EXHIBIT 10.2
ADMINISTRATIVE SERVICES AGREEMENT
by and among
WCA WASTE CORPORATION,
a Delaware corporation,
WCA MANAGEMENT COMPANY, L.P.,
a Delaware limited partnership,
WASTE CORPORATION OF AMERICA, LLC,
a Delaware limited liability company,
TRANSIT WASTE, LLC,
a New Mexico limited liability company,
WASTE CORPORATION OF CENTRAL FLORIDA, INC.,
a Delaware corporation,
and
WASTE CORPORATION OF FLORIDA, INC.,
a Florida corporation
Dated as of
May 20, 2004
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
1.1 Definitions..............................................................................................2
1.2 Construction.............................................................................................4
ARTICLE 2
TERMINATION OF AGREEMENTS
2.1 Termination of Original Services Agreement and Secondment Agreement......................................4
ARTICLE 3
SERVICES OTHER THAN PERSONNEL SERVICES
3.1 Management of Finance, Accounting Standards and Investor Relations.......................................5
3.2 Management of Banking and Investment Relations...........................................................5
3.3 Internal Controls and Audits.............................................................................6
3.4 Tax Management and Administration........................................................................6
3.5 Accounting Services......................................................................................6
3.6 Corporate Law and Compliance.............................................................................7
3.7 Information Systems Services.............................................................................7
3.8 Insurance Services.......................................................................................7
3.9 Office Space and Services................................................................................8
3.10 Miscellaneous Other Services.............................................................................8
3.11 Additional Services......................................................................................8
3.12 Limitation...............................................................................................8
ARTICLE 4
PERSONNEL AND RELATED SERVICES
4.1 Personnel Services.......................................................................................9
4.2 Secondment of Employees..................................................................................9
4.3 Job Descriptions.........................................................................................9
4.4 Employment Status of Seconded Employees..................................................................9
4.5 Authorization of Seconded Employees......................................................................9
ARTICLE 5
FEES AND EXPENSES
5.1 Monthly Fee..............................................................................................9
5.2 Direct and Other Allocated Costs........................................................................10
5.3 Books and Records.......................................................................................10
5.4 Audits..................................................................................................11
ARTICLE 6
BONDING ARRANGEMENTS
6.1 Bonding Facilities......................................................................................11
6.2 Indemnification.........................................................................................11
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ARTICLE 7
INTELLECTUAL PROPERTY
7.1 Ownership of Intellectual Property......................................................................11
7.2 License.................................................................................................11
ARTICLE 8
CONFIDENTIALITY
8.1 Use of Confidential Information.........................................................................12
8.2 Definition of "Confidential Information"................................................................13
8.3 Required Disclosure of Confidential Information.........................................................13
ARTICLE 9
LIABILITY; INDEMNIFICATION
9.1 No Assumption of Liabilities............................................................................14
9.2 Limitation of Liability.................................................................................14
9.3 Indemnification by Waste Corp Parties...................................................................14
9.4 Indemnification by WCA Waste Parties....................................................................14
ARTICLE 10
TERM AND TERMINATION
10.1 Term....................................................................................................15
10.2 Termination by WCA Waste................................................................................15
10.3 Termination by Waste Corp...............................................................................15
10.4 Automatic Termination...................................................................................16
10.5 Partial Termination.....................................................................................16
10.6 Effect of Termination...................................................................................16
ARTICLE 11
MISCELLANEOUS
11.1 Delegation of Performance of Services...................................................................16
11.2 Provision of Services Nonexclusive......................................................................16
11.3 No Joint Venture........................................................................................17
11.4 No Fiduciary Duties.....................................................................................17
11.5 Waiver of Conflicts.....................................................................................17
11.6 Limitation on Scope.....................................................................................17
11.7 Warranty................................................................................................17
11.8 Force Majeure...........................................................................................18
11.9 Notices.................................................................................................18
11.10 Assignment; Binding Effect..............................................................................19
11.11 Governing Law...........................................................................................19
11.12 Dispute Resolution......................................................................................19
11.13 Entire Agreement........................................................................................19
11.14 Amendment; Waiver.......................................................................................19
11.15 Further Assurances......................................................................................19
11.16 Titles and Headings.....................................................................................20
11.17 Severability............................................................................................20
11.18 Joint Draft.............................................................................................20
11.19 Counterparts; Facsimile Signatures......................................................................20
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ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (this "Agreement") is entered
into as of the 20th day of May, 2004, but effective as of the Separation Date
(as defined in the Reorganization Agreement (as defined below)) (the "Effective
Date"), by and among WCA Waste Corporation, a Delaware corporation ("WCA
Waste"), WCA Holdings Corporation, a Delaware corporation and a wholly-owned
subsidiary of WCA Waste ("WCA Holdings"), WCA Management Company, L.P., a
Delaware limited partnership and an indirect wholly-owned subsidiary of WCA
Waste ("WCA Management" and together with WCA Waste and WCA Holdings, the "WCA
Waste Parties"), Waste Corporation of America, LLC, a Delaware limited liability
company formerly organized as a Delaware corporation and known as Waste
Corporation of America, Inc. ("Waste Corp"), Transit Waste, LLC, a New Mexico
limited liability company and a wholly-owned subsidiary of Waste Corp ("Transit
Waste"), Waste Corporation of Central Florida, Inc., a Delaware corporation and
a wholly-owned subsidiary of Waste Corp ("WC Central Florida"), and Waste
Corporation of Florida, Inc., a Florida corporation and a wholly-owned
subsidiary of Waste Corp ("WC Florida" and together with Waste Corp, Transit
Waste and WC Central Florida, the "Waste Corp Parties") Each of the WCA Waste
Parties and Waste Corp Parties is sometimes referred to herein as a "Party," and
all of them together may sometimes be referred to as the "Parties."
RECITALS
WHEREAS, Waste Corp and WCA Management are parties to a Corporate
Services Agreement (the "Original Services Agreement") and a Personnel Services
Secondment Agreement (the "Secondment Agreement"), each dated as of January 1,
2001, pursuant to which Waste Corp and its subsidiaries purchased certain
services in connection with the operations of Waste Corp's and its subsidiaries'
businesses; and
WHEREAS, prior to the effectiveness of this Agreement, the Waste Corp
Parties were direct or indirect wholly-owned subsidiaries of WCA Waste; and
WHEREAS, simultaneously with the effectiveness of this Agreement, the
Waste Corp Parties are being spun off to the stockholders of WCA Waste (the
"Spin-Off") pursuant to that certain Reorganization Agreement dated as of
May 10, 2004 (the "Reorganization Agreement"), by and among Waste Corp, WCA
Waste, WCA Holdings Corporation, a Delaware corporation and a wholly-owned
subsidiary of WCA Waste, and WCA Merger Corporation, a Delaware corporation that
was merged with and into Waste Corp pursuant to one of the transactions
described in the Reorganization Agreement; and
WHEREAS, pursuant to Section 2.9 of the Reorganization Agreement, WCA
Waste and Waste Corp have agreed to enter into an administrative services
agreement simultaneously with the Spin-Off pursuant to which WCA Waste and its
subsidiaries will provide to Waste Corp and its subsidiaries the services now
being provided to them by WCA Management under the Original Services Agreement
and the Secondment Agreement; and
WHEREAS, the Parties now desire to set forth their agreements regarding
the provision of such services; and
WHEREAS, Waste Corp and WCA Management desire to terminate the Original
Services Agreement and the Secondment Agreement upon the effectiveness of this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each of the Parties
hereby agrees as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms have the
respective meanings set forth below or set forth in the Sections referred to
below (and grammatical variations of such terms have correlative meanings):
"Agreement" is defined in the preamble to this Agreement.
