AMENDMENTNO. 1 TO MASTERNOTE PURCHASE AGREEMENT

 

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 Randall C. Papé, Gary Papé, Terrance Papé and Dian Papé Tooke, 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.

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.