Common use of Agreement as to Damages Clause in Contracts

Agreement as to Damages. 5.8.1. Notwithstanding any other provision hereof relating to the payment of fees or expenses (including Section 5.16), including the payment of brokerage fees, if: (a) the Agreement is terminated either by IESI-BFC or by WSI pursuant to Section 7.4.1(a) in circumstances where the Agreement and Merger did not receive the requisite approval at the WSI Stockholders Meeting (as contemplated in Section 6.1.5), but only if prior to the WSI Stockholders Meeting an Acquisition Proposal shall have been made to the holders of WSI Common Stock or any Person shall have publicly announced an intention to make an Acquisition Proposal, and within twelve months of termination of this Agreement, any Person or company either (a) acquires, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock or consolidated assets of WSI or (b) enters into a definitive agreement to acquire, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock or consolidated assets of WSI; or (b) IESI-BFC shall have terminated this Agreement pursuant to Section 7.4.1(b) on the basis of any intentional breach of this Agreement by WSI; or (c) IESI-BFC shall have terminated this Agreement pursuant to Section 7.4.1(d); or (d) WSI shall have terminated this Agreement pursuant to Section 7.4.1(e); then WSI shall pay, or cause to be paid, to IESI-BFC (or as IESI-BFC may direct by notice in writing), within two (2) Business Days of the first to occur of the foregoing, the amount of $11,000,000 plus an amount equal to the aggregate of all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by IESI-BFC in connection with the Transactions and the preparations therefor to the date of termination (the amount of such expenses to be confirmed by IESI-BFC in writing in reasonable detail) (collectively, the “IESI-BFC Termination Fee” and the aggregate of all such out-of-pocket costs, the “IESI-BFC Expense Reimbursement Amount”) less any amounts actually paid by WSI to IESI-BFC pursuant to Section 5.8.2, if any, in immediately available funds to an account designated by IESI-BFC. Notwithstanding any other provision hereof relating to the payment of fees or expenses (including Section 5.16), including the payment of brokerage fees, if WSI shall have terminated this Agreement pursuant to Section 7.4.1(c) on the basis of any intentional breach of this Agreement by IESI-BFC, then IESI-BFC shall pay, or cause to be paid, to WSI (or as WSI may direct by notice in writing), within two (2) Business Days of such termination, the amount of $11,000,000 plus all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by WSI in connection with the Transactions and the preparations therefor to the date of termination (the amount of such expenses to be confirmed by WSI in writing in reasonable detail) (collectively, the “WSI Termination Fee” and the aggregate of all such out-of-pocket costs, the “WSI Expense Reimbursement Amount”) less any amounts actually paid by IESI-BFC to WSI pursuant to Section 5.8.3, in immediately available funds to an account designated by WSI. Each Party acknowledges that the payment of the $11,000,000 amount set out in this Section 5.8.1 is a payment of liquidated damages that is a genuine pre-estimate of the minimum damages that the Party entitled to such damages will suffer or incur as a result of the event giving rise to such damages and the resultant termination of this Agreement and is not a penalty. Each Party irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Each of the Parties further acknowledges the difficulty in estimating such damages, which are based in part on the loss of opportunities which will arise as a result of the event giving rise to such damages and the resultant failure of the Closing to occur on the termination of this Agreement. Because of this difficulty, the Parties have made a genuine pre-estimate of the minimum amount of damages which will be suffered and have reserved the right to make claims for additional damages if actual damages exceed the estimated amounts. 5.8.2. If this Agreement has been terminated by WSI pursuant to Section 7.4.1(j) for failure to obtain the WSI Fairness Opinion, by WSI pursuant to Section 7.4.1(h) or by IESI-BFC pursuant to: (a) Section 7.4.1(a) or Section 7.4.1(h) in circumstances where the Agreement or the Merger did not receive the requisite approval at the WSI Stockholders Meeting (as contemplated in Section 6.1.5); (b) Section 7.4.1(b) on the basis of a breach by WSI of this Agreement (other than an intentional breach thereof); or (c) Section 7.4.1(j) because WSI has failed to obtain the WSI Fairness Opinion, then WSI shall, within two (2) Business Days following the termination of this Agreement, pay to IESI-BFC (or as IESI-BFC shall direct) the IESI-BFC Expense Reimbursement Amount in immediately available funds to an account designated by IESI-BFC. 5.8.3. If this Agreement has been terminated by IESI-BFC pursuant to Section 7.4.1(j) for failure to obtain the IESI-BFC Fairness Opinion or WSI pursuant to: (a) Section 7.4.1(c) on the basis of a breach by IESI-BFC of this Agreement (other than an intentional breach thereof); or (b) Section 7.4.1(j) because IESI-BFC has failed to obtain the IESI-BFC Fairness Opinion, then IESI-BFC shall, within two (2) Business Days following the termination of this Agreement, pay to WSI (or as WSI shall direct) the WSI Expense Reimbursement Amount in immediately available funds to an account designated by WSI.