"Allocated Costs" is defined in Section 5.2.
"Applicable Law" means any Law to which a specified Person or property
is subject.
"Authorized Delegate" is defined in Section 11.1.
"Business Day" means a day other than a Saturday, a Sunday or a day on
which banks are required or authorized to be closed in Houston, Texas.
"Change in Control" means, with respect to a Person, the consummation
of any of the following transactions: (a) any merger, consolidation, share
exchange or other business combination of such Person with or into any other
entity, whether or not such Person is the surviving entity, or any acquisition
of securities or assets of another entity by such Person, or any reorganization,
reverse stock split, recapitalization or similar transaction or series of
related transactions, if following such transaction or series of related
transactions (i) more than fifty percent (50%) of the combined voting power of
the then outstanding equity securities of the entity resulting from such
transaction or series of related transactions entitled to vote (or upon
conversion, exchange, exercise or any other event, would be entitled to vote)
generally in the election of directors (or the equivalent of directors) (for
purposes of this definition, "Voting Securities") is not beneficially owned,
directly or indirectly, by the Persons who were the beneficial owners (for
purposes of this definition, the "Existing Majority") of at least fifty percent
(50%) of the then outstanding Voting Securities of such Person immediately prior
to such transaction or series of related transactions, or (ii) the Existing
Majority is not entitled to elect at least a majority of the members of the
board of directors (or its equivalent) of the entity resulting from the
transaction or series of related transactions; (b) the sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all of the assets of such Person, whether or not such Person
continues in business with the proceeds of such sale; and (c) the liquidation or
dissolution of such Person.
"Confidential Information" is defined in Section 8.2.
"Effective Date" is defined in the preamble to this Agreement.
"Governmental Authority" (or "Governmental") means: a federal, state,
local or foreign governmental authority; a state, province, commonwealth,
territory or district thereof; a county
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or parish; a city, town, township, village or other municipality; a district,
▇▇▇▇ or other subdivision of any of the foregoing; any executive, legislative or
other governing body of any of the foregoing; any agency, authority, board,
department, system, service, office, commission, committee, council or other
administrative body of any of the foregoing; any court or other judicial body;
and any officer, official or other representative of any of the foregoing.
"Intellectual Property" means (a) inventions, whether or not
patentable, whether or not reduced to practice and whether or not yet made the
subject of a pending patent application or applications, (b) ideas and
conceptions of potentially patentable subject matter, including, without
limitation, any patent disclosures, whether or not reduced to practice and
whether or not yet made the subject of a pending patent application or
applications, (c) national (including the United States) and multinational
statutory invention registrations, patents, patent registrations and patent
applications (including all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations) and all rights therein
provided by multinational treaties or conventions and all improvements to the
inventions disclosed in each such registration, patent or application, (d)
copyrights (registered or otherwise) and registrations and applications for
registration thereof, and all rights therein provided by multinational treaties
or conventions, (e) computer software, including, without limitation, source
code, operating systems and specifications, data, data bases, files,
documentation and other materials related thereto, data and documentation, (f)
trade secrets and confidential, technical or business information (including
ideas, formulas, compositions, inventions, and conceptions of inventions whether
patentable or unpatentable and whether or not reduced to practice), (g) whether
or not confidential, technology (including know-how and show-how), manufacturing
and production processes and techniques, research and development information,
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works, financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and supplier lists and
information, (h) copies and tangible embodiments of any of the foregoing, in
whatever form or medium, (i) trademarks (registered or otherwise), service marks
(registered or otherwise) and registrations and applications for registration
thereof, and all rights therein provided by multinational treaties and
conventions, and trade names and brand names (j) all licenses of any of the
foregoing, (k) all rights to obtain and rights to apply for patents, and to
register trademarks and copyrights and (l) all rights to ▇▇▇ and recover and
retain damages and costs and attorneys' fees for present and past infringement
of any of the foregoing.
"Law" means any applicable constitutional provision, statute, act,
code, law, regulation, rule, ordinance, order, decree, ruling, proclamation,
resolution, judgment, decision, declaration or interpretative or advisory
opinion or letter of a Governmental Authority having valid jurisdiction.
"Monthly Fee" is defined in Section 5.1(a).
"Office Space" is defined in Section 3.9(b).
"Original Services Agreement" is defined in the Recitals to this
Agreement.
"Party" and "Parties" are defined in the preamble to this Agreement.
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"Person" means any natural person, firm, partnership, association,
corporation, company, limited liability company, trust, business trust or other
entity of any kind.
"Reorganization Agreement" is defined in the Recitals to this
Agreement.
"Seconded Employees" is defined in Section 4.2.
"Secondment Agreement" is defined in the Recitals to this Agreement.
"Services" means all of the services to be provided by WCA Management
to the Waste Corp Parties or any of them described in Article 3 and Article 4.
"Spin-Off" is defined in the Recitals to this Agreement.
"Term" is defined in Section 10.1.
"Transit Waste" is defined in the preamble to this Agreement.
"Waste Corp" is defined in the preamble to this Agreement.
"Waste Corp Parties" is defined in the preamble to this Agreement.
"WCA Management" is defined in the preamble to this Agreement.
"WCA Waste" is defined in the preamble to this Agreement.
"WCA Waste Parties" is defined in the preamble to this Agreement.
"WC Central Florida" is defined in the preamble to this Agreement.
"WC Florida" is defined in the preamble to this Agreement.
Other terms defined herein shall have the meanings so given them.
1.2 CONSTRUCTION. Unless the context requires otherwise: (a) the gender
(or lack of gender) of all words used in this Agreement includes the masculine,
feminine and neuter; (b) the term "include" or "includes" means "includes,
without limitation," and "including" means "including, without limitation;" (c)
references to Articles and Sections refer to Articles and Sections of this
Agreement, unless otherwise specified; (d) references to Laws refer to such Laws
as they may be amended from time to time, and references to particular
provisions of a Law include any corresponding provisions of any succeeding Law;
and (e) references to money refer to legal currency of the United States of
America.
