein.
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     **3.30****Litigation**. Except as set forth in Schedule 3.30, there are noProceedings pending or, to the knowledge of the WSI Parties or any WSI Company, threatened againstany WSI Company, or challenging the validity or propriety of the transactions contemplated by thisAgreement or any Environmental Permit or other permit or governmental authorization; to theknowledge of the WSI Parties and the WSI Companies, there is no basis or ground for any suchProceedings; and there is no outstanding order, writ, injunction or decree of any court,administrative agency, governmental body or arbitration tribunal against any WSI Company or the WSIParties or their respective assets, which relates to or could have an effect on any WSI Company.Set forth on Schedule 3.30 are all Proceedings during the last five years to which any WSICompany was a party, or which, to the knowledge of the WSI Parties or the WSI Companies, werethreatened against any WSI Company, or which relate in any manner to the assets of any WSI Company.     **3.31****Disclosure**. To the knowledge of the WSI Parties, this Agreement and theschedules hereto and all other documents and information furnished to the WCA Parties and itsrepresentatives pursuant hereto do not and will not include any untrue statement of a material factor omit to state a material fact necessary to make the statements herein and therein notmisleading. If prior to Closing, the WSI Parties become aware of any fact or circumstance whichwould change a representation or warranty of the WSI Parties in this Agreement or anyrepresentation made on behalf of the WSI Parties or the WSI Companies, the WSI Parties shallimmediately give notice of such fact or circumstance to the WCA Parties. Such notification shallnot relieve the WSI Parties of their obligations under this Agreement.**4.*****Representations and Warranties of the WCA Parties»***     The WCA Parties make the following representations and warranties jointly and severally, andrepresent and warrant that all of the following representations and warranties are true as of thedate of this Agreement and shall be true on the Closing Date:     **4.1****Due Organization**.     (a) SW is a corporation, duly formed, validly existing and in good standing under thelaws of its state of formation, and is duly authorized, qualified and licensed under allapplicable laws, regulations, ordinances and orders of public authorities tocarry on its business in the places and in the manner as now conducted. Copies of theArticles of Incorporation (certified by the Secretary of State of SW’s state ofincorporation) and Bylaws, each as amended, of SW are attached hereto as Schedule4.1(a). The records and minutes books of SW, as heretofore made available to the WCAParties, are reconstructed and are, therefore, incomplete, and will be delivered to the WSIParties at Closing.     (b) WCF is a limited liability company duly organized, validly existing and in goodstanding under the laws of its state of organization, and is duly authorized, qualified andlicensed under all applicable laws, regulations, ordinances and orders of public authoritiesto carry on its business in the places and in the manner as now conducted or as proposed tobe conducted. Copies of the Articles of Organization (certified by the Secretary of Stateof WCF’s state of organization) and Operating
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Agreement (certified by the Secretary of WCF),as amended, of WCF are attached hereto as Schedule 4.1(b). The records and minutesbooks of WCF, as heretofore made available to the WSI Parties, are correct and complete, andwill be delivered to the WSI Parties at Closing.     **4.2****Authorization, Validity and Effect of Agreements****.**     (a) This Agreement constitutes, and all agreements and documents contemplated herebywhen executed and delivered pursuant hereto for value received will constitute, the validand legally binding obligations of the WCA Parties enforceable in accordance with theirterms, subject to (i) applicable bankruptcy, insolvency or other similar laws relating tocreditor’s rights generally and (ii) general principles of equity, regardless of whetherconsidered in a proceeding in equity or at law.     (b) The execution and delivery of this Agreement by the WCA Parties does not, and theconsummation of the transactions contemplated hereby by the WCA Parties will not (i) exceptas set forth on Schedule 4.2 hereof, require the consent, approval or authorizationof, or declaration, filing or registration with, any governmental or regulatory authority orany third party; (ii) result in the breach of any term or provision of, or constitute adefault under, or result in the acceleration of or entitle any party to accelerate (whetherafter the giving of notice or the lapse of time or both) any obligation under, or, exceptfor the first lien purchase-money security interest in the assets being delivered by WCF,result in the creation or imposition of any Lien upon any part of the property of the WCAParties or SW pursuant to any provision of any order, judgment, arbitration award,injunction, decree, indenture, mortgage, lease, license, lien, or other agreement orinstrument to which any the WCA Parties or SW is a party or by which it is bound; or (iii)violate or conflict with any provision of the respective Certificates of LimitedPartnership, Articles of Organization, Agreements of Limited Partnership, OperatingAgreement, Articles of Incorporation or Bylaws, each as amended to the date hereof and asapplicable, of the WCA Parties.     **4.3****Equity Interests of SW**. All of the issued and outstanding shares of the capitalstock of SW (the “Shares”) are shown on Schedule 4.3. All of the Shares have been dulyauthorized and validly issued, are fully paid and nonassessable, are owned of record andbeneficially by WCF, and are free and clear of all liens, encumbrances and claims of everykind. All such Shares were offered, issued, sold and delivered in compliance with all applicablestate and federal laws concerning the issuance of securities. Further, no such Shares were issuedin violation of the preemptive rights of any past or present Shareholder**.**     **4.4****Obligations to Issue or Sell Equity Interests**. No right of first refusal, option,warrant, call, conversion right or commitment of any kind exists which obligates SW to issue any ofits Shares or other securities or equity interests therein. In addition, there are no (a)outstanding securities or obligations which are convertible into or exchangeable for any Shares orother securities of SW, or (b) contracts, arrangements or commitments, written or otherwise, underwhich SW is or may become bound to sell or otherwise issue any of its Shares or other securitiesor equity interests. Without limiting the generality of the foregoing, there is no valid basisupon which any person (other than WCF) may claim to be in any way the record or
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beneficial ownerof, or to be entitled to acquire (of record or beneficially), any Shares or other security orequity interest of SW, and no person has made or, to the WCA Parties’ knowledge, threatened to makeany such claim. In addition, SW does not have any obligation (contingent or otherwise) topurchase, redeem or otherwise acquire any of its Shares or other securities or equity intereststherein or to pay any dividend or make any distribution in respect thereof.     **4.5****Subsidiaries**. Except as set forth on Schedule 4.5, SW (a) does notpresently own, of record or beneficially, or control, directly or indirectly, any capital stock,securities convertible into capital stock, membership interest, partnership interest, limitedpartnership interest or any other equity interest in any corporation, limited liability company,partnership, limited partnership, association or business entity; and (b) is not directly orindirectly, a participant in any joint venture, partnership or other non-corporate entity, save andexcept any joint venture solely with WCF and its Affiliates (which such joint ventures shallterminate upon the Closing).     **4.6****Predecessor Status; etc**. Set forth on Schedule 4.6 is a list of all ofthe names of all predecessors of SW, including the names of any entities from whom SW previouslyacquired significant assets or with whom SW merged. Except as disclosed in Schedule 4.6,SW has never been a subsidiary or division of another company nor been a part of an acquisitionwhich was later rescinded.     **4.7****Financial Statements*****.***     (a) the WCA Parties have furnished to the WSI Parties (and copies of which are attachedhereto as Schedule 4.7(a)) the statements of operations of the Ft. Myers Assets forthe years ending December 31, 2004, December 31, 2005 and December 31, 2006. The financialstatements referred to in this subsection are herein collectively referred to as the“WCF Financial Statements.”     (b) the WCA Parties have furnished to the WSI Parties (and copies of which are attachedhereto as Schedule 4.7(b)): (i) SW’s U.S. Income Tax returns with respect to theBusiness as of December 31, 2004, December 31, 2005 and December 31, 2006. The tax returnsreferred to in this subsection are herein collectively referred to as the “SW FinancialStatements.”     (c) the WCA Parties have furnished to the WSI Parties (and copies of which are attachedhereto as Schedule 4.7(c)) the statements of operations of SW and the Ft. MyersAssets for the period beginning January 1, 2007 and ending May 31, 2007. The financialstatements referred to in this subsection are herein collectively referred to as the“Interim WCF Financial Statements.”     (d) The WCF Financial Statements and the Interim WCF Financial Statements,collectively, in all material respects fairly set forth the financial condition of the FtMyers Assets (inclusive of SW with respect to the Interim WCF Financial Statements), takenas a whole, as of the dates indicated, and the results of its operations for the periodsindicated, and are in accordance with generally accepted accounting
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principles consistentlyapplied, except as otherwise stated therein or in any attachment to Schedules 4.7(a) and4.7(c) attached hereto.     (e) To the knowledge of the WCA Parties, the SW Financial Statements fully and fairlyset forth the financial condition of SW as of the dates indicated, and the results of itsoperations for the periods indicated, and are in accordance with the company’s income taxbasis of accounting, which is a comprehensive basis of accounting other than generallyaccepted accounting principles consistently applied, except as otherwise stated therein orin any attachment to Schedule 4.7(e).     **4.8****[Intentionally Omitted]**.     **4.9****Approvals**. Except as set forth on Schedule 4.9, no authorization, consentor approval of, or registration or filing with, any governmental authority or any other person isor was required to be obtained or made by the WCA Parties in connection with the execution,delivery or performance of this Agreement. All authorizations, consents and approvals set forth onSchedule 4.9 have been obtained, and all registrations and filings have been accomplished.     **4.10****Accounts and Notes Receivable**. The WCA Parties have delivered to the WSI Partieson Schedule 4.10 an accurate list of SW’s accounts and notes receivable, and the accountsand notes receivable of the Ft. Myers Assets, each as of June 27, 2007 and as of the Closing Date,including receivables from and advances to their respective employees and to any other WCA Party oran Affiliate thereof. The WCA Parties shall provide the WSI Parties with an aging of all accountsand notes receivable showing amounts due in 30-day aging categories for SW and the Ft. MyersAssets. To the best knowledge of the WCA Parties, such accounts and notes of SW and the Ft. MyersAssets are collectible in the amounts shown on Schedule 4.10.     **4.11****Permits and Intangibles**.     (a) The WCA Parties have delivered to the WSI Parties on Schedule 4.11(a) anaccurate list and summary description as of the Closing Date of all of the certificates ofneed, permits, titles (including motor vehicle titles and current registrations), fuelpermits, licenses, orders, approvals, franchises, certificates, trademarks, trade names,patents, patent applications, copyrights and similar rights of approvals owned or heldby WCF with respect to the Ft. Myers Assets and SW, all of which are now valid, in goodstanding and in full force and effect.     (b) Except as set forth on Schedule 4.11(b), such permits, titles, fuelpermits, licenses, orders, approvals, franchises, certificates, trademarks, trade names,patents, patent applications, copyrights and similar rights of approvals are adequate forthe operation of SW and the Ft. Myers Assets by WCF, as presently constituted.     (c) Except as set forth on Schedule 4.11(c), the WCA Parties have delivered tothe WSI Parties a description and copies as of the date of this Agreement, of all of thematerial records, reports, notifications, pending permit applications, engineering
