AMENDMENT NO. 1 TO MASTER NOTE PURCHASE AGREEMENT
Exhibit
4.2
AMENDMENT
NO. 1 TO
This AMENDMENT NO. 1 TO MASTER NOTE
PURCHASE AGREEMENT, dated as of July 21, 2009 (this “Amendment”), is by
and among (a) Waste Connections, Inc., a Delaware corporation (the “Company”), each
Subsidiary of the Company from time to time party to the Purchase Agreement
referred to below (the “Subsidiaries,” and
the Company and the Subsidiaries are each referred to herein as an “Obligor” and,
collectively, the “Obligors”), and (b)
each of the purchasers from time to time party to the Purchase Agreement
referred to below (each a “Purchaser” and,
collectively, the “Purchasers”). Capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Purchase Agreement referred to below.
WHEREAS, the Obligors and the
Purchasers are parties to that certain Master Note Purchase Agreement, dated as
of July 15, 2008 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Purchase
Agreement”);
WHEREAS, pursuant to that
certain Stock Purchase Agreement by and among the Company, on the one hand, and
Sanipac, Inc., an Oregon corporation (“Sanipac”), and The
Estate of Xxxxxxx X. Xxxx, Xxxx Xxxx, Xxxxxxxx Xxxx and Xxxx Xxxx Xxxxx, on the
other hand, the Company expects to acquire all of the outstanding stock of
Sanipac (the “Sanipac
Agreement”);
WHEREAS, Sanipac owns
approximately seventy-five percent (75%) of EcoSort, L.L.C., an Oregon limited
liability company (“EcoSort”);
and
WHEREAS, the Obligors and the
Required Holders pursuant to Section 17.1(a) of the Purchase Agreement desire to
amend the definition of “Excluded Subsidiaries” in the Purchase Agreement by
amending Schedule 5.4 of the Purchase Agreement to add EcoSort as an additional
Excluded Subsidiary effective as of the closing of the transactions in the
Sanipac Agreement;
NOW THEREFORE, in
consideration of the mutual agreements contained in the Purchase Agreement and
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
§1. Amendment
to Schedule 5.4 of the Purchase Agreement. Schedule 5.4 of the
Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the attached Schedule 5.4 therefor.
§2. Representations
and Warranties. Each Obligor
hereby represents and warrants to the Purchasers as follows:
(a) The execution and delivery by such
Obligor of this Amendment and the performance by such Obligor of its obligations
and agreements under this Amendment and the Purchaser Agreement as amended
hereby are within the corporate authority of such Obligor, have been duly
authorized by all necessary corporate proceedings on behalf of such Obligor, and
do not and will not contravene any provision of law, statute, rule or regulation
to which such Obligor is subject or such Obligor’s constitutive documents or of
any agreement or other instrument binding upon such Obligor.
(b) Each of this Amendment and the Purchase
Agreement as amended hereby constitutes the legal, valid and binding obligation
of such Obligor, enforceable in accordance with its respective terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors’
rights.
(c) No approval or consent of, or filing
with, any governmental agency or authority is required to make valid and legally
binding the execution, delivery or performance by such Obligor of this Amendment
or the Purchase Agreement as amended hereby.
(d) Such Obligor has performed and complied
in all material respects with all terms and conditions herein and in the
Purchase Agreement required to be performed or complied with by such Obligor
prior to or at the time hereof, and as of the date hereof, after giving effect
to the provisions hereof, there exists no Default or Event of
Default.
(e) The consolidated total assets of the
Excluded Subsidiaries, after giving effect to this Amendment, will not be
greater than 15% of the consolidated total assets of the Company and its
Subsidiaries determined on a consolidated basis in accordance with
GAAP.
§3. Conditions
Precedent. This Amendment
shall become effective as of the date on which all of the following shall have
occurred (and shall not be effective until the date on which all of the
following shall have occurred):
(a) The Obligors and the Required Holders
shall have duly executed and delivered a copy of this Amendment;
and
(a)
The
acquisition of Sanipac by the Company pursuant to the Sanipac Agreement shall
have closed in accordance with such agreement.
§4. Miscellaneous
Provisions.
(a) Except as otherwise expressly provided
by this Amendment, all of the terms, conditions and provisions of the Purchase
Agreement and the Series 2008A Notes shall remain unchanged and in full force
and effect. It is declared and agreed by each of the parties hereto
that the Purchase Agreement and the Series 2008A Notes, as amended hereby, shall
continue in full force and effect, and that this Amendment and the Purchase
Agreement shall be read and construed as a single instrument.
