UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 22, 2015
 
MERIDIAN WASTE SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)

New York
 
001-13984
 
13-3832215
(State or other jurisdiction
 
(Commission File Number)
 
(IRS Employer
of incorporation)
     
Identification No.)

12540 Broadwell Road, Suite 2104
Milton, GA 30004
 (Address of principal executive offices)

(678) 871-7457
(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 
 
 
 
 
Item 1.01 Entry into a Material Definitive Agreement.

Effective December 22, 2015, Meridian Waste Solutions, Inc. (the “ Company ”) closed a Credit and Guaranty Agreement (the “ Credit Agreement ”) by and among the Company, Brooklyn Cheesecake & Dessert Acquisition Corp. (“ BCDA ”), Here to Serve - Missouri Waste Division, LLC (“ Missouri Waste ”), Here to Serve - Georgia Waste Division, LLC (“ Georgia Waste ”), Meridian Land Company, LLC (“ Meridian Land ”), Christian Disposal, LLC (“ Christian Disposal ”), and FWCD, LLC (“ FWCD ” and together with BCDA, Missouri Waste, Georgia Waste, Meridian Land, and Christian Disposal, the “ Companies ”), and certain subsidiaries of the Company, as Guarantors, the Lenders party thereto from time to time and Goldman Sachs Specialty Lending Group, L.P. (“ GSSLG ”), as Administrative Agent, Collateral Agent, and Lead Arranger.

Pursuant to the Credit Agreement, Lenders have agreed to extend certain credit facilities to the Companies, in an aggregate amount not to exceed $55,000,000, consisting of $40,000,000 aggregate principal amount of Tranche A Term Loans (the “ Tranche A Term Loans ”), $10,000,000 aggregate principal amount of Multi-Draw Term Loans (the “ MDTL Term Loans ”), and up to $5,000,000 aggregate principal amount of Revolving Commitments (the “ Revolving Commitments ” and, together with the Tranche A Term Loans and the MDTL Term Loans, the “ Loans ”). The proceeds of the Loans are to be used as follows: (i) the proceeds of the Tranche A Term Loans shall be applied by Companies to (a) partially fund the acquisitions of Christian Disposal, FWCD and certain assets of Eagle Ridge Landfill, LLC, (b) refinance existing indebtedness of the Companies, (c) pre-fund certain capital expenditures, (d) pay fees and expenses in connection with the transactions contemplated by the Credit Agreement and (e) for working capital and other general corporate purposes; (ii) the proceeds of the Revolving Commitments will be used for working capital and general corporate purposes and (iii) the proceeds of the MDTL Term Loans will be used for acquisitions permitted under the Credit Agreement. The Loans are evidenced, respectively, by that certain Tranche A Term Loan Note, MDTL Note and Revolving Loan Note, all issued on December 22, 2015 (collectively, the “ Notes ”). Under the Notes and Credit Agreement, prepayments are subject to certain prepayment premiums, and payment obligations are subject to acceleration upon the occurrence of events of default under the Credit Agreement.
 
The Loans and other obligations under the Credit Agreement are secured by a first position security interest in substantially all of the Company’s and the Companies’ assets in favor of the Collateral Agent, in accordance with that certain Pledge and Security Agreement dated as of December 22, 2015 (the “ Pledge and Security Agreement ”).

In connection with the Credit Agreement, on December 22, 2015, the Company issued that certain Purchase Warrant for Common Shares to Goldman, Sachs & Co. (the “ Warrant ”) for the purchase of shares of the Company’s common stock equivalent to a 6.5% Percentage Interest (as such term is defined in the Warrant) at a purchase price equal to $449,553, exercisable on or before December 22, 2023.  The Warrant grants the holder certain other rights, including registration rights, preemptive rights for certain capital raises, board observation rights and indemnification
 
The above descriptions of the Credit Agreement, Notes, Warrants and Pledge and Pledge and Security Agreement (collectively, the “ GS Financing Documents ”) do not purport to be complete and are qualified in their entirety by the full text of the documents themselves, which are included as exhibits to this Current Report on Form 8-K and are incorporated by reference.

Effective December 22, 2015, in connection with the closing of the GS Financing Documents, the Company (i) re-paid in full and terminated that certain Note and Warrant Purchase Agreement and Security Agreement (the “ Note Purchase Agreement ”) by and among the Company, BCDA, Missouri Waste, Georgia Waste, Meridian Land certain subsidiaries of the Company, the purchasers from time to time party thereto (collectively, the “ Purchasers ”) and Praesidian Capital Opportunity Fund III, LP, a Delaware limited partnership (“ Fund III ”) as agent for the Purchasers and (ii) entered into that certain Warrant Cancellation and Stock Issuance Agreement (the “ Warrant Cancellation Agreement ”) with Fund III and Praesidian Capital Opportunity Fund III-A, LP (“ Fund III-A ”), which effected the cancellation of those certain warrants that the Company issued to Fund III for the purchase of 931,826 shares of the Company’s common stock and to Fund III-A for the purchase of 361,196 shares of the Company’s common stock (collectively, the “ Praesidian Warrants ”). Pursuant to the Warrant Cancellation Agreement, in consideration for the cancellation of the Praesidian Warrants, the Company issued to Fund III 1,153,052 shares of common stock and issued to Fund III-A 446,948 shares of common stock, in addition to cash consideration in the aggregate amount of $150,000 and the granting of certain participation and registration rights.

 
 
 
 
The above descriptions of the Note Purchase Agreement, Praesidian Warrants and Warrant Cancellation Agreement do not purport to be complete and are qualified in their entirety by the full text of the documents themselves, which are included as exhibits to this Current Report on Form 8-K and are incorporated by reference.

Concurrently, effective December 22, 2015, the Company consummated the closing of the Amended and Restated Membership Interest Purchase Agreement, dated October 16, 2015, by and among the Company, Timothy M. Drury (" Seller "), Christian Disposal LLC, FWCD, Missouri Waste and Georgia Waste, as amended by that certain First Amendment thereto, dated December 4, 2015 (the “ Christian Purchase Agreement ”). Pursuant to the Christian Purchase Agreement, the Company purchased from Seller 100% of the membership interests of Christian Disposal in exchange for the following: (i) Thirteen Million Dollars ($13,000,000), subject to a working capital adjustment in accordance with Section 1.4 of the Purchase Agreement; (ii) 1,750,000 shares of the Company’s common stock; (iii) a Convertible Promissory Note in the amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000), bearing interest at 8% per annum (the “ Seller Note ”); and (iv) an additional purchase price of Two Million Dollars ($2,000,000), payable upon completion of an extension under a certain contract to which Christian Disposal is party, in accordance with, and subject to any applicable reductions set forth in, Section 1.3(b) of the Purchase Agreement. The Christian Purchase Agreement contains typical representations, warranties and covenants.

Pursuant to the Christian Purchase Agreement, and simultaneous with the closing thereof, Christian Disposal, as a wholly-owned subsidiary of the Company, entered into that certain Lease Agreement with 4551 Commerce Holdings LLC, pursuant to which Christian Disposal agreed to lease the premises located at 4551 Commerce Avenue, High Ridge, Missouri, for a five-year term at a monthly rent of $6,500 (the “ Lease ”).  The premises leased thereunder are comprised of approximately 1.2 acres, and include an office, vehicle repair shop, parking lot and storage area.

Pursuant to the Christian Purchase Agreement, and simultaneous with the closing thereof, Christian Disposal, as a wholly-owned subsidiary of the Company, and the Company entered into that certain Employment Agreement with Patrick McLaughlin, pursuant to which Mr. McLaughlin will serve as Area Vice President of Business Development and Marketing for Christian Disposal, for a term of five years (the “ Employment Agreement ”). Mr. McLaughlin’s base salary is $12,500 per month, with quarterly bonuses in the amount of $25,000 each, in addition to annual equity bonuses, commencing January 1, 2017, in the amount of the Company’s common stock equivalent to $65,000 in accordance with terms of the Employment Agreement, in addition to such equity and option awards as the Company’s Board may grant from time to time.

The above descriptions of the Christian Purchase Agreement, the Seller Note, the Christian Lease and the Employment Agreement do not purport to be complete and are qualified in their entirety by the full text of the documents themselves, which are included as exhibits to this Current Report on Form 8-K and are incorporated by reference.
 
In connection with the closing of the Credit Agreement, the Warrant Cancellation Agreement, the Christian Purchase Agreement and the purchase of certain assets of Eagle Ridge Landfill, LLC, the Company has paid fees in the aggregate amount of approximately $2,600,000.
 
Item 1.02 Termination of a Material Definitive Agreement.

Item 1.01 above is hereby incorporated by reference.
 
Item 2.01 Completion of Acquisition or Disposition of Assets.

Item 1.01 above is hereby incorporated by reference.

 
 
 
 
Concurrently, effective December 22, 2015, Meridian Land, a wholly-owned subsidiary of the Company, consummated the closing of that certain Asset Purchase Agreement, dated November 13, 2015, by and between Meridian Land and Eagle Ridge Landfill, LLC (“ Eagle ”), as amended by that certain Amendment to Asset Purchase Agreement, dated December 18, 2015, to which the Company and WCA Waste Corporation are also party (the “ Eagle Purchase Agreement ”), pursuant to which Meridian Land purchased from Eagle, a landfill located in Pike County, Missouri and certain of the assets, rights and properties related to such business of Eagle, including certain debts, in exchange for $9,506,500, subject to a working capital adjustment. The Purchase Agreement contains typical representations, warranties and covenants.
   
The above description of the Eagle Purchase Agreement does not purport to be complete and is qualified in its entirety by the full text of the documents comprising the Eagle Purchase Agreement, which are included as exhibits to this Current Report on Form 8-K and are incorporated by reference.
 
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Item 1.01 above is hereby incorporated by reference.
 
Item 3.02 Unregistered Sales of Equity Securities.

Item 1.01 above is hereby incorporated by reference.

The securities underlying the Warrant, issued pursuant to the Warrant Cancellation Agreement and/or issued pursuant to the Christian Purchase Agreement were not registered under the Securities Act of 1933, as amended (the “Securities Act”). These securities qualified for exemption under Section 4(2) of the Securities Act since the issuance of securities by us did not involve a public offering. The offering was not a “public offering” as defined in Section 4(2) due to the insubstantial number of persons involved in the deal, size of the offering, manner of the offering and number of securities offered. We did not undertake an offering in which we sold a high number of securities to a high number of investors. In addition, these shareholders had the necessary investment intent as required by Section 4(2) of the Securities Act as they agreed to and received share certificates bearing a legend stating that such securities are restricted pursuant to Rule 144 of the Securities Act. This restriction ensures that these securities would not be immediately redistributed into the market and therefore not be part of a “public offering.” Based on an analysis of the above factors, we have met the requirements to qualify for exemption under Section 4(2) of the Securities Act.
 
 
 
 

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits
 
Exhibit No.
 
Description
     
4.1
 
Credit and Guaranty Agreement, dated as of December 22, 2015, entered into by and among Here to Serve – Missouri Waste Division, LLC, Here to Serve – Georgia Waste Division, LLC, Brooklyn Cheesecake & Desserts Acquisition Corp., Meridian Land Company, LLC, Christian Disposal, LLC, and FWCD, LLC, Meridian Waste Solutions, Inc. (“Holdings”) and certain subsidiaries of Holdings, as Guarantors, the Lenders party thereto from time to time and Goldman Sachs Specialty Lending Group, L.P., as Administrative Agent, Collateral Agent, and Lead Arranger*
4.2
 
Tranche A Term Loan Note, issued in favor of Goldman Sachs Specialty Lending Holdings, Inc., in the principal amount of $40,000,000, dated December 22, 2015*
4.3
 
MDTL Note, issued in favor of Goldman Sachs Specialty Lending Holdings, Inc., in the principal amount of $10,000,000, dated December 22, 2015*
4.4
 
Revolving Loan Note, issued in favor of Goldman Sachs Specialty Lending Holdings, Inc., in the principal amount of $5,000,000, dated December 22, 2015*
4.5
 
Purchase Warrant for Common Shares issued in favor of Goldman, Sachs & Co., dated December 22, 2015*
4.6
 
Pledge and Security Agreement between the grantors party thereto and Goldman Sachs Specialty Lending Group, L.P., dated December 22, 2015*
4.7
 
Note and Warrant Purchase Agreement and Security Agreement, by and among Meridian Waste Solutions, Inc., Here to Serve - Missouri Waste Division, LLC, Here to Serve - Georgia Waste Division, LLC, Meridian Land Company, LLC, certain subsidiaries of the Company, the purchasers from time to time party thereto and Praesidian Capital Opportunity Fund III, LP, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the U.S Securities and Exchange Commission (the “Commission”) on November 16, 2015)
4.8
 
Note A, issued in favor of Praesidian Capital Opportunity Fund III, LP, in the principal amount of $2,644,812.57, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.9
 
Note A, issued in favor of Praesidian Capital Opportunity Fund III-a, LP, in the principal amount of $1,025,187.43, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.10
 
Note B, issued in favor of Praesidian Capital Opportunity Fund III, LP, in the principal amount of $5,170,716.68, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.11
 
Note B, issued in favor of Praesidian Capital Opportunity Fund III-a, LP, in the principal amount of $2,004,283.32, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.12
 
Warrant issued in favor of Praesidian Capital Opportunity Fund III, LP, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.13
 
Warrant issued in favor of Praesidian Capital Opportunity Fund III-a, LP, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.14
 
Pledge Agreement by and among Meridian Waste Solutions, Inc., the pledgors party thereto and Praesidian Capital Opportunity Fund III, LP, dated August 6, 2015 (incorporated herein by reference to the Quarterly Report on Form 8-K filed with the Commission on November 16, 2015)
4.15
 
Warrant Cancellation and Stock Issuance Agreement made and entered into as of December 22, 2015, by and among Praesidian Capital Opportunity Fund III, LP, Praesidian Capital Opportunity Fund III-A, LP, and Meridian Waste Solutions, Inc.*
4.16
 
Convertible Promissory Note, issued in favor of Timothy Drury, in the principal amount of $1,250,000, dated December 22, 2015*
10.1
 
Amended and Restated Membership Interest Purchase Agreement made and entered into as of October 16, 2015, by and among Timothy M. Drury; Christian Disposal LLC; FWCD, LLC; Meridian Waste Solutions, Inc.; Here to Serve Missouri Waste Division, LLC; and Here to Serve Georgia Waste Division, LLC (incorporated herein by reference to the Current Report on Form 8-K filed with the Commission on October 22, 2015)
10.2
 
First Amendment to Amended and Restated Membership Interest Purchase Agreement by and among Timothy M. Drury; Christian Disposal LLC; FWCD, LLC; Meridian Waste Solutions, Inc.; Here to Serve Missouri Waste Division, LLC; and Here to Serve Georgia Waste Division, LLC, dated December 4, 2015 (incorporated herein by reference to the Current Report on Form 8-K filed with the Commission on December 9, 2015)
10.3
 
Lease Agreement, dated December 22, 2015, by and between 4551 Commerce Holdings LLC and Christian Disposal, LLC*
10.4
 
Employment Agreement, dated December 22, 2015, by and among Christian Disposal, LLC, Meridian Waste Solutions, Inc. and Patrick McLaughlin*
10.5
 
Asset Purchase Agreement made and entered into as of November 13, 2015, by and between Meridian Land Company, LLC and Eagle Ridge Landfill, LLC (incorporated herein by reference to the Current Report on Form 8-K filed with the Commission on November 18, 2015)
10.6
 
First Amendment to Asset Purchase Agreement by and among Meridian Land Company, LLC, Eagle Ridge Landfill, LLC, Meridian Waste Solutions, Inc., and WCA Waste Corporation, dated December 18, 2015*
 
 * filed herewith
 
 
 
 
 
SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
MERIDIAN WASTE SOLUTIONS, INC.
 