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studies,environmental impact studies filed or submitted or required to be filed or submitted togovernmental agencies, other governmental approvals or applications for approval and of allmaterial notifications from such governmental agencies of SW and the Ft. Myers Assets.     **4.12****Personal Property, Options and Leases**. The WCA Parties have delivered to the WSIParties on Schedule 4.12 an accurate list and a complete description as of the Closing Dateof all of the personal property, leases for equipment and real properties on which are situatedbuildings, warehouses, workshops, garages and other structures used by SW and in connection withthe Ft. Myers Assets, and any option to purchase real property and including an indication as towhich assets were formerly owned by business or personal Affiliates of the WCA Parties. All leasesset forth on Schedule 4.12 are in full force and effect and constitute valid and bindingagreements of the parties (and their successors) thereto in accordance with their respective terms,and do not require the assent of any party thereto or any third party in order to remain in fullforce and effect after the Closing. All assets used by SW or in connection with the Ft. MyersAssets are either owned by SW or WCF (and will be transferred to the WSI Parties pursuant to thisAgreement) or leased under an agreement indicated on Schedule 4.12. Except as described onSchedule 4.12, there are no liens, mortgages, charges, restrictions, pledges, securityinterests, options, leases, claims, easements, encroachments or encumbrances on any property orassets owned or used by any WSI Company.     **4.13****Customers; Contracts and Commitments****.**     (a) Schedule 4.13(a) sets forth the names and addresses of all of the customersof SW and WCF with respect to the Transferred Assets as of the date hereof, and sets forthmonthly billing information related to such customers. None of the customers, to theknowledge of the WCA Parties, intends to terminate or change significantly, its relationshipas presently existing, and the WCA Parties have received no notice to such effect.     (b) Schedule 4.13(b) sets forth a true and complete list of all of thecontracts, agreements and other instruments and arrangements (whether written or oral) (i)by which SW or the Ft. Myers Assets are bound or affected or (ii) to which SW or WCF (withrespect to the Ft. Myers Assets) is a party (the “Contracts”), including but notlimited to: (A) arrangements relating to providing solid waste collection, transportation ordisposal services to any person or entity; (B) licenses, permits, insurance policiesand other arrangements concerning or relating to real estate; (C) employment, consulting,collective bargaining or other similar arrangements relating to or for the benefit ofcurrent, future or former employees, agents, and independent contractors or consultants; (D)agreements and instruments relating to the borrowing of money or obtaining of or extensionof credit, (E) brokerage or finder’s agreements; (F) contracts involving a sharing ofprofits or expenses; (G) acquisition or divestiture agreements; (H) service or operatingagreements, manufacturer’s representative agreements or distributorship agreements; (I)arrangements limiting or restraining SW or WCF with respect to the Ft. Myers Assets fromengaging or competing in any lines of business or with any person; (J) documents granting apower of attorney; and (K) any other agreements or arrangements that are material to theoperation of SW and the Ft. Myers Assets.
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     (c) Except as set forth on Schedule 4.13(c): (i) this Agreement will not giverise to the right of any WCA Party to terminate or modify any contract or agreement, (ii)neither SW nor WCF is a party to any contract, agreement or other instrument or commitmentwhich, singly or in the aggregate, materially and adversely affects such the business,operations, properties, assets or condition (financial or otherwise) of SW or the Ft. MyersAssets; and (iii) neither SW nor WCF is bound by or subject to (and none of theirrespective assets or properties is bound by or subject to) any arrangement with any laborunion.     **4.14****Real Property**. Except as set forth on Schedule 4.14 attached hereto:     (a) WCF owns good and marketable title to its real property described on Schedule4.14 (“WCF’s Real Property”), free and clear of any lien, mortgage, charge, restriction,pledge, security interest, option, lease, claim, easement, encroachment or encumbrance(“Lien”), other than the Permitted Title Encumbrances, and no person has an option topurchase all or any portion of such real property;     (b) WCF’s Real Property is not subject to any pending or threatened condemnationProceedings against all or part thereof; and     (c) WCF has not granted any person or entity a lease, sublease, license, concession, orother right, written or oral, to use or occupy WCF’s Real Property, nor has WCF ever enteredinto an option, right of first refusal, or other agreement that would permit any person orentity to purchase all or part of WCF’s Real Property.     **4.15****Insurance**. The WCA Parties have delivered to the WSI Parties on Schedule4.15 an accurate list of all of the insurance policies of the WCA Parties, as well as anaccurate list of: (a) all of their respective insurance loss runs and worker’s compensation claimsreceived for the past three (3) policy years with respect to SW and the Ft. Myers Assets; (b) allopen claims with respect to SW and the Ft. Myers Assets; and (c) all known circumstances reasonablylikely to result in a claim with respect to SW and the Ft. Myers Assets. Such insurance policiesare currently in full force and effect and shall remain in full force and effect through theClosing Date. None of the WCA Parties’ insurance has ever been canceled, and neither WCF nor SWhas ever been denied coverage.     **4.16****Employment Matters**. Schedule 4.16 contains a list of all employeesperforming services for SW and the Ft. Myers Assets, including the annual compensation, hourlywages, daily rate of pay, vacation, sick pay and other benefits for all such employees. The WCAParties have paid in full to all of their respective employees all wages, salaries, commissions onjobs finished, bonuses and other direct compensation for all services performed (including accruedvacation) by them prior to the Closing and all amounts required to be reimbursed to the employees,and the WSI Parties will not, by reason of anything done prior to the Closing, be liable to anyemployee for “severance pay” or any other payment. The WCA Parties are in material compliance withall federal, state, local and foreign laws and regulations respecting employment and employmentpractices, terms and conditions of employment and wages and hours.
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     **4.17****Parachute Provisions**. The WCA Parties have delivered to the WSI Parties onSchedule 4.17 an accurate schedule showing all of the employment agreements and any otheragreements containing “parachute” provisions, and deferred compensation agreements which pertain toSW and the Ft. Myers Assets (which shall be considered “liabilities” and retained or assigned toWCF pursuant to Section 4.8), together with copies of such plans, agreements and any trusts relatedthereto, and classifications of employees covered thereby as of the Closing Date.     **4.18****Benefit Plans; ERISA Compliance**.     (a) The WCA Parties are Affiliates of WCA Management Company, LP and WCA WasteCorporation. SW and WCF participate in, but do not sponsor or maintain any “employee pensionbenefit plans” (as defined in Section 3(2) of the Employee Retirement Income Security Act of1974, as amended (“ERISA”)) (sometimes referred to in this Section 4.18 as“Pension Plans”), “employee welfare benefit plans” (as defined in Section 3(1) ofERISA) (sometimes referred to in this Section 4.18 as “Welfare Plans”) or any otherBenefit Plans, as defined below.     (b) Neither SW nor WCF maintains any Pension Plan or Benefit Plan intended to be a taxqualified plan described Section 401(a) of the Code, and no such plan is or has been subjectto the minimum funding rules of Code Section 412 or ERISA Section 302, or the plantermination insurance provisions of Title IV of ERISA.     (c) There are no voluntary employee benefit associations maintained by SW or WCF andintended to be exempt from federal income tax under Section 501(c)(9) of the Code.     (e) Neither the execution of this Agreement nor the consummation of the transactionscontemplated by this Agreement will give rise to, or trigger, any change of control,severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan thatwill obligate SW to make such payment. The consummation of any transaction contemplated bythis Agreement will not result in any: (i) payment (whether of severance pay or otherwise)becoming due from SW to any of their respective officers, employees, former employees ordirectors or to the trustee under any “rabbi trust” or similar arrangement; (ii) benefitunder any Benefit Plan applicable to SW beingestablished or becoming accelerated, vested or payable; or (iii) payment or series ofpayments by SW, directly or indirectly, to any person that would constitute a “parachutepayment” within the meaning of Section 280G of the Code.     (f) Neither SW nor WCF provides any material post-retirement medical, health,disability or death protection coverage or contribute to or maintain any employee welfarebenefit plan which provides for medical, health, disability or death benefit coveragefollowing termination of employment by any officer, director or employee except as isrequired by Section 4980B(f) of the Code or other applicable statute, nor has SW made anyrepresentations, agreements, covenants or commitments to provide that coverage.
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     (g) With respect to any Welfare Plan applicable to SW and WCF, (i) each such WelfarePlan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code,complies in all material respects with any applicable requirements of Part 6 of Title I ofERISA and Section 4980B(f) of the Code and (ii) each such Welfare Plan (including any suchplan covering retirees or other former employees) may be amended or terminated with respectto health benefits without material liability to SW or the Ft. Myers Assets on or at anytime after the Closing Date.     (h) All contributions by SW required by law or by a collective bargaining or otheragreement to be made under any Pension Plan, Welfare Plan or Benefit Plan with respect toall periods through the Closing Date, including a pro rata share of contributions due forthe current plan year, will have been made by such date.     (i) SW does not have, nor will SW have, any liability or obligation for taxes,penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses,costs, or any other liability or liabilities of any nature whatsoever arising out of or inany manner relating to any Pension Plan, Welfare Plan or Benefit Plan (including but notlimited to employee benefit plans such as foreign plans which are not subject to ERISA),that has been, or is, contributed to by any entity, whether or not incorporated, which isdeemed to be under common control (as defined in Section 414 of the Code), with SW.     **4.19****Conformity with Law**.     With respect to the Transferred Assets:     (a) Both SW and WCF have complied in all material respects with, and neither SW nor WCFis in material default under, any law, rule, ordinance, ruling, directive, or regulation orany order, award, judgment or decree of any court or federal, state, municipal or othergovernmental department, commission, board, bureau, agency or instrumentality havingjurisdiction over SW and WCF; there are no claims, actions, suits or Proceedings, pending orthreatened, against or affecting either SW or WCF, at law or in equity, or before or by anyfederal, state, municipal or other governmental department, commission, board, bureau,agency or instrumentality having jurisdiction over SW or WCF; and no notice of any claim,action, suit or Proceeding, whether pending or threatened, has been received by either SW orWCF.     (b) SW and WCF have conducted and are conducting the operations of SW and the Ft. MyersAssets in material compliance with the requirements, standards, criteria and conditions setforth in applicable federal, state and local statutes, ordinances, permits, licenses,orders, approvals, variances, rules and regulations, including, without limitation, all suchlaws, rules, ordinances, decrees and orders relating to intellectual property protection,transportation, wage and hour, antitrust matters, consumer protection, currency exchange,environmental protection, equal employment opportunity, health and occupational safety,pension and employee benefit matters, securities and investor protection matters, labor andemployment matters, and trading-with-the-enemy matters.
