**Exhibit 10.21****ASSET PURCHASE AGREEMENT**     THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is executed and delivered as of July19, 2006, among Allied Waste Transfer Services of Arizona, LLC, a Delaware limited liabilitycompany (“Buyer”); and those entities set forth as Sellers on Exhibit A(“Sellers”).**RECITALS**     A. Sellers and Cactus Waste Systems, LLC, an Arizona limited liability company (the“Company”), own and operate hauling operations, transfer station operations, and landfilloperations (collectively, the “Business”) in the State of Arizona (the “Area”).     B. Buyer desires to purchase and acquire substantially all of the assets, properties andcontractual rights used by Sellers in connection with the Business, including the membershipinterests of the Company (the “Membership Interests”), and Sellers desire to sell suchassets, properties, contractual rights and Membership Interests to Buyer, all in accordance withthe terms and conditions set forth in this Agreement.     C. The assets and properties used by Sellers and the Company in connection with the Businessinclude the real property described on Exhibit B-1 (the “Land”) and the leased realproperty described on Exhibit B-2 (the “Leased Real Property”).     D. Except as the context otherwise requires, capitalized terms used in this Agreement shallhave the meanings assigned to them in Exhibit C.     NOW, THEREFORE, in consideration of the mutual promises and covenants in this Agreement andother good and valuable consideration, received to the full satisfaction of each of them, theparties agree as follows:ARTICLE ISALE OF ASSETS     1.1 Sale of Assets by Sellers. On the terms and subject to the conditions set forthin this Agreement, at the Closing Sellers shall grant, convey, sell, transfer and assign to Buyer,and Buyer shall purchase from Sellers, all of Sellers’ right, title and interest in and to thefollowing assets used in the Business, including the following assets owned by the Company whichBuyer will acquire by virtue of its acquisition of the Membership Interests (but excluding theExcluded Assets), free and clear of all Encumbrances except Permitted Exceptions and Blanket Liens:          (a) the Land, including all structures, improvements, fixtures, easements and other rights andinterests relating thereto, and all leases with respect to the Leased Real Property;          (b) subject to Section 1.3, all Permits held by Sellers in connection with theBusiness, including the Permits listed on Schedule 1.1(b);          (c) all Equipment, including the Equipment listed on Schedule 1.1(c);
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          (d) all Rolling Stock, including the Rolling Stock described on Schedule 1.1(d);          (e) all computer hardware and related basic operating systems used, or held for use,principally in connection with the Business;          (f) all Inventory, including the Inventory listed on Schedule 1.1(f);          (g) all intangible property owned by Sellers and used principally in connection with theBusiness, including all symbols, trademarks, service marks, logos and trade names, including theBusiness Names listed on Schedule 1.1(g), except (subject to Section 4.1) thosesymbols, trademarks, service marks, logos and trade names that include the names of or otherwiseidentify “Waste Services” (the “Retained IP”);          (h) all Customer Contracts, Assumed Leases and Other Contracts (collectively, the “AssumedContracts”);          (i) the telephone numbers used principally in the conduct of the Business;          (j) all shop tools, nuts and bolts used principally in connection with the Business;          (k) all books and records relating principally to the Business, including customer lists andvendor lists of Sellers and the Company, and including the entity record books, Tax records andpersonnel records of the Company;          (l) to the extent relating to the Business, all prepaid expenses and deposits, including anysuch expenses and deposits with respect to leases, rentals and utilities;          (m) all Accounts Receivable, except for the Accounts Receivable relating to the Top Gradecontract;          (n) all furniture, fixtures and office equipment used principally in connection with theBusiness;          (o) to the extent relating principally to the Business, all rights under agreements withemployees and other third Persons concerning confidentiality and assignment of inventions;          (p) the Membership Interests; and          (q) all goodwill of the Business.All of the foregoing assets of Sellers described in this Section 1.1 are referred to as the“Assets”. For greater certainty, the various schedules to this Section 1.1 alsolist the relevant assets of the Company, and such assets of the Company are included within thedefinition of “Assets” in this Agreement.
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     1.2 Excluded Assets. The parties agree that certain assets of Sellers and the Companyshall remain the property of Sellers and shall not be sold to Buyer at the Closing (the“Excluded Assets”). To the extent any of the Excluded Assets are owned or held by theCompany, prior to the Closing the Company shall transfer such Excluded Assets to Sellers or to anyother Person designated by Sellers as provided in Section 10.1. The Excluded Assets are:(a) all assets that are not used or held for use in, owned by, leased by or in the possession ofSellers or their Affiliates, including the Company, principally in connection with the Business;(b) records which relate primarily to Excluded Assets or Excluded Liabilities, including (withrespect to Sellers but not the Company) files relating to Taxes and personnel files; (c) the stockand corporate record books of Sellers; (d) the rights which accrue or will accrue to Sellers underthis Agreement; (e) any inter-company receivables from Sellers or their Affiliates; (f) all presentand future refunds relating to Taxes of Sellers; (g) all insurance policies and all rights withrespect thereto; (h) all litigation rights to which Sellers are plaintiffs and all causes of actionand claims of every nature, kind and description; (i) all billing, route management and othersoftware programs other than basic operating systems; (j) all petty and other cash and cashequivalents on hand or in a bank; (k) all bank accounts; (l) all escrow accounts; (m) all right,title and interest in any financial responsibility, financial assurance or similar mechanisms; (n)all other real property and all buildings on and fixtures to all real property of Sellers and theirAffiliates, including the Company, not described on Exhibit B; (o) all time clocks and GPSsystems; (p) any assets sold by Sellers in accordance with Section 7.3(d); (q) the assetslisted on Schedule 1.2; (r) all other assets that do not constitute Assets; (s) theEmployee Contracts; and (t) letter of intent, dated March 22, 2006 from United Site Services, Inc.to Arizona Waste Services regarding the acquisition of portable toilet assets of Waste Services ofArizona, Inc.     1.3 Commercially Reasonable Efforts to Assign. To the extent that the sale orassignment of any Customer Contract, Assumed Lease or Permit included within the Assets shallrequire the consent of any third party, Sellers and Buyer shall each use commercially reasonableefforts to obtain the consent of such other party to such assignment to Buyer both before and afterthe Closing.ARTICLE IIPURCHASE PRICE     2.1 Purchase Price. Subject to adjustment as provided in this Article II andSection 11.7, Buyer shall pay to Sellers $53,000,000 at the Closing (the “PurchasePrice”), by wire transfer of immediately available funds.     2.2 Purchase Price Adjustments.          (a) Adjustment for Certain Assumed Obligations. The Purchase Price payable at theClosing pursuant to Section 2.1 shall be reduced on a dollar-for-dollar basis for theliability reflected on the balance sheet as of the Closing Date with respect to capitalizedequipment leases, if any, assumed by Buyer under Section 10.2.          (b) Working Capital Adjustment.
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               (i) The following capitalized terms used in this Agreement shall have the following meanings:                    (1) “Adjustment Amount” means an amount (which may be positive or negative) equal tothe actual amount of Net Working Capital as of Closing.                    (2) “Net Working Capital” means (A) the aggregate current assets included in theAssets, less (B) the aggregate current liabilities of Sellers assumed by Buyer underSection 10.2, in each case determined in accordance with GAAP on a basis consistent withthe balance sheet dated May 31, 2006 included within Sellers’ Financial Statements. For greatercertainty, Sellers are retaining the Top Grade Accounts Receivable, which will not be included incurrent assets for purposes of the Net Working Capital calculation.               (ii) At least five Business Days prior to the Closing Date, Sellers shall deliver to Buyer aworksheet setting forth their good faith estimate of the Net Working Capital of the Business as ofthe Closing Date and a computation of the estimated Adjustment Amount (the “EstimatedAdjustment Amount”). The worksheet shall be prepared by Sellers and shall be subject to theapproval of Buyer, which shall not be unreasonably withheld. If the worksheet is not acceptableto Buyer, Buyer shall promptly submit its comments on the worksheet to Sellers, and Buyer andSellers shall endeavor in good faith to address such comments so as not to delay the Closing. Ifthe Estimated Adjustment Amount is a positive number, the Purchase Price payable at Closing shallbe increased in an amount equal to the positive Estimated Adjustment Amount. If the EstimatedAdjustment Amount is a negative number, the Purchase Price payable at Closing shall be decreasedin an amount equal to the negative Estimated Adjustment Amount.               (iii) Within 45 days after the Closing, Buyer shall prepare a computation of the actual NetWorking Capital and the actual Adjustment Amount as of the Closing Date (the “ActualAdjustment Amount”) and deliver such computation to Sellers. If within 20 days followingdelivery of such computation Sellers do not deliver a written objection thereto to Buyer, then theActual Adjustment Amount shall be as reflected on the computation provided pursuant to thepreceding sentence. If Sellers timely object to the computation, then Buyer and Sellers shallnegotiate in good faith and attempt to resolve their disagreement. Should such negotiations notresult in an agreement within 20 days after delivery of such written objection, then the mattershall be submitted to KPMG LLP (the “Neutral Auditor”). All fees and expenses relating tothe work, if any, performed by the Neutral Auditor will be borne equally by Buyer and Sellers.The Neutral Auditor will deliver to Buyer and Sellers a written determination (such determinationto include a worksheet setting forth all material calculations used in arriving at suchdetermination and to be based solely on information provided to the Neutral Auditor by Buyer andSellers, or their respective Affiliates) of the disputed items within 30 days of receipt of thedisputed items, which determination will be final, binding and conclusive on the parties.               (iv) Promptly following agreement on or delivery of the final, binding and conclusivecomputation setting forth the Actual Adjustment Amount, Buyer and Sellers shall account to eachother as provided for in this Section 2.2(b)(iv). If the Estimated Adjustment Amount lessthe Actual Adjustment Amount is a positive number, then Sellers shall