(b) The amendments set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written. Except as expressly provided herein, this
Amendment shall not be deemed to (i) be a consent to any amendment, waiver or
modification of any other term or condition of the Purchase Agreement or any
Series 2008A Note, or (ii) operate as a waiver or otherwise prejudice any right,
power or remedy that the Purchasers may now have or may have in the future under
or in connection with the Purchase Agreement or the Series 2008A Notes, except
as specifically set forth herein.
(c) This Amendment may be executed in any
number of counterparts, but all such counterparts shall together constitute but
one instrument. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart signed by each
party hereto by and against which enforcement hereof is sought.
§5. Governing
Law. This Amendment shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York, excluding choice-of-law principles of the law of such
State that would permit the application of the laws of a jurisdiction other than
such State.
[Reminder
of page intentionally left blank]
-2-
IN WITNESS WHEREOF, the
parties have executed this Amendment as of the date first above
written.
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THE OBLIGORS:
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ADVANCED
SYSTEMS PORTABLE RESTROOMS, INC.
|
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AMERICAN
DISPOSAL COMPANY, INC.
|
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AMERICAN
SANITARY SERVICE, INC.
|
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AMERICAN
WEST LEASING, INC.
|
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XXXXXXXX
COUNTY LANDFILL, INC.
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ANSON
COUNTY LANDFILL, INC.
|
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BITUMINOUS
RESOURCES, INC.
|
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XXXXX
RUN LANDFILL, INC.
|
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BROADACRE
LANDFILL, INC.
|
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XXXXXX
COUNTY LANDFILL, INC.
|
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CAMINO
REAL ENVIRONMENTAL CENTER, INC.
|
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|
XXXXXXXX
CANYON, INC.
|
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COLD
CANYON LAND FILL, INC.
|
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COMMUNITY
REFUSE DISPOSAL INC.
|
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CONTRACTORS
WASTE SERVICES, INC.
|
|||
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COUNTY
RECYCLING, INC.
|
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CORRAL
DE XXXXXX LAND COMPANY
|
|||
|
XXXXX
TRANSFER & RECYCLING, INC.
|
|||
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X.
X. DISPOSAL CO., INC.
|
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DENVER
REGIONAL LANDFILL, INC.
|
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|
ELKO
SANITATION COMPANY
|
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|
EMPIRE
DISPOSAL, INC.
|
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EVERGREEN
DISPOSAL, INC.
|
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ENVIRONMENTAL
TRUST COMPANY
|
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XXXXXX
COUNTY LANDFILL, INC.
|
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FRANK’S
SERVICE, INC.
|
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FRONT
RANGE LANDFILL, INC.
|
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G
& P DEVELOPMENT, INC.
|
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XXXXXX
XXXXX ENTERPRISES, INCORPORATED
|
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HIGH
DESERT SOLID WASTE FACILITY, INC.
|
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(F/K/A
RHINO SOLID WASTE, INC.)
|
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ISLAND
DISPOSAL, INC.
|
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|
J
BAR J LAND, INC.
|
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KELLY’S
HAUL AWAY, INC.
|
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LAKESHORE
DISPOSAL, INC.
|
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LEALCO,
INC.
|
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LES’
COUNTY SANITARY, INC.
|
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MADERA
DISPOSAL SYSTEMS, INC.
|
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MAMMOTH
DISPOSAL COMPANY
|
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By:
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/s/ Worthing X. Xxxxxxx
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Name:
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Worthing
X. Xxxxxxx
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Title:
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Chief
Financial Officer
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THE OBLIGORS
|
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MANAGEMENT
ENVIRONMENTAL
|
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NATIONAL,
INC.
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XXXXX
COUNTY GARBAGE CO., INC.
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MDSI
OF LA, INC.
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MILLENNIUM
WASTE INCORPORATED
|
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MISSION
COUNTRY DISPOSAL
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MORRO
BAY GARBAGE SERVICE
|
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XXXXXX’X
DISPOSAL COMPANY, INC.
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NEBRASKA
ECOLOGY SYSTEMS, INC.
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XXXXXX
COUNTY LANDFILL, INC.
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NORTHERN
PLAINS DISPOSAL, INC.
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NORTHWEST
CONTAINER SERVICES, INC.
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OKLAHOMA
CITY WASTE DISPOSAL, INC.
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OKLAHOMA
LANDFILL HOLDINGS, INC.
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OSAGE
LANDFILL, INC.
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PSI
ENVIRONMENTAL SERVICES, INC.
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PSI
ENVIRONMENTAL SYSTEMS, INC.
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PUEBLO
SANITATION, INC.
|
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X.X.
XXXXXXXXX INVESTMENTS, INC.
|
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RED
CARPET LANDFILL, INC.
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RH
FINANCIAL CORPORATION
|
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RURAL
WASTE MANAGEMENT, INC.