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     (c) Neither SW nor WCF has received any notification of any asserted present or pastunremedied failure by it to comply with any of such laws, rules, ordinances, decrees ororders.     **4.20****Taxes**.     (a) Except as set forth on Schedule 4.20, both SW and WCF have timely filed allrequisite federal and other Tax Returns for all fiscal periods ended on or before theClosing Date; there are no open years, examinations in progress or claims against either SWor WCF for federal and other Taxes (including penalties and interest) for any period orperiods prior to and including the Closing Date; and, except as set forth on Schedule4.20, no notice of any claim, whether pending or threatened, for Taxes has beenreceived. After the Closing, neither SW nor WCF will be obligated or liable in respect ofany Tax pursuant to any Tax allocation or sharing agreement (i.e., any agreement orarrangement for the payment of Tax liabilities or payment for Tax benefits with respect to aconsolidated, combined or unitary Tax Return which includes any such WSI Company) forperiods ending prior to the Closing Date; there are no requests for rulings with any taxauthority in respect of any Tax pending by SW or in respect of the Ft. Myers Assets; exceptas set forth on Schedule 4.20, no penalty or deficiency in respect of any Taxeswhich has been assessed against either SW or WCF remains unpaid; and, except as set forth onSchedule 4.20, all Taxes (whether or not shown on any Tax Return) for all fiscalyears ending on or before the Closing Date will be paid in the normal course of business bythe WCA Parties.     (b) Neither SW nor WCF is a subchapter S corporation within the meaning of sections1361 and 1362 of the Internal Revenue Code of 1986, as amended (“Code”), and neither is, noris an owner of any equity interests in, any “qualified subchapter S subsidiary” within themeaning of sections 1361(b)(3)(B) and 1362 of the Code.     **4.21****Completeness**. The certified copies of the Articles of Incorporation and Bylawsof SW, each as amended to date, and the copies of all leases, instruments, agreements, licenses,permits, certificates or other documents which are included on schedules attached hereto or whichhave been delivered to the WSI Parties in connection with the transactions contemplated hereby arecomplete and correct; neither SW nor WCF nor any other WCA Party hereto is in material defaultthereunder; except as set forth in the schedules and documents attached to this Agreement, therights and benefits of SW and the Ft. Myers Assets thereunder will not be adversely affected by thetransactions contemplated hereby; and the execution of thisAgreement and the performance of the obligations hereunder will not violate or result in abreach or constitute a default under any of the terms or provisions thereof.     **4.22****Government Contracts**. Except as set forth on Schedule 4.22, neither SWnor WCF (with respect to the Ft. Myers Assets) is now, and none has ever been, a party to anygovernmental contract subject to price redetermination or renegotiation.     **4.23****Absence of Changes**. Except as set forth in Schedule 4.23, since May 31,2007, there has not been:
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     (a) any material adverse change in the financial condition, assets, liabilities(contingent or otherwise), income or business of SW or the Ft. Myers Assets;     (b) any damage, destruction or loss (whether or not covered by insurance), change inzoning, or change in any law, rule, regulation, ordinance, or permit condition, materiallyadversely affecting the properties or business of SW or the Ft. Myers Assets;     (c) any change in the authorized or outstanding capital stock of SW or any grant of anyoptions, warrants, calls, conversion rights or commitments;     (d) any declaration or payment of any dividend or distribution in respect of the SWShares or any direct or indirect redemption, purchase or other acquisition of any of the SWShares;     (e) any bonus or any increase in the compensation, sales commissions, fringe benefitsor fee arrangement payable or to become payable by SW or WCF (with respect to the Ft. MyersAssets) to any of its officers, directors, employees, consultants or agents or any change inthe method by which sales commissions are calculated and paid;     (f) any work interruptions, labor grievances or claims filed or, to either SW’s orWCF’s knowledge, any proposed law or regulation or any event or condition of any character,materially adversely affecting the business or future prospects of SW or the Ft. MyersAssets;     (g) any sale or transfer, or any agreement to sell or transfer, any assets, property orrights of SW or the Ft. Myers Assets to any person;     (h) any cancellation, or agreement to cancel, any indebtedness or other obligationowing to SW or WCF (with respect to the Ft. Myers Assets);     (i) any plan, agreement or arrangement granting any preferential rights to purchase oracquire any interest in the assets, property or rights of SW or the Ft. Myers Assets orrequiring consent of any party to the transfer and assignment of any such assets, propertyor rights;     (j) any purchase or acquisition, or agreement, plan or arrangement to purchase oracquire, any property, rights or assets of SW or the Ft. Myers Assets;     (k) any waiver of any material rights or claims of SW or WCF (with respect to the Ft.Myers Assets);     (l) any breach, amendment or termination of any material contract, agreement, license,permit or other right to which SW or the Ft. Myers Assets is a party; or     (m) any transaction by SW or WCF (with respect to the Ft. Myers Assets) outside theordinary course of its business.
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**4.24****Deposit Accounts; Powers of Attorney**. SW and WCF have delivered to the WSIParties on Schedule 4.24 an accurate list as of the date of this Agreement, of:     (a) the name of each financial institution in which SW and WCF (with respect to the Ft.Myers Assets) have accounts or safe deposit boxes;     (b) the names in which such accounts or boxes are held;     (c) the type of accounts; and     (d) the name of each person authorized to draw thereon or have access thereto.     (e) Schedule 4.24 also sets forth the name of each person, corporation, firm orother entity holding a general or special power of attorney from SW and WCF and adescription of the terms of such power. Each such power has been or will be canceled on orbefore the Closing Date.     (f) Schedule 4.24 also sets forth a list of all financial assurance instrumentsissued by or on behalf of each of SW and WCF with respect to the Ft. Myers Assets, includingthe names of the surety, the obligee and the obligor for each such instrument, the penal sumfor each such instrument, the purpose of such instrument, and the termination or renewaldate of each such instrument.     **4.25****Proprietary Rights**. Except as set forth on Schedule 4.25, SW does notown or have any right or interest in any Intellectual Property, or any license or assignment withrespect thereto. SW has not granted to any third party a license or other authorization to use anyIntellectual Property of SW (except to any other one or more of the WCA Parties, which license orauthorization shall terminate upon the Closing), and no third party owns any ownership interest inor holds any claim, lien or other encumbrance, on any of SW’s Intellectual Property. Neither SWnor the WCA Parties has received any notification that either SW or WCF (with respect to the Ft.Myers Assets) has infringed upon or is infringing upon, or has engaged in or is engaging in anyunauthorized use or misappropriation of, any Intellectual Property owned by or belonging to anyother person; and there is no pending or threatened claim, and no basis for the assertion of anyvalid claim, against SW or the Ft. Myers Assets with respect to any such infringement, unauthorizeduse or misappropriation. Except for software used in connection with the operation of SW and theFt. Myers Assets, neither SW nor WCF has entered into any licensing agreements to use theIntellectual Property of thirdparties, and neither SW nor WCF (with respect to the Ft. Myers Assets) owes to any thirdparties royalties for the use of Intellectual Property.     **4.26****Validity of Obligations**. The execution and delivery of this Agreement by SW andWCF and the performance of the transactions contemplated herein have been duly and validlyauthorized by the sole shareholder of SW and the sole member of WCF, and this Agreement has beenduly and validly authorized by all necessary limited partnership action and is a legal, valid andbinding obligation of SW, WCF and the WSI Parties.