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pay Buyer a cash payment equal to such excess as a decrease in the Purchase Price. If theEstimated Adjustment Amount less the Actual Adjustment Amount is a negative number, then Buyershall pay Sellers a cash payment equal to such deficit as an increase in the Purchase Price. Anysuch excess or deficit payment shall be due and payable within 10 days after the finaldetermination of the Actual Adjustment Amount pursuant to Section 2.2(b)(iii) and shall bepaid in immediately available funds by wire transfer to an account designated by Buyer or Sellers,as applicable.     2.3 Allocation of Purchase Price. The Purchase Price (including any liabilities thatare considered to be an increase to the Purchase Price for federal income tax purposes) shall beallocated among the Assets in the manner agreed to by Sellers and Buyer, in accordance with therequirements of Code Section 1060 and based on the fair market value of the Assets as determined byarm’s length negotiations. Within 30 days after the Actual Adjustment Amount is finally determinedpursuant to Section 2.2, Sellers will propose a Purchase Price allocation to Buyer, and theparties shall work in good faith to agree to the same. The parties agree to file (or cause to befiled) (i) all required federal Forms 8594, Asset Acquisition Statement under Section 1060, and(ii) all other Tax returns (including amended Tax returns and claims for refund) in a mannerconsistent with such allocation of the Purchase Price described in this Section 2.3, and touse their commercially reasonable efforts to sustain such allocation in any subsequent Tax audit orTax dispute.ARTICLE IIICLOSING     3.1 Time and Place of Closing.          (a) Generally. The purchase and sale provided for in this Agreement (the“Closing”) shall take place at the offices of Fennemore Craig, P.C., 3003 North CentralAvenue, Suite 2600, Phoenix, Arizona 85012 at 9:00 a.m., local time, as promptly as practicable(but in any event within 10 Business Days) following the date on which the last of the conditionsset forth in Article VIII and Article IX are fulfilled, satisfied or waived or atsuch other time or place as the parties shall agree in writing. The date on which the Closingoccurs is referred to as the “Closing Date.” The Closing shall be effective for allpurposes at 12:01, a.m., Eastern Time, on the date subsequent to the Closing Date. The partiesshall use commercially reasonable efforts to cause the Closing to occur on or before September 30,2006. At the Closing, the sale and conveyance of the Land and the assignment of the leases for theLeased Real Property shall be consummated through an escrow established at the Title Company,although actual payment of the Purchase Price allocable to the Land shall not be paid through theescrow (unless required to cure an Unpermitted Exception for which Sellers are obligated or haveelected to cure).          (b) Permit Transfer Issues. If, despite the parties’ commercially reasonable efforts,the Closing cannot occur as of the relevant date on account of Permit transfer issues orgovernmental approvals, and the parties are unable to consummate the Closing under an operatingagreement mutually satisfactory to the parties, then with the mutual consent of Sellers and Buyerthe aspects of the Business affected by such Permit or governmental approval may be carved out byway of an amendment to this Agreement (including an appropriate adjustment to
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the Purchase Price) and the Closing shall occur forthwith. The transfer of the affectedaspects of the Business shall close as soon as practicable after the Closing when the Permittransfer issues are resolved or the governmental approvals are obtained, as the case may be.     3.2 Deliveries by Sellers. At the Closing, Sellers shall deliver or cause to bedelivered to Buyer, all duly and properly executed (where applicable):          (a) subject to Section 3.8, Deeds conveying to Buyer indefeasible, fee simple title toeach parcel of Land subject only to the Permitted Exceptions, in form and substance reasonablysatisfactory to Buyer;          (b) a Bill of Sale;          (c) a sworn affidavit from each Seller stating, under penalty of perjury, that such Seller isnot a “foreign person” as defined under Section 1445(f)(3) of the Code and other appropriateevidence or documents necessary to relieve Buyer of any obligation to withhold any portion of thePurchase Price under Section 1445(a) of the Code or any other withholding provision of any otherTax law;          (d) an Assignment, Assumption and Consent to Leased Real Property for each parcel of LeasedReal Property, and an Estoppel Certificate (which may be included within the Assignment, Assumptionand Consent to Leased Real Property) for each parcel of Leased Real Property (provided, however,that if any real estate lease does not require the owner of the Leased Real Property to provideestoppel certificates, and if Sellers cannot obtain an Estoppel Certificate from the owner throughreasonable efforts, then Sellers shall not be required under this subsection to deliver an EstoppelCertificate with respect to such real estate lease);          (e) a letter from Sellers’ (or their Affiliate’s) lenders confirming that all Blanket Liens onthe Assets will be released concurrently with the Closing and that evidence thereof shall bedelivered within 60 days following the Closing Date and evidence reasonably satisfactory to Buyerof satisfaction of all Encumbrances encumbering the Assets other than Permitted Exceptions; and          (f) an assignment of the Membership Interests in a form acceptable to Buyer; and          (g) such other separate documents or instruments of sale, assignment, or transfer as Buyershall reasonably request, including titles and registrations for the Rolling Stock.     3.3 Deliveries by Buyer. At the Closing, Buyer shall deliver or cause to be deliveredto Sellers, all duly and properly executed (where applicable):          (a) the Purchase Price specified in Section 2.1, as adjusted as provided inSection 2.2, by wire transfer of immediately available funds to the account specified bySellers;          (b) the Buyer’s Assumption Agreements;          (c) the Assignment, Assumption and Consent to Leased Real Property; and
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          (d) such other separate documents or instruments of sale, assignment, transfer or assumptionas Sellers shall reasonably request.     3.4 Title Policies and Documents.          (a) As soon as reasonably practicable after execution of this Agreement, Sellers shall provideBuyer with (i) a complete legal description and/or tax parcel numbers for each parcel of the Land,(ii) for each parcel of Land, a copy of any title policy, title commitment or any certificate oftitle that Sellers possess, evidencing title to each parcel of Land as of the date of theapplicable certificate, commitment or policy, and (iii) complete and legible copies of allinstruments and documents affecting title to the Land that Sellers possess.          (b) Promptly thereafter and based on the legal descriptions and/or tax parcel numbersprovided, Sellers shall cause the Title Company to issue one or more Title Commitments for standardowner’s title insurance insuring fee simple title in the name of Buyer for the Land. Buyer shallcause the Title Company to deliver to Sellers duplicate copies of Title Commitments and Schedule Bitems thereto. In addition, within two Business Days after receipt of a written request fromBuyer, Sellers will execute and deliver authorizations that may be sent by Buyer to governmentaland other public authorities that authorize such authorities to reveal to Buyer all information, ifany, in any files the authorities have on the Land, or any part thereof, provided suchauthorizations do not authorize or request inspections with respect to the Land in each case to theextent such authorizations are required of Sellers. All costs attributable to the issuance of theTitle Commitments, endorsements, modifications, title searches, title policies, or new titleopinions ordered in accordance with the foregoing shall be borne by Buyer. Sellers agree at theircost to execute all customary affidavits, in reasonable form, and other reasonable documents, inorder to obtain any title opinions or title policies, including a “non-imputation” endorsement, ifavailable, to the effect that title defects known to the officers, directors, and stockholders ofthe owner prior to the Closing shall not be deemed “facts known to the insured” for purposes of thepolicies.          (c) The value of the Land for title insurance, transfer tax, documentary stamps and otherrelevant purposes will equal the fair value of each parcel as determined by the relevantgovernmental assessor, as adjusted by the multiplier covering such assessor, as determined byDeloitte & Touche, LLP.     3.5 Title Review/Permitted Exceptions. Buyer shall have 10 days after receipt of (i)all of the Title Commitments and title searches ordered by Sellers in accordance with Section3.4(b), (ii) complete and legible copies of items listed as exceptions to title on the TitleCommitments or title searches and (iii) a Survey for each tract of Land, to notify Sellers inwriting of any Unpermitted Exceptions. Sellers shall have 10 days after notice of any UnpermittedException is delivered by Buyer within which Sellers shall deliver notice to Buyer in writing as towhether Sellers elect to cure, or insure around at Sellers’ expense, any such matter; provided,however, that Sellers shall be required to cure at Sellers’ expense any monetary UnpermittedException (i.e., an exception which can be deleted as an exception upon the delivery of sufficientfunds to the Title Company) at or prior to Closing. Except with respect to a monetary UnpermittedException, failure to notify Buyer in writing within such period of their election to cure orinsure around shall be deemed Sellers’ election not to cure or insure around.
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Buyer shall have 10 days following receipt of Sellers’ notice or deemed notice electing not tocure or insure around in which to (a) elect to waive its objection to any Unpermitted Exceptionthat Sellers do not elect to cure or insure around, (b) remove the Land subject to the UnpermittedException from the Assets, which shall result in a mutually-agreeable reduction of the PurchasePrice, or (c) terminate this Agreement in accordance with Article XII, but only if the existence ofthe Unpermitted Exception and the removal of the Land pursuant to clause (b) would result in aMaterial Adverse Change if the rights, benefits or privileges under such title exception(s) areasserted or enforced. If Buyer fails to notify Sellers in writing of Buyer’s election within such10-day period, Buyer shall be deemed to have elected to proceed in accordance with clause (a) ofthe preceding sentence.     3.6 Surveys. As soon as reasonably practicable after execution of this Agreement,Sellers shall deliver to Buyer any surveys of the Land, or any part thereof, that Sellers possess.In addition, Sellers shall cause a survey to be prepared by the Surveyor and the costs and expensesthereof shall be borne by Buyer. Sellers shall deliver to Buyer a duplicate copy of any surveythat Sellers receive. For purposes of this Agreement, any survey that satisfies the Title Companyin connection with the issuance of the Title Policy shall be referred to as a “Survey”.     3.7 Prorations and Charges. All Taxes relating to the Land for any tax year prior tothe real estate tax year in which the Closing occurs shall be paid in full by Sellers on or beforethe Closing Date or an amount sufficient to fully discharge the same shall be deposited in escrowwith the Title Company for payment to the relevant Tax authority. Real property Taxes for thecurrent tax year shall be prorated between Sellers and Buyer as of the Closing Date on a daily,pro-rata basis based upon the latest available estimates of the amount thereof or the actual amountof such Taxes. If the pro rata amounts are not known as of the Closing Date, adjustments shall bemade post-Closing at such time as they are known to the parties. Buyer and Sellers shall each payone-half of the escrow fees and cancellation fees to the Title Company. The following costs shallbe paid by Buyer: (a) all costs attributable to the issuance of the Title Commitments and anyamendments or modifications thereto, endorsements, title searches and title policies ordered inaccordance with Section 3.4(b); (b) the costs and expenses of the Survey pursuant toSection 3.6; and (c) documentary, transfer or stamp fees and other customary Closing costs,such as recording fees.     3.8 Post-Closing Title and Survey Work. Notwithstanding anything in this Agreement tothe contrary, if as of the Closing Date, through no fault of Buyer, (a) the Title Company is notprepared to issue title insurance, and/or (b) Buyer has not had the time permitted underSection 3.5 to review Title Commitments or title searches, title exception documents andSurveys, and/or (c) Buyer has not obtained a Survey, then Buyer shall have the right, in its solediscretion, to either (i) elect to close under this Agreement, provided Sellers agree in writing atthe Closing to provide such missing items promptly after the Closing; or (ii) delay the Closingwith respect to such parcel of Land only and close with respect to such Land when the missing itemsare obtained and approved by Buyer in accordance with this Agreement, with (x) Buyer and Sellers toexecute an agreement at Closing regarding the delay of payment of the Purchase Price attributableto such Land and the use of such Land by Buyer until the extended Closing Date, and (y) therepresentations, warranties and covenants of Seller with respect to the applicable Land continuinguntil the extended Closing Date.