Agreement as to Damages. 5.8.1. Notwithstanding If at any other provision hereof relating to time after the payment execution of fees or expenses (including Section 5.16), including the payment of brokerage fees, ifthis Agreement this Agreement is terminated: (a) the Agreement is terminated either by IESI-BFC or by WSI Glacier pursuant to Section 7.4.1(aSubsection 8.2(c)(i), 8.2(c)(ii) in circumstances where the Agreement and Merger did not receive the requisite approval at the WSI Stockholders Meeting or 8.2(c)(iii); (as contemplated in Section 6.1.5b) by GVIC or Glacier pursuant to Subsection 8.2(b)(i) or Subsection 8.2(b)(ii), but only if prior to the WSI Stockholders Meeting such termination an Acquisition Proposal shall have been announced, made or otherwise publicly disclosed (and not withdrawn) prior to the holders of WSI Common Stock date proposed for the GVIC Meeting and the GVIC Shareholders do not approve the Arrangement or any Person the Arrangement is not submitted for their approval, and thereafter GVIC shall have publicly announced an intention entered into or become party to make an a contract with respect to any Acquisition Proposal, and Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to above) within twelve nine months of the date of such termination of this Agreement, any Person by GVIC or company either (a) acquires, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock or consolidated assets of WSI or (b) enters into a definitive agreement to acquire, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock or consolidated assets of WSI; or (b) IESI-BFC shall have terminated this Agreement pursuant to Section 7.4.1(b) on the basis of any intentional breach of this Agreement by WSIGlacier; or (c) IESI-BFC shall have terminated this Agreement by GVIC pursuant to Section 7.4.1(d); or (d) WSI shall have terminated this Agreement pursuant to Section 7.4.1(e); then WSI shall pay, or cause to be paid, to IESI-BFC (or as IESI-BFC may direct by notice in writingSubsection 8.2(d)(ii), within two (2) Business Days each of the first above being an “Glacier Damages Event ”), GVIC shall pay to occur of the foregoing, the amount of Glacier $11,000,000 plus an amount equal to the aggregate of all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by IESI-BFC in connection with the Transactions and the preparations therefor to the date of termination 250,000 (the amount of such expenses to be confirmed by IESI-BFC in writing in reasonable detail) (collectively, the “IESI-BFC Termination Glacier Damages Fee” and the aggregate of all such out-of-pocket costs, the “IESI-BFC Expense Reimbursement Amount”) less any amounts actually paid by WSI to IESI-BFC pursuant to Section 5.8.2, if any, as liquidated damages in immediately available funds to an account designated by IESI-BFC. Notwithstanding any other provision hereof relating to Glacier, with the payment of fees or expenses (including Section 5.16), including the payment of brokerage fees, if WSI shall have terminated this Agreement pursuant to Section 7.4.1(c) on the basis of any intentional breach of this Agreement by IESI-BFC, then IESI-BFC shall pay, or cause Glacier Damages Fee to be paid, to WSI paid (or as WSI may direct by notice i) in writingthe case of Subsection 6.1(a), within two (2) Business Days of such terminationtermination and (ii) in the case of Subsection 6.1(b), the amount of $11,000,000 plus all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by WSI in connection with the Transactions and the preparations therefor to on the date of termination on which the Acquisition Proposal (the amount of such expenses as it may be modified or amended) is consummated in accordance with Subsection 3.4(d). Following a Glacier Damages Event, but prior to be confirmed by WSI in writing in reasonable detail) (collectively, the “WSI Termination Fee” and the aggregate of all such out-of-pocket costs, the “WSI Expense Reimbursement Amount”) less any amounts actually paid by IESI-BFC to WSI pursuant to Section 5.8.3, in immediately available funds to an account designated by WSI. Each Party acknowledges that the payment of the $11,000,000 amount set out Glacier Damages Fee as required, GVIC shall be deemed to hold such funds in trust for Glacier. GVIC shall only be obligated to pay the Glacier Damages Fee once pursuant to this Section 5.8.1 is a payment of liquidated damages that is a genuine pre-estimate 6.1. For the purposes of the minimum damages that foregoing, the Party entitled term “Acquisition Proposal” shall have the meaning assigned to such damages will suffer or incur as a result of the event giving rise to such damages and the resultant termination of this Agreement and is not a penalty. Each Party irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Each of the Parties further acknowledges the difficulty in estimating such damages, which are based in part on the loss of opportunities which will arise as a result of the event giving rise to such damages and the resultant failure of the Closing to occur on the termination of this Agreement. Because of this difficulty, the Parties have made a genuine pre-estimate of the minimum amount of damages which will be suffered and have reserved the right to make claims for additional damages if actual damages exceed the estimated amounts. 