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ARTICLE 2
TERMINATION OF AGREEMENTS
2.1 TERMINATION OF ORIGINAL SERVICES AGREEMENT AND SECONDMENT
AGREEMENT. Effective immediately upon execution of this Agreement by all of the
Parties, the Original Services Agreement and the Secondment Agreement shall
terminate, and neither party thereto, nor any of their respective subsidiaries,
shall thereafter have any further rights or obligations thereunder; provided,
however that Waste Corp shall remain liable for and shall pay to WCA Management
within thirty (30) days after the Effective Date, all amounts payable by Waste
Corp under such agreements in respect of services performed and reimbursable
expenses incurred by WCA Management under such agreements as of the Effective
Date that remain unpaid as of the Effective Date.
ARTICLE 3
SERVICES OTHER THAN PERSONNEL SERVICES
Subject to the control of the boards of directors of the applicable
Waste Corp Parties, WCA Management shall, acting by and through the Seconded
Employees, provide to each of the Waste Corp Parties the following services:
3.1 MANAGEMENT OF FINANCE, ACCOUNTING STANDARDS AND INVESTOR RELATIONS.
WCA Management shall:
(a) Advise, direct and, as necessary, negotiate and arrange for
appropriate financing for each Waste Corp Party, supervise the structuring,
documentation and implementation of such arrangements and coordinate ongoing
compliance and reporting requirements associated with such arrangements;
(b) Advise and assist each Waste Corp Party in developing and
maintaining banking relationships;
(c) Advise and assist each Waste Corp Party in the maintenance and
further development of financial systems in order to maintain the quality of
such Waste Corp Party's accounting related control and reporting capabilities;
and
(d) Advise and assist each Waste Corp Party regarding investor and
public relations and corporate communications activities on behalf of such Waste
Corp Party, including, without limitation, required member or stockholder (as
applicable) communications and the holding of member or stockholder (as
applicable) meetings.
3.2 MANAGEMENT OF BANKING AND INVESTMENT RELATIONS. WCA Management
shall:
(a) Advise on and, as necessary, negotiate and arrange for appropriate
foreign exchange arrangements with respect to the operations of each Waste Corp
Party;
(b) Advise and assist each Waste Corp Party on the management of such
Waste Corp Party's company or corporate (as applicable) cash;
(c) Advise, direct and, as necessary, negotiate and arrange for
appropriate cash management agreements, including overdraft and credit line
facilities for each Waste Corp Party;
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(d) Advise, direct and, as necessary, negotiate and arrange for
long-term and revolving credit facilities of the Waste Corp Parties and provide
administration thereof;
(e) Obtain, manage and maintain local depository bank accounts and
banking relationships; and
(f) Advise and assist each Waste Corp Party on external accounting
requirements regarding debt, swap agreements and currency ▇▇▇▇▇▇, as required to
meet U.S. GAAP.
3.3 INTERNAL CONTROLS AND AUDITS. WCA Management shall advise each
Waste Corp Party with respect to internal audit matters and procedures and
manage such Waste Corp Party's internal audit, including the administration of
meetings of its audit committee, if any, the coordination of its internal and
external audit and the negotiation of external audit fees. Additionally, WCA
Management shall engage, on behalf of, and at the sole cost of the Waste Corp
Parties, the independent auditor for the Waste Corp Parties and shall manage the
independent audit process for the Waste Corp Parties.
3.4 TAX MANAGEMENT AND ADMINISTRATION. WCA Management shall:
(a) Advise and assist each Waste Corp Party with its tax planning to
facilitate the conduct of such Waste Corp Party's business in a tax efficient
manner;
(b) Coordinate the efforts of internal and external resources in order
to provide cost efficient processes and procedures to optimize each Waste Corp
Party's tax position;
(c) File, on behalf of the applicable Waste Corp Party, any required
local, state and/or federal income, franchise or other required tax returns;
(d) Advise and assist each Waste Corp Party with responses to tax
audits that may arise and, as necessary, represent each Waste Corp Party in
meetings and negotiations with the relevant tax authorities; and
(e) Engage, on behalf of the applicable Waste Corp Party, any required
third-party tax professionals necessary for the performance of any of the
foregoing services.
3.5 ACCOUNTING SERVICES. WCA Management shall provide the following
accounting services to each Waste Corp Party:
(a) Summary review and processing of accounts payable checks including:
(i) preparation of accounts payable checks and manual checks upon request; and
(ii) posting accounts payable checks in the applicable Waste Corp Party's
general ledger.
(b) Maintenance, processing and review of the transactions processing
and general ledger associated with the applicable Waste Corp Party's corporate
expenses not associated with this Agreement, including, without limitation, such
items as third party legal fees associated with specific litigation, etc.
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(c) Consolidation, review and external reporting of each Waste Corp
Party's financial statements.
3.6 CORPORATE LAW AND COMPLIANCE. WCA Management shall advise each
Waste Corp Party with respect to the maintenance of its corporate records and
compliance with the rules and regulations of the authorities in those states
where it is resident or doing business and advise each Waste Corp Party with
respect to applicable rules and regulations regarding the registration and
reporting requirements applicable to the U.S.
3.7 INFORMATION SYSTEMS SERVICES. WCA Management shall:
(a) Administer on behalf of each Waste Corp Party all licenses
necessary for the use of all software which such Waste Corp Party may need or
desire to use in such Waste Corp Party's business operations;
(b) Administer on behalf of each Waste Corp Party its computer systems
for the purpose of operating the software which such Waste Corp Party may need
or desire to use in such Waste Corp Party's business operations;
(c) Administer on behalf of each Waste Corp Party any and all licenses
WCA Management owns and maintains for use of WCA Management's electronic mail
system, local area network and personal computers and any and all software used
on or in connection with any of the foregoing; and
(d) Administer on behalf of each Waste Corp Party various support
services for such Waste Corp Party's general computing requirements, including,
without limitation, procurement, installation and maintenance of necessary
hardware and software, administration of local area network services, help desk
services and training of such Waste Corp Party's personnel.
3.8 INSURANCE SERVICES.
(a) WCA Management shall:
(i) Provide risk analysis on the assets and business exposures
of each Waste Corp Party;
(ii) Advise on the placement of risk, whether internal or
external, including the determination of retention, level and type of
coverage required;
(iii) Maintain and monitor each Waste Corp Party's
risk/insurance structure on a regular basis;
(iv) Propose the premium and retention budget annually for
each Waste Corp Party's approval. All applicable premiums, including
brokers' fees, will be allocated to the applicable Waste Corp Party as
part of the Allocated Costs, and all retention incurred by a Waste Corp
Party will be charged to such Waste Corp Party's account as part of the
Allocated Costs; and
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(v) Process claims of the Waste Corp Parties and expedite the
collection of claims.