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     3.9 Condemnation or Casualty. If prior to Closing, the Land or any part thereof issubject to an eminent domain or condemnation proceeding or any improvement thereon is damaged byfire, flood or other casualty, Sellers shall give written notice thereof to Buyer, and Buyer shallbe entitled, contingent upon the Closing occurring, to any condemnation award or insurance proceedsresulting from any such event. At the Closing Sellers shall execute and deliver all documentsreasonably requested of Buyer to effectuate such assignment. The assignment of a condemnationaward or insurance proceeds shall be Buyer’s sole remedy as a result of the occurrence of any ofthe foregoing events, and all risk of collection with respect thereto shall be on Buyer and notSellers.     3.10 Stay-On Bonuses. Sellers shall make payments (the “Stay-On Bonuses”)under Retention Bonus Agreements in substantially the form of Exhibit D (the “RetentionBonus Agreements”) in accordance with the terms of such agreements and as set forth onSchedule 3.10.ARTICLE IVPOST CLOSING COVENANTS     4.1 Removal of Identification. Within three months after the Closing, Buyer shallremove from the Assets or otherwise conceal all visible usage of the Retained IP.     4.2 Further Assurances. From time to time on and after the Closing and withoutfurther consideration except as provided in this Agreement, the parties shall each deliver or causeto be delivered to any other party at such times and places as shall be reasonably requested, suchadditional instruments as any of the others may reasonably request for the purpose of carrying outthis Agreement and the Transactions. Sellers, also without further consideration, agree tocooperate with Buyer and to use their reasonable commercial efforts to have their officers andemployees cooperate on and after the Closing Date in furnishing to Buyer or its advisors (a)information requested by Buyer with respect to the Assets and the Business, (b) information,evidence, testimony, and other assistance in connection with obtaining all necessary Permits andapprovals and in connection with any third party actions, proceedings, arrangements or disputes ofany nature with respect to matters pertaining to all periods prior to the Closing Date and (c)updated loss-claims related to the Business with respect to periods prior to the Closing Date andany resolution thereof; provided, however, that this obligation shall not apply to disputes amongthe parties, and that Sellers shall not be required to expend any sum of money toward that endbeyond reasonable and typical overhead expenditures and outside counsel fees and costs. Buyer,also without further consideration, agrees to cooperate with Sellers and to use its reasonablecommercial efforts to have its officers and employees cooperate on and after the Closing Date infurnishing to Sellers information, evidence, testimony, and other assistance (including reasonableaccess to the Assets, including the Land and the Leased Real Property) in connection with any thirdparty actions, proceedings, arrangements or disputes of any nature with respect to matterspertaining to all periods prior to the Closing Date; provided, however, that this obligation shallnot apply to disputes among the parties, and that Buyer shall not be required to expend any sum ofmoney toward that end beyond reasonable and typical overhead expenditures and outside counsel feesand expenses.
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     4.3 Billing, Cash Processing and Scale Software (TRUX) Services. For a period of upto 60 days following the Closing Date, at the request of Buyer, Sellers shall perform the billing,cash processing and scale software (TRUX) services relating to the Business for Buyer’s account andwithout additional consideration to Sellers. Sellers agree to perform the billing, cash processingand scale software (TRUX) services in accordance with past practices of Sellers. All payments madeto Sellers on behalf of Buyer after the Closing and relating to the Assets shall be deemed to bethe property of Buyer. The parties agree that after the Closing they will transfer and deliver tothe other, from time to time and at least once per week, any cash, checks or other property thatthey may receive on or after the Closing which properly belongs to the other party. During such60-day period, Buyer shall reimburse Sellers for their and their Affiliates’ reasonably documentedout-of-pocket and internal costs in providing the services pursuant to this Section 4.3.     4.4 Blanket Lien Releases. The Assets are encumbered by blanket liens in favor ofvarious lenders to Sellers’ Affiliates (the “Blanket Liens”), all of which liens will bereleased concurrently with the Closing. Within 60 days after the Closing Date, Sellers shalldeliver evidence to Buyer of the release of any security interests reflecting such Blanket Liens.ARTICLE VREPRESENTATIONS AND WARRANTIES OF SELLERS     Sellers, jointly and severally, represent and warrant to Buyer that the statements containedin this Article V: (a) except as set forth in the Disclosure Schedules, are correct andcomplete as of the date of this Agreement; (b) will be correct and complete as of the Closing Date(as though made then and as though the Closing Date were substituted for the date of this Agreementthroughout this Article V), subject to supplements to the Disclosure Schedules as providedin Section 7.7, and except for those representations and warranties that, by their terms ornature, speak as of a specific date that is not the Closing Date; and (c) shall survive the Closingin accordance with Section 11.1. Each matter referred to in any Disclosure Schedule shallbe deemed to have been disclosed for all relevant purposes in all other parts or sections of allother Disclosure Schedules.     5.1 Organization; Authority; Ownership.          (a) Each Seller is a corporation duly organized, validly existing and in good standing underthe laws of the state of its incorporation and is duly authorized, qualified and licensed under allApplicable Laws to carry on the Business in the places and in the manner in which the Business ispresently conducted, except for where the failure to be so authorized, qualified and licensed wouldnot have a material adverse effect on the Business.          (b) Each Seller has all necessary power and authority to enter into this Agreement and theAncillary Agreements to which it is a party, to consummate the Transactions and perform itsobligations under this Agreement and the Ancillary Agreements to which it is a party.     5.2 Binding Effect. At or before the Closing, the execution, delivery and performanceof this Agreement and the Ancillary Agreements by Sellers will be within their
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respective corporate powers and will have been approved by all requisite action of Sellers,and no other proceedings on the part of Sellers will be necessary to authorize the execution anddelivery of this Agreement and the Ancillary Agreements or the consummation by Sellers of theTransactions and the performance of their obligations under this Agreement and the AncillaryAgreements to which they are parties. This Agreement has been, and upon delivery, the AncillaryAgreements to which they are parties will be, duly executed and delivered by each Seller and,assuming the due authorization, execution and delivery by Buyer, constitutes and will constitutethe valid and legally binding agreement of Sellers enforceable against Sellers in accordance withtheir respective terms.     5.3 Permits. Sellers and the Company have all material Permits necessary to enablethem to own the Assets and conduct the Business as currently conducted. To Sellers’ knowledge,except as set forth on Schedule 5.3, Sellers and the Company are and have been in materialcompliance with the terms and conditions of all Permits and all of the Permits are now valid, ingood standing and in full force and effect. Sellers shall not undertake, following the Closing,any challenges to the Permits or applications for Permits.     5.4 Assets; Personal Property.          (a) Except for (i) the items listed on Schedule 5.4(a) and (ii) the Excluded Assets,the Assets include all the material properties, assets, rights, licenses, permits and contracts,wherever located (including any items located on a customer’s site), whether tangible orintangible, real, personal or mixed, that are currently used, owned by, leased by or in thepossession of Sellers or the Company principally in connection with the Business.          (b) All of the Assets are either owned by Sellers or the Company or leased by Sellers or theCompany under an agreement set forth on Schedule 5.4(b) (the “Assumed Leases”). ToSellers’ knowledge, each Assumed Lease is in full force and effect and constitutes valid andbinding obligations of the parties thereto and their successors. To Sellers’ knowledge, no defaulthas occurred nor has there occurred an event or condition that with the passage of time or thegiving of notice (or both) would constitute a default by Sellers or the Company, as the case maybe, or any other party to any Assumed Lease.          (c) At the Closing, Sellers or the Company, as applicable, shall have good and marketabletitle to the owned Assets and enforceable leasehold interest in the leased Assets, free and clearof all Encumbrances other than Permitted Exceptions and the Blanket Liens that will be released asprovided in Section 4.4. By virtue of the grant, conveyance, sale, transfer, andassignment of the Assets under the Deeds and the Bill of Sale, Buyer shall receive good andmarketable title to the Assets, free and clear of all Encumbrances other than Permitted Exceptionsand Blanket Liens that will be released as provided in Section 4.4.     5.5 Real Property.          (a) Except as shown on the Title Commitments, Sellers or the Company, as applicable, have goodand valid title in fee simple to the Land and a valid leasehold interest in the Leased RealProperty, and at Closing good and valid fee simple title to the Land and a valid
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leasehold interest in the Leased Real Property shall be conveyed to Buyer or retained by theCompany, as the case may be,free of all Encumbrances, subject to the Permitted Exceptions.          (b) Except as set forth on Schedule 5.5(b):               (i) There are no Proceedings pending and brought by, or to Sellers’ knowledge, threatened by,any third Person that would result in a change in the allowable uses of the Land or the LeasedReal Property or that would modify the right of Buyer to use the Land or the Leased Real Propertyfor its current uses after the Closing Date.               (ii) Except for Permitted Exceptions, no Person except Sellers or the Company has a presentor future right to possession or occupancy or use of all or any part of the Land.               (iii) There are no Proceedings (including condemnation or eminent domain proceedings) pendingor, to Sellers’ knowledge, threatened against all or any part of the Land.               (iv) Neither Sellers nor the Company have received any written notice of (A) any violation ofany applicable zoning ordinance, building code, use or occupancy restriction, covenant, conditionor restriction of record or any other violation of applicable law relating to the Land, the LeasedReal Property or the improvements thereon or (B) any pending special assessments affecting all orany part of the Land (except as shown on the Title Commitments) or the Leased Real Property.               (v) To Sellers’ knowledge, there are no unrecorded contracts, leases, easements or otheragreements or claims of third parties affecting the use, title, occupancy or development of theLand, and no Person has any right of first refusal, option or the right to acquire, lease orotherwise use all or any part of the Land.               (vi) To Sellers’ knowledge, no fact or condition exists which will result in the termination,restriction or modification of any currently existing access to or from the Land or the LeasedReal Property and any public rights of ways and roads.          (c) Neither Seller nor the Company is a “foreign person” as the term is defined in Section1445 of the Code and any applicable regulations promulgated thereunder.     5.6 Contracts.          (a) Listed on Schedule 5.6 is a complete and accurate list of all (i) CustomerContracts that accounted for annual revenues in excess of $100,000 during the 12 months ended May31, 2006 (“Material Customer Contracts”), (ii) Employee Contracts, and (iii) contracts towhich Sellers or the Company are parties and by which the Assets are affected or bound (the“Other Contracts”) which: (A) are franchise agreements with a municipality or anygovernmental branch, agency or body; (B) relate to the ownership or use of real property (includingthe Land and the Leased Real Property); (C) relate to the purchase or lease of any fixed asset withrespect to the Business, whether or not such purchase or lease was made in the ordinary course ofbusiness, for an aggregate price in excess of $100,000 in any 12 month