5.8.2. If this Agreement has been terminated by WSI pursuant to Section 7.4.1(j) for failure to obtain the WSI Fairness Opinion, by WSI pursuant to Section 7.4.1(h) or by IESI-BFC pursuant to: (a) Section 7.4.1(a) or Section 7.4.1(h) in circumstances where the Agreement or the Merger did not receive the requisite approval at the WSI Stockholders Meeting (as contemplated term in Section 6.1.5); (b) Section 7.4.1(b) on the basis of a breach by WSI of this Agreement (other than an intentional breach thereof); or (c) Section 7.4.1(j) because WSI has failed 1.1, except that references to obtain the WSI Fairness Opinion, then WSI shall, within two (2) Business Days following the termination of this Agreement, pay “20% or more” shall be deemed to IESI-BFC (be references to “50% or as IESI-BFC shall direct) the IESI-BFC Expense Reimbursement Amount in immediately available funds to an account designated by IESI-BFCmore”. 5.8.3. If this Agreement has been terminated by IESI-BFC pursuant to Section 7.4.1(j) for failure to obtain the IESI-BFC Fairness Opinion or WSI pursuant to: (a) Section 7.4.1(c) on the basis of a breach by IESI-BFC of this Agreement (other than an intentional breach thereof); or (b) Section 7.4.1(j) because IESI-BFC has failed to obtain the IESI-BFC Fairness Opinion, then IESI-BFC shall, within two (2) Business Days following the termination of this Agreement, pay to WSI (or as WSI shall direct) the WSI Expense Reimbursement Amount in immediately available funds to an account designated by WSI.

Agreement as to Damages. 5.8.1. (1) Notwithstanding any other provision hereof relating to the payment of fees or expenses (including Section 5.16)fees, including the payment of brokerage fees, if: (a) the Agreement is terminated either by IESI-BFC the Company or by WSI Acquireco pursuant to Section 7.4.1(a8.2(1)(a) in circumstances where the Agreement and Merger Arrangement Resolution did not receive the requisite approval Requisite Approval at the WSI Stockholders Company Meeting in accordance with the Interim Order (as contemplated in Section 6.1.56.1(a)), but only if prior to the WSI Stockholders Company Meeting an Acquisition Proposal shall have been made to the holders of WSI Common Stock Company Shareholders or any Person person shall have publicly announced an intention to make an Acquisition Proposal, and within twelve months of termination of this Agreement, any Person person or company either (a) acquires, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock Company Shares or consolidated assets of WSI the Company or (b) enters into a definitive agreement to acquire, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock Company Shares or consolidated assets of WSIthe Company; or (b) IESI-BFC Acquireco shall have terminated this Agreement pursuant to Section 7.4.1(b8.2(1)(c) on the basis of (i) any intentional breach by the Company of Section 7.3; (ii) any breach by the Company of Section 7.2, other than an inadvertent breach of Section 7.2 which breach has not (A) resulted in a Material Adverse Effect, (B) resulted in, or otherwise lead to, the receipt of an Acquisition Proposal by the Company, or (C) resulted in the delivery of any confidential information of the Company to a third party, and (iii) any breach by the Company of any other covenant, which breach would, or could reasonably be expected to, prevent the ability of the Company to consummate the transactions contemplated by this Agreement by WSIAgreement; or (c) IESI-BFC Acquireco shall have terminated this Agreement pursuant to Section 7.4.1(d8.2(1)(d); or; (d) WSI the Company shall have terminated this Agreement pursuant to Section 7.4.1(e8.2(1)(e); or (e) Acquireco shall have terminated this Agreement pursuant to Section 8.2(1)(g); then WSI the Company shall pay, or cause to be paid, to IESI-BFC Parent (or as IESI-BFC Parent may direct by notice in writing), the amount of $1,500,000 (the “Termination Fee”). The Termination Fee shall be paid in immediately available funds to an account designated by Parent as follows: (i) in the case of paragraph (a) above, on the date which is the earlier of (A) the date on which an Acquisition Proposal is completed, and (B) twelve months from the date on which this Agreement is terminated; (ii) in the case of paragraph (b) and (c) or (e) above, within two business days of such termination; and (iii) in the case of paragraph (d) above, a portion of the Termination Fee equal to $750,000 will be payable prior to the effective termination of this Agreement in accordance with Section 7.3, and the balance shall be payable on the date