(b) WCA Waste shall cause the Waste Corp Parties to be named as
additional insureds in WCA Waste's insurance program, as in effect from time to
time. Each of the Waste Corp Parties shall be allocated as part of the Allocated
Costs, and Waste Corp shall pay for, such insurance coverage in an amount equal
to WCA Waste's cost of insuring the assets and operations of such Waste Corp
Party, and generally in accordance with the allocations and methodology used
prior to the Effective Date.
3.9 OFFICE SPACE AND SERVICES.
(a) WCA Management shall provide each Waste Corp Party with various
office administrative services, including, without limitation, mail delivery,
supply procurement and general office management, and such other office
administrative services as such Waste Corp Party may, from time to time,
reasonably request; and
(b) WCA Management shall permit the Waste Corp Parties to occupy and
use the offices and space located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, and all of WCA Management's facilities, fixtures, furniture and equipment
contained therein (collectively, the "Office Space") along side WCA Waste and
its subsidiaries for executive, administrative and general office space.
(c) The Waste Corp Parties shall take good care of the Office Space and
suffer no waste or injury thereto, and shall keep and maintain the Office Space
in good condition and repair, ordinary wear and tear excepted.
3.10 MISCELLANEOUS OTHER SERVICES.
(a) WCA Management shall advise, direct and, as necessary, negotiate
and arrange for long- and short-term leases of real property and/or personal
property for the Waste Corp Parties, as requested or required by the Waste Corp
Parties.
(b) WCA Management shall provide management and oversight of the Waste
Corp Parties' respective legal services, safety and maintenance programs and
sales and marketing programs.
3.11 ADDITIONAL SERVICES. In addition to the services to be provided by
WCA Management to the Waste Corp Parties as set forth in Section 3.1 through
Section 3.10 hereof, WCA Management may, from time to time, render additional
assistance to and on behalf of the Waste Corp Parties or any of them as shall be
mutually agreed by WCA Management and WCA Waste on the one hand and such Waste
Corp Party or Waste Corp Parties on the other. Any such additional assistance by
WCA Management shall be separately compensated.
3.12 LIMITATION. Nothing in this Article 3 shall obligate WCA
Management or WCA Waste to provide to the Waste Corp Parties any service other
than or any level of service greater than or in addition to the services that
WCA Management customarily provides to the WCA Waste Parties.
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ARTICLE 4
PERSONNEL AND RELATED SERVICES
4.1 PERSONNEL SERVICES. WCA Management shall provide all personnel,
including, without limitation, executive officers, to the Waste Corp Parties
reasonably necessary for the performance of the services to be provided by WCA
Management to the Waste Corp Parties pursuant to this Agreement and for the
operation of the respective businesses and operations of the Waste Corp Parties.
4.2 SECONDMENT OF EMPLOYEES. As part of the personnel services
described in Section 4.1, WCA Management hereby seconds, and the Waste Corp
Parties hereby accept the secondment of the employees of WCA Waste Management
(the "Seconded Employees") in accordance with the terms and conditions of this
Agreement.
4.3 JOB DESCRIPTIONS. The professional responsibilities of the Seconded
Employees shall be determined in accordance with the job descriptions and
internal regulations of WCA Management, subject to the needs of the Waste Corp
Parties and any limitations that may be placed on them by the respective boards
of directors of the applicable Waste Corp Parties.
4.4 EMPLOYMENT STATUS OF SECONDED EMPLOYEES. Throughout the Term, each
Seconded Employee shall remain the employee of WCA Management and shall continue
to receive salary and benefits according to the terms of such Seconded
Employee's employment relationship with WCA Management. No Seconded Employee
shall be deemed to be an employee of any Waste Corp Party by reason of such
Seconded Employee's service to any Waste Corp Party pursuant to this Agreement.
4.5 AUTHORIZATION OF SECONDED EMPLOYEES. Subject to the direction and
control of the board of directors of the applicable Waste Corp Party, the
Seconded Employees, in the course of performing the Services for a Waste Corp
Party pursuant to this Agreement, shall have the power and authority to enter
into contracts and incur debts and obligations in the name of such Waste Corp
Party and to bind such Waste Corp Party generally. Each Waste Corp Party shall
execute any and all documents necessary to effectuate the authorization of the
Seconded Employees to represent and bind such Waste Corp Party in the course of
providing the Services to such Waste Corp Party pursuant to this Agreement.
ARTICLE 5
FEES AND EXPENSES
5.1 MONTHLY FEE.
(a) As compensation for the Services, Waste Corp shall pay to WCA
Management a monthly fee in the amount of $40,000 (the "Monthly Fee"); provided,
however, that, upon the occurrence of a partial termination of this Agreement
pursuant to Section 10.5, WCA Management and Waste Corp shall negotiate in good
faith to determine a reduction in the amount of the Monthly Fee to reflect the
reduction of Services provided to the Waste Corp Parties hereunder as a result
of such partial termination (which reduction shall be subject to the prior
written approval of WCA Waste), and each of WCA Waste, WCA Management and Waste
Corp hereby agrees not to unreasonably withhold or delay its consent to any
proposed reduction; but provided further that, unless and until WCA Management
and Waste Corp mutually agree to the amount of such reduction and WCA Waste has
approved in writing such amount,
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Waste Corp shall remain liable for the full amount of the Monthly Fee then in
effect. The Monthly Fee shall be payable in advance on the first Business Day of
each calendar month during the Term.
(b) At least ten (10) days but not more than thirty (30) days prior to
the anniversary of the Effective Date, WCA Management and Waste Corp shall
review the amount of the Monthly Fee to determine whether the amount of the
Monthly Fee should be adjusted to reflect the level of Services then being
provided under this Agreement. In the event that WCA Management and Waste Corp
agree that an adjustment is warranted, the amount of the Monthly Fee shall be
adjusted upward or downward, as applicable, by the amount mutually agreed upon
by WCA Management and Waste Corp, with the prior written approval of WCA Waste.
Each of WCA Management and Waste Corp hereby agrees not to unreasonably withhold
or delay its consent to any proposed adjustment. Unless and until WCA Management
and Waste Corp reach agreement as to the amount of any adjustment to the Monthly
Fee (which agreement shall be evidenced by a written acknowledgment signed by
both WCA Management and Waste Corp) and WCA Waste has approved in writing such
amount, the amount of the Monthly Fee shall remain at the then-current amount.
If WCA Management and Waste Corp cannot reach agreement on whether or how much
to adjust the Monthly Fee or if WCA Waste does not approve in writing any
adjustment agreed to by WCA Management and Waste Corp, in either case within
thirty (30) days after the then most recent anniversary of the Effective Date,
any of WCA Waste, WCA Management and Waste Corp may terminate this Agreement
upon ninety (90) days written notice to the other.