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period; (D) contain a covenant or agreement limiting the freedom of any of the parties theretoto compete in any line of business or in any location; or (E) have payment obligations (whether toor by Sellers or the Company) in excess of $100,000 in any 12 month period, in each case as of thedate of this Agreement. True and complete copies of each such contract have been made available toBuyer. The disclosure of a contract on Schedule 5.6 shall not constitute a representationthat such contract satisfies one or more of the foregoing criteria.          (b) To Sellers’ knowledge, and except as set forth in Schedule 5.6, all MaterialCustomer Contracts, Employee Contracts and Other Contracts are in full force and effect and arevalid, binding and enforceable against the respective parties thereto in accordance with theirrespective provisions. To Sellers’ knowledge, no default has occurred nor has there occurred anevent or condition which with the passage of time or the giving of notice (or both) wouldconstitute a default by Sellers or the Company, as the case may be, or any other party to any suchcontract. Except as set forth on Schedule 5.6, neither Sellers nor the Company havereceived any written notice that any Person intends or desires to modify, waive, amend, rescind,release, cancel or terminate any Material Customer Contract, Employee Contract and Other Contract.          (c) Except as set forth on Schedule 5.6(c), neither Sellers nor the Company have anyunfulfilled obligations to sellers under the various purchase agreements pursuant to which theyacquired the Assets, including any obligations to pay additional purchase price, royalties or otheramounts. Neither Sellers nor the Company are parties to any contract which would permit the otherparty thereto to put assets to the Company at any time. Neither Sellers nor the Company areparties to any disposal agreements that are not listed on Schedule 5.6.     5.7 Employees; Compensation.          (a) Attached as Schedule 5.7 is a complete and accurate list of (i) all BusinessEmployees, (ii) their rate of compensation as of the date of delivery of the Disclosure Schedules,(iii) any bonus, incentive or compensation plans (other than plans subject to ERISA) in which theyparticipate, (iv) any vacation plans, including accruals thereunder, and (v) any severance plans,agreements, arrangements or obligations relating to any such employee, including any amounts owedto any such employee thereunder as of the Closing Date or arising out of or in connection with theconsummation of the Transactions or the performance of the parties’ respective obligations underthis Agreement and the Ancillary Agreements.          (b) Except (i) as otherwise contemplated by this Agreement or the Ancillary Agreements, (ii)as set forth on Schedule 5.7, and (iii) for employees governed by Employee Contracts, eachBusiness Employee is an employee at will.     5.8 Compliance with Law; No Conflicts.          (a) Except as set forth in Schedule 5.8(a): (i) to Sellers’ knowledge, the Business isbeing operated in compliance in all material respects with all Applicable Laws; (ii) neitherSellers nor the Company are involved in any litigation or administrative proceeding relating to theAssets or the Business seeking to impose fines, penalties or other liabilities or seekinginjunctive relief for violation of any Applicable Laws or Permits; and (iii) to Sellers’
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knowledge there is no pending investigation or other form of review relating to Sellers (withrespect to the Business), the Company or the Assets with respect to any Applicable Law or Permit.          (b) Except as set forth in Schedule 5.8(b), the execution, delivery and performance ofthis Agreement, the Ancillary Agreements, the consummation of the Transactions and the fulfillmentof the terms of this Agreement and the Ancillary Agreements by Sellers do not and will not:               (i) conflict with, or result in a breach or violation of the Certificate of Incorporation andBylaws of Sellers or the Articles of Organization and Operating Agreement of the Company;               (ii) to Sellers’ knowledge, conflict with, or result in the creation or imposition of anyEncumbrance on the Assets or Business pursuant to: (A) any Applicable Law to which Sellers or theCompany or any of their respective properties are subject, or (B) any judgment, order or decree towhich Sellers or the Company are bound or any of their respective property is subject; or               (iii) except for the notices, consents or approvals required under any Material CustomerContracts, Employee Contracts and Other Contracts required to be listed on Schedule 5.6,the Permits and the Assumed Leases (collectively, the “Required Consents”), (A) requireSellers or the Company to provide notice to, or obtain the consent or approval of, anygovernmental authority or agency or other third Person, (B) constitute a default under or giverise to any right of termination, cancellation or acceleration of, or to a loss of any benefit towhich a Seller or the Company is entitled under such Material Customer Contracts, EmployeeContracts Other Contracts, Permits or Assumed Leases or (C) result in the creation or impositionof any Encumbrance on any Asset.          (c) All of the Required Consents are listed on Schedule 5.8(c).     5.9 Taxes. Except as set forth on Schedule 5.9, with respect to the Business:          (a) Sellers and the Company, either separately or as members of an Affiliated Group, havecompleted and timely filed all Tax Returns required to be filed with any Tax authority, and havepaid (or have had paid on their behalf) all Taxes shown as due and payable thereon. Such TaxReturns reflect all Taxes due and payable with respect to the periods covered by them. There is noTax Return filed by Sellers or the Company, either separately or as a member of an AffiliatedGroup, and there are no outstanding assessments or Taxes otherwise due for any Pre-Closing Period,that will result, on or after the Closing Date, in any Taxes or other governmental charges upon theAssets or Buyer, whether as a transferee of the transferred assets or otherwise. There are noEncumbrances for Taxes on any of the Assets other than Encumbrances for Taxes not yet due andpayable.          (b) There is no actual pending or, to Sellers’ knowledge, threatened or expected claim, audit,investigation, dispute or other proceeding concerning any Taxes of Sellers or the Company that willresult in a claim against any of the Assets.
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     5.10 Litigation. Except as set forth on Schedule 5.10, (a) there are noProceedings pending or, to Sellers’ knowledge, threatened, against Sellers or the Company relatingto the Assets or the Business or that could interfere with the consummation of the Transactions, atlaw or in equity, before any federal, state or local court or regulatory agency, or othergovernmental or private authority and (b) there are no existing orders, judgments or decrees of anygovernmental or private authority affecting any of the Assets or the Business.     5.11 Financial Statements. Sellers have set forth in Schedule 5.11 true andcomplete copies of (a) the internal, unaudited, compiled balance sheets of Sellers and the Companyrelating to the Business and the Assets as of May 31, 2006 (the “Balance Sheet Date”), andthe related internal, unaudited statements of income for the 12 months then ended (collectively,“Sellers’ Financial Statements”). Sellers’ Financial Statements are the financialstatements used by Sellers and the Company to operate the Business, except that they do not includeall intercompany transactions. Except as provided in Schedule 5.11, Sellers’ FinancialStatements were prepared in accordance with GAAP, but because the Business are part of a largerorganization, Sellers’ Financial Statements omit certain corporate level adjustments for assets,accruals or charges that would be required to be recorded if Sellers’ Financial Statements wereprepared on a stand alone entity basis, including those set forth on Schedule 5.11.Sellers’ Financial Statements fairly present in all material respects the financial position ofSellers and the Company relating to the Business and Assets as of the dates thereof and the resultsof Sellers’ and the Company’s operations for the periods then ended.     5.12 Conduct of Sellers’ Business. Since the Balance Sheet Date, except as disclosedon Schedule 5.12 or as contemplated by this Agreement, there has not been any:          (a) sale or transfer of, or any agreement to sell or transfer, any of the Assets, or any plan,agreement or arrangement granting any preferential right to purchase or acquire any interest in anyof the Assets, or requiring consent of any Person to the transfer and assignment of any of theAssets, in each case other than in the ordinary course of business;          (b) waiver of any material rights or claims of Sellers or the Company related to the Assets;          (c) material breach, amendment or termination of any Material Customer Contract, EmployeeContract, Other Contract, Permit, Assumed Lease or Permit;          (d) material transaction by Sellers or the Company outside the ordinary course of businesswith respect to the Assets or the Business; or          (e) action by Sellers or the Company committing to do any of the foregoing.     5.13 Environmental Compliance; Hazardous Materials; Disposal Sites.          (a) Except as set forth in Schedule 5.13(a), to Sellers’ knowledge:               (i) Since January 1, 2003, neither Sellers nor the Company have ever owned, leased, had aninterest in, generated, transported, stored, handled, recycled, reclaimed,
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disposed of, or contracted for the disposal of, Hazardous Materials or solid waste inconnection with the Business, except in material compliance with all Environmental Laws;               (ii) Since January 1, 2003, there have been no Releases of any Hazardous Materials into theenvironment or onto, under or about the Land in connection with the Business, except in compliancewith all Environmental Laws;               (iii) No portion of the Land is on a CERCLA or similar state or federal list and neitherSellers nor the Company has been advised that they are a potentially responsible party withrespect to the Assets; and               (iv) No Encumbrances with respect to Environmental Damages have been imposed against Sellersor the Company (insofar as they relate to any of the Assets) or any of the Assets under CERCLA,any comparable state statute or other Applicable Law.          (b) Except as set forth in Schedule 5.13(b), with respect to the Business, neitherSellers nor the Company have received any written notice or other written communication from anyfederal, state or local governmental or regulatory authority or unaffiliated third Person allegingor relating to the investigation of any alleged (i) material violation of Environmental Law or (ii)material liability or potential liability for any Environmental Damages, other than those that havebeen fully resolved without further liability or obligation to Sellers or the Company. Withoutlimiting the generality of the foregoing, neither Sellers nor the Company are subject to anyoutstanding notice of violation issued by a regulatory authority with respect to the Business orAssets.          (c) Included on Schedule 5.13(c) is a complete list of the names and addresses of alldisposal sites (including Hazardous Materials disposal sites) used currently or in the past bySellers or the Company in connection with the Business.     5.14 Corrupt Practices. Except in compliance with all Applicable Laws, neitherSellers nor the Company nor any of their respective officers, directors, employees or agents, have,directly or indirectly, ever made, offered or agreed to offer anything of value to (a) anyemployees, representatives or agents of any customers of the Business for the purpose of attractingbusiness or (b) with respect to the Business, any domestic governmental official, political partyor candidate for government office or any of their employees, representatives or agents.     5.15 Accounts Receivable. All Accounts Receivable represent, or will represent as ofClosing, valid obligations from sales actually made or services actually performed by Sellers orthe Company in the ordinary course of business, except that the Accounts Receivable may includecertain pre-billed services. To Sellers’ knowledge, no Account Receivable is subject to a validdefense, set-off or counterclaim.     5.16 Affiliates’ Relationships.          (a) Schedule 5.16 contains an accurate and complete list of all material contractualarrangements between Sellers and any Affiliate thereof that (i) are currently in effect and (ii)relate to the Assets.
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          (b) No Affiliates of Sellers other than Sellers and the Company are presently engaged inbusiness activities in the Area.     5.17 Performance Bonds; Letters of Credit; Financial Assurances. Set forth onSchedule 5.17 are all of the outstanding performance bonds, letters of credit and otherfinancial assurances provided by or on behalf of Sellers or the Company with respect to the Assets.     5.18 Employment and Labor Matters.          (a) Except as set forth in Schedule 5.18, with respect to the Business, neitherSellers nor the Company are a party to (i) any collective bargaining agreement, (ii) any materialagreement respecting the employment of any Business Employee other than the Employee Contracts, or(iii) any material agreement for the provision of consulting or other professional services whichis not cancelable without penalty on less than 30 days’ notice.          (b) Except as set forth in Schedule 5.18, within the last five years neither Sellersnor the Company have experienced any material labor disputes, union organization attempts or anywork stoppage due to labor disagreements in connection with the Business.          (c) Except to the extent set forth in Schedule 5.18, with respect to the Business, (i)there is no unfair labor practice charge or complaint against Sellers or the Company pending or, toSellers’ knowledge, threatened; (ii) there is no labor strike, dispute, request for representation,slowdown or stoppage actually pending or, to Sellers’ knowledge, threatened against or affectingSellers or the Company nor any secondary boycott with respect to services of Sellers or theCompany; (iii) no question concerning representation has been raised to Sellers or the Company or,to Sellers’ knowledge, is threatened respecting the Business Employees; and (iv) there are noadministrative charges, court complaints or written threatened complaints against Sellers or theCompany concerning alleged employment discrimination or other employment related matters pendingor, to Sellers’ knowledge, threatened before the U.S. Equal Employment Opportunity Commission orany other governmental entity.     5.19 The Company. With respect to the Company, Sellers represent and warrant asfollows:          (a) The Company is a limited liability company duly organized, validly existing and in goodstanding under the laws of the State of Arizona and is duly authorized, qualified and licensedunder all Applicable Laws to carry on the Business in the places and in the manner in which theBusiness is presently conducted, except for where the failure to be so authorized, qualified andlicensed would not have a material adverse effect on the Business.          (b) The Company does not own or control (directly or indirectly) any equity interest orinvestment in any corporation, partnership, joint venture, association or other businessorganization. The Company has no subsidiaries.          (c) Waste Services, Inc. owns all of the membership interests in the Company free and clear ofany adverse claim of any other Person, including any Encumbrances, except for general restrictionson transferability imposed by applicable securities laws and Blanket Liens.