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SAN
XXXX GARBAGE COMPANY
|
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XXXXX
SOLID WASTE DISPOSAL COMPANY
|
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SEABREEZE
RECOVERY, INC.
|
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SEDALIA
LAND COMPANY
|
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SOUTH
COUNTY SANITARY SERVICE, INC.
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SOUTHERN
PLAINS DISPOSAL, INC.
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TACOMA
RECYCLING COMPANY, INC.
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TENNESSEE
WASTE MOVERS, INC.
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WASCO
COUNTY LANDFILL, INC.
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WASTE
CONNECTIONS MANAGEMENT
|
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SERVICES,
INC.
|
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WASTE
CONNECTIONS OF ALABAMA, INC.
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WASTE
CONNECTIONS OF ARIZONA, INC.
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WASTE
CONNECTIONS OF ARKANSAS, INC.
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WASTE
CONNECTIONS OF CALIFORNIA, INC.
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(F/K/A
XXXXXX DISPOSAL SERVICE, INC.)
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WASTE
CONNECTIONS OF COLORADO, INC.
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WASTE
CONNECTIONS OF GEORGIA, INC.
|
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(F/K/A
WCI OF GEORGIA, INC.)
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By:
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/s/ Worthing X. Xxxxxxx
|
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Name:
|
Worthing
X. Xxxxxxx
|
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Title:
|
Chief
Financial Officer
|
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THE
OBLIGORS
|
|||
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WASTE
CONNECTIONS OF IDAHO, INC.
|
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(F/K/A
MOUNTAIN XXXX ENVIRONMENTAL
|
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SERVICES,
INC.)
|
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WASTE
CONNECTIONS OF ILLINOIS, INC.
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WASTE
CONNECTIONS OF IOWA, INC.
|
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(F/K/A
XXXXXX WASTE SYSTEMS INC.)
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WASTE
CONNECTIONS OF KANSAS, INC.
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WASTE
CONNECTIONS OF KENTUCKY, INC.
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WASTE
CONNECTIONS OF MINNESOTA, INC.
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(F/K/A
XXXXXX’X SANITARY SERVICE, INC.)
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WASTE
CONNECTIONS OF MISSISSIPPI, INC.
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(F/K/A
LIBERTY WASTE SERVICES OF
|
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MISSISSIPPI
HOLDINGS, INC.)
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WASTE
CONNECTIONS OF MISSOURI, INC.
|
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WASTE
CONNECTIONS OF MONTANA, INC.
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WASTE
CONNECTIONS OF NEBRASKA, INC.
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WASTE
CONNECTIONS OF NEW MEXICO, INC.
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WASTE
CONNECTIONS OF NORTH CAROLINA, INC.
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WASTE
CONNECTIONS OF SOUTH CAROLINA, INC.
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WASTE
CONNECTIONS OF OKLAHOMA, INC.
|
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(F/K/A
B & B SANITATION, INC.)
|
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WASTE
CONNECTIONS OF OREGON, INC.
|
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(SUCCESSOR
BY MERGER TO
|
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ENVIRONMENTAL
WASTE SYSTEMS, INC. AND
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F/K/A
SWEET HOME SANITATION SERVICE, INC.)
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WASTE
CONNECTIONS OF SOUTH DAKOTA, INC.
|
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(F/K/A
XXXXX ENTERPRISES, INC.)
|
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WASTE
CONNECTIONS OF TENNESSEE, INC.
|
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(F/K/A
LIBERTY WASTE SERVICES OF TENNESSEE HOLDINGS, INC.)
|
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WASTE
CONNECTIONS OF THE CENTRAL VALLEY, INC.
(F/K/A/
KINGSBURG DISPOSAL SERVICE, INC.)
|
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WASTE
CONNECTIONS OF UTAH, INC.
|
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WASTE
CONNECTIONS OF WASHINGTON, INC.
|
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WASTE
CONNECTIONS OF WYOMING, INC.
|
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WASTE
CONNECTIONS TRANSPORTATION COMPANY, INC.
|
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WASTE
SERVICES OF N.E. MISSISSIPPI, INC.
|
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WEST
BANK ENVIRONMENTAL SERVICES, INC.
|
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|
WEST
COAST RECYCLING AND TRANSFER, INC.
|
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|
WYOMING
ENVIRONMENTAL SERVICES, INC.
|
|||
|
WYOMING
ENVIRONMENTAL SYSTEMS, INC.
|
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YAKIMA
WASTE SYSTEMS, INC.
|
|||
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By:
|
/s/ Worthing X. Xxxxxxx
|
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|
Name:
|
Worthing
X. Xxxxxxx
|
||
|
Title:
|
Chief
Financial Officer
|
||
|
THE OBLIGORS
|
||||
|
COLUMBIA
RESOURCE CO., X.X.