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     **4.27****Relations with Governments**. Neither SW nor WCF, nor any shareholder, member,manager, director, officer, agent, employee or other person acting on behalf of SW or WCF, has usedany funds of either SW or WCF for improper or unlawful contributions, payments, gifts orentertainment, or made any improper or unlawful expenditures relating to political activity todomestic or foreign government officials or others. Both SW and WCF have adequate financialcontrols to prevent such improper or unlawful contributions, payments, gifts, entertainment orexpenditures. Neither SW nor WCF, nor any partner, shareholder, member, manager, director,officer, agent, employee or other person acting on behalf of either SW or WCF, has accepted orreceived any improper or unlawful contributions, payments, gifts or expenditures. SW and WCF haveat all times complied, and are in compliance, in all material respects, with the Foreign CorruptPractices Act and in all material respects with all foreign laws and regulations relating toprevention of corrupt practices.     **4.28****Environmental Matters**. SW, WCF and the WCA Parties have delivered to the WSIParties all of the correspondence, agreements, notices or other documents related to the items setforth on Schedule 4.28.     Except as set forth in Schedule 4.28:     (a) the Ft. Myers Assets, SW and all property (whether real or personal) which is orwas formerly leased, used, operated, owned or managed in whole or in part in any manner bySW or any of its organizational predecessors (individually, any “Business Facility”, andcollectively, the “Business Facilities”) and all operations of the Ft. Myers Assets, SW andits Business Facilities are in material compliance and have been in material compliance withall applicable Environmental Laws;     (b) the Ft. Myers Assets, SW and its Business Facilities have obtained and are inmaterial compliance with all permits, licenses, registrations, approvals and otherauthorizations (including all applications for all of the foregoing) required under anyEnvironmental Law for the business of SW and the Ft. Myers Assets as currently conducted(collectively, “Environmental Permits”), and Schedule 4.28 contains an accurate andcomplete listing of all of the Business Facilities and all of the Environmental Permits ofSW and the Ft. Myers Assets;     (c) there is no past or present event, condition or circumstance that may interferewith the conduct of SW’s business and the Ft. Myers Assets in the manner now conductedrelating to SW’s and WCF’s compliance with Environmental Laws or whichconstitutes a material violation thereof, or which could have a material adverse effectupon the business or financial condition of SW or the Ft. Myers Assets;     (d) during the term of WCF’s ownership of or control of (i) SW, and (ii) the Ft. MyersAssets, (“Ownership Term”), SW and the Ft. Myers Assets, and any operations thereon, havenot been and are not currently subject to an Environmental Claim;     (e) there are no Environmental Claims or investigations pending or threatened,involving the release or threat of release of any Polluting Substances from or
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on (i) anyBusiness Facility of SW or WCF with respect to the Ft. Myers Assets, or (ii) any otherproperty where Polluting Substances generated by SW or WCF with respect to the Ft. MyersAssets, or originating from any Business Facility of SW or the Ft. Myers Assets have beenrecycled, stored, treated, released or disposed, or (iii) any property to which PollutingSubstances were transported by SW or WCF or (iv) any property on which SW or WCF (withrespect to the Ft. Myers Assets) performs or performed or may be required to performRemediation;     (f) there are no Polluting Substances on the Ft. Myers Assets or on any BusinessFacility of SW in an amount or concentration which would require reporting to anygovernmental authority or Remediation to comply with the requirements of Environmental Lawsand which have not been so reported;     (g) neither SW nor WCF (with respect to the Ft. Myers Assets) has undertakenRemediation or other decontamination or cleanup of any facility or site, nor entered intoany agreement or extended any offer for the payment of costs associated with such activity;     (h) WCF (with respect to the Ft. Myers Assets) and SW have filed all notices,notifications, financial assurance, applications and all similar documents which arerequired to be obtained or filed for the operation of their respective businesses or the useor operation of any of their respective Business Facilities, and neither has received anynotification that such filings are incomplete or insufficient;     (i) there are no Environmental Claims for which WCF or SW has failed to notify itsinsurers within contractually required notice periods or for which insurers have deniedcoverage or reserved their rights to deny coverage;     (j) there are no false or misleading statements in any current or prior EnvironmentalPermit relating to WCF (with respect to the Ft. Myers Assets) or SW or any of theirrespective Business Facilities;     (k) the transactions contemplated by this Agreement will not require the amendment ortransfer of any of the Environmental Permits;     (l) neither SW nor the Ft. Myers Assets is now, and to the best of the WCA Parties’knowledge, neither will be in the future (based solely upon the Environmental Laws as theyexist on the Closing Date), as a result of the operation or condition of SW’s BusinessFacilities and the Ft. Myers Assets or the businesses thereon as conducted priorto or at Closing, subject to any: (i) contingent liability in connection with anyrelease or threatened release of Polluting Substances into the environment other than thenormal or routine disposal of solid waste, whether on or off the Properties or any BusinessFacility of either SW or the Ft. Myers Assets; (ii) reclamation, decontamination orRemediation requirements under Environmental Laws, or any reporting requirements relatedthereto, except for ordinary closure requirements under Environmental Laws; or (iii) consentorder, compliance order or administrative order relating to or issued under anyEnvironmental Law;
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     (m) there are no obligations, undertakings or liabilities arising out of or relating toEnvironmental Laws which SW or WCF (with respect to the Ft. Myers Assets) has agreed to,assumed or retained, by contract or otherwise, except as referenced in the EnvironmentalPermits;     (n) there are no, nor to SW’s, WCF’s or the WCA Parties’ respective knowledge, havethere ever been any, storage tanks on or under any Business Facility of SW or the Ft. MyersAssets, and all Business Facilities of SW, and the Ft. Myers Assets containing such tanksduring the Ownership Term has been remediated in compliance with all Environmental Laws; and     (o) to the knowledge of the WCA Parties:     (i) no drinking water intakes or water wells exist within a two-mile radius ofany Business Facility of SW or the Ft. Myers Assets, which could have an adverseaffect on the Environmental Permits or any other governmental authorization;     (ii) there are no polychlorinated biphenyls on or in the Properties or anyBusiness Facility of SW or the Ft. Myers Assets, or any equipment or fixturesthereon; and     (iii) there are no airports, flood plains, wetlands, fault areas or seismicimpact zones on or near any property of SW or the Ft. Myers Assets, which could havea material effect on the Environmental Permits, any governmental authorization orthe assets of SW or the Ft. Myers Assets.     **4.29****No Broker’s or Finder’s Fees**. No agent, broker, investment banker, person orfirm has acted directly or indirectly on behalf of the WCA Parties or SW or WCF in connection withthis Agreement or the transactions contemplated herein who will be entitled to any broker’s orfinder’s fee or any other commission or similar fee or expense, directly or indirectly, inconnection with this Agreement or the transactions contemplated herein.     **4.30****Litigation**. Except as set forth in Schedule 4.30, there are noProceedings pending or, to the knowledge of the WCA Parties or WCF or SW, threatened against SW orWCF (with respect to the Transferred Assets), or challenging the validity or propriety of thetransactions contemplated by this Agreement or any Environmental Permit or other permit orgovernmental authorization applicable to SW or the Ft. Myers Assets; to the knowledge of the WCAParties and SW and WCF, there is no basis or ground for any such Proceedings; andthere is no outstanding order, writ, injunction or decree of any court, administrative agency,governmental body or arbitration tribunal against SW, WCF or the WCA Parties or their respectiveassets, which relates to or could have an effect on either SW or the Ft. Myers Assets. Set forthon Schedule 4.30 are all Proceedings (a) during the last five years to which WCF was aparty which Proceedings directly relate to the Ft. Myers Assets, and (b) since January 3, 2007 towhich SW was a party. Schedule 4.30 also includes all Proceedings which, to the knowledgeof the WCA Parties or SW or WCF, were threatened against SW or WCF
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with respect to the Ft. Myers Assets, or which relate in any manner to the assets of SW or theFt. Myers Assets.     **4.31****Disclosure**. To the knowledge of the WCA Parties, this Agreement and theschedules hereto and all other documents and information furnished to the WSI Parties and itsrepresentatives pursuant hereto do not and will not include any untrue statement of a material factor omit to state a material fact necessary to make the statements herein and therein notmisleading. If prior to Closing, the WCA Parties become aware of any fact or circumstance whichwould change a representation or warranty of the WCA Parties in this Agreement or anyrepresentation made on behalf of the WCA Parties or SW or the Ft. Myers Assets, the WCA Partiesshall immediately give notice of such fact or circumstance to the WSI Parties. Such notificationshall not relieve the WCA Parties of their obligations under this Agreement.**5.*****Covenants of Both Parties***     **5.1****Notices and Approvals**. The WCA Parties, on the one hand, and the WSI Parties, on theother hand, shall timely give all notices and request all approvals and assignments that may berequired in connection with the transactions contemplated by this Agreement under applicable law orany of the permits, agreements, orders or other instruments relating to the WSI Companies, in thecase of the WSI Parties, or the Transferred Assets, in the case of the WCA Parties.     **5.2****WSI Tax Covenants**.      (a) From and after the Closing, upon written notice by the WCA Parties, the WSI Partiesshall pay to the WCA Parties or, at the WSI Parties’ option, to the Internal Revenue Serviceand/or federal, state or local taxing authorities, as appropriate, and shall otherwiseindemnify, save and hold the WCA Parties harmless from and against all demands, claims,actions, causes of action, assessments, losses, damages, liabilities, costs and expensesasserted against, resulting to, imposed upon or incurred by the WCA Parties with respect tothe WSI Companies which directly or indirectly relate to or arise out of any tax years(including partial years) prior to the Closing Date with respect to any deficienciesassessed by the Internal Revenue Service and/or federal, state and local taxing authoritiesfor any federal, state or local income, sales, ad valorem or other tax liability arisingprior to the Closing Date. The WSI Parties shall also be obligatedunder this Section 5.2 forany assessment caused by any act or failure to act on the part of the WSI Parties after thedate of this Agreement. Ad valorem and other real estate taxes and similar taxes andassessments relating to the Real Property shall be prorated between the WSI Parties and theWCA Parties as of the Closing Date, based on estimates of the amount of taxes that will bedue and payable on the Real Property during the calendar year in which the Closing Dateoccurs.     (b) For purposes of the taxable year in which the transaction contemplated by thisAgreement shall close, the WSI Parties, at the WSI Parties’ sole cost and expense, shallprepare or cause to be prepared and file or cause to be filed all Tax Returns for the WSICompanies for all periods ending on or prior to the Closing Date. . The WSI Parties
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shallpay all Taxes attributable to the WSI Companies for the period prior to Closing in thenormal course of the WSI Parties’ businesses.     (c) Notwithstanding the foregoing or anything to the contrary contained herein, theParties agree that in the event of an audit or other examination by any governmentalauthority occurring after the Closing Date of any report filed with respect to Taxes whichincludes any period ending on or before the Closing Date, the WSI Parties shall consult theWCA Parties, and the WCA Parties shall provide the WSI Parties such assistance as reasonablymay be requested in connection with the preparation of such audit or other examination orany judicial or administrative proceeding relating to liability for Taxes, and the WCAParties shall provide the WSI Parties with any records or information related to the WSICompanies that may be relevant to any of the foregoing. Notwithstanding the foregoing oranything to the contrary contained herein, the Parties agree that in the event of anexamination or attempt to assess additional Federal or State income tax (“Income Tax Claim”)for which the WSI Parties have responsibility to pay, as identifiedin Subsection 5.2(a) hereinabove, or otherwise in this Agreement, the WSI Parties shall have complete authorityto review, examine, and determine the course of any defense or take any action necessary todefend, adjudicate or oppose, whether by protest, court action or otherwise, such Income TaxClaim and the WCA Parties agrees for itself and the WSI Companies to fully and completelycooperate, at the WCA Parties’ sole cost and expense, with the WSI Parties in the defense ofany such Income Tax Claim.     **5.3****WCA Tax Covenants**.      (a) From and after the Closing, upon written notice by the WSI Parties, the WCA Partiesshall pay to the WSI Parties or, at the WCA Parties’ option, to the Internal Revenue Serviceand/or federal, state or local taxing authorities, as appropriate, and shall otherwiseindemnify, save and hold the WSI Parties harmless from and against all demands, claims,actions, causes of action, assessments, losses, damages, liabilities, costs and expensesasserted against, resulting to, imposed upon or incurred by the WSI Parties with respect tothe Transferred Assets which directly or indirectly relate to or arise out of any tax years(including partial years) prior to the Closing Date with respect to any deficienciesassessed by the Internal Revenue Service and/or federal, state and local taxing authoritiesfor any federal, state or local income, sales, ad valorem or other tax liability arisingprior to the Closing Date. The WCA Parties shall also be obligated under this Section 5.3for any assessment caused by any act or failure to act on the part of the WCA Parties afterthe date of this Agreement. Ad valorem and other real estate taxes and similar taxes andassessments relating to the Real Property shall be prorated between the WSI Parties and theWSI Parties as of the Closing Date, based on estimates of theamount of taxes that will be due and payable on the Real Property during the calendaryear in which the Closing Date occurs.     (b) For purposes of the taxable year in which the transaction contemplated by thisAgreement shall close, the WCA Parties, at the WCA Parties’ sole cost and expense, shallprepare or cause to be prepared and file or cause to be filed all Tax Returns for theTransferred Assets for all periods ending on or prior to the Closing Date. The WCA