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          (d) There are no outstanding (i) subscriptions, options, calls, puts, contracts, commitments,understandings, restrictions, arrangements, rights or warrants, including any right of conversionor exchange under any outstanding security, debenture, instrument or other agreement obligating theCompany or Sellers to issue, deliver or sell, or cause to be issued, delivered or sold, additionalmembership interests in the Company or obligating the Company or Sellers to grant, extend or enterinto any such agreement or commitment, or (ii) obligations of the Company to repurchase, redeem orotherwise acquire any securities referred to in clause (i) above. There are no voting trusts,proxies or other agreements or understandings to which the Company is a party or is bound withrespect to the voting of the membership interests of the Company.          (e) As of the Closing, the Company will have no assets other than the Assets set forth inSection 1.1, nor any obligations or liabilities other than obligations and liabilitiesexpressly assumed by Buyer as described in Section 10.2. Any assets other than those setforth in Section 1.1 shall be transferred prior to the Closing to Sellers or theirdesignee, and any obligations or liabilities other than those assumed by Buyer as described inSection 10.2 shall be assumed by Sellers prior to the Closing.     5.20 No Other Representations. Sellers are not making any representations orwarranties, expressed or implied, of any nature whatsoever except as specifically set forth in thisAgreement.ARTICLE VIREPRESENTATIONS AND WARRANTIES OF BUYER     Buyer represents and warrants to Sellers that the statements contained in this ArticleVI: (a) except as set forth in the Disclosure Schedules, are correct and complete as of thedate of this Agreement; (b) will be correct and complete as of the Closing Date (as though madethen and as though the Closing Date were substituted for the date of this Agreement throughout thisArticle VI), except for those representations and warranties that, by their terms ornature, speak as of a specific date that is not the Closing Date; and (c) shall survive the Closingin accordance with Section 11.1.     6.1 Organization. Buyer is a limited liability company duly organized, validlyexisting and in good standing under the laws of the state of its organization and is dulyauthorized, qualified and licensed under all Applicable Laws to carry on the Business in the placesand in the manner in which the Business are presently conducted, except for where the failure to beso authorized, qualified and licensed would not have a material adverse effect on the Business.     6.2 Authority. Buyer has all necessary power and authority to enter into thisAgreement and the Ancillary Agreements and to consummate the Transactions and perform itsobligations under this Agreement and the Ancillary Agreements.     6.3 No Conflicts. The execution, delivery and performance of this Agreement, theAncillary Agreements, the consummation of the Transactions and the fulfillment of the terms of thisAgreement and the Ancillary Agreements by Buyer do not and will not:
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          (a) conflict with, or result in a breach or violation of the Articles of Organization orOperating Agreement of Buyer, or result in the creation or imposition of any Encumbrance on anyproperties of Buyer pursuant to: (i) any law or regulation to which either Buyer or any of itsproperty is subject, or (ii) any judgment, order or decree to which either Buyer is bound or any ofits property is subject; or          (b) require Buyer to provide notice to, or to obtain the consent or approval of, anygovernmental authority or agency or any other third Person.     6.4 Binding Effect. The execution, delivery and performance of this Agreement and theAncillary Agreements by Buyer are within its powers and have been approved by all requisite actionof Buyer, and no other proceedings on the part of Buyer are necessary to authorize the executionand delivery of this Agreement and the Ancillary Agreements, the consummation by Buyer of theTransactions and the performance of the parties’ respective obligations under this Agreement andthe Ancillary Agreements. This Agreement has been, and upon delivery, the Ancillary Agreementswill be, duly executed and delivered by Buyer and, assuming the due authorization, execution anddelivery by Sellers, constitutes and will constitute the valid and legally binding agreement ofBuyer enforceable against Buyer in accordance with their respective terms.     6.5 Independent Investigation. Buyer has conducted an independent investigation ofthe Assets and the Business. Buyer acknowledges that, **EXCEPT AS EXPRESSLY SET FORTH IN THISAGREEMENT, (i) THE ASSETS AND THE BUSINESS ARE CONVEYED “AS IS, WHERE IS” AND “WITH ALL FAULTS,”AND (ii) SELLERS HAVE NOT MADE, AND SELLERS HEREBY EXPRESSLY DISCLAIM AND NEGATE, ANYREPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WHATSOEVER RELATING TO THEASSETS OR THE BUSINESS (INCLUDING ANY IMPLIED OR EXPRESSED WARRANTY OF MERCHANTABILITY OR FITNESSFOR A PARTICULAR PURPOSE).**As of the date of this Agreement, Buyer is not aware of any breach ofthe representations or warranties made by Sellers in Article V.ARTICLE VIICOVENANTS     7.1 Access to Land and Records; Due Diligence Period.          (a) After the date of this Agreement, Sellers will afford to or obtain for the officers andauthorized representatives of Buyer reasonable access to the Land (including for the purpose ofpermitting Buyer to perform or cause to be performed, at Buyer’s sole risk and expense, alltesting, inspections and other procedures reasonably considered desirable by Buyer), the LeasedReal Property, the Assets, sites, and the books and records of Sellers related to the Business, allupon reasonable notice and conducted at times agreed to by Sellers, which agreement shall not beunreasonably withheld. Without limiting the generality of the foregoing, Buyer shall have theright to conduct Phase I environmental investigations of the Land and the right to conduct Phase IIenvironmental investigations of the Land if the results of the Phase I
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environmental investigations indicate that a Phase II investigation is necessary or desirable.In the event that Buyer concludes that a Phase II environmental investigation of the Land isnecessary or desirable, Sellers will allow access to Buyer and its consultants to the Land for thepurposes of conducting such an investigation. Such access shall be granted in accordance with anaccess agreement to be agreed upon by the parties.          (b) Between the date of this Agreement and the Closing or the earlier termination of thisAgreement, Sellers shall furnish Buyer with such additional financial and operating data and otherinformation as to the Business as Buyer may from time to time reasonably request, whether suchinformation is in the possession of Sellers or any of their Affiliates.          (c) Between the date of this Agreement and the Closing or the earlier termination of thisAgreement, Sellers shall use commercially reasonable efforts to cooperate with Buyer, itsrepresentatives, engineers, auditors and counsel in the preparation of any documents or othermaterials that may be reasonably required by any governmental agency. The parties shall cause allinformation obtained in connection with the negotiation of this Agreement to be treated asconfidential in accordance with the provisions of Article XIII.          (d) All access and testing shall be coordinated with Sellers, and Buyer and its agents andemployees shall not enter the Land and perform inspections or meet with employees unlessaccompanied by a representative of Sellers. Sellers shall have the right to delay access ortesting until such time that the access or testing, in the reasonable judgment of Sellers, will notmaterially interfere with the operations of the Business. Sellers shall have the right to requirethat access and testing be conducted on weekends or after hours, and shall have the right to limitaccess to employees to only those that are designated by Sellers.          (e) Buyer agrees to return the Land and the Leased Real Property to its condition as of thedate of this Agreement to the extent there are any alterations to the Land or the Leased RealProperty attributable to its exercise of its rights pursuant to this Section 7.1, and Buyershall indemnify and save harmless Sellers from all costs of returning the Land and the Leased RealProperty to such condition. If Buyer does not promptly perform such work, Sellers shall have theright to perform, or cause to be performed, such work and to obtain reimbursement for the costs ofsuch work (including legal and consulting fees) from Buyer, which costs shall be payable by Buyerto Sellers upon demand.     7.2 Activities of Sellers Prior to Closing. Between the date of this Agreement andthe Closing or the earlier termination of this Agreement, Sellers shall, or shall cause the Companyto, as appropriate:          (a) carry on the Business in the ordinary and usual course consistent with past practice;provided, however, that Sellers shall have no obligation to purchase any vehicles pursuant to thisSection 7.2 or otherwise;          (b) maintain the Assets in as good working order and condition as at present, ordinary wearand tear excepted;
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          (c) use commercially reasonable efforts to maintain their relationships with suppliers,customers, consultants, employees, independent contractors, government agencies, communities andothers having business relations with Sellers in the operation of the Business, and promptly notifyBuyer of the loss of any customer or group of customers material to the Business;          (d) use commercially reasonable efforts to provide balance sheets and the related statementsof income for the Business for each month following the date of this Agreement; and          (e) provide all commercially reasonable assistance to Buyer to provide for an orderly transferof the Assets and the Business from Sellers to Buyer.     7.3 Prohibited Activities Prior to Closing. Between the date of this Agreement andthe Closing or earlier termination of this Agreement, except as contemplated by this Agreement,Sellers shall not (as its relates to the Business), and shall cause the Company not to, without theprior written consent of Buyer, which consent will not be unreasonably withheld:          (a) engage in any practice, take any action, fail to take any action or enter into anytransaction which could cause any representation or warranty of Sellers in this Agreement to beuntrue or result in a breach of any covenant made by Sellers in this Agreement;          (b) breach, amend (except in the ordinary course of business) or terminate any materialAssumed Lease, Permit, Material Customer Contract, Employee Contract or Other Contract;          (c) enter into any transaction outside the ordinary course of the business of Sellers orotherwise prohibited under this Agreement;          (d) sell, transfer, lease or otherwise dispose of any Assets, other than in the ordinarycourse of business; provided, however, that the foregoing restriction shall not prevent Sellersfrom selling scrap containers that have no net book value on Sellers’ Financial Statements;          (e) except in the ordinary course of business, cause or, except in the ordinary course ofbusiness, permit to exist any Encumbrance, covenant, condition, restriction, assessment, easement,right of way, obligation, encroachment or liability (“Title Defect”) whatsoever withrespect to the Land or the Leased Real Property;          (f) materially change or increase any compensation payable to, or benefits made available to,any Business Employees, except to the extent required by law or in the ordinary course of businessconsistent with past practice;          (g) except in the ordinary course of business, relinquish, or seek to modify or amend anysubstantive term of, any Permit, other than in the ordinary course of business consistent with thepast practice of the Business; or          (h) agree to do any of the foregoing.