5.2 DIRECT AND OTHER ALLOCATED COSTS. As additional compensation for
the Services, Waste Corp shall pay to WCA Management all direct and other
allocated costs and expenses incurred by any of the WCA Waste Parties or their
respective subsidiaries on behalf of any Waste Corp Party in connection with the
performance of the Services ("Allocated Costs"); provided, however, that the
portion of all salaries, wages, bonuses, benefits, social security taxes,
workers' compensation insurance, retirement and insurance benefits and other
compensation payable to the Seconded Employees that is allocable to their
service to the Waste Corp Parties pursuant to this Agreement shall be deemed to
be included within the Monthly Fee, and thus, shall not be separately
reimbursable as Allocated Costs pursuant to this Section 5.1(a). Within ten (10)
Business Days after the end of each calendar month during the Term, WCA
Management shall provide to Waste Corp an invoice for all Allocated Costs
incurred in such calendar month. Each invoice shall be payable in full within
forty-five (45) Business Days after receipt thereof by Waste Corp. In the event
of a dispute as to the propriety of any invoiced amounts, Waste Corp shall
promptly, but in no event later than the due date for payment of such invoiced
amounts, notify WCA Management in writing of such dispute and the basis
therefore. Waste Corp shall pay all undisputed amounts on each invoice but shall
be entitled to withhold payment of any disputed amounts, provided that Waste
Corp has properly and timely provided written notice of such dispute to WCA
Management. All invoiced amounts not properly or timely disputed by written
notice to WCA Management shall be conclusively presumed to be proper and shall
be due and payable by Waste Corp.
5.3 BOOKS AND RECORDS. WCA Management shall maintain accurate books and
records regarding the performance of the Services and the calculation of the
Allocated Costs and shall retain such books and records for the period required
by applicable accounting practices or Applicable Law.
5.4 AUDITS. Waste Corp shall have the right, upon reasonable notice,
and at all reasonable times during normal business hours, to inspect, examine,
audit and make copies of the books and records referred to in Section 5.3. Such
right may be exercised through any agent,
10
employee, independent certified public accountant, attorney or other
representative of Waste Corp designated by Waste Corp by written notice to WCA
Management at least three (3) Business Days prior to the exercise of such right
by Waste Corp. Waste Corp shall bear all costs and expenses incurred in any
inspection, examination or audit of such books and records, including the costs
of making any copies of such books and records desired by Waste Corp.
ARTICLE 6
BONDING ARRANGEMENTS
6.1 BONDING FACILITIES. The WCA Waste Parties and their direct and
indirect subsidiaries and the Waste Corp Parties and their direct and indirect
subsidiaries currently satisfy some or all of their respective performance,
closure and post-closure bonding obligations through a number of shared bonding
arrangements and facilities. Each of the Parties hereby agrees to use its
commercially reasonable best efforts to separate all such bonding arrangements
and facilities as between the WCA Waste Parties and their respective direct and
indirect subsidiaries on the one hand and the Waste Corp Parties and their
direct and indirect subsidiaries on the other as soon as reasonably practicable.
However, unless and until such separation occurs, all direct costs and expenses
of such shared bonding arrangements and facilities shall be allocated among the
WCA Waste Parties on the one hand and the Waste Corp Parties on the other on the
basis of the their and their respective subsidiaries' operations covered by such
bonding arrangements and facilities to which such costs and expenses relate.
6.2 INDEMNIFICATION. Each Party hereby agrees to indemnify and hold
harmless each other Party for all damages, losses, costs, liabilities and
expenses (including court costs and reasonable attorneys' fees) incurred by such
other Party arising out of any claim, suit or demand related to any of such
Party's or such Party's subsidiaries' operations that are covered by any of the
shared bonding arrangements or facilities described in Section 6.1, including,
without limitation, and claims by or in the right of any Person providing any of
such shared bonding arrangements or facilities.
ARTICLE 7
INTELLECTUAL PROPERTY
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY. All Intellectual Property that
is conceived, developed, produced, substantiated or first reduced to practice by
any WCA Waste Party, any Authorized Delegate or any Seconded Employee in
connection with or in the course of performing the Services pursuant to this
Agreement shall accrue to and, as among the Parties, be the sole and exclusive
property of WCA Management, subject only to the license granted pursuant to
Section 7.2.
7.2 LICENSE. WCA Management hereby grants to each of the Waste Corp
Parties a non-exclusive, non-transferable, worldwide royalty-free right and
license to use the Intellectual Property referenced in Section 7.1 for so long
as this Agreement remains in effect, but only to the extent such use is
necessary for the performance of the Services. Each such Waste Corp Party hereby
agrees, on behalf of itself and its subsidiaries, that it will use such
Intellectual Property solely in connection with the performance of the Services
and solely in accordance with the immediately preceding sentence, unless
otherwise agreed in writing by WCA Management.
11
ARTICLE 8
CONFIDENTIALITY
8.1 USE OF CONFIDENTIAL INFORMATION. Each of the Parties understands
and acknowledges that so long as this Agreement remains in effect, it will have
access to certain Confidential Information of other Parties concerning such
other Parties' respective businesses that is a valuable and unique asset of such
other Parties upon which such other Parties' respective businesses are
dependent. To insure the continued secrecy of this Confidential Information,
each Party agrees as follows:
(a) All reports of information produced as a result of this Agreement
shall be deemed to be part of the Waste Corp Parties' Confidential Information;
(b) Any Confidential Information of a Waste Corp Party received by a
WCA Waste Party during the Term may be used by the WCA Waste Party only for the
purposes intended by this Agreement, and any Confidential Information of a WCA
Waste Party received by a Waste Corp Party during the Term may be used by the
Waste Corp Party only for the purposes intended by this Agreement;
(c) Each WCA Waste Party agrees not to disclose any Confidential
Information of any Waste Corp Party or permit any Confidential Information of
any Waste Corp Party to be disclosed to any third party while this Agreement
remains in effect or at any time thereafter, without the prior written consent
of the applicable Waste Corp Party, and each Waste Corp Party agrees not to
disclose any Confidential Information of any WCA Waste Party or permit any
Confidential Information of any WCA Waste Party to be disclosed to any third
party while this Agreement remains in effect or at any time thereafter, without
the prior written consent of the applicable WCA Waste Party;
(d) Each WCA Waste Party shall use the same degree of care, but not
less than a reasonable degree of care, to protect the confidentiality of the
Confidential Information of each Waste Corp Party as such WCA Waste Party uses
to protect its own Confidential Information, and each Waste Corp Party shall use
the same degree of care, but not less than a reasonable degree of care, to
protect the confidentiality of the Confidential Information of each WCA Waste
Party as such Waste Corp Party uses to protect its own Confidential Information;
(e) Each WCA Waste Party shall restrict access to the Confidential
Information of the Waste Corp Parties by such WCA Waste Party's personnel on a
need-to-know basis, and each Waste Corp Party shall restrict access to the
Confidential Information of the WCA Waste Parties by such Waste Corp Party's
personnel on a need-to-know basis; and
(f) Each WCA Waste Party agrees that all originals or copies of any
records, papers, programs, computer software, documents, fee books, files or any
other matter of whatever nature which is, contains or may facilitate access to
Confidential Information received from or made available by a Waste Corp Party
hereunder shall be returned to such Waste Corp Party or, at the written request
of such Waste Corp Party, destroyed upon the termination of this Agreement for
any reason, and each Waste Corp Party agrees that all originals or copies of any
records, papers, programs, computer software, documents, fee books, files or any
other matter of whatever nature
12
which is, contains or may facilitate access to Confidential Information received
from or made available by a WCA Waste Party hereunder shall be returned to such
WCA Waste Party or, at the written request of such WCA Waste Party, destroyed
upon the termination of this Agreement for any reason.