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Partiesshall pay all Taxes attributable to the Transferred Assets for the period prior to Closingin the normal course of the WCA Parties’ businesses.     (c) Notwithstanding the foregoing or anything to the contrary contained herein, theParties agree that in the event of an audit or other examination by any governmentalauthority occurring after the Closing Date of any report filed with respect to Taxes whichincludes any period ending on or before the Closing Date, the WCA Parties shall consult theWSI Parties, and the WSI Parties shall provide the WCA Parties such assistance as reasonablymay be requested in connection with the preparation of such audit or other examination orany judicial or administrative proceeding relating to liability for Taxes, and the WSIParties shall provide the WCA Parties with any records or information related to theTransferred Assets that may be relevant to any of the foregoing. Notwithstanding theforegoing or anything to the contrary contained herein, the Parties agree that in the eventof an examination or attempt to assess additional Federal or State income tax (“Income TaxClaim”) for which the WCA Parties have responsibility to pay, as identified in Subsection5.3(a) hereinabove, or otherwise in this Agreement, the WCA Parties shall have completeauthority to review, examine, and determine the course of any defense or take any actionnecessary to defend, adjudicate or oppose, whether by protest, court action or otherwise,such Income Tax Claim and the WSI Parties agrees for itself and the Transferred Assets tofully and completely cooperate, at the WSI Parties’ sole cost and expense, with the WCAParties in the defense of any such Income Tax Claim.     **5.4****Compliance with Laws**. Each Transferring Party shall comply with all applicable lawsin all material respects, as may be required for the sale and transfer of the applicable AcquiredBusinesses to be transferred by it hereunder and for the performance of all other acts and thingscontemplated by this Agreement.     **5.5****Transition Operations**. For a period of 120 days following the date of Closing,without additional consideration, the Parties agree to assist each other with the orderlytransition of the operations of the Acquired Businesses. Such assistance shall include, withoutlimitation, assisting the applicable Acquiring Party in obtaining contracts with current customers,routing transition activities and developing sufficient information to allow the Acquiring Party tocompile accurate customer billings. The foregoing is not intended to require the Transferring Partyto maintain regular office hours or work on anything other than a part-time basis. Any and allcosts orexpenses incurred by the respective Parties, including travel expenses in connection with theforegoing, shall be paid by the applicable Acquiring Party.     **5.6****Permit Transfers and Substitution of Financial Assurance**. Not more than thirty(30) days following the Closing:     (a) the WSI Parties agree to deliver to the Florida Department of EnvironmentalProtection all documents required for the transfer to WSF of all Environmental Permitsissued to WCF or SW with respect to the Transferred Assets.     (b) The WSI Parties agree to deliver to the Florida Department of EnvironmentalProtection (“FDEP”) and all other obligees listed on Schedule 4.24 all
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documents requiredfor the substitution of WSF for WCF on all financial assurance mechanisms listed on Schedule4.24. With respect to the Environmental Permits, such financial assurance will be in anamount sufficient to permit the FDEP to replace all financial assurance mechanisms currentlyon deposit for the benefit of the FDEP for the closure and post-closure obligations of WCFand SW with respect to the Transferred Assets.     (c) The WCA Parties agree to deliver to the Texas Commission on Environmental Quality(“TCEQ”) and all other obligees listed on Schedule 3.24 all documents required for thesubstitution of a WCA Party for Fort Bend Landfill and Ruffino on all financial assurancemechanisms listed on Schedule 3.24. With respect to the Environmental Permits, suchfinancial assurance will be in an amount sufficient to permit the TCEQ to replace allfinancial assurance mechanisms currently on deposit for the benefit of the TCEQ for theclosure and post-closure obligations of Fort Bend Landfill and Ruffino.     **5.7****Audit**. WCA Parent, at its own cost and expense, may engage external auditors toaudit the WSI Companies’ financial records (including up to three years of historical data). WSIParent agrees to take all commercially reasonable efforts to cooperate with any such audit and toassist in the completion of such audit, including, without limitation, by providing, executing andacknowledging all such documents that are necessary to complete the audit, and by making anyrepresentations regarding the Companies and the financial records of the Companies as may bereasonably requested by WCA Parent or its external auditors.     **5.8****Removal of Identification**. Within ninety (90) days following the Closing, (a) theWCA Parties shall change the name of WST and remove or otherwise conceal all names, trade names,service marks and logos of WSI from all of the assets owned by the WSI Companies; and (b) the WSIParties shall remove or otherwise conceal all names, trade names, service marks and logos of WCFfrom all of the Ft. Myers Assets.***6. Noncompetition***     **6.1****Prohibited Activities**.     (a) Except as set forth in the following paragraph, no Transferring Party, nor any ofits subsidiaries and affiliates, and their respective directors, officers, employees andagents (collectively, as to each Transferring Party, the “Restricted Persons”), shall forany reason whatsoever, directly or indirectly, for himself or itself or on behalf of or inconjunction with any other person, company, partnership, corporation or business of whateverkind or nature, engage, as an officer, director, shareholder, owner, member, partner, jointventurer, lender or in any other capacity, whether as an employee, independent contractor,consultant, advisor, or otherwise, or as a sales representative, of any business operatingin the Non-Compete Area in direct or indirect competition with any Acquired Businesscontrolled, directly or indirectly, as of the date of this Agreement by such TransferringParty or its Affiliates. The “Non-Compete Area” means, as to the restrictions placed on anyof the WCA Parties or their Affiliates and related Restricted
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Persons, ***; and in the caseof any of the WSI Parties or their Affiliates and related Restricted Persons, ***.     Notwithstanding the foregoing provisions of this paragraph (a) each Restricted Personmay (i) be a passive investor owning no more than five percent (5%) of the outstandingequity securities of any corporation or other entity the equity securities of which arelisted on a national securities exchange or traded on the NASDAQ National Market System andwith which such persons have no other connection whatsoever and/or (ii) invest in or act asan employee of, consultant for, or hold another position with, the Acquiring Parties or anAffiliate of the Acquiring Parties in respect of the applicable Acquired Businesses or (iii)in the case of any of the WCA Parties and their respective Restricted Persons, such Personsmay accept and process any Waste or components or elements of Waste that originates withinthe Non-Compete Area, provided they have (i) not conducted directed marketing orsolicitation efforts targeted specifically to the Non-Compete Area, or (ii) no actualknowledge that the Waste originated in the Non-Compete Area; *provided, however*, that no WCAParty shall be under any duty of inquiry with respect to the origin of any such Waste;     (b) Except as provided in Section 6.1(a) above, with respect to operations ortransactions in the Non-Compete Area, the Restricted Parties shall not, and each of themshall cause its respective Affiliates to not, engage or participate in any effort or act tosolicit or induce any customer, supplier, associate, employee, sales or other agent,independent contractor, or other person in a business relationship with an Acquired Businessas to which such Restricted Party or any of its Affiliates is the Transferring Party, orwhich has been a customer, supplier, associate, employee, sales or other agent, independentcontractor, or other person in a business relationship with such Acquired Business withinthree (3) years prior to that time, to discontinue such relationship with Acquiring Party orsuch Acquired Business, or to take any action which is calculated to harm such AcquiringParty or such Acquired Business;     (c) With respect to operations or transactions in the Non-Compete Area, none of theRestricted Persons shall, for any reason whatsoever, directly or indirectly for himself oron behalf of or in conjunction with any other person, company, partnership, corporation orbusiness of whatever kind or nature, call upon any prospective acquisition candidate of suchpersons, on such persons’ behalf or on behalf of any competitor.     (d) In the event that a Restricted Party consummates a transaction, whether byacquisition, merger, asset purchase or other form of business combination (a “TargetAcquisition”), and the Target Acquisition includes any business units or operations locatedin the Non-Compete Area applicable to such Restricted Party, such Restricted Party shall notbe deemed to have violated this Section, provided that (i) the portion of the EBITDA of theTarget Acquisition generated by the operations falling within the Non-Compete Area is lessthan twenty percent (20%) of the EBITDA of the overall Target Acquisition; and (ii) withinone hundred eighty (180) days after the closing of the Target Acquisition, the RestrictedParty fully divests itself of the operations and business units of the Target Acquisitionfalling within the Non-Compete Area.
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     (e) The time period for the restrictions set forth in this Article 6 shall be *** afterthe Closing Date; *provided, however*, that in the event (i) of a default in the payment ofthe Note, or (ii) of a default (as defined therein) in the Mortgage and Security Agreementsecuring the payment of the Note (and in the event of either (i) or (ii), such default isnot cured within ten (10) business days following notice from any WCA Party to either Makerof the Note), or (iii) that the Option (as defined herein) becomes exercisable, allrestrictions upon the WCA Parties shall immediately terminate.     **6.2****Damages**. The Restricted Persons each acknowledge that the damages that would besuffered by a Party as a result of any breach of the provisions of this Article 6 may not becalculable and that an award of a monetary judgment for such a breach would be an inadequateremedy. Consequently, the affected Party shall have the right, in addition to any other rights itmay have, to obtain, in any court of competent jurisdiction, injunctive relief to restrain anybreach or threatened breach of any provision of this Article 6 or otherwise to specifically enforceany of the provisions hereof, and the affected Party shall not be obligated to post a bond or othersecurity in seeking such relief. This remedy is in addition to damages directly or indirectlysuffered by the affected Party and reasonable attorney’s fees.     **6.3****Independent Covenant**. All of the covenants contained in this Article 6 shall beconstrued as an agreement independent of any other provision of this Agreement, and the existenceof any claim or cause of action of the Restricted Persons against the affected Party, whetherpredicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by theaffected Party or the applicable Acquired Business of such covenants.     **6.4****Materiality and Enforceability**. The Restricted Persons each agree that the covenantscontained in this Article 6 are a material and substantial part of this transaction. The Partiesagree that a portion of the consideration paid by the applicable Acquiring Parties pursuant to thisAgreement is in exchange for the covenants contained in this Article 6, and therefore, the durationand area for which the covenants in this Article 6 are to be effective are reasonable. In theevent that any court finally determines that the time period or the geographic scope of any suchcovenant is unreasonable or excessive and any covenant is to that extent made unenforceable, theParties agree that the restrictions of this Article 6 shall remain in full force and effect for thegreatest time period and within the greatest geographic area that would not render itunenforceable. The Parties intend that each of the covenants in Article 6 shall be deemed to be aseparate covenant.**7.*****Survival of Covenants, Representations and Warranties; Indemnification***     **7.1****Survival of Covenants, Representations, and Warranties**.     (a) The representations and warranties of the Parties contained in this Agreement shallsurvive the Closing hereunder and continue in full force and effect for the longer of ***,or (b) the date upon which the liability to which any such claim may relate is barred by allapplicable statutes of limitation, taking into account any extensions or waivers thereof,and thereafter shall terminate (“Expiration Date”).