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     7.4 Contact with Government Officials and Customers. Sellers shall use theircommercially reasonable efforts to cooperate with Buyer in making contact with the appropriategovernmental agencies and officials having information about or jurisdiction over Sellers, theBusiness, the Land, the Leased Real Property, the Assets or the obligations or rights of Sellers,including environmental and land use agencies and officials, to assist Buyer in completing itsregulatory evaluation of the Business and the Assets and securing any consents necessary totransfer the Permits or in securing new permits. Buyer and Sellers shall use commerciallyreasonable efforts to obtain before Closing all consents necessary to transfer the Permits (orBuyer will use commercially reasonable efforts to obtain new permits for any non-transferablePermits), the Customer Contracts and the Assumed Leases to Buyer at the Closing. Buyeracknowledges and agrees that it shall not contact the Business Employees regarding the acquisitionof the Business by Buyer and the treatment of such Business Employees in connection therewith, orany customers; in each case until the Closing.     7.5 Public Announcements. Except as otherwise required by Applicable Law or the rulesof the New York Stock Exchange or the Nasdaq Stock Market, the parties agree that: (a) except asprovided below, no press release or other written communication shall be issued by Sellers, on theone hand, or Buyer, on the other hand, which makes reference in any way to the other party; (b) nopress release or other written communication shall be issued by Sellers, on the one hand, or Buyer,on the other hand, containing information regarding this Agreement or the Transactions (includingthe fact that the Transactions are being discussed or the terms of the Transactions) without theprior written approval of both Sellers and Buyer, which approval may not be unreasonably withheld.The parties shall consult with each other concerning the means by which Sellers’ and the Company’semployees, customers and suppliers and others having dealings with Sellers and the Company will beinformed of the Transactions. Nothing in this Section 7.5 shall restrict Buyer’s abilityto contact the parties listed in Section 7.4 who are permitted to be contacted pursuant toSection 7.4 with respect to the Transactions.     7.6 Standstill Agreement. Unless and until this Agreement is terminated pursuant toArticle XII without the Closing having taken place, Sellers will not, and will cause theCompany not to, directly or indirectly (through a representative, agent, employee or otherwise)solicit or accept offers for the Assets or the Business or for a merger, stock sale, consolidationor other business combination involving the Assets or the Business, or respond to inquiries from,provide or share information with, negotiate with or in any way facilitate inquiries or offersfrom, third parties who express or who have expressed an interest in acquiring the Assets or theBusiness by merger, stock sale, consolidation or other business combination.     7.7 Supplements to Sellers’ Schedules. From time to time prior to the date five daysprior to Closing, Sellers may supplement and update any of Sellers’ Disclosure Schedules deliveredpursuant to this Agreement to make the information set forth therein complete and accurate, so longas such supplement or update does not disclose any event, fact or condition that, individually orin the aggregate, could result in Material Adverse Change. In the event such supplement or updatediscloses an event or condition that could result in Material Adverse Change, then Buyer mayterminate this Agreement under Section 9.6.
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     7.8 Employees and Employee Benefits.          (a) Effective as of the Closing Date, Buyer shall offer employment to all Business Employeeswho on the Closing Date are actively at work and meet Buyer’s standard hiring criteria unless Buyernotifies Sellers that it does not intend to hire one or more Business Employees at least 30 daysprior to the Closing Date (each, an “Active Employee”). For purposes of this Agreement,any Business Employee who is not actively at work on the Closing Date solely because of vacation,holiday, sick leave, maternity or paternity leave, military leave, jury duty, or bereavement leave,shall be deemed an Active Employee. Each Business Employee who accepts Buyer’s offer of employmentis referred to as a “Transferred Employee.”          (b) Sellers shall retain sole responsibility for all obligations, claims, liabilities andcommitments under Sellers’ Plans and compensation practices, including severance benefits, if any,payable to Business Employees as a result of the Transactions and accrued vacation benefits, ifany. Sellers shall retain all liabilities and obligations to Business Employees and their eligibledependents in respect of health insurance required by the Consolidated Omnibus BudgetReconciliation Act of 1985, the Health Insurance Portability and Accountability Act of 1996 andapplicable state law.          (c) Buyer agrees to use commercially reasonable efforts to cooperate with and assist Sellersin eliminating the need for Worker Adjustment and Retraining Notification Act (the “WARNAct”) notifications by offering employment to sufficient numbers of Business Employees inaccordance with the following sentence. Such offers of employment will be subject to each suchBusiness Employee satisfying Buyer’s standard hiring criteria, including drug testing, backgroundcheck and driver safety criteria. To further assist in avoiding WARN notification requirements,Buyer will retain sufficient numbers of Business Employees hired pursuant to the preceding sentencefor at least 90 days following the Closing unless terminated earlier for cause. If notwithstandingBuyer’s compliance with the preceding provisions of this Section 7.8(c) WARN notificationis nonetheless required, Sellers agree to provide any required notice under the WARN Act, and anysimilar state or non-U.S. Applicable Law, and to otherwise comply with any such applicable law withrespect to any “plant closing” or “mass layoff” (as defined in the WARN Act or any similar state ornon-U.S. Applicable Law) or group termination or similar event affecting Business Employeesoccurring prior to or as a result of the consummation of the Transactions.          (d) All Business Employees who are employed by Buyer from and after Closing shall be givencredit for their years of service with Sellers in determining their entitlement to Buyer’sseverance and other length-of-service related employee benefits.     7.9 HSR Approval. Sellers and Buyer undertake and agree to file as promptly aspracticable following the execution of this Agreement all documents required under the HSR Act.Sellers and Buyer shall use commercially reasonable efforts to cooperate with each other withrespect to such filing, and shall respond as promptly as reasonably practicable to any inquiriesreceived from the FTC or the Antitrust Division for additional information or documentation and toall inquiries and requests received from any other local, state or federal governmental authorityin connection therewith. Each party shall (a) subject to Applicable Laws, promptly notify theother party of any written communication to that party from the FTC,
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the Antitrust Division or any other governmental entity relating to this Agreement and,subject to Applicable Law, permit the other party to review in advance any proposed writtencommunication to any of the foregoing relating to this Agreement; (b) to the extent permitted byApplicable Laws, not agree to participate in any substantive meeting or discussion with anygovernmental authority in respect of any filings, investigation or inquiry concerning thisAgreement or the Transactions unless it consults with the other party in advance and, to the extentpermitted by such governmental authority, gives the other party the opportunity to attend andparticipate thereat; and (c) to the extent permitted by Applicable Laws, furnish the other partywith copies of all correspondence, filings, and communications between them and their Affiliatesand their respective representatives on the one hand, and any government or regulatory authority ormembers or their respective staffs on the other hand, with respect to this Agreement and theTransactions.     7.10 Termination of Contracts. Prior to the Closing, Sellers shall terminate thatcertain Loaned Equipment Agreement & Supply Contract with Canyon State Oil Co., Inc. for thefacilities located at 1500 S. 7th Street, Phoenix, Arizona, and that certain Loaned EquipmentAgreement & Supply Contract with Canyon State Oil Co., Inc. for the facilities located at Hwy 79 &Deepwell Ranch, Florence, Arizona.     7.11 City of Phoenix Settlement. From and after the Closing, Buyer will cooperatewith Sellers with respect to Sellers’ completion, at Sellers’ expense, of the improvements to the7th Street transfer station currently being negotiated by Sellers with the City ofPhoenix.ARTICLE VIIICONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS     The obligations of Sellers to consummate the Transactions are subject to the completion,satisfaction, or at their option, waiver, on or prior to the Closing Date, of each of the followingconditions.     8.1 Representations and Warranties. The representations and warranties of Buyercontained in this Agreement shall have been true and correct on and as of the date made and shallbe true and correct in all material respects on and as of the Closing Date with the same effect asthough such representations and warranties had been made on and as of such date. Buyer shall havedelivered to Sellers a certificate of a duly authorized officer to the foregoing effect.     8.2 Covenants. Each and all of the terms, covenants and conditions of this Agreementto be complied with and performed by Buyer on or before the Closing Date shall have been dulycomplied with and performed in all material respects. Buyer shall have delivered to Sellers acertificate of a duly authorized officer to the foregoing effect.     8.3 No Legal Prohibition. No injunction or order shall be in effect prohibitingconsummation of the Transactions or which would make the consummation of the Transactions unlawful.     8.4 No Adverse Proceeding. No Proceeding shall have been instituted and be pendingbefore a court or any other governmental agency or body which seeks to restrain or
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prohibit any of the Transactions; provided, however, that the provisions of this Section8.4 shall not apply if Sellers have directly or indirectly solicited or encouraged any suchProceeding.     8.5 Deliveries. Buyer shall be prepared to make or cause to be made the deliveriesdescribed in Section 3.3 and Sections 3.4 through 3.8.     8.6 Third Party Consents and Approvals. All materially necessary governmental,regulatory and third party consents and approvals shall have been obtained.     8.7 Closing of Florida Transaction. The Florida Transaction shall be prepared toclose simultaneously with the Closing of the Transactions.     8.8 HSR Act. The waiting period (and any extension thereof) under the HSR Actapplicable to the Transactions shall have expired or been earlier terminated by the FTC or theAntitrust Division.     8.9 Approval of Lenders. Sellers shall have obtained all necessary approvals of theTransactions from its lenders.     8.10 Release From Obligations. Effective as of the Closing, Sellers and theiraffiliates shall be released from obligations to pay any royalties or other amounts to the CactusLandfill Sellers under the Cactus Landfill Royalty Agreement or the Cactus Landfill PurchaseAgreement.ARTICLE IXCONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER     The obligations of Buyer to consummate the Transactions are subject to the completion,satisfaction or, at their option, waiver, on or prior to the Closing Date, of each of the followingconditions.     9.1 Representations and Warranties. Subject to Section 7.7, therepresentations and warranties of Sellers contained in this Agreement shall have been true andcorrect on and as of the date made and shall be true and correct in all material respects on and asof the Closing Date with the same effect as though such representations and warranties had beenmade on and as of such date. Sellers shall have delivered to Buyer a certificate of a dulyauthorized officer to the foregoing effect.     9.2 Covenants. Each and all of the terms, covenants and conditions of this Agreementto be complied with and performed by Sellers on or before the Closing Date shall have been dulycomplied with and performed in all material respects. Sellers shall have delivered to Buyer acertificate of a duly authorized officer to the foregoing effect.     9.3 No Legal Prohibition. No injunction or order shall be in effect prohibitingconsummation of the Transactions or which would make the consummation of the Transactions unlawful.