8.2 DEFINITION OF "CONFIDENTIAL INFORMATION".
(a) For purposes of this Agreement and except as provided in Section
8.2(b), "Confidential Information" shall include, without limitation, any and
all secrets or confidential technology, intellectual property rights,
proprietary information, customer or supplier lists, trade secrets, records,
notes, memoranda, data, ideas, processes, methods, techniques, systems,
formulas, patent applications, models, devices, programs, computer software,
writings, research, personnel information, customer or supplier information,
plans or any other information of whatever nature in the possession or control
of a Party that is not generally known or available to members of the general
public, including any copies, worksheets or extracts from any of the foregoing.
(b) The term "Confidential Information" of a Party shall not include
any information which (i) is or becomes generally available to and known by the
public (other than as a result of an impermissible disclosure directly or
indirectly by another Party), (ii) is or becomes available to another Party on a
non-confidential basis from a source other than the Party, provided, that such
source is not and was not bound by a confidentiality agreement with, or other
obligation of secrecy to, the Party, (iii) has been or is hereafter
independently developed or acquired by another Party outside the scope of the
Services to be performed under this Agreement, without use of any of the Party's
Confidential Information and without violating any confidentiality agreement
with, or other obligation to, the Party, as evidenced by documentation in such
other Party's possession or (iv) was known to another Party at the time of
disclosure, as evidenced by documentation in such other Party's possession.
8.3 REQUIRED DISCLOSURE OF CONFIDENTIAL INFORMATION. Notwithstanding
any other provision of this Agreement, a Party may disclose Confidential
Information of another Party in contravention of the provisions of Section 8.1
without the prior written consent of such other Party only when disclosure by
the Party is required under Applicable Law; provided, however, that if
disclosure is required under this Section 8.3, such Party shall advise such
other Party of the requirement to disclose Confidential Information prior to
such disclosure and as soon as reasonably practicable after such Party becomes
aware of such required disclosure or aware that an action has been taken seeking
such disclosure unless such notice is legally prohibited; and provided further,
that upon the request of such other Party, such Party shall reasonably cooperate
with, and at the expense of, such other Party in any reasonable and lawful
actions which such other Party takes to resist such disclosure, limit the
information to be disclosed or limit the extent to which the information so
disclosed may be used or made available to third parties.
ARTICLE 9
LIABILITY; INDEMNIFICATION
9.1 NO ASSUMPTION OF LIABILITIES. Each of the Parties hereby
acknowledges and agrees that by executing this Agreement, no Party is assuming
any of the debts, liabilities or
13
obligations of any other Party, and all of the debts, liabilities and
obligations of a Party in existence as of the date of this Agreement or arising
hereafter shall be the sole debt, liability or obligation, as applicable, of
such Party.
9.2 LIMITATION OF LIABILITY.
(a) None of the WCA Waste Parties, nor any of their respective
subsidiaries nor any of the officers, directors, stockholders, members,
partners, employees, agents or representatives of any of the WCA Waste Parties
or their respective subsidiaries (each a "WCA Waste Indemnitee" and
collectively, the "WCA Waste Indemnitees") shall have any liability whatsoever
to any Waste Corp Party for any losses, costs, expenses, liabilities, claims or
demands (including court costs and reasonable attorneys' fees) of whatever kind
or nature arising out of or in connection with the performance of, or failure to
perform, any of the Services pursuant to this Agreement, except and only to the
extent such losses, costs, expenses, liabilities, claims or demands result from
the gross negligence or willful misconduct of any WCA Waste Indemnitee.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY UNDER THIS
AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL
DAMAGES OR ANY MULTIPLE OF ACTUAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,
TORT OR OTHERWISE, AND WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9.3 INDEMNIFICATION BY WASTE CORP PARTIES. Each of the Waste Corp
Parties shall, to the fullest extent permitted by applicable law, jointly and
severally indemnify, defend and hold harmless the WCA Waste Indemnitees against
any and all losses, costs, expenses, liabilities, claims and demands (including
court costs and reasonable attorneys' fees) of whatever kind or nature, and by
whomever asserted, arising directly or indirectly out of the performance of, or
failure to perform, any of the Services pursuant to this Agreement, except and
only to the extent such losses, costs, expenses, liabilities, claims or demands
result from the gross negligence or willful misconduct of any WCA Waste
Indemnitee. EACH OF THE PARTIES HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT
THE INDEMNIFICATION PROVIDED BY THIS SECTION 9.3 SHALL INCLUDE INDEMNIFICATION
FOR THE NEGLIGENT (BUT NOT GROSSLY NEGLIGENT) ACTS OR OMISSIONS OF ANY WCA WASTE
INDEMNITEE.
9.4 INDEMNIFICATION BY WCA WASTE PARTIES. Each of the WCA Waste Parties
shall, to the fullest extent permitted by applicable law, jointly and severally
indemnify, defend and hold harmless the Waste Corp Parties and each of their
respective officers, directors, stockholders, members, partners, employees,
agents or representatives (each a "Waste Corp Indemnitee" and collectively, the
"Waste Corp Indemnitees") against any and all losses, costs, expenses,
liabilities, claims and demands (including court costs and reasonable attorneys'
fees) of whatever kind or nature, and by whomever asserted, arising directly or
indirectly out of the performance of, or failure to perform, any of the Services
pursuant to this Agreement, to the extent, but only to the extent, such losses,
costs, expenses, liabilities, claims or demands result from the gross negligence
or willful misconduct of any WCA Waste Party. EACH OF THE
14
PARTIES HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE INDEMNIFICATION
PROVIDED BY THIS SECTION 9.4 SHALL BE AVAILABLE TO THE WASTE CORP INDEMNITEES
EVEN WHEN THE LOSSES, COSTS, EXPENSES, LIABILITIES, CLAIMS OR DEMANDS FOR WHICH
INDEMNIFICATION IS SOUGHT RESULT IN PART FROM THE NEGLIGENCE OF A WASTE CORP
INDEMNITEE.
ARTICLE 10
TERM AND TERMINATION
10.1 TERM. The term of this Agreement (the "Term") shall commence on
the Effective Date and shall continue until the earlier of (a) the fifth (5th)
anniversary of the Effective Date and (b) the termination of this Agreement
pursuant to Section 5.1(b), Section 10.2, Section 10.3, Section 10.4 or Section
10.5.