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     (b) No Party shall be obligated to indemnify any other Party pursuant to this Article 7for any claim that is first made after the Expiration Date. Claims first made prior to theExpiration Date shall be subject to indemnity pursuant to this Article 7 throughout theentirety of the Proceeding or Proceedings arising out of such claim, notwithstanding thefact that such Proceeding or Proceedings may extend beyond the Expiration Date.     **7.2****Indemnification by the WSI Parties**. For claims for indemnification made under thisSection 7.2, the WSI Parties will, from and after Closing and during the period prior to theExpiration Date, jointly and severally, unconditionally, absolutely and irrevocably agree to andshall defend, indemnify and hold harmless the WCA Parties and each of their respectivesubsidiaries, shareholders, affiliates, officers, directors, employees, counsel, accountants,agents, successors, assigns, heirs and legal and personal representatives (the WCA Parties and allsuch persons or entities are collectively referred to as “WCA Indemnified Persons”) from andagainst, and shall reimburse the WCA Indemnified Persons for, each and every Loss paid, imposed onor incurred by the WCA Indemnified Persons, directly or indirectly, relating to, resulting from orarising out of: (a) any inaccuracy in any representation or warranty of any WSI Party under thisAgreement, (including the Schedules hereto), or any breach or nonfulfillment of any covenant,agreement or other obligation of any WSI Party under this Agreement or any agreement or documentdelivered pursuant hereto; (b) all Environmental Claims arising with respect to facts, conditions,events, operations and circumstances existing prior to the Closing Date; provided, however, that intheevent of any Environmental Claim that arises with respect to facts, conditions, events,operations and circumstances arising both before and after the Closing Date, the WSI Parties’indemnification obligations shall be limited to such matters arising with respect to facts,conditions, events, operations and circumstances on or prior to the Closing Date; and (c) the WSIRetained Liabilities. Each such Loss is hereinafter referred to as a “WSI Indemnifiable Claim”.     **7.3****Indemnification by the WCA Parties**. Except as set forth in (d) below, for claims forindemnification made under this Section 7.3, the WCA Parties will, from and after Closing andduring the period prior to the Expiration Date, jointly and severally, unconditionally, absolutelyand irrevocably agree to and shall defend, indemnify and hold harmless the WSI Parties and each oftheir respective subsidiaries, shareholders, affiliates, officers, directors, employees, counsel,accountants, agents, successors, assigns, heirs and legal and personal representatives (the WSIParties and all such persons or entities are collectively referred to as “WSI Indemnified Persons”)from and against, and shall reimburse WSI Indemnified Persons for, each and every Loss paid,imposed on or incurred by WSI Indemnified Persons, directly or indirectly, relating to, resultingfrom or arising out of:     (a) any inaccuracy in any representation or warranty of any WCA Party under thisAgreement, (including the Schedules hereto), or any breach or nonfulfillment of anycovenant, agreement or other obligation of any WCA Party under this Agreement or anyagreement or document delivered pursuant hereto;     (b) all Environmental Claims arising with respect to facts, conditions, events,operations and circumstances existing prior to the Closing Date; provided, however, that inthe event of any Environmental Claim that arises with respect to facts, conditions,
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events,operations and circumstances arising both before and after the Closing Date, the WCAParties’ indemnification obligations shall be limited to such matters arising with respectto facts, conditions, events, operations and circumstances on or prior to the Closing Date;and     (c) the WCA Retained Liabilities. Each such Loss is hereinafter referred to as a“WCAIndemnifiable Claim”.     (d) Notwithstanding anything set forth in this Section 7.3 to the contrary, no WCAParty shall have any obligation to indemnify any WSI Indemnified Person for any Loss that isattributable or arises with respect to SW that arises or is attributable to facts,conditions, events, operations and circumstances prior to January 3, 2007, unless and untilthe WSI Parties have exhausted all remedies set forth in or permitted to the “Buyer”pursuant to the SW Agreement.     **7.4****Notice and Defense of Third Party Claims**. If any Proceeding shall be brought orasserted under this Article 7 against an indemnified party or any successor thereto (the“Indemnified Person”) in respect of which indemnity may be sought under this Article 7 from anindemnifying person or any successor thereto (the “Indemnifying Person”), the Indemnified Personshall give prompt written notice of such Proceeding to the Indemnifying Person who shall assume thedefense thereof, including theemployment of counsel reasonably satisfactory to the Indemnified Person and the payment of allexpenses; provided, that any delay or failure to so notify the Indemnifying Person shall relievethe Indemnifying Person of its obligations hereunder only to the extent, if at all, that it isprejudiced by reason of such delay or failure. In no event shall any Indemnified Person berequired to make any expenditure or bring any cause of action to enforce the Indemnifying Person’sobligations and liability under and pursuant to the indemnifications set forth in this Article 7.In addition, the filing of a Proceeding shall not be required as a condition or prerequisite to theIndemnifying Person’s obligations under this Article 7, if the Indemnified Person is required toexpend sums for investigation or remedial purposes as a result of a threatened Proceeding. TheIndemnified Person shall have the right to employ separate counsel in any of the foregoingProceedings and to participate in the defense thereof, but the fees and expenses of such counselshall be at the expense of the Indemnified Person unless the Indemnified Person shall in good faithdetermine that there exist actual or potential conflicts of interest which make representation bythe same counsel inappropriate. The Indemnified Person’s right to participate in the defense orresponse to any Proceeding should not be deemed to limit or otherwise modify its obligations underthis Article 7. In the event that the Indemnifying Person, within 15 days after notice of any suchProceeding, fails to assume the defense thereof, the Indemnified Person shall have the right toundertake the defense, compromise or settlement of such Proceeding for the account of theIndemnifying Person, subject to the right of the Indemnifying Person to assume the defense of suchProceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to thesettlement, compromise or final determination thereof. Anything in this Article to the contrarynotwithstanding, the Indemnifying Person shall not, without the Indemnified Person’s prior writtenconsent, settle or compromise any Proceeding or consent to the entry of any judgment with respectto any Proceeding for anything other than money damages paid by the Indemnifying Person. TheIndemnifying Person may, without the Indemnified Person’s prior written consent, settle orcompromise any such Proceeding or consent to entry of any judgment with respect to
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any suchProceeding that requires solely the payment of money damages by the Indemnifying Person and thatincludes as an unconditional term thereof the release by the claimant or the plaintiff of theIndemnified Person from all liability in respect of such Proceeding.     **7.5****Insurance, Payment and Interest**. The amount of any Loss for which an IndemnifiedPerson shall seek indemnification under this Article 7 shall be reduced by (a) the amount of anyinsurance proceeds paid to the Indemnified Person arising out of the event giving rise to theclaim, and (b) the cash benefit inuring to the Indemnified Person as a result of any federal, stateor local tax claim made by such Indemnified Person which tax claim arises out of the Loss. TheIndemnifying Person shall make any payment required to be made under this Section 7.5 inimmediately available funds and on demand. Any amounts or payments required to be paid by anIndemnifying Person under this Section 7.5 which are not paid within fifteen (15) business days ofreceipt by the Indemnifying Person of the Indemnified Person’s demand therefor shall thereafter bedeemed delinquent, and the Indemnifying Person shall pay to the Indemnified Person immediately upondemand, interest at the rate of eight percent (8%) per annum, from the date such payment becomesdelinquent to the date of payment of such delinquent sums.     **7.6****NEGLIGENCE AND STRICT LIABILITY**     WITHOUT LIMITING OR ENLARGING THE SCOPE OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THISAGREEMENT, THE PARTIES HERETO SHALL BE ENTITLED TO INDEMNIFICATION IN ACCORDANCE WITH THE TERMSHEREOF, REGARDLESS OF WHETHER THE LOSS OR CLAIM GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION ISTHE RESULT OF THE STRICT LIABILITY OF THE PARTY INDEMNIFIED. THE INDEMNIFIED PARTY SHALL BEENTITLED TO INDEMNIFICATION WITH RESPECT TO LOSSES OR CLAIMS ARISING IN PART FROM THE NEGLIGENCE OFTHE INDEMNIFIED PARTY; PROVIDED THAT THE INDEMNIFIED PARTY SHALL NOT BE ENTITLED TO INDEMNIFICATIONFOR THAT PERCENTAGE OF A LOSS OR CLAIM ATTRIBUTABLE TO THE INDEMNIFIED PARTY’S NEGLIGENCE. THEPARTIES AGREE THAT THIS PARAGRAPH CONSTITUTES A CONSPICUOUS LEGEND.     **7.7****Limits of Liability**     (a) Except as set forth in (b) below, the liability of the WCA Parties to the WSIParties under this Agreement shall not exceed *** (the “WCA Cap”). The liability of the WSIParties to the WCA Parties under this Agreement shall not exceed *** (the “WSI Cap”). Nosuch party shall be obligated to provide indemnification under this Agreement for any damageuntil the aggregate indemnifiable Damages exceed *** (the “Threshold”). Upon a party’saggregate indemnifiable Damages reaching the Threshold, all such Damages (including thefirst ***) shall be subject to indemnification.     (b) Notwithstanding the limits set forth in (a) above, no Party’s indemnity obligationshereunder shall be subject to the Threshold, nor shall be limited to the respective Party’sCap with respect to (i) any obligations of the respective Parties
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(including allsubsidiaries thereof) to pay Taxes for any period ending on or prior to the Closing Date.***8. The Closing; Deliveries***.     **8.1****The Closing**. The transfer of the Equity Interests to WCT GP and WCT LP, theTransferred Assets to WSF and the delivery of other documents, instruments and consideration hereinprovided (the “Closing”) shall take place at 9:00 a.m., Central Daylight Time, on June 29, 2007(the “Closing Date”), at the offices of Andrews Kurth LLP, 600 Travis, Suite 4200, Houston, Texas77002, or at such other time or place as the Parties may mutually agree upon.     **8.2**Deliveries by WSI Parties.     At the Closing, the WSI Parties shall deliver the following, all duly executed, to WCT GP andWCT LP, respectively:     (a) the certificates for all issued and outstanding Equity Interests, endorsed WSGP andWSLP, together with all related releases of liens, and subject only to the followingrestrictive legend:THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER FEDERAL ORSTATE SECURITIES LAWS, AND WERE ACQUIRED BY THE REGISTERED HOLDER PURSUANT TO AREPRESENTATION THAT SUCH HOLDER WAS ACQUIRING SUCH SECURITIES FOR INVESTMENT. THESECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVEREGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE FEDERAL OR STATE SECURITIES LAWSOR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT REGISTRATION ISNOT REQUIRED THEREUNDER. ANY TRANSFER CONTRARY TO SUCH RESTRICTION IS VOID.;     (b) the Note, together with all documents providing security for payment of the Note;     (c) the Assignment and Assumption Agreement;     (d) the Transition Services Agreement;     (e) such resolutions and authorizations by the appropriate shareholders, directors,officers, managers and members of the Companies as are necessary or required by the WCAParties in connection with this transaction and including a certificate dated as of theClosing Date duly executed by the Secretary of each Company certifying as to incumbency,specimen signatures, and the resolutions authorizing this Agreement; and     (f) such other agreements, documents and instruments as the Parties determine areappropriate.