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     9.4 No Adverse Proceeding. No Proceeding shall have been instituted and be pendingbefore a court or any other governmental agency or body which seeks to restrain or prohibit any ofthe Transactions; provided, however, that the provisions of this Section9.4 shall not apply if Buyer has directly or indirectly solicited or encouraged any suchProceeding.     9.5 Deliveries. Sellers shall be prepared to make or cause to be made the deliveriesdescribed in Section 3.2.     9.6 No Material Adverse Change. No Material Adverse Change shall have occurred sinceMay 31, 2006; provided, however, that nothing disclosed in the Disclosure Schedules (without givingeffect to any supplements or updates made by Sellers after the date of this Agreement) or theSellers’ Financial Statements, individually or in the aggregate, shall be deemed to be a MaterialAdverse Change.     9.7 Third Party Consents and Approvals. All materially necessary governmental,regulatory and third party consents and approvals shall have been obtained.     9.8 Environmental Investigation Satisfactory. Buyer shall be satisfied in allrespects with the results of Phase I (and Phase II, if undertaken by Buyer) environmentalinvestigations respecting the Land; provided, however, that this condition shall be deemedsatisfied if Buyer gives written notice to Sellers that Buyer objects to the results of a Phase I(or Phase II) environmental investigation and Sellers elect to and promptly complete a cure of thematters subject to the objection.     9.9 Royalty Agreement for Cactus Landfill. Buyer shall have negotiated and enteredinto, effective at Closing, a new royalty agreement with the Cactus Landfill Sellers on terms andconditions satisfactory to Buyer, in its sole discretion, and the obligations to the CactusLandfill Sellers from which Sellers are being released pursuant to Section 8.10 shall havebeen terminated.     9.10 Closing of Florida Transaction. The Florida Transaction shall be prepared toclose simultaneously with the Closing of the Transactions.     9.11 HSR Act. The waiting period (and any extension thereof) under the HSR Actapplicable to the Transactions shall have expired or been earlier terminated by the FTC or theAntitrust Division.ARTICLE XLIABILITIES AND OBLIGATIONS     10.1 Excluded Liabilities. Except as explicitly set forth in this Agreement, Buyershall not, by the execution and performance of this Agreement or otherwise (including undertheories of successor liability), assume, become responsible for or incur, and Sellers, jointly andseverally, hereby expressly agree to pay and perform, any Liability or obligation of any nature ofSellers or the Company whatsoever arising, or relating to events occurring, on or prior to theClosing Date, whether legal or equitable, or matured or contingent (collectively, the “ExcludedLiabilities”), including any Liability or obligation: (a) to any Affiliate of Sellers or the
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Company; (b) to current or former employees, consultants or others for salary, bonuses, otherincentive compensation or benefits arising prior to the Closing Date, (c) for Taxes which (i)arise, are assessed or become payable or due on or prior to the Closing Date, or (ii) are payableby Sellers or the Company or any of their Affiliates as a result of purchases, sales or transfersas of or prior to the Closing Date; (d) with respect to the settlement of any disputes with TopGrade; and (e) for Environmental Damages arising out of events occurring on or prior to the ClosingDate. Without limiting the generality of the foregoing, all Excluded Liabilities of the Companyshall be assumed by Sellers prior to the Closing pursuant to an instrument comparable to Buyer’sAssumption Agreements.     10.2 Assumption of Obligations. Subject to the terms and conditions set forth in thisAgreement, at the Closing Buyer shall assume from Sellers and the Company shall retain, as the casemay be, only the Liabilities described in the remainder of this Section 10.2 (the“Assumed Liabilities”).          (a) Buyer shall assume (or the Company shall retain) all obligations under the CustomerContracts, Employee Contracts, Assumed Leases, Permits and other contracts included within theAssets, to the extent such obligations first arise and are related to periods subsequent to theClosing (provided that such obligations do not arise as a result of actions or omissions by Sellersor the Company thereof on or prior to Closing).          (b) Within 30 days following the Closing, Buyer will post replacement performance bonds,letters of credit and other financial assurances for the performance bonds, letters of credit andother financial assurances of Sellers set forth on Schedule 5.17, and will promptly furnishto Sellers a copy of such replacement performance bond, letter of credit or other financialassurance as it is issued. Buyer will pay Sellers interest at 10% per annum on any performancebonds, letter of credit and other financial assurances not replaced within such 30-day period untilthe same are replaced.          (c) Buyer agrees to assume and perform all obligations expressly required to be assumed byBuyer pursuant to Section 3.7.          (d) Buyer agrees to assume the liability reflected on the balance sheet as of the Closing Datewith respect to any capitalized leases assumed by Buyer, and all liabilities included in theAdjustment Amount.          (e) Buyer agrees to assume and perform all other Liabilities which Sellers designate inwriting prior to the Closing and which Buyer agrees to assume.ARTICLE XIINDEMNIFICATION     11.1 Survival of Representations and Warranties and Covenants.          (a) The representations and warranties of any party contained in this Agreement and theindemnification liabilities and obligations of the parties with respect thereto shall survive theClosing for a period of one year after the Closing Date; provided, however, that
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the representations and warranties in Sections 5.8, 5.9, 5.13 and5.19 and the indemnification liabilities and obligations of the parties with respectthereto shall survive the Closing for a period until the expiration of the applicable statute oflimitations with respect thereto.          (b) The covenants and agreements set forth in this Agreement and to be performed to any extentafter the Closing Date shall survive until fully discharged and performed, and any claims forindemnification in respect of a breach of such covenants to be performed in any respect after theClosing Date may be made at any time within the applicable statute of limitations.     11.2 Indemnification by Sellers. Sellers agree that they shall, jointly andseverally, indemnify, defend (as to Third Party Claims only), protect and hold harmless Buyer, itsofficers, shareholders, directors, managers, divisions, subdivisions, Affiliates, subsidiaries,parent, agents, employees, successors and assigns at all times from and after the date of thisAgreement from and against all liabilities, claims, damages, actions, suits, Proceedings, demands,assessments, adjustments, penalties, losses, costs and expenses whatsoever (including court costs,reasonable attorneys’ and expert witness fees and expenses and expenses of investigation)(collectively, “Liabilities”), whether equitable or legal, matured or contingent, known orunknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising outof occurrences prior to, at or after the date of this Agreement, incurred as a result of orincident to: (a) any breach of, or misrepresentation in, the representations and warranties bySellers set forth in this Agreement, or in the Schedules, Exhibits, certificates, documents oragreements attached to this Agreement or delivered pursuant hereto by Sellers; (b) breach of anyagreement or covenant on the part of Sellers made in this Agreement, or in the Schedules, Exhibits,certificates, documents or agreements attached to this Agreement or delivered pursuant hereto bySellers; (c) any Excluded Liability; or (d) any Excluded Asset. Notwithstanding any otherprovision set forth in this Agreement, indemnifiable claims set forth in (a) through (d) of thisSection 11.2 shall include any claim by a third Person that, if true, would mean that acondition for indemnification set forth in subsections (a) through (d) of this Section 11.2had been satisfied.     11.3 Indemnification by Buyer. Buyer agrees that it shall indemnify, defend (as toThird Party Claims only), protect and hold harmless Sellers and their respective officers,shareholders, directors, managers, divisions, subdivisions, Affiliates, subsidiaries, parent,agents, employees, successors and assigns at all times from and after the Closing Date from andagainst all Liabilities, whether equitable or legal, matured or contingent, known or unknown,foreseen or unforeseen, ordinary or extraordinary, patent or latent, incurred by Sellers as aresult of or incident to: (a) any breach of, or misrepresentation in, the representations andwarranties of Buyer set forth in this Agreement, or in the Schedules, Exhibits, certificates,documents or agreements attached to this Agreement or delivered pursuant hereto by Buyer; (b)breach of any agreement or covenant on the part of Buyer made in this Agreement, or in theSchedules, Exhibits, certificates, documents or agreements attached to this Agreement or deliveredpursuant hereto by Buyer; and (c) any Assumed Liability. Notwithstanding any other provision setforth in this Agreement, indemnifiable claims set forth in (a) through (d) of this Section11.3 shall include any claim by a third Person that, if true, would mean that a condition forindemnification set forth in subsections (a) through (c) of this Section 11.3 had beensatisfied.