       
Date: December 29, 2015
By:
/s/ Jeffrey Cosman
 
   
Name: Jeffrey Cosman
 
   
Title: Chief Executive Officer
 
       
 
 

 
 
 
 
 
 
 
 
 
Exhibit 4.1

CREDIT AND GUARANTY AGREEMENT

dated as of December 22, 2015

among

HERE TO SERVE – MISSOURI WASTE DIVISION, LLC,
HERE TO SERVE – GEORGIA WASTE DIVISION, LLC,
BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP.,
MERIDIAN LAND COMPANY, LLC,
CHRISTIAN DISPOSAL, LLC, and
FWCD, LLC
as Companies

MERIDIAN WASTE SOLUTIONS, INC.,
as a Guarantor,

VARIOUS LENDERS

and

GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P.
as Administrative Agent, Collateral Agent, and Sole Lead Arranger

________________________________________________________

$55,000,000 Senior Secured Credit Facilities
________________________________________________________
 
 
 
 
 
TABLE OF CONTENTS
 
 
Page
SECTION 1. DEFINITIONS AND INTERPRETATION
1
1.1. Definitions
1
1.2. Accounting Terms
32
1.3. Interpretation, etc.
32
SECTION 2. LOANS
32
2.1. Term Loans .
32
2.2. Company Representative
33
2.3. Reserved .
35
2.4. Pro Rata Shares; Availability of Funds .
35
2.5. Use of Proceeds
36
2.6. Evidence of Debt; Register; Lenders’ Books and Records; Notes .
36
2.7. Interest on Loans .
37
2.8. Conversion/Continuation .
38
2.9. Default Interest
39
2.10. Fees .
39
2.11. Scheduled Payments .
39
2.12. Voluntary Prepayments/Commitment Reductions .
40
2.13. Mandatory Prepayments/Commitment Reductions .
41
2.14. Application of Prepayments/Reductions .
44
2.15. General Provisions Regarding Payments .
44
2.16. Ratable Sharing
46
2.17. Making or Maintaining LIBOR Rate Loans .
47
2.18. Increased Costs; Capital Adequacy .
48
2.19. Taxes; Withholding, etc.
50
2.20. Obligation to Mitigate
52
2.21. Defaulting Lenders
52
2.22. Removal or Replacement of a Lender
53
SECTION 3. CONDITIONS PRECEDENT
54
3.1. Closing Date
54
3.2. Conditions to Each Credit Extension .
60
3.3. Conditions Subsequent to the Closing Date
61
SECTION 4. REPRESENTATIONS AND WARRANTIES
61
4.1. Organization; Requisite Power and Authority; Qualification
61
4.2. Capital Stock and Ownership
61
4.3. Due Authorization
62
4.4. No Conflict
62
4.5. Governmental Consents
62
4.6. Binding Obligation
62
4.7. Historical Financial Statements
62
4.8. Projections
63
 
 
 
 
 
4.9. No Material Adverse Change
63
4.10. No Restricted Junior Payments
63
4.11. Adverse Proceedings, etc.
63
4.12. Payment of Taxes
63
4.13. Properties .
64
4.14. Environmental Matters
64
4.15. No Defaults
65
4.16. Material Contracts
65
4.17. Governmental Regulation
65
4.18. Margin Stock
65
4.19. Employee Matters
65
4.20. Employee Benefit Plans
66
4.21. Certain Fees
66
4.22. Solvency
66
4.23. Related Agreements .
66
4.24. Compliance with Statutes, Franchises, Permits, etc .
67
4.25. Disclosure
67
4.26. Patriot Act
68
SECTION 5. AFFIRMATIVE COVENANTS
68
5.1. Financial Statements and Other Reports
68
5.2. Existence
72
5.3. Payment of Taxes and Claims
72
5.4. Maintenance of Properties
73
5.5. Insurance
73
5.6. Inspections
74
5.7. Lenders Meetings
74
5.8. Compliance with Laws
74
5.9. Environmental .
74
5.10. Subsidiaries
75
5.11. Additional Material Real Estate Assets
76
5.12. Reserved
76
5.13. Further Assurances
76
5.14. Miscellaneous Business Covenants
76
5.15. Post Closing Matters
77
SECTION 6. NEGATIVE COVENANTS
77
6.1. Indebtedness
77
6.2. Liens
78
6.3. Equitable Lien
80
6.4. No Further Negative Pledges
80
6.5. Restricted Junior Payments
80
6.6. Restrictions on Subsidiary Distributions
81
6.7. Investments
81
6.8. Financial Covenants .
82
6.9. Fundamental Changes; Disposition of Assets; Acquisitions
84
6.10. Disposal of Subsidiary Interests
84
 
 
 
 
 
6.11. Sales and Lease‑Backs
85
6.12. Transactions with Shareholders and Affiliates
85
6.13. Conduct of Business; Foreign Subsidiaries
85
6.14. Permitted Activities of Holdings
85
6.15. Amendments or Waivers of Certain Related Agreements
86
6.16. Reserved
86
6.17. Fiscal Year
86
6.18. Deposit Accounts
86
6.19. Amendments to Organizational Agreements and Material Contracts
86
6.20. Prepayments of Certain Indebtedness
86
SECTION 7. GUARANTY
87
7.1. Guaranty of the Obligations
87
7.2. Contribution by Guarantors
87
7.3. Payment by Guarantors
87
7.4. Liability of Guarantors Absolute
88
7.5. Waivers by Guarantors
90
7.6. Guarantors’ Rights of Subrogation, Contribution, etc.
90
7.7. Subordination of Other Obligations
91
7.8. Continuing Guaranty
91
7.9. Authority of Credit Parties
91
7.10. Financial Condition of the Credit Parties
91
7.11. Bankruptcy, etc.
92
7.12. Discharge of Guaranty Upon Sale of Guarantor
92
7.13. Qualified ECP Credit Party
93
SECTION 8. EVENTS OF DEFAULT
93
8.1. Events of Default
93
SECTION 9. AGENTS
96
9.1. Appointment of Agents
96
9.2. Powers and Duties
96
9.3. General Immunity .
96
9.4. Agents Entitled to Act as Lender
97
9.5. Lenders’ Representations, Warranties and Acknowledgment
97
9.6. Right to Indemnity
98
9.7. Successor Administrative Agent and Collateral Agent .
99
9.8. Collateral Documents and Guaranty .
99
SECTION 10. MISCELLANEOUS
100
10.1. Notices
100
10.2. Expenses
100
10.3. Indemnity .
101
10.4. Set‑Off
102
10.5. Amendments and Waivers .
102
10.6. Successors and Assigns; Participations .
104
10.7. Independence of Covenants
107
 
 
 
 
 
10.8. Survival of Representations, Warranties and Agreements
107
10.9. No Waiver; Remedies Cumulative
107
10.10. Marshalling; Payments Set Aside
107
10.11. Severability
108
10.12. Obligations Several; Actions in Concert
108
10.13. Headings
108
10.14. APPLICABLE LAW
108
10.15. CONSENT TO JURISDICTION
108
10.16. WAIVER OF JURY TRIAL
109
10.17. Confidentiality
110
10.18. Usury Savings Clause
111
10.19. Counterparts
111
10.20. Effectiveness
111
10.21. Patriot Act
112
 
 
 
 
 
APPENDICES:
A‑1
Tranche A Term Loan Commitments
 
A‑2
MDTL Commitments
 
A‑3
Revolving Commitments
 
B
Notice Addresses
     
     
SCHEDULES:
1.1
Certain Material Real Estate Assets
 
3.1(i)
Closing Date Mortgaged Properties
 
4.1
Jurisdictions of Organization and Qualification
 
4.2
Capital Stock and Ownership
 
4.13
Real Estate Assets
 
4.16
Material Contracts
 
5.15
Certain Post Closing Matters
 
6.1
Certain Indebtedness
 
6.2
Certain Liens
 
6.7
Certain Investments
 
6.12
Certain Affiliate Transactions
     
     
EXHIBITS:
A‑1
Funding Notice
 
A‑2
Conversion/Continuation Notice
 
B‑1
Tranche A Term Loan Note
 
B-2
MDTL Note
 
B‑3
Revolving Loan Note
 
C
Compliance Certificate
 
D
Opinions of Counsel
 
E
Assignment Agreement
 
F
Certificate Regarding Non‑bank Status
 
G‑1
Closing Date Certificate
 
G‑2
Solvency Certificate
 
H
Counterpart Agreement
 
I
Pledge and Security Agreement
 
J
Mortgage
 
K
Landlord Collateral Access Agreement
 
 
 
 
 
 
CREDIT AND GUARANTY AGREEMENT

This CREDIT AND GUARANTY AGREEMENT , dated as of December 22, 2015, is entered into by and among HERE TO SERVE – MISSOURI WASTE DIVISION, LLC , a Missouri limited liability company (“ HTS MWD” ), HERE TO SERVE – GEORGIA WASTE DIVISION, LLC , a Georgia limited liability company (“ HTS GWD ”), BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP. , a New York corporation (“ BCDA ”), MERIDIAN LAND COMPANY, LLC , a Georgia limited liability company (“ MLC ”), CHRISTIAN DISPOSAL, LLC , a Missouri limited liability company (“ Christian Disposal ”), and FWCD, LLC , a Missouri limited liability company (“ FWCD ” and together with HTS MWD, HTS GWD, BCDA, MLC, and Christian Disposal, the “ Companies ” and each, a “ Company ”), MERIDIAN WASTE SOLUTIONS, INC. , a New York corporation ( “Holdings” ) and CERTAIN SUBSIDIARIES OF HOLDINGS , as Guarantors, the Lenders party hereto from time to time and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. (“ GSSLG ”), as Administrative Agent (in such capacity, “Administrative Agent” ), Collateral Agent (in such capacity, “Collateral Agent” ), and Lead Arranger.
 
RECITALS:

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
 
WHEREAS , Lenders have agreed to extend certain credit facilities to the Companies, in an aggregate amount not to exceed $55,000,000, consisting of $40,000,000 aggregate principal amount of Tranche A Term Loans, $10,000,000 aggregate principal amount of MDTL Term Loans, and up to $5,000,000 aggregate principal amount of Revolving Commitments; the proceeds of the Loans will be used in accordance with Section 2.5 of this Agreement;
 
WHEREAS, each Company has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on substantially all of its assets, including a pledge of all of the Capital Stock of each of its Subsidiaries; and
 
WHEREAS, Holdings has agreed to guarantee the obligations of each Company hereunder and to secure its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on substantially all of its assets, including a pledge of all of the Capital Stock of each of its Subsidiaries (including each Company).
 
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
 
SECTION 1.   DEFINITIONS AND INTERPRETATION
 
1.1.   Definitions .   The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
 
“Accounts” means all “accounts” (as defined in the UCC) of Holdings and its Subsidiaries (or, if referring to another Person, of such Person), including, without limitation, accounts, accounts receivable, monies due or to become due and obligations in any form (whether arising in connection with contracts, contract rights, instruments, general intangibles, or chattel paper), in each case whether arising out of goods sold or services rendered or from any other transaction and whether or not earned by performance, now or hereafter in existence, and all documents of title or other documents representing any of the foregoing, and all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing.
 
 
 
 
“Act” as defined in Section 4.26.
 
“Adjusted LIBOR Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a LIBOR Rate Loan, the greater of (i) the rate per annum obtained by dividing (a) (1) the rate per annum  equal to the rate determined by Administrative Agent to be the offered rate, truncated at five decimal digits, which appears on (x) the page of the Reuters Screen which displays an average ICE Benchmark Administration Limited Interest Settlement Rate or such other London interbank offered rate administered by any other person that takes over the administration of such rate (such page currently being Reuters Screen LIBOR01 Page, formerly the display designated as “Page 3750” on the Moneyline Telerate Service) or (y) on the comparable page of the Bloomberg Information Services for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (2) in the event the rate referenced in the preceding clause (1) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service, truncated at five decimal digits, which displays an average ICE Benchmark Administration Limited Interest Settlement Rate or such other London interbank offered rate administered by any other person that takes over the administration of such rate for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (3) in the event the rates referenced in the preceding clauses (1) and (2) are not available or if such information, in the reasonable judgment of Administrative Agent shall cease accurately to reflect the rate offered by leading banks in the London interbank market as reported by any publicly available source of similar market data selected by Administrative Agent, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate, truncated at five decimal digits, to first class banks in the London interbank market for deposits (for delivery on the first day of the relevant period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (b) an amount equal to (1) one, minus (2) the Applicable Reserve Requirement or (ii) 1.00% per annum.
 
“ Adjustment Event ” as defined in the definition of Applicable Margin.
 
“Administrative Agent” as defined in the preamble hereto.
 
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Holdings or any of its Subsidiaries, threatened in writing against or affecting Holdings or any of its Subsidiaries or any property of Holdings or any of its Subsidiaries.
 
 
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“Affected Lender” as defined in Section 2.17(b).
 
“Affected Loans” as defined in Section 2.17(b).
 
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling (including any member of the senior management group of such Person), controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for the election of directors of such Person, or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
 
“Agent” means each of Administrative Agent and Collateral Agent.
 
“Aggregate Amounts Due” as defined in Section 2.16.
 
“Aggregate Payments” as defined in Section 7.2.
 
“Agreement” means this Credit and Guaranty Agreement, dated as of December 22, 2015, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Credit Parties and their Subsidiaries from time to time concerning or relating to bribery or corruption.
 
“Applicable Margin” means (i) with respect to Loans that are LIBOR Rate Loans, a percentage per annum, equal to 8.00% and (ii) with respect to Loans that are Base Rate Loans, a percentage per annum equal to 7.00%.
 
“Applicable Reserve Requirement” means, at any time, for any LIBOR Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator.  Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBOR Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include LIBOR Rate Loans.  A LIBOR Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender.  The rate of interest on LIBOR Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
 
 
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“ Asset Sale ” means a sale, lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license   or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party which is not Holdings), in one transaction or a series of transactions, of all or any part of any Credit Party’s or any of its Subsidiary’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any Credit Party or Subsidiary thereof, other than inventory sold or leased in the ordinary course of business.  For purposes of clarification, “Asset Sale” shall include (x) the sale or other disposition for value of any contracts, (y) the early termination or modification of any contract resulting in the receipt by any Credit Party or any of its Subsidiaries of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification) and (z), any sale of merchant accounts (or any rights thereto (including, without limitation, any rights to any residual payment stream with respect thereto)) by any Credit Party or any of its Subsidiaries.

“Asset Sale Reinvestment Amounts” has the meaning given to such term in Section 2.13(a).
 
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.
 
“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.
 
“ Availability ” means, on any date of determination, the lesser of (a)(i) the aggregate principal amount of the Commitments as of such date less (ii) the aggregate principal balance of the Loans as of such date, and (b)(i)(A) the sum of the trailing twelve months Consolidated Adjusted EBITDA of Holdings and its Subsidiaries as of the last day of the most recently ended month for which financial statements have been delivered pursuant to Section 5.1(a) multiplied by (B) the then in effect maximum Leverage Multiple, less (ii) the sum of (A) the aggregate principal balance of the Loans as of such date plus (B) all other Consolidated Total Debt as of such date.  Availability shall be computed giving pro forma effect to all Credit Extensions proposed to be made on the relevant date of determination.
 
 “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
 
“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 1%, (iii) the sum of (A) the Adjusted LIBOR Rate for a period of one month and (B) the excess of the Applicable Margin for LIBOR Rate Loans over the Applicable Margin for Base Rate Loans, in each instance, as of such day, and (iv) 4.25%.  Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
 
 
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“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.
 
“Beneficiary” means each Agent, Lender and Lender Counterparty.
 
“Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or the State of Texas or is a day on which banking institutions located in either such state are authorized or required by law or other governmental action to close, and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted LIBOR Rate or any LIBOR Rate Loans, the term “Business Day” shall mean any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
 
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person (i) as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person or (ii) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).
 
“Capital Stock” means any and all shares, interests, participations or other equivalents  (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
 
“Cash” means money, currency or a credit balance in any demand or Deposit Account; provided, however, that notwithstanding anything to the contrary contained herein, for purposes of calculating compliance with the requirements of Sections 3 and 6 hereof “Cash” shall exclude any amounts that would not be considered “cash” under GAAP or “cash” as recorded on the books of the Companies and the Guarantors.
 
“Cash Equivalents” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government, or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator), and (b) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.
 
 
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“Certificate Regarding Non-Bank Status” means a certificate substantially in the form of Exhibit F.
 
“ Change of Control ” means, at any time, (i) the Equity Investors shall cease to beneficially own and control at least 51% on a fully diluted basis of the voting interests, and at least 30% on a fully diluted basis of the economic interests, in the Capital Stock of Holdings; (ii) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than the Equity Investors (a) shall have acquired beneficial ownership of 30% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of Holdings or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Holdings; (iii) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of any Company; (iv) the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of Holdings cease to be occupied by Persons who either (a) were members of the board of directors of Holdings on the Closing Date, or (b) were nominated for election by the board of directors of Holdings, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors; or (v) any event, transaction or occurrence as a result of which Jeffrey Cosman, Michael Cosman or Charles Barcom shall for any reason cease to be actively engaged in the day-to-day management of any Company in the role such Person serves on the Closing Date, unless a permanent successor reasonably acceptable to Administrative Agent and the Requisite Lenders is appointed within sixty days following the date such Person ceases to be actively engaged in such capacity.
 
“Christian Disposal Acquisition Agreement ” means that certain Amended and Restated Membership Interest Purchase Agreement, dated as of October 16, 2015, among Timothy Drury, as seller, Christian Disposal, FWCD, Holdings, HTS MWD and HTS GWD, as amended by that certain First Amendment, dated as of December 4, 2015, and as further amended, restated, supplemented or otherwise modified as permitted under this Agreement.
 
“Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Lenders having Tranche A Term Loan Exposure, (b) Lenders having Revolving Exposure, and (c) Lenders having MDTL Exposure, and (ii) with respect to Loans, each of the following classes of Loans: (a) Tranche A Term Loans, (b) Revolving Loans, and (c) MDTL Term Loans.
 
 
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“Closing Date” means the date on which the initial   Term Loans are made.
 
“Closing Date Acquisitions” means (i) the acquisition of all membership interests in Christian Disposal and its Subsidiaries pursuant to and on the terms set forth in the Christian Disposal Acquisition Agreement and (ii) the acquisition of the Eagle Ridge Landfill and certain related assets pursuant to and on the terms set forth in the Eagle Ridge Acquisition Agreement.
 
“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit G-1.
 
“Closing Date Mortgaged Property” as defined in Section 3.1(i).
 
“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.
 
“Collateral Agent” as defined in the preamble hereto.
 
“Collateral Assignment of Key Man Life Insurance” means the Collateral Assignment of Key Man Life Insurance Policy, to be entered into after the Closing Date, executed by Holdings, as beneficiary of the Key Man Life Insurance Policy, and acknowledged and agreed by Lincoln Financial Group, as the issuer of the Key Man Life Insurance Policy.
 
“Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the Collateral Assignment of Key Man Life Insurance, the Landlord Collateral Access Agreements, if any, and all other instruments, documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.
 
“Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that provides information with respect to the real, personal or mixed property of each Credit Party and each of its Subsidiaries.
 
“Commitment” means any Revolving Commitment, Tranche A Term Loan Commitment or MDTL Commitment.
 
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
 
“Company” and “Companies” as defined in the preamble hereto.
 
“Company Guaranteed Obligations” as defined in Section 7.1.
 
“Company Representative” means Christian Disposal, in its capacity as representative of the Companies.
 
 
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“Compliance Certificate” means a compliance certificate substantially in the form of Exhibit C, with such modifications as may be approved by Administrative Agent.
 
“Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdings and its Subsidiaries on a consolidated basis equal to (i)  the sum, without duplication, of the amounts for such period of (a) Consolidated Net Income, plus (b) Consolidated Interest Expense, plus (c) provisions for taxes based on income, plus (d) total depreciation expense, plus (e) total amortization expense, plus (f) Consolidated Corporate Overhead, plus (g) other non-Cash items reducing Consolidated Net Income (excluding any such non-Cash item to the extent that it represents an accrual or reserve for potential Cash items in any future period or amortization of a prepaid Cash item that was paid in a prior period), plus (h) for periods ending prior to February 1, 2017, the amount set forth on Schedule 1.1, minus (ii) the sum, without duplication of the amounts for such period of (a) other non-Cash items increasing Consolidated Net Income for such period (excluding any such non-Cash item to the extent it represents the reversal of an accrual or reserve for potential Cash item in any prior period), plus (b) interest income, plus (c) other income.
 
“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures of Holdings and its Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment or which should otherwise be capitalized” or similar items reflected in the consolidated statement of cash flows of Holdings and its Subsidiaries.
 
“Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for such period based upon GAAP, excluding any paid-in-kind interest, amortization of deferred financing costs, and any realized or unrealized gains or losses attributable to Interest Rate Agreements.
 
“Consolidated Corporate Overhead” means, for any period, the aggregate of all  expenditures of Holdings and its Subsidiaries during such period determined on a consolidated basis in accordance with GAAP including, without limitation, all expenditures associated with the compensation and benefits of the corporate officers and staff of Holdings and its Subsidiaries (including the chief executive officers, chief financial officers and chief operating officers thereof) and legal, audit, insurance and accounting costs and expenses associated with the corporate compliance of Holdings and its Subsidiaries and excluding such other expenditures that, in accordance with GAAP, (i) are or should be included in Consolidated Interest Expense, (ii) are taxes based on income, (iii) are capitalized expenditures, and (iv) are operating expenses.
 
“Consolidated Current Assets” means, as at any date of determination, the total assets of Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents.
 
“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt.
 
 
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“Consolidated Excess Cash Flow” means, for any period, an amount (if positive) determined for Holdings and its Subsidiaries on a consolidated basis equal to: (i) the sum, without duplication, of the amounts for such period of (a) Consolidated Adjusted EBITDA, plus (b) interest income, plus (c) other income (excluding any gains or losses attributable to Asset Sales), plus (d) the Consolidated Working Capital Adjustment, minus (ii) the sum, without duplication, of the amounts for such period of (a) voluntary and scheduled repayments of Consolidated Total Debt (excluding repayments of Revolving Loans except to the extent the Revolving Commitments are permanently reduced in connection with such repayments), plus (b) Consolidated Capital Expenditures (net of any proceeds of (x) Net Asset Sale Proceeds to the extent reinvested in accordance with Section 2.13(a), (y) Net Insurance/Condemnation Proceeds to the extent reinvested in accordance with Section 2.13(b), and (z) any proceeds of related financings with respect to such expenditures), plus (c) Consolidated Cash Interest Expense, plus (d) provisions for current taxes based on income of Holdings and its Subsidiaries and payable in cash with respect to such period, plus (e) Consolidated Corporate Overhead paid or payable in cash during such period.
 
“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the amounts determined for Holdings and its Subsidiaries on a consolidated basis equal to (i) Consolidated Cash Interest Expense, (ii) scheduled payments of principal on Consolidated Total Debt, (iii) Consolidated Capital Expenditures and (iv) the current portion of taxes provided for with respect to such period in accordance with GAAP.
 
“ Consolidated Growth Capital Expenditures ” means, for any period,  Consolidated Capital Expenditures to the extent such Consolidated Capital Expenditures are incurred to acquire or build new properties, design or build out new cells of any landfill, purchase new vehicles and equipment usable in the Credit Parties’ business in connection with entry into a new customer contract (excluding replacement of existing vehicles and equipment) or otherwise grow and expand the Credit Parties’ business (rather than maintain existing property and equipment).
 
“Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Holdings and its Subsidiaries on a consolidated basis with respect to all outstanding Consolidated Total Debt, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Interest Rate Agreements, but excluding, however, any amounts referred to in Section 2.10(e) payable on or before the Closing Date.
 
 “ Consolidated Liquidity ” means, as of any date of determination, an amount determined for Holdings and its Subsidiaries on a consolidated basis equal to (i) the sum of (A) Cash of Holdings and its Subsidiaries in which the Collateral Agent has a first priority perfected Lien (from and after the date required under Section 6.18), other than Cash on deposit in the Drury Collateral Account, and (B) the greater of (1) Availability and (2) $0, minus (ii) all accounts payable of any Credit Party that are overdue by more than 90 days.
 
“Consolidated Net Income” means, for any period, (i) the net income (or loss) of Holdings and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (ii) the sum of (a) the income (or loss) of any Person (other than a Subsidiary of Holdings) in which any other Person (other than Holdings or any of its Subsidiaries) has a joint interest, plus (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired by Holdings or any of its Subsidiaries, plus (c) the income of any Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, plus (d) any gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, plus (e) (to the extent not included in clauses (a) through (d) above) any net extraordinary gains or net extraordinary losses.
 
 
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“ Consolidated Total Debt ” means, as at any date of determination, the aggregate amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated basis.
 
“Consolidated Working Capital” means, as at any date of determination, the excess or deficiency of Consolidated Current Assets over Consolidated Current Liabilities.
 
“Consolidated Working Capital Adjustment” means, for any period of determination on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.
 
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
 
“Contributing Credit Party” as defined in Section 7.2.
 
“ Controlled Account ” means a Deposit Account of a Credit Party which is subject to the control of the Collateral Agent, for the benefit of the Secured Parties, in accordance with the terms of the Pledge and Security Agreement.
 
“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
 
“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.
 
“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H delivered by a Credit Party pursuant to Section 5.10.
 
“Credit Date” means the date of a Credit Extension.
 
“Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents, the Fee Letter, the Warrants, the Warrant Agreement and all other documents, instruments or agreements executed and delivered by a Credit Party for the benefit of any Agent or any Lender in connection herewith.
 
 
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“Credit Extension” means the making of a Loan.
 
“Credit Party” means the Companies and Holdings.
 
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
 
“Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all of its Defaulted Loans) over the aggregate outstanding principal amount of all Loans of such Defaulting Lender.
 
“Default Period” means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default, or violation of Section 9.5(c), and ending on the earliest of the following dates:  (i) the date on which all Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.12 or Section 2.13 or by a combination thereof), and (b) such Defaulting Lender shall have delivered to the Company Representative and Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder with respect to its Commitments, (iii) the date on which Company Representative, Administrative Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing, and (iv) to the extent such Defaulting Lender is a Defaulting Lender solely due to a violation of Section 9.5(c), the date on which Administrative Agent shall have waived all violations of Section 9.5(c) by such Defaulting Lender in writing.
 
“Defaulted Loan” as defined in Section 2.21.
 
“Defaulting Lender” as defined in Section 2.21.
 
“Default Rate” means the interest rate applicable pursuant to Section 2.9.
 
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
 
“Disqualified Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, in whole or in part, or required to be repurchased or redeemed, in whole or in part, in each case other than for common Capital Stock of Holdings, pursuant to a sinking fund obligation or otherwise, on or prior to 180 days after the latest possible maturity date of the Loans, (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any  Capital Stock of Holdings or any of its Subsidiaries that would constitute Disqualified Stock, in each case at any time on or prior to 180 days after the latest possible maturity date of the Loans, (c) contains any mandatory repurchase obligation which may come into effect on or prior to 180 days after the latest possible maturity date of the Loans or (d) provides for the scheduled payments of dividends in Cash on or prior to 180 days after the latest possible maturity date of the Loans.
 
 
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“Dollars” and the sign “$” mean the lawful money of the United States of America.
 
“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.
 
“Drury Collateral Account” means a Controlled Account which shall hold only Cash set aside by the Credit Parties to make regularly scheduled payments of principal and interest on the Drury Note.
 
“Drury Note” means that certain Convertible Promissory Note, dated the date hereof, issued by Holdings to Timothy M. Drury in the principal amount of $1,250,000
 
“Eagle Ridge Acquisition Agreement” means that certain Asset Purchsae Agreement, dated November 13, 2015, between Eagle Ridge Landfill, LLC.
 
“Eagle Ridge Landfill” means that certain landfill located in Fractional Section 2, Township 53 North, Range 3 West of the Fifth Principal Meridian, Pike County, Missouri and to be purchased by the Credit Parties in the Closing Date Acquisitions.
 
“Eligible Assignee” means (i) in the case of the Revolving Loans or Revolving Commitments, (a) any Lender with Revolving Exposure or any Affiliate (other than a natural person) of a Lender with Revolving Exposure, (b) a commercial bank organized under the laws of the United States, or any state thereof, and having total assets or net worth in excess of $100,000,000, (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development or a political subdivision of any such country and which has total assets or net worth in excess of $100,000,000, provided that such bank is acting through a branch or agency located in the United States, and (d) a finance company, insurance company, or other financial institution or fund that is engaged in making, purchasing, or otherwise investing in commercial loans in the ordinary course of its business and having (together with its Affiliates) total assets or net worth in excess of $100,000,000, (ii) in the case of the Term Loans, (a) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (b) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans as one of its businesses, and (iii) any other Person (other than a natural Person) approved by the Administrative Agent; provided , neither (A) Holdings nor any Affiliate of Holdings nor (B) the Equity Investors nor any Affiliate of the Equity Investor   shall, in any event, be an Eligible Assignee, and (y) no Person owning or controlling any trade debt or Indebtedness of any Credit Party other than the Obligations or any Capital Stock of any Credit Party (in each case, unless approved by the Administrative Agent) shall, in any event, be an Eligible Assignee.
 
 
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“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.
 
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
 
“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Holdings or any of its Subsidiaries or any Facility.
 
“Equity Investors” means, collectively, Jeffrey Cosman and his estate (including any trust established for estate planning purposes), heirs, spouse or former spouses.
 
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
 
“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member.  Any former ERISA Affiliate of Holdings or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Holdings or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Holdings or such Subsidiary and with respect to liabilities arising after such period for which Holdings or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
 
 
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“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Holdings, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan.
 
“Event of Default” means each of the conditions or events set forth in Section 8.1.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
 
 
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“ Excluded Swap Obligation ” means, with respect to any Company, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty by such Company of, or the grant by such Company of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Company’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Company or the grant of such security interest becomes or would become effective with respect to such Swap Obligation or (b) in the case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Company is a “financial entity,” as defined in Section 2(h)(7)(C)(i) the Commodity Exchange Act (or any successor provision thereto), at the time the Guaranty of such Company becomes or would become effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
 
“ Existing Indebtedness ” means (i) Indebtedness and other obligations outstanding under that certain Warrant dated as of August 6, 2015 issued by Holdings to Praesidian Capital Opportunity Fund III LP, as amended prior to the Closing Date, (ii) Indebtedness and other obligations outstanding under that certain Note and Warrant Purchase Agreement and Security Agreement dated as of August 6, 2015 among Holdings, Here to Serve – Missouri Waste Division LLC, Here to Serve – Georgia Waste Division LLC and Meridian Land Company, LLC and Praesidian Capital Opportunity Fund III LP, as amended prior to the Closing Date, and (iii) Indebtedness and other obligations outstanding under (A) that certain Consulting Agreement, dated April 30, 2014, between HTS MWD and Charles E. Barcom, a Missouri individual, (B) that certain Consulting Agreement, dated April 30, 2014, between HTS MWD and Edward H. Kniep, IV, a Missouri individual, and (C) that certain Consulting Agreement, dated April 30, 2014, between HTS MWD and Joseph D. Reich, a Missouri individual.
 