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**9.*****Deliveries by WCA Parties***. At the Closing, the WCA Parties shall deliver:     (a) the certificates for all issued and outstanding Shares of SW, endorsed by WCF, andsubject only to the following restrictive legend:THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER FEDERAL ORSTATE SECURITIES LAWS, AND WERE ACQUIRED BY THE REGISTERED HOLDER PURSUANT TO AREPRESENTATION THAT SUCH HOLDER WAS ACQUIRING SUCH SECURITIES FOR INVESTMENT. THESECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVEREGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE FEDERAL OR STATE SECURITIES LAWSOR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT REGISTRATION ISNOT REQUIRED THEREUNDER. ANY TRANSFER CONTRARY TO SUCH RESTRICTION IS VOID.;     (b) the cash described in Section 1.1(d), by wire transfer or other form of immediatelyavailable funds;     (c) the special warranty deed conveying all of WCF’s interests in its real property atthe MRF;     (d) the bill of sale transferring all of the Transferred Assets;     (e) the Transition Services Agreement; and     (f) such other agreements, documents and instruments as the Parties determine areappropriate.***10. Certain Definitions***“Acquired Businesses” means the WSI Companies and the Transferred Assets, collectively.“Acquiring Parties” means the WCA Parties, as to the businesses, operations and assets ofWSGP, WSLP, Fort Bend Landfill, Ruffino, SW, the Landfill, the Transfer Station or theHauling Business; and the WSI Parties, as to the businesses, operations and assets of WCF,SW, the MRF or the Collection Business.“Affiliate” means (a) any entity directly or indirectly controlled by, controlling or undercommon control with a Party; (b) any director or executive officer of such party or of anyentity referred to in (a) above; and (c) if any Party is an individual, any member of theimmediate family (including parents, spouse, siblings, children and grandchildren) of suchindividual and any trust whose principal beneficiary is such individual or one or moremembers of such immediate family and any person or entity who is controlled by any suchmember or trust. For purposes of this definition, any person or entity which owns directlyor indirectly 10% or more of the securities having ordinary voting power
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for the election ofdirectors or other governing body of a corporation or 10% or more of the partnership orother ownership interests of any entity (other than as a limited partner of such otherentity) will be deemed to “control” (including, with its correlative meanings, “controlledby” and “under common control with”) such entity or person.“Benefit Plan” means any collective bargaining agreement or any bonus, pension, profitsharing, deferred compensation, incentive compensation, stock ownership, stock purchase,stock option, phantom stock, retirement, vacation, severance, disability, death benefit,hospitalization, medical, dependent care, cafeteria, employee assistance, scholarship orother plan, program, arrangement or understanding (whether or not legally binding)maintained in whole or in part, contributed to, or required to be contributed to by theCompanies for the benefit of any of their respective present or former officers, employeesor directors which is not a Pension Plan or Welfare Plan.“Current Liabilities” has the meaning assigned to it under GAAP.“Disposal” or “disposed” means the discharge, deposit, injection, dumping, spilling, leakingor placing of any Polluting Substance into or on any land or water so that such PollutingSubstance or any constituent thereof may enter the environment or be emitted into the air ordischarged into any waters, including ground waters.“Environmental Claim(s)” means all claims, liabilities, notices, actions, causes of action(arising under common law, contract or statute), suits, judgments, demands, liens,governmental or private investigations or testing, demands to study or notification ofstatus of being potentially responsible for clean-up of any facility or for being inviolation or in potential violation of any requirement of Environmental Law, whetherthreatened, sought, brought or imposed relating to or which seeks to impose liability or torecover damages, losses, payments, penalties, costs, fines, penalties, disbursements orexpenses (including, without limitation, fees disbursements and expenses of attorneys andother professional advisors and of expert witnesses and costs of investigation, testing andpreparation) regarding any Company or any of its Business Facilities, its assets or anyoperations conducted by such Company for: (a) improper use or treatment of wetlands,pinelands or other protected land or wildlife; (b) noise; (c) pollution, contamination,preservation, protection, decontamination, remediation or clean-up of the air, surfacewater, groundwater, soil or protected lands; (d) exposure of persons or property toPolluting Substances and the effects thereof; (e) the release, threatened release,generation, extraction, mining, presence, manufacture, processing, distribution in commerce,use, handling, discharge, recycling, management, transfer, transportation, treatment,storage, disposal or remediation of Polluting Substances; (f) the implementation of spillprevention and/or disaster plans relating to Polluting Substances; or (g) maintaining,disclosing or reporting information to governmental authorities or any third party under anyEnvironmental Law. The term “Environmental Claim” also includes any costs incurred inresponding to efforts to require or in testing for the need for Remediation and any claimbased upon any asserted or actual breach or violation of any requirements of EnvironmentalLaw. An “Environmental Claim” further includes a Proceeding to issue, modify, revoke orterminate an Environmental Permit, or to adopt or amend a regulation to the extent that sucha Proceeding or occurrence attempts to redress
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violations of any applicable EnvironmentalPermit or will impair the current financial condition of any Company or the ability of anyCompany to conduct its business operations or to continue in business as a going concern.“Environmental Law(s)” means any and all federal, state and local laws, ordinances, rules,regulations, operational memoranda, interpretations and orders of courts or administrativeagencies or authorities relating to pollution, contamination, preservation, protection orcleanup of the environment (including, without limitation, ambient air, surface water,ground water, land surface, wildlife, wetlands and subsurface strata), including, withoutlimitation, the Comprehensive Environmental Response, Compensation and Liability Act of1980, as amended; the Solid Waste Disposal Act, as amended (“RCRA”); the Atomic Energy Actof 1954, as amended; the Hazardous Materials Transportation Act, as amended; the ToxicSubstances Control Act, as amended; the Pollution Prevention Act of 1990, as amended; theEmergency Planningand Community Right to know Act, as amended; the Clean Air Act, as amended; the Clean WaterAct, as amended; the Oil Pollution Act of 1990, as amended; the Safe Drinking Water Act, asamended; the Occupational Safety and Health Act, as amended; all regulations promulgatedunder any of the foregoing from time to time; and any and all other laws, rules andregulations relating to (a) improper use or treatment of wetlands, pinelands or otherprotected land or wildlife; (b) noise; (c) pollution, contamination, preservation,protection, decontamination, remediation or clean-up of the air, surface water, groundwater,soil or protected lands; (d) exposure of persons or property to Polluting Substances and theeffects thereof; (e) the release, threatened release, generation, extraction, mining,presence, manufacture, processing, distribution in commerce, use, handling, discharge,recycling, management, transfer, transportation, treatment, storage, disposal or remediationof Polluting Substances; (f) the implementation of spill prevention and/or disaster plansrelating to Polluting Substances; or (g) maintaining, disclosing or reporting information togovernmental authorities or any third party under any Environmental Law, including all statelaws in all jurisdictions in which any Company’s Business Facilities or other operations arelocated regulating the foregoing. Notwithstanding the foregoing, if any Environmental Lawis amended prior to the Closing so as to broaden the meaning of the term defined in it, suchbroader meaning shall apply subsequent to the effective date of such amendment. Anyspecific references to a law shall include any amendments to it promulgated from time totime.“GAAP” means U.S. generally accepted accounting principles.“Intellectual Property” means patents, trademarks, trade names, copyrights, and tradesecrets, processes, designs, inventions, methods, formulas, and other know-how andtechnology that is not generally known within the industry and lends a competitiveadvantage.“Knowledge” of any party means any fact or circumstance of which such party knows orreasonably should know.“Loss” means any loss, damage, injury, decline in value, lost opportunity, liability, claim,demand, Proceeding, settlement, judgment, award, punitive damage, fine, penalty, tax,
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fee,charge, cost or expense (including, without limitation, costs of attempting to avoid or inopposing the imposition thereof, interest, penalties, costs of preparation andinvestigation, and the reasonable fees, disbursements and expenses of attorneys, accountantsand other professional advisors) with respect to any claim, as well as with respect tocompliance with the requirements of the Environmental Laws or Environmental Claims.“Material” shall mean any matter or matters that, in the aggregate, either (a) involvesconsideration by or to, or reasonably foreseeable liabilities of, the Company in excess ofthe equivalent of $10,000.00, or (b) without which the operation of the Business could notbe conducted in its present manner.“Material Adverse Effect” shall mean any material adverse change in or effect on, or anychange that may reasonably be expected to have a material adverse effect on, (a) thebusiness, operations, assets, liabilities, condition (financial or otherwise), or results ofoperations of such person or (b) the ability of such person to consummate the transactionscontemplated by this Agreement or any related agreement to which it is a party.“Option” shall mean that certain Option granted by WSF to WCF pursuant to that certainOption to Purchase Real Estate Agreement of even date herewith.“Other Parties” means, in the case of the WCA Parties, or any one or more of them, the WSIParties, or any one or more of them; and in the case of the WSI Parties, or any one or moreof them, the WCA Parties, or any one or more of them.“Parties” means the WCA Parties and the WSI Parties, collectively.“Polluting Substances” means (a) any material, waste or substance designated, classified,regulated or included within the statutory and/or regulatory definitions of “hazardoussubstances,” “radioactive material,” “hazardous waste,” “extremely hazardous substance,”“hazardous chemical,” “regulated substance,” “contaminant,” “pollutant,” “hazardousmaterial,” or “toxic substance” under any Environmental Law; (b) any material, waste orsubstance which is or contains hydrocarbons, petroleum, oil or a fraction thereof; (c)radioactive material (including regulated naturally occurring radioactive materials); (d)solid waste, as defined under RCRA, that poses an imminent and substantial endangerment tohealth or the environment; (e) such other substances, materials, or wastes that becomeclassified or regulated as hazardous or toxic under any federal, state or local law orregulation from time to time; and (f) methane. To the extent that the laws or regulationsof any applicable state or local jurisdiction establish a meaning for any term definedherein through reference to federal Environmental Laws which is broader than the meaningunder such federal Environmental Laws, such broader meaning shall apply.“Proceeding” means any action, suit, claim, investigation, review or other judicial,administrative, arbitral, investigatory or other proceeding. “Proceeding” includes allpost-judgment actions (including but not limited to appeals and actions for collection), andshall be considered a “Proceeding” until such time as a final, non-appealable