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     11.4 Limitation on Liability. The indemnification obligations set forth inSection 11.2(a) and 11.3(a) shall (a) apply only if a Closing occurs, (b) applyonly after the aggregate amount of claims for indemnification from the Indemnifying Party underthis Agreement exceeds an aggregate of $841,269 (the “Deductible”), and thereafter theIndemnifying Party shall be liable for only those indemnification obligations in excess of suchDeductible; provided, however, that only claims, or series of related claims, equal to or in excessof $42,063 shall apply toward the Deductible; and (c) be limited to an aggregate amount not toexceed 35% of the aggregate Purchase Price actually paid under this Agreement by Buyer.Notwithstanding the foregoing, however, Tax Claims and Fraud Claims shall not be limited bysubsection (b) or (c) of this Section 11.4.     11.5 Indemnification Procedure Between Buyer and Sellers. Upon the occurrence of anyclaim for which indemnification is believed to be due under this Agreement, the Indemnified Partyshall provide notice of such claim to the Indemnifying Party, stating in general terms thecircumstances giving rise to the claim, specifying the amount of the claim (or an estimate thereof)and making a request for any payment then believed due (subject to the limitations in thisAgreement). Upon receipt of any such notice, both the Indemnified Party and the Indemnifying Partyshall use all reasonable efforts to cooperate and arrive at a mutually acceptable resolution ofsuch dispute within the next 30 days. If a resolution is not reached within the 30-day period,either party may commence the dispute resolution procedures set forth in Article XVI. Ifthe Indemnifying Party does not respond within such 30-day period, the claim for indemnificationshall be deemed accepted by the Indemnifying Party. If all or a portion of such claim amount isowed to the Indemnified Party, the Indemnifying Party shall (subject to the terms of Section11.4) within 10 days of such determination, pay the Indemnified Party such amount owed in cash.     11.6 Procedure for Indemnification with Respect to Third-Party Claims.          (a) If any third Person shall notify an Indemnified Party with respect to any matter (a“Third Party Claim”) that may give rise to a claim for indemnification against anIndemnifying Party or if any party who may make a claim for indemnification under this Agreementotherwise becomes aware of any matter that may give rise to such a claim or wishes to make such aclaim (whether or not related to a Third Party Claim), then the Indemnified Party shall promptlynotify each Indemnifying Party thereof in writing; provided, however, that no delay on the part ofthe Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party fromany obligation under this Agreement unless (and then solely to the extent) the Indemnifying Partyis thereby prejudiced.          (b) Any Indemnifying Party will have the right to assume the defense of any claim or anylitigation resulting therefrom, provided that (i) the counsel for the Indemnifying Party who shallconduct the defense of such claim or litigation shall be reasonably satisfactory to the IndemnifiedParty and (ii) the Indemnified Party may participate in such defense at such Indemnified Party’sexpense. Except with the prior written consent of the Indemnified Party, no Indemnifying Party, inthe defense of any such claim or litigation, shall consent to entry of any judgment or order,interim or otherwise, or enter into any settlement that provides for injunctive or othernonmonetary relief affecting the Indemnified Party or that does not include as an unconditionalterm thereof the giving by each claimant or plaintiff to such Indemnified Party of a
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release from all liability with respect to such claim or litigation. In the event that theIndemnified Party shall in good faith determine that the conduct of the defense of any claimsubject to indemnification under this Agreement or any proposed settlement of any such claim by theIndemnifying Party might be expected to affect adversely the Indemnified Party, or that theIndemnified Party may have available to it one or more defenses or counterclaims that areinconsistent with one or more of those that may be available to the Indemnifying Party in respectof such claim or any litigation relating thereto, the Indemnified Party shall have the right at alltimes to take over and assume control over the defense, settlement, negotiations or litigationrelating to any such claim at the sole cost of the Indemnifying Party, provided that if theIndemnified Party does so take over and assume control, the Indemnified Party shall not settle suchclaim or litigation without the written consent of the Indemnifying Party, such consent not to beunreasonably withheld or delayed. In the event that the Indemnifying Party does not accept thedefense of any matter as above provided, the Indemnified Party shall have the full right to defendagainst any such claim or demand and shall be entitled to settle or agree to pay in full such claimor demand. In any event, the Indemnifying Party and the Indemnified Party shall cooperate in thedefense of any claim or litigation subject to this Article XI and the records and personnelof each shall be reasonably available to the other with respect to such defense.     11.7 Tax Treatment of Payment. Unless otherwise required by law or unless Sellers andBuyer otherwise mutually agree, any payment made under this Agreement (including ArticleXI) shall be treated as an adjustment to the Purchase Price.     11.8 Exclusive Remedy. With the exception of Fraud Claims and other than equitable orinjunctive relief or claims for specific performance, as applicable, the indemnification providedin this Article XI is the exclusive remedy of the parties with respect to this Agreement,the Schedules and Exhibits, and the certificates, documents or other agreements attached to thisAgreement or delivered by a party pursuant hereto.ARTICLE XIITERMINATION OF AGREEMENT     12.1 Termination by Buyer. Buyer may, by written notice in the manner provided inSection 15.6 on or before the Closing Date, terminate this Agreement in the event of amaterial breach by Sellers (a) of the representations and warranties of Sellers or (b) in theobservance, or in the due and timely performance of any of the covenants or agreements contained inthis Agreement on their part to be performed, and such breach shall not have been cured, afterwritten notice thereof, on or before the Closing Date. In addition, Buyer, by notice in the mannerprovided in Section 15.6, may terminate this Agreement if (i) any of the conditions setforth in Article IX shall become incapable of fulfillment (other than due to acts oromissions of Buyer or its Affiliates) on or before the Closing Date and shall not have been waivedby Buyer or (ii) in the circumstances described in Section 3.5.     12.2 Termination by Sellers. Sellers may, by written notice in the manner provided inSection 15.6 on or before the Closing Date, terminate this Agreement in the event of amaterial breach by Buyer (a) of the representations and warranties of Buyer or (b) in theobservance, or in the due and timely performance of any of the covenants or agreements contained inthis
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Agreement on its part to be performed, and such breach shall not have been cured, afterwritten notice thereof, on or before the Closing Date. In addition, Sellers, by notice in themanner provided in Section 15.6, may terminate this Agreement if any of the conditions inArticle VIII shall become incapable of fulfillment (other than due to acts or omissions ofSellers or their Affiliates) by or before the Closing Date and shall not have been waived bySellers.     12.3 Termination Date. This Agreement may be terminated by either party by notice tothe other party if the Transactions shall not have been consummated by 5:00 p.m. (MST) on October31, 2006 (other than as a result of a breach of this Agreement by the party giving such notice orby its Affiliates), unless such date shall be extended by the mutual written consent of Sellers andBuyer.     12.4 Effect of Termination. If this Agreement is validly terminated pursuant toSection 12.1, 12.2 or 12.3, this Agreement shall thereafter become null andvoid, and there shall be no liability or obligation on the part of any of the parties (or any othertheir respective officers, director, employees, agents or other representatives or Affiliates),except that (a) the provisions of Section 7.1(e), Article XIII, Section15.6 and Article XVI shall survive such termination, (b) such termination shall notrelieve any party of any liability for any willful material breach of this Agreement, and (c) suchtermination shall not relieve Buyer of its obligations under Section 12.5, if applicable.     12.5 Certain Consequences of Termination. If this Agreement is terminated by Sellersbecause the condition set forth in Section 8.9 was not satisfied, then Sellers shallpromptly pay Buyer $2,500,000 as a termination fee, which shall be Buyer’s sole and exclusiveremedy on account of such termination.ARTICLE XIIINONDISCLOSURE AND NONSOLICITATION     13.1 Nondisclosure by Buyer. Buyer recognizes and acknowledges that it has in thepast, currently has, and prior to the Closing Date, will have access to confidential information ofSellers and the Company, including lists of customers, operational policies, and pricing and costpolicies that are valuable, special and unique assets of Sellers and the Company. Buyer agreesthat it will not, except as may be required by law or valid legal process, disclose suchconfidential information to any Person for any purpose or reason whatsoever, prior to the ClosingDate, except to authorized representatives of Sellers, unless such information is or becomes knownto the public generally through no fault of Buyer. In connection with the foregoing, the partiesacknowledge and agree that they are competitors in the waste collection, hauling, and disposalbusiness in the markets serviced by Sellers and the Business, and that nothing contained hereinshall be interpreted to preclude Buyer from providing waste collection, hauling, or disposalservices in such markets or elsewhere. The provisions of this Section 13.1 shall apply atall times prior to the Closing Date and for a period of one year following the first to occur of(i) the Closing Date and (ii) termination of this Agreement without a Closing having occurred.
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     13.2 Confidential Information. Neither Sellers (nor any of their respectiveAffiliates) shall at any time subsequent to the Closing, except as explicitly requested by Buyer oras otherwise provided in this Agreement, use for any purpose, disclose to any Person, or keep ormake copies of any records and files containing, any confidential information relating primarily tothe Business, the Assets or the Assumed Liabilities, all such information being deemed to betransferred to Buyer under this Agreement. For purposes of this Agreement, “confidentialinformation” shall mean information relating primarily to the Business, the Assets or theAssumed Liabilities, including all customer and vendor lists and related information, allinformation concerning the Business’ processes, products, costs, prices, sales, marketing anddistribution methods, properties and assets, Assumed Liabilities, and other information notpreviously disclosed to the public directly by Sellers or the Company. The foregoing provisionsshall not apply to any information which is or relates primarily to an Excluded Asset or which isor relates primarily to the Excluded Liabilities, or which relates to Tax matters of Sellers (butnot of the Company). Both Sellers and Buyer shall maintain confidential information that relatesto both Assumed Liabilities and Excluded Liabilities in duplicate. If at any time after theClosing, Sellers should discover that they are in possession of any records and files containingthe confidential information of Buyer, then the party making such discovery shall immediately turnsuch records and files over to Buyer, which shall upon request make available to the surrenderingparty any information contained therein which is not confidential information. Sellers agree thatthey will not assert a waiver of loss of confidential or privileged status of the information basedupon such possession or discovery.     13.3 Non-Solicitation. Sellers agree that for a period of five years following theClosing Date, they will not, and will cause their Affiliates not to, solicit or accept businessfrom any customer of the Business during the 12 month period ending on the Closing Date in the areaserviced by the Business during such 12 month period.     13.4 Equitable Relief for Violations. The parties acknowledge that an irreparableinjury may result to the non-violating party and its Business in the event of a breach by theviolating party of any provision in this Article XIII. The parties also acknowledge andagree that the damages or injuries that a non-violating party sustains as a result of such a breachare difficult to ascertain and money damages alone may not be an adequate remedy to a non-violatingparty. The parties therefore expressly agree that if a controversy arises concerning the rights orobligations of a party under this Article XIII, such rights or obligations shall beenforceable by a court decree of specific performance and a non-violating party shall also beentitled to any injunctive relief from the court pursuant to Article XVI necessary toprevent or restrain any such breach. Such relief shall be granted without the necessity of ashowing of irreparable harm and without the posting of a bond or other security. Such relief,however, shall be cumulative and non-exclusive and shall be in addition to any other remedy towhich the parties may be entitled in accordance with this Agreement.ARTICLE XIVTAX MATTERS     14.1 Transaction Taxes. Buyer shall be responsible for and shall remit to Seller atClosing all sales, transfer, conveyance or other Taxes associated with the transfer of the Assetsto
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Buyer pursuant to this Agreement. Seller shall promptly remit such Taxes to the applicabletaxing authority.ARTICLE XVGENERAL     15.1 Assignment; Binding Effect; Amendment. This Agreement and the rights of theparties under it may not be assigned (except by operation of law) without the prior consent of theothers; provided, however, that Buyer may assign any and all of its rights, interests andobligations under this Agreement as security for obligations to its lenders. This Agreement shallbe binding upon and shall inure to the benefit of the parties and their successors and permittedassigns. This Agreement may be modified or amended only by a written instrument executed by allparties.     15.2 Entire Agreement. This Agreement, together with its exhibits and schedules, isthe final, complete and exclusive statement and expression of the agreement among the parties withrelation to the subject matter of this Agreement. This Agreement supersedes, and cannot be varied,contradicted or supplemented by evidence of, any prior or contemporaneous discussions,correspondence, or oral or written agreements of any kind.     15.3 Counterparts. This Agreement may be executed simultaneously in two or morecounterparts, each of which shall be deemed an original and all of which together shall constitutebut one and the same instrument.     15.4 No Brokers. Sellers represent and warrant to Buyer, and Buyer represents andwarrants to Sellers, that the warranting party has had no dealings with any broker or agent so asto entitle such broker or agent to a commission or fee in connection with the Transactions. If forany reason a commission or fee shall become due, the party dealing with such agent or broker shallpay such commission or fee and agrees to indemnify and save harmless each of the other parties fromall claims for such commission or fee and from all attorneys’ fees, litigation costs and otherexpenses relating to such claim.     15.5 Expenses of Transaction. Except as otherwise provided in this Agreement, whetheror not the Transactions shall be consummated:          (a) Buyer will pay the fees, expenses and disbursements of Buyer and its agents,representatives, accountants and counsel incurred in connection with the subject matter of thisAgreement and any amendments to it and all other costs and expenses incurred in the performance andcompliance with all conditions to be performed by Buyer under this Agreement;          (b) Sellers will pay the fees, expenses and disbursements of Sellers and their respectiveagents, representatives, accountants and counsel incurred in connection with the subject matter ofthis Agreement and any amendments to it and all other costs and expenses incurred in theperformance and compliance with all conditions to be performed by Sellers under this Agreement; and
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          (c) Nothing in this Section 15.5 shall limit the rights of a non-breaching party torecover damages, including fees and expenses if so awarded, in connection with any claim against aparty in breach under this Agreement.     15.6 Notices. All notices or other communications required or permitted hereundershall be in writing and may be given by depositing the same in United States mail, addressed to theparty to be notified, postage prepaid and registered or certified with return receipt requested, byovernight courier or by delivering the same in person to such party.(a) If to Buyer, addressed to it at:c/o Allied Waste Industries, Inc.