|
||||
|
XXXXXX-BUTTES
LIMITED PARTNERSHIP
|
||||
|
By:
|
Management
Environmental National, Inc.,
|
|||
|
its
General Partner
|
||||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
EL
PASO DISPOSAL, LP
|
||||
|
By:
|
Waste
Connections of Texas, LLC,
|
|||
|
its
General Partner
|
||||
|
By:
|
Waste
Connections Management Services, Inc.,
|
|||
|
its
Manager
|
||||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
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GLACIER
DISPOSAL, L.L.C.
|
||||
|
XXXXXX
XXXXX LANDFILL, L.L.C.
|
||||
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SUNRISE
SANITATION, LLC
|
||||
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WASTE
CONNECTIONS OF MISSISSIPPI DISPOSAL
|
||||
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SERVICES, LLC (F/K/A
SANTEK
|
||||
|
ENVIRONMENTAL
OF MISSISSIPPI, L.L.C.)
|
||||
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WASTE
CONNECTIONS OF XXXXXXX, LLC
|
||||
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(F/K/A
WASTE SERVICES OF MISSISSIPPI, LLC)
|
||||
|
By:
|
||||
|
its
Managing Member
|
||||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
THE OBLIGORS
|
||||
|
WASTE
CONNECTIONS OF TEXAS, LLC
|
||||
|
By:
|
Waste
Connections Management Services, Inc.,
|
|||
|
its
Manager
|
||||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
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HORIZON
PROPERTY MANAGEMENT, LLC
|
||||
|
XXXXXX
COUNTY RECYCLING, COMPOSTING AND
|
||||
|
DISPOSAL,
LLC
|
||||
|
RAILROAD
AVENUE DISPOSAL, LLC
|
||||
|
XXXXX
WASTE SERVICES, LLC
|
||||
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SILVER
SPRINGS ORGANICS, L.L.C.
|
||||
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THE
TRASH COMPANY, LLC
|
||||
|
WASTE
SOLUTIONS GROUP OF SAN XXXXXX, LLC
|
||||
|
XXXXXXXX
SANITATION, L.L.C.
|
||||
|
By:
|
||||
|
its
Manager
|
||||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
XXXXXXXX
REGIONAL LANDFILL, LLC
|
||||
|
By:
|
Xxxxxxxx
County Landfill, Inc., its Manager
|
|||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
XXXXXXXX
CANYON, LLC
|
||||
|
By:
|
Xxxxxxxx
Canyon, Inc., its Manager
|
|||
|
By:
|
/s/ Worthing X. Xxxxxxx
|
|||
|
Name:
|
Worthing
X. Xxxxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
THE
PURCHASERS:
|
||
|
METROPOLITAN
LIFE INSURANCE COMPANY
|
||
|
By:
|
/s/ Xxxx Xxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
|
|
Title:
|
Director
|
|
|
THE
PURCHASERS:
|
||
|
GENERAL
AMERICAN LIFE INSURANCE COMPANY
|
||
|
By:
|
Metropolitan
Life Insurance Company
|
|
|
its
Investment Manager
|
||
|
By:
|
/s/ Xxxx Xxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
|
|
Title:
|
Director
|
|
|
THE
PURCHASERS:
|
||
|
XXXXXXX
NATIONAL LIFE INSURANCE COMPANY
|
||
|
By:
|
PPM
America, Inc., as attorney in fact,
|
|
|
on
behalf of Xxxxxxx National Life Insurance Company
|
||
|
By:
|
/s/ Xxxx X. Xxxxxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Senior
Managing Director
|
|
|
THE
PURCHASERS:
|
||
|
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
|
||
|
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
PRUDENTIAL
RETIREMENT INSURANCE AND ANNUITY COMPANY
|
||
|
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
THE
PURCHASERS:
|
||
|
NEW
YORK LIFE INSURANCE COMPANY
|
||
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|
|
Name:
|
Xxxxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Corporate
Vice President
|
|
|
NEW
YORK LIFE INSURANCE AND ANNUITY CORPORATION
|
||
|
By:
|
New
York Life Investment Management, LLC
|
|
|
its
Investment Manager
|
||
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxxx
|
|
|
Name:
|
Xxxxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Director
|
|
|
THE PURCHASERS:
|
||
|
PIONEER
MUTUAL LIFE INSURANCE COMPANY
|
||
|
By:
|
American
United Life Insurance Company,
|
|
|
its
Agent
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
AMERICAN
UNITED LIFE INSURANCE COMPANY
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
THE
STATE LIFE INSURANCE COMPANY
|
||
|
By:
|
American
United Life Insurance Company,
|
|
|
its
Agent
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Vice
President
|
|