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determinationhas been issued. If any Proceeding is settled, such Proceeding shall be deemed final uponthe completion of all obligations of all parties to such settlement.“Remediation” means any action necessary to bring about compliance with the requirements ofEnvironmental Law including (a) services of professionals; (b) the removal and disposal, insitu remediation, or containment (if containment is practical under the circumstances and ispermissible within requirements of Environmental Law), investigation, or monitoring of anyand all Polluting Substances at or on any Business Facility of any Company; (c) the takingof reasonably necessary precautions to protect against the release or threatened release ofPolluting Substances at, on, in, about, under, within or near the air, soil, surface water,groundwater or soil vapor at any Business Facility of any Company or any surrounding areasthereof; (d) any action necessary to mitigate the usurpation of wetlands, pinelands or otherprotected land or reclaim the same or to protect and preserve wildlife species; (e) anyaction necessary to meet therequirements of an Environmental Permit or (vi) any other action reasonably required tosatisfy requirements of Environmental Law imposed upon any Company, any of its BusinessFacilities and/or any operation thereon.“Trade Accounts Receivable” has the meaning assigned to it under GAAP, except that the TradeAccounts Receivable shall be reduced for collectability pursuant to the following formula:(i) all Accounts Receivable that are 90 days old or less as of the Closing Date shall becredited $1.00 on the dollar; (ii) all the Trade Accounts Receivable that are between 91 and120 days old as of the Closing Date shall be credited $.50 on the dollar; and (iv) anyAccounts Receivable that are more than 120 days old as of the Closing Date shall receive nocredit; provided, however, that no reduction shall be made with respect to any particularAccounts Receivable to the extent of the allowance for doubtful accounts recorded therefor.“Transferring Parties” means the WSI Parties as to the WSI Companies; and the WCA Parties,as to the Transferred Assets.**11.*****General***     **11.1****Costs**. The parties shall pay their respective expenses (including, withoutlimitation, the fees, disbursements and expenses of their attorneys and accountants) in connectionwith the negotiation and preparation of this Agreement and the consummation of the transactionscontemplated hereby.     **11.2****Entire Agreement**. This Agreement, together with all exhibits and schedules hereto,each of which are hereby incorporated by this reference and made a part hereof, embodies the entireagreement and understanding between the parties hereto relating to the subject matter hereof andsupersedes any prior agreements and understandings relating to the subject matter hereof.     **11.3****Counterparts**. This Agreement may be executed in any number of counterparts, each ofwhich shall be deemed an original, but all of which collectively shall constitute one and the sameinstrument representing this Agreement between the parties hereto, and it shall not be
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necessaryfor the proof of this Agreement that any party produce or account for more than one suchcounterpart. Facsimile signatures shall be given the same force and effect as original signaturesand shall be treated for all purposes and intents as original signatures.     **11.4****Notices**. All notices, requests, demands and other communications under this Agreementshall be in writing and shall be deemed to have been duly given (i) on the day of service if servedpersonally on the party to whom notice is to be given, (ii) on the day of transmission if sentvia facsimile transmission to the facsimile number given below, (iii) on the day after delivery toan overnight courier service, or (iv) on the fifth day after mailing, if mailed to the party towhom notice is to be given, by first class mail, registered or certified, postage prepaid andproperly addressed, to the party as follows:   If to WCA Parent: WCA Waste Corporation  One Riverway, Suite 1400  Houston, Texas 77056  Attention: President  Telecopy: 713-292-2455   Copy to: Andrews Kurth LLP  600 Travis, Suite 4200  Houston, Texas 77002  Attention: Jeff Dodd  Telecopy: 713-238-7368   If to WSI Parent: Waste Services, Inc.  1122 International Blvd., Suite 601  Burlington, Ontario  L7L 6Z8 Canada  Attention: General Counsel  Telecopy: 905-319-9408Any party may change its address for the purpose of this Section 11.4 by giving the otherparty written notice of its new address in the manner set forth above.     **11.5****Modification or Waiver**. This Agreement may be amended, modified or superseded, andany of the terms, covenants, representations, warranties or conditions hereof may be waived, butonly by a written instrument executed by the parties hereto. No waiver of any nature, in any oneor more instances, shall be deemed to be or construed as a further or continued waiver of anycondition or any breach of any other term, covenant, representation or warranty in this Agreement.     **11.6****Binding Effect and Assignment**. Except as otherwise provided in this Agreement, noparty hereto shall assign this Agreement or any rights or obligations hereunder without the priorwritten consent of the other party hereto and any such attempted assignment without such priorwritten consent shall be void and of no force and effect. This Agreement shall inure to thebenefit of and shall be binding upon the successors and permitted assigns of the parties hereto.
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     **11.7****Governing Law; Venue**.     (a) THIS AGREEMENT, AND ALL QUESTIONS RELATING TO ITS VALIDITY, INTERPRETATION,PERFORMANCE AND ENFORCEMENT (INCLUDING, WITHOUT LIMITATION, PROVISIONS CONCERNINGLIMITATIONS OF ACTION), SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OFTHE STATE OF DELAWARE (EXCLUSIVE OF THE CONFLICT OF LAW PROVISIONS THEREOF) APPLICABLE TOAGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.     (b) IF ANY DISPUTE ARISES OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THETERMINATION THEREOF, OR THE RELATIONSHIP CREATED BY OR DESCRIBED IN THIS AGREEMENT, THEPARTIES AGREE TO BRING SUIT UPON ALL SUCH MATTERS THEN IN DISPUTE ONLY IN THE UNITED STATESDISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS.     (c) THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENTPERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENTAND FOR ANY COUNTERCLAIM THEREIN.     **11.8****Section Headings**. The section headings contained in this Agreement are inserted forconvenience of reference only and shall not affect the meaning or interpretation of this Agreement.     **11.9****Severability**. If for any reason whatsoever, any one or more of the provisions hereofshall be held or deemed to be illegal, inoperative, unenforceable or invalid as applied to anyparticular case or in all cases, such circumstances shall not have the effect of rendering suchprovision illegal, inoperative, unenforceable or invalid in any other case or of rendering any ofthe other provisions hereof illegal, inoperative, unenforceable or invalid. Furthermore, in lieuof each such illegal, invalid, unenforceable or inoperative provision, there shall be addedautomatically, as part of this Agreement, a provision similar in terms of such illegal, invalid,unenforceable or inoperative provision as may be possible and as shall be legal, valid, enforceableand operative.     **11.10****Drafting**. The parties acknowledge and confirm that they and/or their respectiveattorneys have participated jointly in the review and revision of this Agreement and that it hasnot been written solely by any one party or counsel for any one party. The parties thereforestipulate and agree that the rule of construction to the effect that any ambiguities are to be ormay be resolved against the drafting party shall not be employed in the interpretation of thisAgreement to favor any party against another.     **11.11****References**. The use of the words “hereof,” “herein,” “hereunder,” “herewith,”“hereto,” “hereby,” and words of similar import shall refer to this entire Agreement, and not to
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any particular article, section, subsection, clause, or paragraph of this Agreement, unless thecontext clearly indicates otherwise.     **11.12****Calendar Days, Weeks, Months and Quarters**. Unless otherwise specified herein, anyreference to “day,” “week,” “month” or “quarter” herein shall mean a calendar day, week, month orquarter.     **11.13****Gender; Plural and Singular**. Unless the context clearly indicates otherwise, thesingular shall include the plural and vice versa. Whenever the masculine, feminine or neuter genderis used inappropriately in this Agreement, this Agreement shall be read as if the appropriategender had been used.     **11.14****Cumulative Rights**. All rights and remedies specified herein are cumulative and are inaddition to, not in limitation of, any rights or remedies the parties may have by statute, at law,in equity, or otherwise, and all such rights and remedies may be exercised singularly orconcurrently.     **11.15****No Implied Covenants**. Each party, against the other, waives and relinquishes anyright to assert, either as a claim or as a defense, that any other party is bound to perform orliable for the nonperformance of any implied covenant or implied duty or implied obligation.     **11.16****Indirect Action**. Where any provision hereof refers to action to be taken by anyperson or party, or which such person or party is prohibited from taking, such provision shall beapplicable whether the action in question is taken directly or indirectly by such person or party.     **11.17****Attorneys’ Fees**. The prevailing party in any dispute between the parties arising outof the interpretation, application or enforcement of any provision hereof shall be entitled torecover all of its reasonable attorneys’ fees and costs whether suit be filed or not, includingwithout limitation costs and attorneys’ fees related to or arising out of any trial or appellateproceedings.     **11.18****Time of the Essence**. With regard to all dates and time periods set forth or referredto in this Agreement, time is of the essence.[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date firstabove stated.       WCA PARTIES:       WCA WASTE CORPORATION, a Delaware corporation       By: /s/ Jerome M. Kruszka       Name: Jerome M. Kruszka  Title: President       WCA TEXAS MANAGEMENTGENERAL, INC a Delawarecorporation       By: /s/ Jerome M. Kruszka       Name: Jerome M. Kruszka  Title: President       WCA MANAGEMENT LIMITED, INC, a Delaware corporation       By: /s/ Jerome M. Kruszka       Name: Jerome M. Kruszka  Title: President       WCA OF FLORIDA, LLC, a Delaware limited liability company       By: /s/ Jerome M. Kruszka       Name: Jerome M. Kruszka  Title: President*Signature Page to*