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors or Affiliates.
 
“Fair Share Contribution Amount” as defined in Section 7.2.
 
“Fair Share” as defined in Section 7.2.
 
“FATCA” means (a) Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, (b) any treaty, law, regulation or other official guidance enacted in any jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, with the purpose (in either case) of facilitating the implementation of clause (a) above, or (c) any agreement pursuant to the implementation of clauses (a) or (b) above with the United States Internal Revenue Service, the United States government or any governmental or taxation authority.
 
 
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“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided , (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to GSSLH or any other Lender selected by Administrative Agent on such day on such transactions as determined by Administrative Agent.
 
“ Fee Letter ” means the letter agreement, dated the Closing Date, between Companies and Administrative Agent.
 
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of Holdings that such financial statements fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.
 
“Financial Plan” as defined in Section 5.1(i).
 
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
 
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
 
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.
 
“Fixed Charge Coverage Ratio” means the ratio as of the last day of (i) the first Fiscal Quarter ending after the Closing Date of (a) Consolidated Adjusted EBITDA for such Fiscal Quarter, to (b) Consolidated Fixed Charges for such Fiscal Quarter, (ii) the second Fiscal Quarter ending after the Closing Date of (a) Consolidated Adjusted EBITDA for the two Fiscal Quarters period ending on such date, to (b) Consolidated Fixed Charges for such two Fiscal Quarters, (iii) the third Fiscal Quarter period ending after the Closing Date of (a) Consolidated Adjusted EBITDA for the three Fiscal Quarter period ending on such date, to (b) Consolidated Fixed Charges for such three Fiscal Quarter period, and (iv) any other Fiscal Quarter of (a) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending, to (b) Consolidated Fixed Charges for such four-Fiscal Quarter period.
 
“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
 
 
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“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
 
“Funding Default” as defined in Section 2.21.
 
“Funding Credit Parties” as defined in Section 7.2.
 
“Funding Notice” means a notice substantially in the form of Exhibit A-1.
 
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
 
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
 
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
 
“Grantor” as defined in the Pledge and Security Agreement.
 
“GSSLG” as defined in the preamble hereto.
 
“GSSLH” means Goldman Sachs Specialty Lending Holdings, Inc., a Delaware corporation.
 
“Guaranteed Obligations” as defined in Section 7.1.
 
“Guarantor” means Holdings.
 
“Guaranty” means the guaranty of Holdings, and the cross-guaranty of the Companies, set forth in Section 7.
 
“Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
 
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
 
 
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“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
 
“Historical Financial Statements” means as of the Closing Date, (i)(a) the audited financial statements of Holdings and its Subsidiaries, for the Fiscal Year ended December 31, 2014, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Year, and (b) for the interim period from January 1, 2015 to the Closing Date, internally prepared, unaudited financial statements of Holdings and its Subsidiaries, consisting of a balance sheet and the related consolidated statements of income, stockholders' equity and cash flows for each fiscal month through and including October 31, 2015, and (ii)(a) the financial statements of Christian Disposal and Eagle Ridge Landfill, LLC for the Fiscal Year ended December 31, 2014, consisting of balance sheets and the related consolidated statements of income, stockholders' equity and cash flows for such Fiscal Year, and (b) for the interim period from January 1, 2015 to the Closing Date, internally prepared, unaudited financial statements of Christian Disposal and Eagle Ridge Landfill, LLC, consisting of a balance sheet and the related consolidated statements of income, stockholders' equity and cash flows for each fiscal month through and including October 31, 2015, in the case of clauses (i) and (ii), certified by the chief financial officer of Holdings that they fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries and Christian Disposal and Eagle Ridge Landfill, LLC, as applicable, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year end adjustments.
 
“Holdings” as defined in the preamble hereto.
 
“Increased Amount Date” as defined in Section 2.23.
 
“Increased-Cost Lenders” as defined in Section 2.22.
 
“Indebtedness,” as applied to any Person, means, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA); (v) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another; (viii) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (ix) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is as described in clause (viii) above; (x) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including, without limitation, any Interest Rate Agreement, whether entered into for hedging or speculative purposes and (xi) all Disqualified Stock issued by such Person, with the amount of Indebtedness represented by such Disqualified Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price (for purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock).
 
 
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“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); (ii) the statements contained in the commitment letter delivered by any Lender to any Company or any of its Affiliates with respect to the transactions contemplated by this Agreement; or (iii) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Holdings or any of its Subsidiaries.
 
“Indemnitee” as defined in Section 10.3.
 
“Indemnitee Agent Party” as defined in Section 9.6.
 
 
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“Installment” as defined in Section 2.11(a).
 
“Installment Date” as defined in Section 2.11(a).
 
“Interest Payment Date” means with respect to (i) any Base Rate Loan, (a) the last day of each month, commencing on the first such date to occur after the Closing Date, and (b) the final maturity date of such Loan; and (ii) any LIBOR Rate Loan, (a) the last day of each month commencing on the first such date to occur after the Closing Date, and (b) the last day of each Interest Period applicable to such Loan.
 
“Interest Period” means, in connection with a LIBOR Rate Loan, an interest period of one-, two-, three- or six-months, as selected by the Company Representative in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or Conver­sion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided , (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d), of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Class of Term Loans shall extend beyond such Class’s Term Loan Maturity Date; and (d) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.
 
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (i) for the purpose of hedging the interest rate exposure associated with Holdings’ and its Subsidiaries’ operations, (ii) approved by Administrative Agent, and (iii) not for speculative purposes.
 
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
 
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
 
“Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person (other than a Company); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of Holdings from any Person (other than Holdings or any Company), of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by Holdings or any of its Subsidiaries to any other Person (other than Holdings or any Company), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.
 
 
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“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided , in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
 
“Key Man Life Insurance Policy” as defined in Section 5.5(b).
 
“Key Performance Indicators” means key performance indicators including the following: (i) financial information including hauling revenue segmented to residential, commercial and roll-off and transfer station and landfill revenue segmented by internal and external, (ii) separate information on residential, commercial and roll-off customers including the number of customers, tons of trash, recycling and yard waste collected, disposal site locations, tonnage and costs, (iii) information on transfer stations including total and internal tonnage and disposal site locations tonnage and costs, (iv) landfill information including total and internal tonnage, and remaining airspace and (v) such other key performance indicators as the Administrative Agent and Company Representative shall agree from time to time in replacement of or in addition to the foregoing.  As used in this definition, “internal tonnage” means, as applicable, tonnage originating from a hauling contract to which a Credit Party is a party or a transfer station operated by a Credit Party.
 
“Landlord Consent and Estoppel” means, with respect to any Leasehold Property, an agreement in writing from the lessor under the related lease, pursuant to which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to Collateral Agent in its reasonable discretion, but in any event sufficient for Collateral Agent to obtain a Title Policy with respect to such Mortgage.
 
“Landlord Collateral Access Agreement” means a landlord agreement substantially in the form of Exhibit K with such amendments or modifications as may be approved by Collateral Agent.
 
“Lead Arranger” as defined in the preamble hereto.
 
“Leasehold Property” means any leasehold interest of Holdings or any of its Subsidiaries as lessee under any lease of real property, other than any such leasehold interest designated from time to time by Collateral Agent in its sole discretion as not being required to be included in the Collateral.
 
“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.
 
“Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to an Interest Rate Agreement (including any Person who is a Lender (and any Affiliate thereof) at the time such Interest Rate Agreement was entered into but subsequently, ceases to be a Lender) including, each such Affiliate that enters into a joinder agreement with Collateral Agent.
 
 
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“ Leverage Multiple ” means, as of any date of determination in any Fiscal Quarter indicated below, the correlative number indicated below:
 
Fiscal Quarter
Leverage Multiple
December 31, 2015
5.25:1.00
March 31, 2016
5.25:1.00
June 30, 2016
5.25:1.00
September 30, 2016
5.25:1.00
December 31, 2016
5.25:1.00
March 31, 2017
5.00:1.00
June 30, 2017
4.75:1.00
September 30, 2017
4.50:1.00
December 31, 2017
4.50:1.00
March 31, 2018
4.50:1.00
June 30, 2018
4.25:1.00
September 30, 2018
4.25:1.00
December 31, 2018
4.00:1.00
March 31, 2019
4.00:1.00
June 30, 2019
3.75:1.00
September 30, 2019
3.75:1.00
December 31, 2019
3.75:1.00
March 31, 2020
3.75:1.00
June 30, 2020
3.25:1.00
September 30, 2020
3.25:1.00
December 31, 2020 and each Fiscal Quarter ending thereafter
3.25:1.00

 
“Leverage Ratio” means as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date, to (b) Consolidated Adjusted EBITDA for the twelve month period ending on such date (or if such date of determination is not the last day of a fiscal month, for the twelve fiscal month period ending as of the most recently concluded for which financial statements are required to have been delivered hereunder).
 
“LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.
 
“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
 
 
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“Loan” means a Tranche A Term Loan, a Revolving Loan and a MDTL Term Loan.
 
“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
 
“Material Adverse Effect” means a material adverse effect on and/or material adverse developments with respect to (i) the business operations, properties, assets, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole; (ii) the ability of any Credit Party to fully and timely perform its Obligations; (iii) the legality, validity, binding effect, or enforceability against a Credit Party of a Credit Document to which it is a party; or (iv) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.
 
“Material Contract” means (i) that certain Disposal Service Agreement, dated as of October 11, 2007, between Christian Disposal, LLC and IESI, Inc. (as assignee of Fred Weber, Inc.), (ii) that certain Landfill Agreement, dated as of November 11, 2007, between FWCD, LLC and IESI, Inc. (as assignee of Fred Weber, Inc.), (iii) that certain Transfer Station Operation, Maintenance and Management Agreement, dated as of November 8, 2007, between FWCD, LLC and The City of O’Fallon Missouri, (iv) the Municipal Solid Waste Transfer and Disposal Agreement, dated as of January 24, 2008, between FWCD, LLC and the City of St. Peters, Missouri, (v) that certain Solid Waste Disposal Agreement, dated as of August 12, 2014, among IESI MO Champ Landfill, LLC, F.W. Disposal, L.L.C. and Here to Serve – Missouri Waste Division, LLC, (vi) that certain Exclusive Residential Solid Waste Collection Services Agreement, dated May 15, 2013, between City of Florissant and Meridian Waste Services LLC, (vii) that certain Solid Waste License Agreement, dated October 22, 2007, between The City of Wildwood and Meridian Waste Services, LLC, (viii) the hauling contract to be entered into following the Closing Date between one or more of the Credit Parties and the City of Webster Grove, (ix) each other agreement providing for delivery of waste by any Credit Party to any landfill, operation of any transfer station or landfill by any Credit Party or, with respect to any such waste hauling contract accounting for 10% or more of the residential customers of Holdings and its Subsidiaries, waste hauling by any Credit Party and (x) any contract or other arrangement to which Holdings or any of its Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect together with and those contracts and arrangements listed on Schedule 4.16, in each case, as amended prior to the Closing Date and as amended in accordance with this Agreement.
 
“Material Real Estate Asset” means (i) (a) Real Estate Asset that consists of a landfill, (b) any other fee-owned Real Estate Asset having a fair market value in excess of $500,000 as of the date of the acquisition thereof, and (c) any Leasehold Property for which the aggregate payments under the term of the lease are at least $100,000 per annum, (ii) any Real Estate Asset that the Requisite Lenders have determined is material to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings or any Subsidiary thereof, including Company and (iii) the Real Estate Assets listed on Schedule 1.1.
 
 
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“MDTL Commitment” means the commitment of a Lender to make or otherwise fund a MDTL Term Loan and “MDTL Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s MDTL Commitment, if any, is set forth on Appendix A-2 or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the MDTL Commitments as of the Closing Date is $10,000,000.
 
“MDTL Commitment Period” means the time period commencing on the Closing Date through and including the MDTL Commitment Termination Date.
 
“MDTL Commitment Termination Date” means the earliest to occur of (i) the date the MDTL Commitments are permanently reduced to zero pursuant to Section 2.12(b), (ii) the date of the termination of the MDTL Commitments pursuant to Section 8.1, and (iii) December 22, 2017.
 
“MDTL Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the MDTL Term Loans of such Lender; provided , at any time prior to the making of the MDTL Term Loans, the MDTL exposure of any Lender shall be equal to such Lender’s MDTL Commitment.
 
“MDTL Maturity Date” means the earlier of (i) December 22, 2020, and (ii) the date that all MDTL Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.
 
“MDTL Note” means a promissory note in the form of Exhibit B-2, as it may be amended, supplemented or otherwise modified from time to time.
 
“MDTL Term Loan” means a term loan made by a Lender to the Companies pursuant to Section 2.1(a)(ii).
 
“Moody’s” means Moody’s Investor Services, Inc.
 
“Mortgage” means a Mortgage substantially in the form of Exhibit J, as it may be amended, supplemented or otherwise modified from time to time.
 
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.
 
“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.
 
“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Holdings and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate with comparison to and variances from the immediately preceding period and budget.
 
 
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“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to:  (i) Cash payments received by Holdings or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Permitted Lien (provided that such Lien is not subordinated to the Collateral Agent’s Lien) on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representa­tions and warranties to purchaser in respect of such Asset Sale undertaken by Holdings or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.
 
“Net Insurance/Condemnation Proceeds” means an amount equal to:  (i) any Cash payments or proceeds received by Holdings or any of its Subsidiaries (a) under any casualty, business interruption or “key man” insurance policies in respect of any covered loss thereunder, or (b) as a result of the taking of any assets of Holdings or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by Holdings or any of its Subsidiaries in connection with the adjustment or settlement of any claims of Holdings or such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition to the extent paid or payable to non-Affiliates, including income taxes payable as a result of any gain recognized in connection therewith.
 
“Non-US Lender” as defined in Section 2.19(c).
 
“Note” means a Tranche A Term Loan Note, a MDTL Note or a Revolving Loan Note.
 
“Notice” means a Funding Notice or a Conversion/Continuation Notice.
 
“Obligations” means all obligations of every nature of each Credit Party from time to time owed to the Agents (including former Agents), the Lenders, Goldman Sachs & Co. or any of them and Lender Counterparties, under any Credit Document or Interest Rate Agreement (including, without limitation, with respect to an Interest Rate Agreement, obligations owed thereunder to any person who was a Lender or an Affiliate of a Lender at the time such Interest Rate Agreement was entered into), whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), payments for early termination of Interest Rate Agreements, fees, expenses, indemnification or otherwise; provided, however, that the definition of “Obligations” shall not create any guarantee by any Credit Party of (or grant of security interest by any Credit Party to support, as applicable) any Excluded Swap Obligations of such Credit Party for purposes of determining any obligations of any Credit Party.
 
 
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“Obligee Credit Party” as defined in Section 7.7.
 
“Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended.  In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
 
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
 
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
 
“Permitted Acquisition” means any acquisition by any Company, whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the Capital Stock of, or a business line or unit or a division of, any Person; provided ,
 
(i)   immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
 
(ii)   all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;
 
(iii)    in the case of the acquisition of Capital Stock, all of the Capital Stock (except for any such Securities in the nature of directors’ qualifying shares required pursuant to applicable law) acquired or  otherwise issued by such Person in connection with such acquisition shall be owned 100% by a Company, and the Companies shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of any Company, each of the actions set forth in Sections 5.10 and/or 5.11, as applicable;
 
(iv)    Holdings and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of the last day of the Fiscal Quarter most recently ended, (as determined in accordance with Section 6.8(g));
 
(v)   Company Representative shall have delivered to Administrative Agent at least 30 Business Days prior to such proposed acquisition, a Compliance Certificate evidencing compliance with Section 6.8 as required under clause (iv) above, together with all relevant financial information with respect to such acquired assets (including recent financial statements for the target or assets to be acquired through the period that ends not more than 90 days prior to the Closing Date (or such earlier date as the Administrative Agent shall agree), including, without limitation, the aggregate consideration for such acquisition and any other information required to demonstrate compliance with Section 6.8;
 
 
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(vi)    any Person or assets or division as acquired in accordance herewith (y) shall be in same business or lines of business in which Companies are engaged as of the Closing Date and (z) for the four quarter period most recently ended prior to the date of such acquisition, shall have generated earnings before income taxes, depreciation, and amortization during such period that shall exceed the amount of capital expenditures related to such Person or assets or division during such period (calculated in substantially the same manner as Consolidated Adjusted EBITDA and Consolidated Capital Expenditures are calculated);
 
(vii)   the acquisition shall have been approved by the board of directors or other governing body or controlling Person of the Person acquired or the Person from whom such assets or division is acquired.
 