10.2 TERMINATION BY WCA WASTE. WCA Waste may terminate this Agreement
immediately if:
(a) Waste Corp fails to pay in full any payment required under this
Agreement within thirty (30) days after receipt by Waste Corp of written notice
of failure to pay on the due date of such payment;
(b) Any Waste Corp Party breaches any of its material obligations under
this Agreement and fails to cure such breach within thirty (30) days after
receipt by such Waste Corp Party of written notice of such breach; or
(c) Any Waste Corp Party (i) makes a general assignment for the benefit
of its creditors, (ii) files a petition in bankruptcy or for liquidation, (iii)
is adjudged insolvent or bankrupt, (iv) commences any proceeding for a
reorganization, arrangement, readjustment of debts, dissolution or liquidation
under any law or statute of any jurisdiction applicable thereto or (v) any such
proceeding shall be commenced against a Waste Corp Party and shall not be
dismissed or otherwise disposed of within sixty (60) days thereafter.
10.3 TERMINATION BY WASTE CORP. Waste Corp may terminate this Agreement
immediately if:
(a) Any WCA Waste Party breaches any of its material obligations under
this Agreement and fails to cure such breach within thirty (30) days after
receipt by such WCA Waste Party of written notice of such breach; or
(b) Any WCA Waste Party (i) makes a general assignment for the benefit
of its creditors, (ii) files a petition in bankruptcy or for liquidation, (iii)
is adjudged insolvent or bankrupt, (iv) commences any proceeding for a
reorganization, arrangement, readjustment of debts, dissolution or liquidation
under any law or statute of any jurisdiction applicable thereto or (v) any such
proceeding shall be commenced against a WCA Waste Party and shall not be
dismissed or otherwise disposed of within sixty (60) days thereafter.
15
10.4 AUTOMATIC TERMINATION. This Agreement shall automatically
terminate upon the occurrence of a Change in Control of Waste Corp.
10.5 PARTIAL TERMINATION. In the event of a Change in Control of any
Waste Corp Party other than Waste Corp, this Agreement shall terminate with
respect to such Waste Corp Party, and thereafter, neither WCA Management nor WCA
Waste shall have any further obligation whatsoever to provide the Services to
such Waste Corp Party.
10.6 EFFECT OF TERMINATION. Termination of this Agreement shall be
without prejudice to the accrued rights and obligations of the Parties as of the
effective date of the termination, including, but not limited to, Waste Corp's
obligation to pay the compensation to WCA Management as set forth in Article 5.
ARTICLE 11
MISCELLANEOUS
11.1 DELEGATION OF PERFORMANCE OF SERVICES. Each of the Parties hereby
acknowledges and agrees that WCA Management, in discharging its obligations
under this Agreement, may, with the prior approval of WCA Waste, engage any
direct or indirect subsidiary of WCA Waste, as well as any unrelated third
parties WCA Management deems reasonably necessary for the proper performance of
the Services (each an "Authorized Delegate") and delegate the performance of the
Services (or any part of the Services) to such Authorized Delegate and that the
performance of the Services (or any part of the Services) by any such Authorized
Delegate shall be treated as if WCA Management performed such Services itself;
provided, however, that, in the event that WCA Management engages any unrelated
third parties to provide any of the Services customarily provided by WCA
Management directly and without the use of unrelated third parties under the
Original Services Agreement, none of the costs or expenses incurred by WCA
Management for the provision of such Services by such unrelated third parties
shall be reimbursable by the Waste Corp Parties hereunder as Allocated Costs or
otherwise; but provided further that, notwithstanding any such delegation, WCA
Management shall remain responsible for the performance of the Services under
this Agreement.
11.2 PROVISION OF SERVICES NONEXCLUSIVE.
(a) Each of the Parties acknowledges and agrees that the WCA Waste
Parties may, from time to time, provide services similar or identical to the
Services to any other Person, in the sole and absolute discretion of the WCA
Waste Parties.
(b) Notwithstanding any other provision of this Agreement, the Waste
Corp Parties shall not be obligated to acquire the Services exclusively from the
WCA Waste Parties and shall remain free to acquire some or all of such services
from any other source as the Waste Corp Parties may deem appropriate, in their
sole and absolute discretion, without the approval or consent of any WCA Waste
Party; provided, however, that, in the event any Waste Corp Party elects to
acquire any of the Services from any Person other than the WCA Waste Parties and
their Authorized Delegates, such Waste Corp Party shall provide written notice
of such election to the WCA Waste Parties specifying the Services to be provided
by such other Person, and upon receipt of such written notice, the WCA Waste
Parties shall thereafter have no further obligation
16
whatsoever under this Agreement to provide any of the Services so specified; but
provided further that, so long as this Agreement remains in effect, the Waste
Corp Parties shall remain liable for payment of the Monthly Fee and the
Allocated Costs in accordance with the provisions of Article 5.
11.3 NO JOINT VENTURE. This Agreement is not intended to create, and
shall not be construed as creating, any relationship of partnership, joint
venture or association for profit among the Parties or any of them, and any
inferences to the contrary are hereby expressly negated.
11.4 NO FIDUCIARY DUTIES. In rendering the Services, WCA Management
(and any Authorized Delegate to whom performance of any of the Services is
delegated pursuant to Section 11.1), acting by and through the Seconded
Employees, shall be acting on behalf of and as agent for the Waste Corp Parties.
Nevertheless, each of the Parties hereby expressly acknowledges and agrees that
no Party or Authorized Delegate shall have any fiduciary duties or obligations
to any other Party by reason of this Agreement or the performance of the
Services hereunder.
11.5 WAIVER OF CONFLICTS. Each of the Parties hereby acknowledges that
some or all of the Seconded Employees will perform services for one or more of
the WCA Waste Parties and their respective subsidiaries in addition to
performing the Services for the Waste Corp Parties. To the greatest extent
permitted by Applicable Law, each of the Parties hereby waives, on behalf of
itself and each of its subsidiaries now in existence or hereafter created, any
conflict of interest that may arise as a result of any Seconded Employee
performing services for more than one of the Parties or their respective
subsidiaries and any rights or claims of corporate opportunity a Party may have
in connection with any opportunity or transaction any other Party may pursue or
effect by or through any of the Seconded Employees during the Term.
11.6 LIMITATION ON SCOPE. Each of the Parties hereby acknowledges and
agrees that WCA Management shall be obligated to provide the Services only with
respect to the businesses and operations of the Waste Corp Parties as operated
on the Effective Date unless otherwise mutually agreed in writing among the WCA
Waste Parties and the Waste Corp Parties. Each of the Parties hereby further
acknowledges and agrees that WCA Management shall not be obligated to perform
any of the Services for the benefit of any Person other than the Waste Corp
Parties.