which is the earlier of (A) the date on which an Acquisition Proposal is completed, and (B) 120 days from the date on which this Agreement is terminated. (2) Notwithstanding any other provision hereof relating to the payment of fees, if the Company shall have terminated this Agreement pursuant to Section 8.2(1)(b) on the basis of any breach by the Parent or Acquireco of any of its covenants, which breach would, or could reasonably be expected to, prevent the ability of Acquireco to consummate the transactions contemplated by this Agreement, then the Parent shall pay, or cause to be paid, to the Company (or as the Company may direct by notice in writing), within two (2) Business Days business days of the first to occur of the foregoingdate this Agreement is terminated, the amount of $11,000,000 plus an amount equal to the aggregate of all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by IESI-BFC in connection with the Transactions and the preparations therefor to the date of termination (the amount of such expenses to be confirmed by IESI-BFC in writing in reasonable detail) (collectively, the “IESI-BFC Termination Fee” and the aggregate of all such out-of-pocket costs, the “IESI-BFC Expense Reimbursement Amount”) less any amounts actually paid by WSI to IESI-BFC pursuant to Section 5.8.2, if any, 1,500,000 in immediately available funds to an account designated by IESI-BFC. Notwithstanding any other provision hereof relating to the payment of fees or expenses funds. (including Section 5.16), including the payment of brokerage fees, if WSI shall have terminated this Agreement pursuant to Section 7.4.1(c3) on the basis of any intentional breach of this Agreement by IESI-BFC, then IESI-BFC shall pay, or cause to be paid, to WSI (or as WSI may direct by notice in writing), within two (2) Business Days of such termination, the amount of $11,000,000 plus all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by WSI in connection with the Transactions and the preparations therefor to the date of termination (the amount of such expenses to be confirmed by WSI in writing in reasonable detail) (collectively, the “WSI Termination Fee” and the aggregate of all such out-of-pocket costs, the “WSI Expense Reimbursement Amount”) less any amounts actually paid by IESI-BFC to WSI pursuant to Section 5.8.3, in immediately available funds to an account designated by WSI. Each Party acknowledges that the payment of the $11,000,000 amount amounts set out in this Section 5.8.1 is 7.4 represent a payment of liquidated damages that is a genuine pre-estimate of the minimum damages that the Party entitled to such damages will suffer or incur as a result of the event giving rise to such damages and the resultant termination of this Agreement and is not a penalty. Each Party The Parties irrevocably waives waive any right it they may have to raise as a defense defence that any such liquidated damages are excessive or punitive. Each of the Parties further acknowledges the difficulty in estimating such damages, which are based in part on the loss of opportunities which will arise as a result of the event giving rise to such damages and the resultant failure of the Closing to occur on the termination of this Agreement. Because of this difficulty, the Parties have made a genuine pre-estimate of the minimum amount of damages which will No Party shall be suffered and have reserved the right obligated to make claims for additional damages if actual damages exceed the estimated amounts. 5.8.2. If this Agreement has been terminated by WSI more than one payment pursuant to this Section 7.4.1(j) for failure to obtain the WSI Fairness Opinion, by WSI pursuant to Section 7.4.1(h) or by IESI-BFC pursuant to: (a) Section 7.4.1(a) or Section 7.4.1(h) in circumstances where the Agreement or the Merger did not receive the requisite approval at the WSI Stockholders Meeting (as contemplated in Section 6.1.5); (b) Section 7.4.1(b) on the basis of a breach by WSI of this Agreement (other than an intentional breach thereof); or (c) Section 7.4.1(j) because WSI has failed to obtain the WSI Fairness Opinion, then WSI shall, within two (2) Business Days following the termination of this Agreement, pay to IESI-BFC (or as IESI-BFC shall direct) the IESI-BFC Expense Reimbursement Amount in immediately available funds to an account designated by IESI-BFC7.4. 5.8.3. If this Agreement has been terminated by IESI-BFC pursuant to Section 7.4.1(j) for failure to obtain the IESI-BFC Fairness Opinion or WSI pursuant to: (a) Section 7.4.1(c) on the basis of a breach by IESI-BFC of this Agreement (other than an intentional breach thereof); or (b) Section 7.4.1(j) because IESI-BFC has failed to obtain the IESI-BFC Fairness Opinion, then IESI-BFC shall, within two (2) Business Days following the termination of this Agreement, pay to WSI (or as WSI shall direct) the WSI Expense Reimbursement Amount in immediately available funds to an account designated by WSI.