“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.
 
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
 
“Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by each Company and Holdings substantially in the form of Exhibit I, as it may be amended, supplemented or otherwise modified from time to time.
 
“Prime Rate” means the rate of interest quoted in The Wall Street Journal , Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 70% of the nation’s ten (10) largest banks), as in effect from time to time.  The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.  Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
 
“Principal Office” means, for Administrative Agent, such Person’s “Principal Office” as set forth on Appendix B, or such other office as such Person may from time to time designate in writing to the Company Representative, Administrative Agent and each Lender; provided, however, that for the purpose of making any payment on the Obligations or any other amount due hereunder or any other Credit Document, the Principal Office of Administrative Agent shall be 200 West Street, New York, New York, 10282 (or such other location within the City and State of New York as Administrative Agent may from time to time designate in writing to the Company Representative and each Lender).
 
 
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“Projections” as defined in Section 4.8.
 
“Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Tranche A Term Loan of any Lender, the percentage obtained by dividing (a) the Tranche A Term Loan Exposure of that Lender, by (b) the aggregate Tranche A Term Loan Exposure of all Lenders; (ii) with respect to all payments, computations and other matters relating to the MDTL Term Loan of any Lender, the percentage obtained by dividing (a) the MDTL Exposure of that Lender, by (b) the aggregate MDTL Exposure of all Lenders; and (iii) with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that Lender, by (b) the aggregate Revolving Exposure of all Lenders.  For all other purposes with respect to each Lender, “ Pro Rata Share ” means the percentage obtained by dividing (A) an amount equal to the sum of the Tranche A Term Loan Exposure, the MDTL Exposure and the Revolving Exposure of that Lender, by (B) an amount equal to the sum of the aggregate Tranche A Term Loan Exposure, the aggregate MDTL Exposure and the aggregate Revolving Exposure of all Lenders.
 
“Qualified Capital Stock” means any Capital Stock other than Disqualified Stock.
 
“Qualified ECP Credit Party” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
 
“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party or Subsidiary thereof in any real property.
 
“Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.
 
“Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record Document has been recorded in all places necessary or desirable, in Administrative Agent’s reasonable discretion, to give constructive notice of such Leasehold Property to third-party purchasers and encumbrances of the affected real property.
 
 
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“Register” as defined in Section 2.6(b).
 
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
 
“Reimbursement Date” as defined in Section 2.3(d).
 
“Related Agreements” means, collectively, (i) the Eagle Ridge Acquisition Agreement, (ii) the Christian Disposal Acquisition Agreement, (iii) the Drury Note, and (iv) each other agreement, contract or document executed in connection with the foregoing.
 
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
 
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
 
“Replacement Lender” as defined in Section 2.22.
 
“Required Prepayment Date” as defined in Section 2.14(c).
 
“Requisite Class Lenders” means, at any time of determination, but subject to the provisions of Section 2.21, (i) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders holding more than 50% of the aggregate Tranche A Term Loan Exposure of all Lenders; (ii) for the Class of Lenders having MDTL Exposure, Lenders holding more than 50% of the aggregate MDTL Exposure of all Lenders; and (iii)  for the Class of Lenders having Revolving Exposure, Lenders holding more than 50% of the aggregate Revolving Exposure of all Lenders.
 
“Requisite Lenders” means one or more Lenders having or holding Tranche A Term Loan Exposure, MDTL Exposure and/or Revolving Exposure and representing more than 50% of the sum of (i) the aggregate Tranche A Term Loan Exposure of all Lenders, (ii) the aggregate MDTL Exposure of all Lenders and (iii) the aggregate Revolving Exposure of all Lenders.
 
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Holdings or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of that class of Capital Stock to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Holdings or any of its Subsidiaries now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of Holdings or any of its Subsidiaries now or hereafter outstanding; (iv) management or similar fees payable to any Equity Investor or any of its Affiliates; (v) payment of any earn-out payment or other deferred portion of the purchase price for any Closing Date Acquisitions and Permitted Acquisitions and (vi) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, the Subordinated Debt or any other Indebtedness that is subordinated to the Obligations, or secured by Liens subordinated to the Obligations.
 
 
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“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Revolving Loan and “Revolving Commitments” means such commitments of all Lenders in the aggregate.   The amount of each Lender’s Revolving Commitment, if any, is set forth on Appendix A-3 or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Revolving Commitments as of the Closing Date is $5,000,000.
 
“Revolving Commitment Period” means the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
 
“Revolving Commitment Termination Date” means the earliest to occur of (i) December 22, 2020; (ii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.12(b) or 2.13; and (iii) the date of the termination of the Revolving Commitments pursuant to Section 8.1.
 
“Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii) after the termination of the Revolving Commitments, the aggregate outstanding principal amount of the Revolving Loans of that Lender.
 
“Revolving Loan” means a Loan made by a Lender to the Companies pursuant to Section 2.2(a).
 
“Revolving Loan Note” means a promissory note in the form of Exhibit B-3, as it may be amended, supplemented or otherwise modified from time to time.
 
“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.
 
“Sanctions” as defined in Section 4.27.
 
 “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.
 
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
 
 
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“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
 
“Solvency Certificate” means a Solvency Certificate of the chief financial officer of Holdings substantially in the form of Exhibit G-2.
 
“Solvent” means, with respect to any Credit Party, that as of the date of determination, both (i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the Projections or with respect to any transaction contemplated or undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
 
“Subject Transaction” as defined in Section 6.8(i).
 
“Subordinated Debt” means (i) that certain Promissory Note dated May 15, 2014, issued by Here To Serve Holding Corp., a Delaware corporation, as assumed by Holdings, in the principal amount of $491,666.67, payable to the order of Charles E. Barcom, Jr., as amended per instrument dated December 18, 2015, (ii) that certain Promissory Note dated May 15, 2014, issued by Here To Serve Holding Corp, a Delaware corporation, as assumed by Holdings, in the principal amount of $491,666.67, payable to the order of Edward Kniep, IV as amended per instrument dated December 18, 2015, (iii) Promissory Note dated May 15, 2014, issued by Here To Serve Holding Corp, a Delaware corporation, as assumed by Holdings, in the principal amount of $491,666.67, payable to the order of Joseph D. Reich as amended per instrument dated December 18, 2015, and (iv) the Drury Note.
 
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided , in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
 
 
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“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
 
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed; provided , “Tax on the overall net income” of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or in which that Person’s applicable principal office (and/or, in the case of a Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender, its lending office) is deemed to be doing business on all or part of the net income, profits or gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office).
 
“Term Loan” means a Tranche A Term Loan or a MDTL Term Loan.
 
“Term Loan Commitment” means the Tranche A Term Loan Commitment or the MDTL Term Loan Commitment of a Lender, and “Term Loan Commitments” means such commitments of all Lenders.
 
“Term Loan Maturity Date” means the Tranche A Term Loan Maturity Date and the MDTL Maturity Date.
 
“Terminated Lender” as defined in Section 2.22.
 
“Title Policy” as defined in Section 3.1(i).
 
“Total Utilization of MDTL Commitments” means, as at any date of determination, the aggregate principal amount of all outstanding MDTL Term Loans.
 
“Total Utilization of Revolving Commitments” means, as at any date of determination, the aggregate principal amount of all outstanding Revolving Loans.
 
“Tranche A Term Loan” means a Tranche A Term Loan made by a Lender to the Companies pursuant to Section 2.1(a)(i).
 
“Tranche A Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Tranche A Term Loan and “Tranche A Term Loan Commitments” means such commitments of all Lenders in the aggregate.  The amount of each Lender’s Tranche A Term Loan Commitment, if any, is set forth on Appendix A-1 or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Tranche A Term Loan Commitments as of the Closing Date is $40,000,000.
 
 
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“Tranche A Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Tranche A Term Loans of such Lender; provided , at any time prior to the making of the Tranche A Term Loans, the Tranche A Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche A Term Loan Commitment.
 
“Tranche A Term Loan Maturity Date” means the earlier of (i) December 22, 2020, and (ii) the date that all Tranche A Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.
 
 “Tranche A Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended, supplemented or otherwise modified from time to time.
 
“Transaction Costs” means the fees, costs and expenses payable by Holdings or any Company on or before the Closing Date in connection with the transactions contemplated by the Credit Documents and the Related Agreements , to the extent approved in writing by Administrative Agent.
 
 “Type of Loan” means with respect to either Term Loans or Revolving Loans, a Base Rate Loan or a LIBOR Rate Loan.
 
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
 
“ Warrant Agreement ” means that certain Warrant Agreement, dated as of the Closing Date, between Holdings and Goldman Sachs & Co., as it may be amended, supplemented or otherwise modified from time to time.
 
“ Warrants ” means warrants issued by Holdings   pursuant to the Warrant Agreement to GSSLG or an Affiliate of GSSLG.
 
1.2.   Accounting Terms .   Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.  Financial statements and other information required to be delivered by Holdings to Lenders pursuant to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(e), if applicable).  Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Credit Parties shall be deemed to be carried at 100% of the outstanding principal amount thereof and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.  For purposes of determining pro forma compliance with any financial covenant as of any date prior to the first date on which such financial covenant is to be tested hereunder, the level of any such financial covenant shall be deemed to be the covenant level for such first test date.
 
 
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1.3.   Interpretation, etc.   Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.  References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided.  The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.  References to agreements and other contractual instruments shall be deemed to include subsequent amendments, assignments and other modifications thereto, but only to the extent such amendments, assignments and other modifications are not prohibited by the terms of this Agreement or any other Credit Document.  References to Persons include their respective permitted successors and assigns.  References to statutes and related regulations shall include any amendments of the same and any successor statutes and regulations.
 
 
SECTION 2.   LOANS
 
2.1.   Term Loans .
 
(a)   Loan Commitments .  Subject to the terms and conditions hereof,
 
(i)   each Lender severally agrees to make, on the Closing Date,  a Tranche A Term Loan to the Companies in an amount equal to such Lender’s Tranche A Term Loan Commitment.
 
(ii)   each Lender severally agrees to make at any time prior to the MDTL Commitment Termination Date one or more MDTL Term Loans to the Companies in an aggregate amount equal to such Lender’s MDTL Commitment.
 
The Companies may make only one borrowing under the Tranche A Term Loan Commitment which shall be on the Closing Date.  Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed.  Subject to Sections 2.11(a) and 2.12, all amounts owed hereunder with respect to the Tranche A Term Loans and MDTL Term Loans shall be paid in full on the Tranche A Term Loan Maturity Date and MDTL Maturity Date, respectively.  Each Lender’s Tranche A Term Loan Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Tranche A Term Loan Commitment, if any, on such date.  Each Lender’s MDTL Commitment shall terminate immediately and without further action on the MDTL Commitment Termination Date after giving effect to the funding of such Lender’s MDTL Commitment, if any, on such date.
 
(b)   Borrowing Mechanics for Term Loans .
 
(i)   The Company Representative shall deliver to Administrative Agent a fully executed Funding Notice no later than three Business Days prior to the Closing Date with respect to Term Loans made on the Closing Date.  Following the Closing Date, whenever the Companies desire that Lenders make Term Loans, the Company Representative shall deliver to Administrative Agent a fully executed and delivered Funding Notice no later than 10:00 a.m. (New York City time) at least three Business Days in advance of the proposed Credit Date in the case of a LIBOR Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the case of a Term Loan that is a Base Rate Loan.  Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and the Companies shall be bound to make a borrowing in accordance therewith.  Promptly upon receipt by Administrative Agent of any   Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing.
 
 
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(ii)   Each Lender shall make its Tranche A Term Loan and/or MDTL Term Loan, as the case may be, available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date, by wire transfer of same day funds in Dollars, at Administra­tive Agent’s Principal Office.  Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Term Loans available to the Companies on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited to such account or accounts designated in writing to Administrative Agent by the Company Representative.
 
(c)    During the Term Loan Commitment Period, drawings under the MDTL Commitments shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
 
2.2.   Revolving Loans .
 
(a)   Revolving Commitments .  During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to make Revolving Loans to the Companies in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided , that after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment Period.  Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
 
(b)   Borrowing Mechanics for Revolving Loans .
 
(i)   Except pursuant to Section 2.3(d), Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount, and Revolving Loans that are LIBOR Rate Loans shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
 
 
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(ii)   Whenever Companies desire that Lenders make Revolving Loans, the Company Representative shall deliver to Administrative Agent a fully executed and delivered Funding Notice no later than 10:00 a.m. (New York City time) at least three Business Days in advance of the proposed Credit Date in the case of a LIBOR Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan.  Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a LIBOR Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and the Companies shall be bound to make a borrowing in accordance therewith.
 
(iii)   Notice of receipt of each Funding Notice in respect of Revolving Loans, together with the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by Administrative Agent to each applicable Lender by telefacsimile with reasonable promptness, but (provided Administrative Agent shall have received such notice by 10:00 a.m. (New York City time)) not later than 2:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such Funding Notice from the Company Representative.
 
(iv)   Each Lender shall make the amount of its Revolving Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office.  Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Revolving Loans available to the Companies on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by Administrative Agent from Lenders to be credited to the account of the Company Representative at Administrative Agent’s Principal Office or such other account as may be designated in writing to Administrative Agent by the Company Representative.
 
(c)   Protective Advances .  Subject to the limitations set forth below, and whether or not an Event of Default or a Default shall have occurred and be continuing, Administrative Agent is authorized by the Companies and the Lenders, from time to time in Administrative Agent’s sole discretion (but Administrative Agent shall have absolutely no obligation to), to make Revolving Loans to the Companies on behalf of the Revolving Lenders, which Administrative Agent, in its sole discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (iii) to pay any other amount chargeable to or required to be paid by the Companies pursuant to the terms of this Agreement and the other Credit Documents, including, without limitation, payments of principal, interest, fees and reimbursable expenses (any of such Loans are in this clause (c) referred to as “Protective Advances”); provided, that the amount of Revolving Loans plus Protective Advances shall not exceed the Revolving Commitments then in effect.  Protective Advances may be made even if the conditions precedent set forth in Section 3 have not been satisfied.   All Protective Advances shall be Base Rate Loans.  Each Protective Advance shall be secured by the Liens in favor of the Collateral Agent in and to the Collateral and shall constitute Obligations hereunder. The Companies shall pay the unpaid principal amount and all unpaid and accrued interest of each Protective Advance on the earlier of the Revolving Commitment Termination Date and the date on which demand for payment is made by Administrative Agent.
 
 
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2.3.   Reserved .
 
2.4.   Pro Rata Shares; Availability of Funds .
 
(a)   Pro Rata Shares .  All Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
 
(b)   Availability of Funds .  Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administra­tive Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Companies a corresponding amount on such Credit Date.  If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate.  If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Company Representative, and the Companies shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans.  Nothing in this Section 2.4(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments and Revolving Commitments hereunder or to prejudice any rights that Companies may have against any Lender as a result of any default by such Lender hereunder.
 