11.7 WARRANTY. WCA Management hereby warrants to the Waste Corp Parties
that the Services shall be of the same or similar quality as those provided by
WCA Management to Waste Corp and its subsidiaries pursuant to the Original
Services Agreement and the Secondment Agreement. EXCEPT AS SET FORTH IN THE
IMMEDIATELY PRECEDING SENTENCE, THE WCA WASTE PARTIES MAKE NO (AND EACH OF THEM
HEREBY EXPRESSLY DISCLAIMS AND NEGATES ANY AND ALL) REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES.
17
11.8 FORCE MAJEURE.
(a) No WCA Waste Party or Authorized Delegate shall be responsible for
or have any liability for the loss of or damage to any property of any Waste
Corp Party in possession of a WCA Waste Party or an Authorized Delegate to the
extent such loss or damage shall be caused by or directly or indirectly due to
war damage, enemy action, the act of any Governmental Authority, riot, civil
commotion, rebellion, ▇▇▇▇▇, ▇▇▇▇▇▇▇, accident, fire, lockout, strike or other
cause whatsoever beyond the control of such WCA Waste Party or Authorized
Delegate (each such event, a "Force Majeure Event"); provided, however, that
such WCA Waste Party or Authorized Delegate shall use all commercially
reasonable efforts to minimize the effects of the same.
(b) Any delay or failure of any Party in the performance of its
obligations hereunder shall be excused if and to the extent caused by a Force
Majeure Event. In the event of a Force Majeure Event, the time for performing
any obligations affected thereby shall be extended during the period such Force
Majeure Event persists; provided, however, that the affected Party notifies the
other Parties of the Force Majeure Event within five (5) days of the occurrence
thereof; and provided further, that the affected Party diligently attempts to
remove the cause or causes of such Force Majeure Event to the extent reasonably
possible.
11.9 NOTICES.
(a) All notices or other communications provided for or permitted to be
given under this Agreement shall be in writing and shall be given (i) by
depositing such writing in the U.S. mail, addressed to the intended recipient,
postage paid and registered or certified with return receipt requested, (ii) by
delivering such writing to the recipient in person, (iii) by facsimile
transmission (with electronic confirmation thereof) or (iv) by nationally
recognized overnight courier service. All notices or other communications to be
sent to a Party under this Agreement shall be sent to or made at the following
addresses or facsimile numbers, or such other addresses or facsimile numbers as
the Parties may specify by notice to each other from time to time in accordance
herewith:
If to a WCA Waste Party, to:
(Name of applicable WCA Waste Party)
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and Secretary
If to a Waste Corp Party, to:
(Name of applicable Waste Corp Party)
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
(b) Any notice or other communication given in accordance with the
provisions of this Section 11.9 shall be deemed to have been received by the
intended recipient (i) three (3) Business Days after deposit in the United
States mail if given by registered or certified mail,
18
(ii) upon receipt if given by delivery in person, (iii) one (1) Business Day
after transmission with electronic confirmation if given by facsimile
transmission and (iv) one (1) Business Day after deposit with a nationally
recognized overnight courier service if given by such means.
11.10 ASSIGNMENT; BINDING EFFECT. Except as expressly permitted by
Section 11.1, no Party may assign any of its rights or delegate any of its
duties or obligations under this Agreement without the prior written consent of
the other Parties. This Agreement shall be binding upon and shall inure to the
benefit of the successors and permitted assigns of the Parties.
11.11 GOVERNING LAW. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of Texas, without
giving effect to any conflicts of laws principles thereof that would result in
the application of the Law of any other jurisdiction.
11.12 DISPUTE RESOLUTION. Any dispute arising from or in connection
with this Agreement shall first be the subject of amicable negotiations between
the Parties. If the dispute cannot be resolved within thirty (30) calendar days,
then any Party may refer this dispute to, and the Parties hereby agree to,
arbitration by JAMS/ENDispute in the city of Houston, Texas. The arbitration
tribunal shall consist of three (3) arbitrators. Arbitration shall be conducted
according to the Commercial Arbitration Rules of JAMS/ENDispute then in effect.
Any award of the arbitrator shall be final and binding on the Parties.
11.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties with respect thereto
(including, without limitation, the Original Services Agreement and the
Secondment Agreement), and there are no representations, warranties or other
agreements between the Parties in connection with the subject matter hereof,
except as specifically set forth herein.
11.14 AMENDMENT; WAIVER. No amendment, modification or supplement of
this Agreement or any provision hereof shall be binding upon any Party unless it
shall be specifically designated as such and shall be executed in writing by all
of the Parties. No waiver of any of the provisions of this Agreement shall be
binding upon any Party unless it shall be specifically designated as such and
shall be executed in writing by the Party or Parties to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision of this Agreement (whether or not
similar), nor shall such waiver constitute a continuing waiver, unless otherwise
expressly provided therein.
11.15 FURTHER ASSURANCES. Each of the Parties agrees to execute and
deliver such further and supplemental documents and instruments and to do such
other and further acts and things as may, from time to time, be necessary or
convenient to carry out the intent and purposes of this Agreement.
11.16 TITLES AND HEADINGS. The Article and Section headings and any
table of contents contained in this Agreement are solely for convenience of
reference and shall not affect the meaning, construction or interpretation of
this Agreement or any term or provision hereof.
19
11.17 SEVERABILITY. The provisions of this Agreement shall be deemed to
be severable, and if one or more of the provisions of this Agreement are at any
time found to be invalid by a court, tribunal or other forum of competent
jurisdiction, or otherwise rendered unenforceable, such decision shall not have
the effect of invalidating or voiding the remainder of this Agreement. In such
event, this Agreement shall be deemed amended by modifying or severing such
provision or provisions as necessary to render it valid, legal and enforceable
while preserving its intent, or if that is not possible, by substituting another
provision that is valid, legal and enforceable which materially effectuates the
Parties' intent. Any such invalid or unenforceable provision or provisions shall
be severable from this Agreement, so that the validity or enforceability of the
remaining provisions of this Agreement, or the validity or enforceability of the
provision(s) in question in any other jurisdiction, shall not be affected
thereby.
11.18 JOINT DRAFT. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation should arise, this Agreement shall be
construed as if drafted jointly by the Parties, and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship
of any of the provisions of this Agreement.
11.19 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which taken together shall constitute one and the same document. The
Parties may sign and deliver this Agreement by facsimile transmission. Each
Party agrees that the delivery of the Agreement by facsimile shall have the same
force and effect as delivery of original signatures and that each Party may use
such facsimile signatures as evidence of the execution and delivery of the
Agreement by all Parties to the same extent that an original signature could be
used.
(SIGNATURE PAGES FOLLOWS)
20
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
WCA WASTE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
WCA MANAGEMENT COMPANY, L.P.
By: WCA Management General, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
WASTE CORPORATION OF AMERICA, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
TRANSIT WASTE, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
WASTE CORPORATION OF FLORIDA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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