2.5.   Use of Proceeds .  The proceeds of the Tranche A Term Loans made on the Closing Date shall be applied by Companies to (i) partially fund the Closing Date Acquisitions, (ii) refinance existing Indebtedness of the Companies, (iii) pre-fund certain Consolidated Growth Capital Expenditures, (iv) pay fees and expenses in connection with the transactions contemplated by this Agreement and (v) for working capital and other general corporate purposes.  The proceeds of the Revolving Loans will be used for working capital and general corporate purposes.  The proceeds of the MDTL Term Loans will be used for Permitted Acquisitions. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act. The Credit Parties will not, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Loans, whether as underwriter, advisor, investor, or otherwise) or (iii) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions or Anti-Corruption Laws.
 
 
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2.6.   Evidence of Debt; Register; Lenders’ Books and Records; Notes .
 
(a)   Lenders’ Evidence of Debt .  Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of the Companies to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof.  Any such recordation shall be conclusive and binding on the Companies, absent manifest error; provided , that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or the Companies’ Obligations in respect of any applicable Loans; and provided further , in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
 
(b)   Register .  Administrative Agent shall maintain at its Principal Office  a register for the recordation of the names and addresses of Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register” ).  The Register shall be available for inspection by any Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.  Administrative Agent shall record in the Register the Revolving Commitments and the Loans, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on each Company and each Lender, absent manifest error; provided , failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or any Company’s Obligations in respect of any Loan.  Each Company hereby designates the entity serving as Administrative Agent to serve as such Company’s agent solely for purposes of maintaining the Register as provided in this Section 2.6, and each Company hereby agrees that, to the extent such entity serves in such capacity, the entity serving as Administrative Agent and its officers, directors, employees, agents and affiliates shall constitute “Indemnitees.”
 
(c)   Notes .  If so requested by any Lender by written notice to the Company Representative (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, the Companies shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Company Representative’s receipt of such notice) a Note or Notes to evidence such Lender’s Tranche A Term Loan, MDTL Term Loan or Revolving Loan, as the case may be.
 
 
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2.7.   Interest on Loans .
 
(a)   Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
 
(i)   if a Base Rate Loan, at the Base Rate plus the Applicable Margin; and
 
(ii)   if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus the Applicable Margin.
 
(b)   The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any LIBOR Rate Loan, shall be selected by the Company Representative and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.  If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
 
(c)   In connection with LIBOR Rate Loans there shall be no more than five (5) Interest Periods outstanding at any time.  In the event the Company Representative fails to specify between a Base Rate Loan or a LIBOR Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a LIBOR Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan).  In the event the Company Representative fails to specify an Interest Period for any LIBOR Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, the Company Representative shall be deemed to have selected an Interest Period of one month.  As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the LIBOR Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Company Representative and each Lender.
 
(d)   Interest payable pursuant to Section 2.7(a) shall be computed on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues.  In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan, the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be, shall be excluded; provided , if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
 
 
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(e)   Except as otherwise set forth herein, interest on each Loan shall be payable in arrears on and to (i) each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity, including final maturity.
 
2.8.   Conversion/Continuation .
 
(a)   Subject to Section 2.17 and so long as no Default or Event of Default shall have occurred and then be continuing, the Companies shall have the option:
 
(i)   to convert at any time all or any part of any Term Loan or Revolving Loan equal to $500,000 and integral multiples of $100,000 in excess of that amount from one Type of Loan to another Type of Loan; provided , a LIBOR Rate Loan may only be converted on the expiration of the Interest Period applicable to such LIBOR Rate Loan unless the Companies shall pay all amounts due  under Section 2.17 in connection with any such conversion; or
 
(ii)   upon the expiration of any Interest Period applicable to any LIBOR Rate Loan, to continue all or any portion of such Loan equal to $500,000 and integral multiples of $100,000 in excess of that amount as a LIBOR Rate Loan.
 
(b)   The Company Representative shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 10:00 a.m. (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed Conversion/Continuation Date (in the case of a conversion to, or a continuation of, a LIBOR Rate Loan).  Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBOR Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and the Companies shall be bound to effect a conversion or continuation in accordance therewith.
 
2.9.   Default Interest .   Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided , any LIBOR Rate Loans may be converted to Base Rate Loans at the election of the Administrative Agent at any time after the occurrence of such Event of Default (irrespective of whether the Interest Period in effect at the time of such conversion has expired) and thereupon shall become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans.  Payment or acceptance of the increased rates of interest provided for in this Section 2.9 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
 
 
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2.10.   Fees .
 
(a)   Each Company agrees to pay commitment fees to Lenders having Revolving Commitments equal to (1) the average of the daily difference between (a) the Revolving Commitments, and (b) the aggregate principal amount of outstanding Revolving Loans, times (2) one half of one percent (0.50%) per annum.
 
(b)   Each Company agrees to pay commitment fees to Lenders having MDTL Commitments equal to (1) the average of the daily difference between (a) the MDTL Commitments, and (b) the aggregate principal amount of outstanding MDTL Term Loans, times (2) one half of one percent (0.50%) per annum.
 
(c)   All fees referred to in Section 2.10(a) and 2.10(b) shall be paid to Administrative Agent as set forth in Section 2.15(a) and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
 
(d)   All fees referred to in Section 2.10(a) and 2.10(b) shall be calculated on the basis of a 360-day year and the actual number of days elapsed and shall be payable monthly in arrears on the last day of each month during the Revolving Commitment Period or MDTL Commitment Period, as applicable, commencing on the first such date to occur after the Closing Date, and on the Revolving Commitment Termination Date or MDTL Commitment Termination Date, as applicable.
 
(e)   In addition to any of the foregoing fees, each Company agrees to pay to Agents such other fees in the amounts and at the times separately agreed upon, including without limitation, the fees set forth in the Fee Letter.
 
2.11.   Scheduled Payments .
 
(a)   Scheduled Installments .  The principal amounts of the Tranche A Term Loans shall be repaid in consecutive quarterly installments of $250,000 (each, an “ Installment ”) on the last day of each Fiscal Quarter (each, an “ Installment Date ”), commencing on March 31, 2018.  Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche A Term Loans, in accordance with Sections 2.12 and 2.13, as applicable; and (y) the Tranche A Term Loans, together with all other amounts owed hereunder with respect thereto, shall be paid in full no later than the Term Loan Maturity Date.
 
(b)   Repayment of Revolving Loans .  The Revolving Loans, together with all other amounts owed hereunder with respect thereto, shall be paid in full on the Revolving Commitment Termination Date.
 
(c)   Repayment of MDTL Term Loans .  The MDTL Term Loans, together with all other amounts owed hereunder with respect thereto, shall be paid in full on the MDTL Maturity Date.
 
2.12.   Voluntary Prepayments/Commitment Reductions .
 
 
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(a)   Voluntary Prepayments .
 
(i)   Any time and from time to time:
 
(1)   with respect to Base Rate Loans, the Companies may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount; and
 
(2)   with respect to LIBOR Rate Loans, the Companies may prepay any such Loans on any Business Day in whole or in part (together with any amounts due pursuant to Section 2.17(c)) in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
 
(ii)   All such prepayments shall be made:
 
(1)   upon not less than one Business Day’s prior written or telephonic notice in the case of Base Rate Loans; and
 
(2)   upon not less than three Business Days’ prior written or telephonic notice in the case of LIBOR Rate Loans,
 
in each case given by the Company Representative to Administrative Agent by 12:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or telephone to each Lender).  Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein.  Any such voluntary prepayment shall be applied as specified in Section 2.14(a) with respect to Revolving Loans and Section 2.14(b) with respect to Term Loans.
 
 
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(b)   Voluntary Commitment Reductions .
 
(i)   The Companies may, upon not less than three Business Days’ prior written or telephonic notice from the Company Representative confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part (i) the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction, or (ii) any unused portion of the Term Loan Commitments; provided , any such partial reduction of the Revolving Commitments and the Term Loan Commitments shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
 
(ii)   The Company Representative’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in the Company Representative’s notice and shall reduce the Revolving  Commitment of each Lender proportionately to its Pro Rata Share thereof.
 
(c)            Partial Payments .  Notwithstanding anything in this Section 2.12 to the contrary, the Companies shall not partially prepay any Term Loan and/or partially reduce any Revolving Commitment unless the aggregate amount of the remaining Revolving Commitments plus the remaining outstanding principal amount under the Term Loan is equal to at least fifty percent (50%) of the aggregate amount of the Revolving Commitments plus the outstanding principal amount under the Term Loan on the Closing Date.

2.13.   Mandatory Prepayments/Commitment Reductions .
 
(a)   Asset Sales .  No later than the first Business Day following the date of receipt by any Credit Party of any Net Asset Sale Proceeds in excess of $250,000 in the aggregate since the Closing Date, the Companies shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided , so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, the Companies shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds  (the “ Asset Sale Reinvestment Amounts ”) in (1) long-term productive assets of the general type used in the business of the Companies if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,000 or more has been consented to by Administrative Agent and Requisite Lenders) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further , pending any such reinvestment all Asset Sale Reinvestment Amounts shall, at the option of the Companies, be applied to prepay Revolving Loans to the extent then outstanding (without a reduction  in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent.  In the event that the Asset Sale Reinvestment Amounts are not reinvested by the Companies prior to the earliest of (i) the last day of such one hundred twenty (120) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has not been executed in accordance with the other provisions of this Agreement), (ii) the last day of such one hundred eighty (180) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, Administrative Agent may apply such Asset Sale Reinvestment Amounts to the Obligations as set forth in Section 2.14(b).
 
 
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(b)   Insurance/Condemnation Proceeds .  No later than the first Business Day following the date of receipt by Holdings or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds, the Companies shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided , (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds from the Closing Date through the applicable date of determination do not exceed $250,000, the Companies shall have the option, directly or through one or more of its Subsidiaries to invest such Net Insurance/Condemnation Proceeds within one hundred eighty days of receipt thereof in long term productive assets of the general type used in the business of Holdings and its Subsidiaries, which investment may include the repair, restoration or replacement of the applicable assets thereof; provided further , pending any such reinvestment all Net Insurance/Condemnation Proceeds shall, at the option of the Companies, be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent Net Insurance/Condemnation Proceeds exceed the amount required to prepay all such Revolving Loans, the balance thereof shall be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent.  In the event that the Asset Sale Reinvestment Amounts are not reinvested by the Companies prior to the earlier of (i) the last day of such one hundred (180) day period and (ii) date of the occurrence of an Event of Default, Administrative Agent may apply such Asset Sale Reinvestment Amounts to the Obligations as set forth in Section 2.14(b).
 
(c)   Issuance of Equity Securities .  On the date of receipt by Holdings of any Cash proceeds from a capital contribution to, or the issuance of any Capital Stock of, Holdings or any of its Subsidiaries (other than Capital Stock issued (i) pursuant to any employee stock or stock option compensation plan, (ii) to  fund Capital Expenditures and Permitted Acquisitions, (iii) to fund the payment of an earn-out to the sellers under the Christian Disposal Acquisition Agreement to the extent permitted under Section 6.5, (iv) to pay Consolidated Corporate Overhead in an aggregate amount not to exceed $1,200,000 in any period of twelve consecutive fiscal months, (v) to fund the Drury Collateral Account in an aggregate amount not to exceed $500,000 in any period of twelve consecutive fiscal months to the extent necessary to cause the amounts on deposit in the Drury Collateral Account to be at least equal to $500,000, and (vi) for purposes approved in writing by Administrative Agent), the Companies shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.
 
 
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(d)   Issuance of Debt .  On the date of receipt by Holdings or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of Holdings or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1), the Companies shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.
 
(e)   Consolidated Excess Cash Flow .  In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with Fiscal Year ending December 31, 2016), the Companies shall, no later than 120 days after the end of such Fiscal Year, prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to 50% of such Consolidated Excess Cash Flow.
 
(f)   Revolving Loans .  The Companies shall from time to time prepay the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then in effect.
 
(g)   Prepayment of Excess Outstanding Amounts .  Concurrently with the delivery of the financial statements pursuant to Section 5.1(a), the Companies shall prepay Loans in an amount equal to 100% of the amount by which (x) the Consolidated Total Debt as of the date of such financial statements, exceeds (y) Consolidated Adjusted EBITDA for the twelve month period ending on the last day of fiscal month for which such financial statements were prepared, multiplied by the then maximum Leverage Ratio permitted for the most recently ended Fiscal Quarter then in effect pursuant to Section 6.8.
 
(h)   Tax Refunds .  On the date of receipt by Holdings or any of its Subsidiaries of any tax refunds in excess of $250,000 in the aggregate in any Fiscal Year, the Companies shall prepay Loans and/or Revolving Commitments shall be reduced as set forth in Section 2.14(b) in the amount of such tax refunds in excess of $250,000.
 
(i)   Payments under Related Agreements .  On the date of receipt by Holdings or any of its Subsidiaries of any payment under any of the Related Agreements (including, but not limited to, all proceeds from releases of any escrowed amounts and all payments received in respect of any indemnification obligation but excluding any working capital adjustments and any amounts that are applied for the purpose of remedying any condition or event giving rise to the underlying payment (whether for indemnification or otherwise)), the Companies shall prepay Loans and/or Revolving Commitments shall be reduced as set forth in Section 2.14(b) in the amount of 100% of such payments.
 
 
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(j)   Prepayment Certificate .  Concurrently with any prepayment of the Loans and/or reduction of the Revolving Commitments pursuant to Sections 2.13(a) through 2.13(e), the Company Representative shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow and compensation owing to Lenders under Section 2.12(c) or (d), if any, as the case may be.  In the event that the Companies shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, the Companies shall promptly make an additional prepayment of the Loans and/or the Revolving Commitments shall be permanently reduced in an amount equal to such excess, and the Company Representative shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.
 
2.14.   Application of Prepayments/Reductions .
 
(a)   Application of Voluntary Prepayments of Revolving Loans .  Any prepayment of any Revolving Loan pursuant to Section 2.12 shall be applied to repay outstanding Revolving Loans to the full extent thereof.
 
(b)   Application of Prepayments by Type of Loans .  Any voluntary prepayments of Term Loans pursuant to Section 2.12 and any mandatory prepayment of any Loan pursuant to Section 2.13 shall be applied as follows:
 
first , to the payment of all fees, including any fees and amounts payable pursuant to the Fee Letter, and all expenses specified in Section 10.2, to the full extent thereof;
 
second , to the payment of any accrued interest at the Default Rate, if any;
 
third , to the payment of any accrued interest (other than Default Rate interest);
 
fourth, to prepay the Revolving Loans to the full extent thereof and to further permanently reduce the Revolving Commitments by the amount of such prepayment;
 
fifth , to prepay Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the Term Loans;
 
sixth , to further permanently reduce the Revolving Commitments to the full extent thereof; and
 
seventh , to further permanently reduce the Term Loan Commitments to the full extent thereof.
 
Notwithstanding the foregoing, no amounts received from any Credit Party (or proceeds of any such Credit Party’s property) shall be applied to any Obligations under any Interest Rate Agreement the guaranty of which by such Credit Party is an Excluded Swap Obligation.
 
 
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(c)   Application of Prepayments of Loans to Base Rate Loans and LIBOR Rate Loans .  Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to LIBOR Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made by the Companies pursuant to Section 2.17(c).
 
2.15.   General Provisions Regarding Payments .
 
(a)   All payments by Borrowers of principal, interest, fees and other Obligations shall be made by wire transfer not later than 12:00 p.m. (New York, New York time) on the date specified for payment under this Agreement to the account designated by Administrative Agent from time to time maintained by Administrative Agent or its Affiliates for the account of the Lenders or the Administrative Agent, as the case may be, in U.S. Dollars or Canadian Dollars, as applicable, in immediately available funds. Any payment received after 12:00 p.m. (New York, New York time) shall be deemed received on the next Business Day. 
 
(b)   All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.
 
(c)   Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Administrative Agent.
 
(d)   Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
 
(e)   Subject to the provisos set forth in the definition of “Interest Period,” whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.
 
(f)   Reserved.
 
(g)   Administrative Agent shall deem any payment by or on behalf of the Companies hereunder that is not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.  Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day.  Administrative Agent shall give prompt telephonic notice to the Company Representative and each applicable Lender (confirmed in writing) if any payment is non-conforming.  Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a).  Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Rate determined pursuant to Section 2.9 from the date such amount was due and payable until the date such amount is paid in full.
 
 
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(h)   If an Event of Default shall have occurred and not otherwise been waived, and the Obligations shall have become due and payable in full hereunder, whether by acceleration, maturity or otherwise, all payments or proceeds received by any Agent hereunder or under any Collateral Document in respect of any of the Obligations (including, but not limited to, Obligations arising under any Interest Rate Agreement that are owing to any Lender or Lender Counterparty), including, but not limited to all proceeds received by any Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral, shall be applied in full or in part as follows:   first , to the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to each Agent and its agents and counsel, and all other expenses, liabilities and advances made or incurred by any Agent in connection therewith, and all amounts for which any Agent is entitled to indemnification hereunder or under any Collateral Document (in its capacity as an Agent and not as a Lender) and all advances made by any Agent under any Collateral Document for the account of the applicable Grantor, and to the payment of all costs and expenses paid or incurred by any Agent in connection with the exercise of any right or remedy hereunder or under any Collateral Document, all in accordance with the terms hereof or thereof; second , to the extent of any excess of such proceeds, to the payment of all other Obligations for the ratable benefit of the Lenders and the Lender Counterparties; and third , to the extent of any excess of such proceeds, to the payment to or upon the order of such Grantor or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
 
2.16.   Ratable Sharing .   Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral or in the Fee Letter, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided , if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of any Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest.  Each Company expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by any Company to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.
 
 
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2.17.   Making or Maintaining LIBOR Rate Loans .
 
(a)   Inability to Determine Applicable Interest Rate .  In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBOR Rate Loans on the basis provided for in the definition of Adjusted LIBOR Rate, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to the Company Representative and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBOR Rate Loans until such time as Administrative Agent notifies the Company Representative and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conver­sion/Continuation Notice given by the Company Representative with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by the Company Representative.
 
(b)   Illegality or Impracticability of LIBOR Rate Loans .  In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the Company Representative and Administrative Agent) that the making, maintaining or continuation of its LIBOR Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to the Company Representative and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender).  Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to a LIBOR Rate Loan then being requested by the Company Representative pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding LIBOR Rate Loans (the “Affected Loans” ) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination.  Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBOR Rate Loan then being requested by the Company Representative pursuant to a Funding Notice or a Conversion/Continuation Notice, the Company Representative shall have the option, subject to the provisions of Section 2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender).  Except as provided in the immediately preceding sentence, nothing in this Section 2.17(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR Rate Loans in accordance with the terms hereof.
 
 
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(c)   Compensation for Breakage or Non-Commencement of Interest Periods .  The Companies shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any LIBOR Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any LIBOR Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its LIBOR Rate Loans occurs on any day other than the last day of an Interest Period applicable to that Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (iii) if any prepayment of any of its LIBOR Rate Loans is not made on any date specified in a notice of prepayment given by the Company Representative.
 
(d)   Booking of LIBOR Rate Loans .  Any Lender may make, carry or transfer LIBOR Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
 
(e)   Assumptions Concerning Funding of LIBOR Rate Loans .  Calculation of all amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had actually funded each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided , however , each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.17 and under Section 2.18.
 
 
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2.18.   Increased Costs; Capital Adequacy .
 
(a)   Compensation For Increased Costs and Taxes .  Subject to the provisions of Section 2.19 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other Governmental Authority or quasi-Governmental Authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than any Tax on the overall net income of such Lender) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to LIBOR Rate Loans that are reflected in the definition of Adjusted LIBOR Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, the Companies shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder.  Such Lender shall deliver to the Company Representative (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.18(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
 
(b)   Capital Adequacy Adjustment .  In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (A) the adoption, effectiveness, phase-in or applicability of any law, rule or regulation (or any provision thereof) regarding capital adequacy or liquidity, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or (B) compliance by any Lender (or its applicable lending office) or any company controlling such Lender with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, in each case after the Closing Date, has or would have the effect of reducing the rate of return on the capital of such Lender or any company controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Revolving Commitments or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling company could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling company with regard to capital adequacy or liquidity), then from time to time, within five (5) Business Days after receipt by the Company Representative from such Lender of the statement referred to in the next sentence, the Companies shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling company on an after-tax basis for such reduction. Such Lender shall deliver to the Company Representative (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.18(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.  For the avoidance of doubt, subsections (a) and (b) of this Section 2.18 shall apply to all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any United States regulatory authority (i) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, regardless of the date adopted, issued, promulgated or implemented (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto).
 
 
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2.19.   Taxes; Withholding, etc.
 
(a)   Payments to Be Free and Clear .  All sums payable by any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or assessed by or within the United States of America or any political subdivision in or of the United States of America or any other jurisdiction from or to which a payment is made by or on behalf of any Credit Party or by any federation or organization of which the United States of America or any such jurisdiction is a member at the time of payment.
 
(b)   Withholding of Taxes .  If any Credit Party or any other Person is required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Company Representative shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as any Company becomes aware of it; (ii) Companies shall pay any such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (iv) within thirty days after paying any sum from which it is required by law to make any deduction or withholding, and within thirty days after the due date of payment of any Tax which it is required by clause (ii) above to pay, the Company Representative shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority; provided, no such additional amount shall be required to be paid to any Lender under clause (iii) above except to the extent that any change after the date hereof (in the case of each Lender listed on the signature pages hereof on the Closing Date) or after the effective date of the Assignment Agreement pursuant to which such Lender became a Lender (in the case of each other Lender) in any such requirement for a deduction, withholding or payment as is mentioned therein shall result in an increase in the rate of such deduction, withholding or payment from that in effect at the date hereof or at the date of such Assignment Agreement, in respect of payments to such Lender.
 
 
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(c)   Evidence of Exemption From U.S. Withholding Tax .  Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender” ) shall deliver to Administrative Agent for transmission to the Company Representative on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of the Company Representative or Administrative Agent (each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN, Form W-8BEN-E or W-8ECI (or any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by the Company Representative to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver Internal Revenue Service Form W-8ECI pursuant to clause (i) above, a Certificate Regarding Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by the Company Representative to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents.  Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.19(c) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Administrative Agent for transmission to the Company Representative two new original copies of Internal Revenue Service Form W-8BEN, Form W-8BEN-E or W-8ECI, or a Certificate Regarding Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by the Company Representative to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and the Company Representative of its inability to deliver any such forms, certificates or other evidence.  The Companies shall not be required to pay any additional amount to any Non-US Lender under Section 2.19(b)(iii) if such Lender shall have failed (1) to deliver the forms, certificates or other evidence referred to in the second sentence of this Section 2.19(c), or (2) to notify Administrative Agent and the Company Representative of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided , if such Lender shall have satisfied the requirements of the first sentence of this Section 2.19(c) on the Closing Date or on the date of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last sentence of Section 2.19(c) shall relieve the Companies of their obligation to pay any additional amounts pursuant this Section 2.19 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein.
 
 
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(d)   Taxes Imposed under FATCA; FATCA Covenant .
 
(i)   Notwithstanding anything to the contrary, the Borrowers shall not be required to pay any additional amount pursuant to Section 2.19(b) with respect to any United States federal withholding tax imposed under FATCA.
 
(ii)   If any payment made to a Lender would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Administrative Agent as may be necessary for Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (ii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
 
2.20.   Obligation to Mitigate .  Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.17, 2.18 or 2.19, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.17, 2.18 or 2.19 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or the interests of such Lender; provided , such Lender will not be obligated to utilize such other office pursuant to this Section 2.20 unless the Companies agree to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above.  A certificate as to the amount of any such expenses payable by Companies pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the Company Representative (with a copy to Administrative Agent) shall be conclusive absent manifest error.
 
 
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2.21.   Defaulting Lenders .   Anything contained herein to the contrary notwithstanding, in the event that any Lender violates any provision of Section 9.5(c), or, other than at the direction or request of any regulatory agency or authority, defaults (in each case, a “Defaulting Lender” ) in its obligation to fund (a “Funding Default” ) any Revolving Loan or Term Loan (in each case, a “Defaulted Loan” ), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans or Term Loans shall, if Administrative Agent so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans or Term Loans of other Lenders as if such Defaulting Lender had no Revolving Loans or Term Loans outstanding and the Revolving Exposure and the outstanding Term Loan Loans of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the Revolving Loans or Term Loans shall, if Administrative Agent so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans or Term Loans of other Lenders (but not to the Revolving Loans or Term Loans of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being understood and agreed that any portion of any mandatory prepayment of the Revolving Loans or Term Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b) shall be paid to the non-Defaulting Lenders on a ratable basis; (c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall be excluded for purposes of calculating the Revolving Commitment fee payable to Lenders in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any Revolving Commitment fee pursuant to Section 2.10 with respect to such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such Defaulting Lender; and (d) the Total Utilization of Revolving Commitments as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender.  No Revolving Commitment or Term Loan Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by Companies of their respective obligations hereunder and the other Credit Documents shall not be excused or otherwise modified as a result of any Funding Default or the operation of this Section 2.21.  The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and remedies which Companies may have against such Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default or violation of Section 9.5(c).
 
 
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2.22.   Removal or Replacement of a Lender .   Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender” ) shall give notice to the Company Representative that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section  2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Company Representative’s request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after Company Representative’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Administrative Agent shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender” ) whose consent is required shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender” ), Administrative Agent may (which, in the case of an Increased-Cost Lender, only after receiving written request from Company Representative to remove such Increased-Cost Lender), by giving written notice to the Company Representative and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender” ) in accordance with the provisions of Section 10.6 and Terminated Lender shall pay any fees payable thereunder in connection with such assignment; provided , (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender and (B) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (2) on the date of such assignment, the Companies shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18 or 2.19; and (3) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender.  Each Lender agrees that if Administrative Agent exercises its option to cause an assignment by such Lender as a Terminated Lender, such Lender shall, promptly after receipt of written notice of such option, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that the Terminated Lender fails to execute an Assignment Agreement pursuant to Section 10.6 within five Business Days after receipt by the Terminated Lender of notice of replacement pursuant to this Section 2.22 and presentation to such Terminated Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 2.22 , the Terminated Lender shall be deemed to have executed and delivered such Assignment Agreement, and upon the execution and delivery of Assignment Agreement by the Replacement Lender and Administrative Agent, shall be effective for purposes of this Section 2.22 and Section 10.6 .  Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided , any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender.
 
 
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SECTION 3.   CONDITIONS PRECEDENT
 
3.1.   Closing Date .  The obligation of each Lender to make a Credit Extension on the Closing Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Closing Date, except as otherwise provided by Section 5.15:
 
(a)   Credit Documents .  Administrative Agent shall have received sufficient copies of each Credit Document originally executed and delivered by each applicable Credit Party for each Lender.
 
(b)   Organizational Documents; Incumbency .  Administrative Agent shall have received (i) sufficient copies of each Organizational Document executed and delivered by each Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, for each Lender, each dated the Closing Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing the Credit Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents and the Related Agreements to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably request.
 
(c)   Organizational and Capital Structure .  The organizational structure and capital structure of Holdings and its Subsidiaries, both before and after giving effect to the Closing Date Acquisitions, shall be as set forth on Schedule 4.1.
 
(d)   Reserved .
 
(e)   Consummation of the Closing Date Acquisitions .  
 
(i)   (1) All conditions to the Closing Date Acquisitions set forth in the Related Agreements   shall have been satisfied or the fulfillment of any such conditions shall have been waived with the consent of Administrative Agent, (2) the Closing Date Acquisitions shall have been consummated in accordance with the terms of the Related Agreements and (3) the aggregate cash consideration paid to the sellers under the Related Agreements on the Closing Date in connection with the Closing Date Acquisitions shall not exceed $23,000,000.
 
 
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(ii)   Administrative Agent shall have received a fully executed or conformed copy of each Related Agreement and any documents executed in connection therewith, together with copies of each of the opinions of counsel, if any, delivered to the parties under the Related Agreements, accompanied by a letter from each such counsel (to the extent not inconsistent with such counsel’s established internal policies) authorizing Lenders to rely upon such opinion to the same extent as though it were addressed to Lenders.  Each Related Agreement shall be in full force and effect, shall include terms and provisions reasonably satisfactory to Administra­tive Agent and no provision thereof shall have been modified or waived in any respect determined by Administrative Agent to be material, in each case without the consent of Administrative Agent.
 
(f)   Existing Indebtedness .  On the Closing Date, Holdings and its Subsidiaries shall have (i) repaid in full all Existing Indebtedness, (ii) terminated any commitments to lend or make other extensions of credit thereunder, (iii) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing Existing Indebtedness or other obligations of Holdings and its Subsidiaries thereunder being repaid on the Closing Date, and (iv) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of credit outstanding thereunder.
 
(g)   Transaction Costs .  On or prior to the Closing Date, the Company Representative shall have delivered to Administrative Agent its reasonable best estimate of the Transaction Costs (other than fees payable to any Agent).
 
(h)   Governmental Authorizations and Consents .  Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Credit Documents and the Related Agreements, including without limitation the consent of the applicable Governmental Authorities in Pike County.  Each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent.  All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents or the Related Agreements or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
 
(i)   Real Estate Assets .  In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Administrative Agent and Collateral Agent shall have received from each Company and each applicable Guarantor:
 
(i)   fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(i) (each, a “Closing Date Mortgaged Property” );
 
 
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(ii)   in the case of each Leasehold Property that is a Closing Date Mortgaged Property, (a) a Landlord Consent and Estoppel and (b) evidence that such Leasehold Property is a Recorded Leasehold Interest;
 
(iii)   (a) with respect to all fee-simple Real Estate Assets, ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Closing Date Mortgaged Property (each, a “Title Policy” ), in amounts not less than the fair market value of each Closing Date Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date, (b) with respect to each Leasehold Property that is a Closing Date Mortgaged Property, a title report reasonably satisfactory to Collateral Agent issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and issued by a title company reasonably satisfactory to Collateral Agent, (c) copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (d) evidence satisfactory to Collateral Agent that such Credit Party has paid to the title company or to the appropriate Governmental Authorities all expenses and premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for each Closing Date Mortgaged Property in the appropriate real estate records;
 
(iv)   evidence of flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, in form and substance reasonably satisfactory to Collateral Agent; and
 
(v)   ALTA surveys of all Closing Date Mortgaged Properties, certified to Collateral Agent and dated not more than thirty days prior to the Closing Date.
 
(j)   Personal Property Collateral .  In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the personal property Collateral, Collateral Agent shall have received:
 
(i)   evidence satisfactory to Collateral Agent of the compliance by each Credit Party of their obligations under the Pledge and Security Agreement and the other Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
 
(ii)   A completed Collateral Questionnaire dated the Closing Date and executed by an Authorized Officer of each Credit Party, together with all attachments contemplated thereby, including (a) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (b) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens); and
 
 
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(iii)   evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 6.1(b)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
 
(k)   Environmental Reports .  Administrative Agent shall have received reports and other information, in form, scope and substance satisfactory to Administrative Agent, regarding environmental matters relating to the Facilities.
 
(l)   Financial Statements; Projections .  Lenders shall have received from Holdings (i) the Historical Financial Statements, (ii) pro forma consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the Closing Date, and reflecting the consummation of the transactions contemplated by the Related Agreements, the related financings and the other transactions contemplated by the Credit Documents to occur on or prior to the Closing Date, which pro forma financial statements shall be in form and substance satisfactory to Administrative Agent, (iii) pro forma consolidated and consolidating income statements of Holdings and its Subsidiaries as at the Closing Date, and reflecting the consummation of the transactions contemplated by Related Agreements, the related financings and the other transactions contemplated by the Credit Documents to occur on or prior to the Closing Date, and (iv) the Projections.
 
(m)   Evidence of Insurance .  Collateral Agent shall have received a certificate from Companies’ insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5.
 
(n)   Opinions of Counsel to Credit Parties .  Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Lucosky Brookman LLP, Richard J. Dreger, Attorney at Law, P.C., and McCarthy, Leonard & Kaemmerer, L.C., each special counsel to the Credit Parties, in form and substance satisfactory to the Administrative Agent and covering such matters as Administrative Agent may reasonably request (including the creation and perfection of security interests and enforceability of the Mortgages to be recorded), each dated as of the Closing Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
 
 
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(o)   Fees and Expenses .  The Companies shall have paid to Administrative Agent the fees payable on the Closing Date referred to in Section 2.10(e) and shall have paid, or reimbursed directly, the Administrative Agent and its affiliates for all of their expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed in connection with the transactions contemplated hereby.
 
(p)   Solvency Certificate .  On the Closing Date, Administrative Agent shall have received a Solvency Certificate from each Credit Party dated as of the Closing Date and addressed to Administrative Agent and Lenders, and in form, scope and substance satisfactory to Administrative Agent, with appropriate attachments and demonstrating that after giving effect to the consummation of the Closing Date Acquisitions and the other transaction contemplated by the Related Agreements and the Credit Extensions to be made on the Closing Date, such Credit Party is and will be Solvent.
 
(q)   Closing Date Certificate .  The Credit Parties shall have delivered to Administrative Agent an originally executed Closing Date Certificate, together with all attachments thereto.
 
(r)   Closing Date .  Lenders shall have made the initial Term Loans to the Companies on or before December 31, 2015.
 
(s)   No Litigation .  There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened (in writing) in any court or before any arbitrator or Governmental Authority that, in the reasonable discretion of Administrative Agent, singly or in the aggregate, materially impairs the Closing Date Acquisition, the financing thereof or any of the other transactions contemplated by the Credit Documents or the Related Agreements, or that could have a Material Adverse Effect.
 
(t)   Due Diligence .  The Administrative Agent shall have completed its due diligence review of the Companies and their respective Subsidiaries and the results of such review shall be satisfactory to the Administrative Agent, including, without limitation, (i) satisfactory completion and review of third party accounting due diligence report focused on Consolidated Adjusted EBITDA verification, (ii) market due diligence, (iii) business due diligence, (iv) management background checks, (v) environmental reviews and (vi) legal review.
 
(u)   Minimum EBITDA .  The pro forma income statement delivered pursuant to Section 3.1(l) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that the Companies shall have generated trailing twelve month Consolidated Adjusted EBITDA for the period ending October 31, 2015 of at least $8,400,000.
 
(v)   Minimum Liquidity .  The Companies shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Closing Date and immediately after giving effect to any Credit Extensions to be made on the Closing Date, including the payment of all Transaction Costs required to be paid in Cash, the Companies shall have at least $3,000,000 of Cash and Availability.
 
(w)   Maximum Leverage Ratio . The pro forma balance sheet delivered pursuant to Section 3.1(l) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Closing Date and immediately after giving effect to any Credit Extensions to be made on the Closing Date, including the payment of all Transaction Costs required to be paid in Cash, the ratio of (i) total Indebtedness for Holdings and its Subsidiaries as of the Closing Date (excluding the Subordinated Debt)  to (ii) pro forma Consolidated Adjusted EBITDA for the twelve month period ending October 31, 2015, shall not be greater than 4.75:1.00.
 
 
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(x)   No Material Adverse Change .  Since December 31, 2014, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
 
(y)   Completion of Proceedings .  All partnership, corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent, and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
 
(z)   Service of Process .  On the Closing Date, Administrative Agent shall have received evidence that each Credit Party has appointed an agent in New York City for the purpose of service of process in New York City and such agent shall agree in writing to give Administrative Agent notice of any resignation of such service agent or other termination of the agency relationship. The Companies shall have paid the fees for such service of process for all Credit Parties through the term of this Agreement.
 
Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date.
 
3.2.   Conditions to Each Credit Extension .
 
(a)   Conditions Precedent .  The obligation of each Lender to make any Loan on any Credit Date, including the Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
 
(i)   Administrative Agent shall have received a fully executed and delivered Funding Notice;
 
(ii)   after making the Credit Extensions requested on such Credit Date, (x) the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect, (y) the Total Utilization of MDTL Commitments shall not exceed the MDTL Commitments then in effect, and (z) Availability would be $0 or greater;
 
(iii)   as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
 
 
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(iv)   as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
 
(v)              the Chief Financial Officer of Holdings shall have delivered an Officer’s Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, Holdings reasonably expects, after giving effect to the proposed borrowing and based upon good faith determinations and projections consistent with the Financial Plan, to be in compliance with all operating and financial covenants set forth in this Agreement as of the last day of the current Fiscal Quarter;
 
(vi)           as of such Credit Date, the Leverage Ratio determined as of such date after giving effect to the contemplated Credit Extension shall not exceed the Leverage Multiple then in effect;
 
(vii)           after giving effect to such Credit Extension the aggregate Cash and Cash Equivalents of Holdings and its Subsidiaries will not exceed $3,000,000; and
 
(viii)   with respect to any Credit Extension, the use of proceeds of which is intended to finance a Permitted Acquisition, Administrative Agent shall have received evidence that the related acquisition is a Permitted Acquisition and all acquisition documentation shall be in form and substance satisfactory to Administrative Agent in its reasonable discretion.
 
Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.
 
(b)   Notices .  Any Notice shall be executed by an Authorized Officer of the Company Representative in a writing delivered to Administrative Agent.  In lieu of delivering a Notice, the Company Representative may give Administrative Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or issuance of a Letter of Credit, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice from the Company Representative to Administrative Agent on or before the applicable date of borrowing, continuation/conversion or issuance.  Neither Administrative Agent nor any Lender shall incur any liability to any Company in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of the Company Representative or for otherwise acting in good faith.
 
3.3.   Conditions Subsequent to the Closing Date .   The Companies shall fulfill, on or before the date applicable thereto (which date can be extended in writing by the Administrative Agent in its sole discretion), each of the conditions subsequent specified in Section 5.15.
 
 
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SECTION 4.   REPRESENTATIONS AND WARRANTIES
 
In order to induce Agents and Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent and Lender, on the Closing Date and on each Credit Date, that the following statements are true and correct (it being understood and agreed that the representations and warranties made on the Closing Date are deemed to be made concurrently with the consummation of the Closing Date Acquisition):
 
4.1.   Organization; Requisite Power and Authority; Qualification .   Each of Holdings and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect.  As of the Closing Date, the jurisdiction of organization or incorporation of Holdings and its Subsidiaries is set forth on Schedule 4.1.
 
4.2.   Capital Stock and Ownership .   The Capital Stock of each of Holdings and its Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable.  Except as set forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which Holdings or any of its Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of Holdings or any of its Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Holdings or any of its Subsidiaries of any additional membership interests or other Capital Stock of Holdings or any of its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of Holdings or any of its Subsidiaries.  Schedule 4.2 correctly sets forth the ownership interest of Holdings and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date both before and after giving effect to the Closing Date Acquisitions.
 
4.3.   Due Authorization .   The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.
 
4.4.   No Conflict .   The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not (a) violate any provision of any law or any governmental rule or regulation applicable to Holdings or any of its Subsidiaries, any of the Organizational Documents of Holdings or any of its Subsidiaries, or any order, judgment or decree of any court or other agency of government binding on Holdings or any of its Subsidiaries; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Holdings or any of its Subsidiaries; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Holdings or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral  Agent, on behalf of Secured Parties); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Holdings or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the Closing Date and disclosed in writing to Lenders.
 
 
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4.5.   Governmental Consents .   The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Closing Date.
 
4.6.   Binding Obligation .   Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
 
4.7.   Historical Financial Statements .   The Historical Financial Statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments.  As of the Closing Date, neither Holdings nor any of its Subsidiaries has any contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the Historical Financial Statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings and any of its Subsidiaries taken as a whole.
 
4.8.   Projections .   On and as of the Closing Date, the Projections of Holdings and its Subsidiaries for the period of Fiscal Year 2015 through and including Fiscal Year 2020, including monthly projections for each month during the Fiscal Year in which the Closing Date takes place, (the “Projections” ) are based on good faith estimates and assumptions made by the management of Holdings; provided , the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material; provided further , as of the Closing Date, management of Holdings believed that the Projections were reasonable and attainable.
 
4.9.   No Material Adverse Change .   Since December 31, 2014, no event, circumstance or change has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
 
 
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4.10.   No Restricted Junior Payments .   Since December 31, 2014, neither Holdings nor any of its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to Section 6.5.
 
4.11.   Adverse Proceedings, etc.   There are no Adverse Proceedings, individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.  Neither Holdings nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
 
4.12.   Payment of Taxes .   Except as otherwise permitted under Section 5.3, all tax returns and reports of Holdings and its Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon Holdings and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable.  No Credit Party  knows of any proposed tax assessment against Holdings or any of its Subsidiaries which is not being actively contested by Holdings or such Subsidiary in good faith and by appropriate proceedings; provided , such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.
 
4.13.   Properties .
 
(a)   Title .  Each of Holdings and its Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), and (iii) good title to (in the case of all other personal property), all of their respective properties and assets reflected in their respective Historical Financial Statements referred to in Section 4.7 and in the most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted under Section 6.9.  Except as permitted by this Agreement, all such properties and assets are free and clear of Liens.
 
(b)   Real Estate .  As of the Closing Date, Schedule 4.13 contains a true, accurate and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate Asset of any Credit Party or any of its Subsidiaries, regardless of whether such Credit Party or such Subsidiary thereof is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment.  Each agreement listed in clause (ii) of the immediately preceding sentence is in full force and effect and no Credit Party has any knowledge of any default that has occurred and is continuing thereunder, and each such agreement constitutes the legally valid and binding obligation of each applicable Credit Party or Subsidiary thereof, enforceable against such Credit Party or Subsidiary in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles.
 
 
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(c)   Intellectual Property . Each of Holdings and its Subsidiaries possesses all franchises, licenses and permits, patents, copyrights, trademarks and trade names, and rights in respect of the foregoing, material and necessary to the conduct of its business without known conflict with any rights of others.
 
4.14.   Environmental Matters .   Neither Holdings nor any of its Subsidiaries nor any of their respective Facilities or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  Neither Holdings nor any of its Subsidiaries has received any letter or request for information under Section 104 of the Comprehensive Environmen­tal Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law.  There are and, to each Credit Party’s knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis of an Environmental Claim against Holdings or any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  Neither Holdings nor any of its Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of Holdings or any of its Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and none of Holdings’ or any of its Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent.  Compliance with all current or reasonably foreseeable future requirements pursuant to or under Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.  No event or condition has occurred or is occurring with respect to Holdings or any of its Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which individually or in the aggregate has had, or could reasonably be expected to have, a Material Adverse Effect.
 
4.15.   No Defaults .   Neither Holdings nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual Obligations, and no condition exists which, with the giving of notice or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, could not reasonably be expected to have a Material Adverse Effect.
 
4.16.   Material Contracts .   Schedule 4.16 contains a true, correct and complete list of all the Material Contracts in effect on the Closing Date, which, together with any updates provided pursuant to Section 5.1(l), all such Material Contracts are in full force and effect and no defaults currently exist thereunder (other than as described in Schedule 4.16 or in such updates).  True, correct and complete copies of all Material Contracts listed on Schedule 4.16 have been delivered to the Administrative Agent.
 
 
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4.17.   Governmental Regulation .   Neither Holdings nor any of its Subsidiaries is subject to regulation under the Public Utility Holding Company Act of 2005, the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable.  Neither Holdings nor any of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.
 
4.18.   Margin Stock .   Neither Holdings nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock.  No part of the proceeds of the Loans made to the Companies will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
 
4.19.   Employee Matters .   Neither Holdings nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or to the best knowledge of the Credit Parties, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries or to the best knowledge of the Credit Parties, threatened against any of them, (b) no strike or work stoppage in existence or threatened (in writing) involving Holdings or any of its Subsidiaries,  and (c) to the best knowledge of the Credit Parties, no union representation question existing with respect to the employees of Holdings or any of its Subsidiaries and, to the best knowledge of the Credit Parties, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.
 
4.20.   Employee Benefit Plans .   Holdings, each of its Subsidiaries and each of their respective ERISA Affiliates are in compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan, and have performed all their obligations under each Employee Benefit Plan.  Each Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter which would cause such Employee Benefit Plan to lose its qualified status.  No liability to the PBGC (other than required premium payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by Holdings, any of its Subsidiaries or any of their ERISA Affiliates.  No ERISA Event has occurred or is reasonably expected to occur.  Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.  The present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Holdings, any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value of the assets of such Pension Plan.  As of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability of Holdings, its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA is zero.  Holdings, each of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
 
 
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4.21.   Certain Fees .   No broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated hereby; provided, that a fee in an aggregate amount not to exceed $800,000 is payable by Holdings to GSS Capital Group upon consummation of the transactions contemplated by the Related Agreements.
 
4.22.   Solvency .   Each Credit Party is and, upon the incurrence of any Credit Extension by such Credit Party on any date on which this representation and warranty is made, will be, Solvent.
 
4.23.   Related Agreements .
 
(a)   Delivery .  The Credit Parties have delivered to Administrative Agent complete and correct copies of (i) each Related Agreement and of all exhibits and schedules thereto as of the date hereof, and (ii) copies of any material amendment, restatement, supplement or other modification to or waiver of each Related Agreement entered into after the date hereof.
 
(b)   Representations and Warranties .  Except to the extent otherwise expressly set forth herein or in the schedules hereto, and subject to the qualifications set forth therein, each of the representations and warranties given by any Credit Party in any Related Agreement is true and correct in all material respects as of the Closing Date (or as of any earlier date to which such representation and warranty specifically relates).  Notwithstanding anything in the Related Agreement to the contrary, the representations and warranties of each Credit Party set forth in this Section 4.23 shall, solely for purposes hereof, survive the Closing Date for the benefit of Lenders.
 
(c)   Governmental Approvals .  All Governmental Authorizations and all other authorizations, approvals and consents of any other Person required by the Related Agreements or to consummate the Closing Date Acquisitions have been obtained and are in full force and effect.
 
(d)   Conditions Precedent .  On the Closing Date, (i) all of the conditions to effecting or consummating the Closing Date Acquisitions set forth in the Related Agreements have been duly satisfied or, with the consent of Administrative Agent, waived, and (ii) the Closing Date Acquisitions have been consummated in accordance with the Related Agreements and all applicable laws.
 
 
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4.24.   Compliance with Statutes, Franchises, Permits, etc .   Each of Holdings and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of Holdings or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  Each Credit Party possesses all franchises, licenses and permits (including, without limitation, all environmental permits corresponding to its operations and all operating permits for any landfills operated by each Company and its Subsidiaries and/or waste operations conducted by each Company and its Subsidiaries, including those necessary to operate the landfills in light of the business plan of the Companies delivered to the Administrative Agent prior to the Closing Date), patents, copyrights, trademarks and trade names, and rights in respect of the foregoing, material and necessary to the conduct of its business without known conflict with any rights of others.
 
4.25.   Disclosure .   No representation or warranty of any Credit Party contained in any Credit Document or in any other documents, certificates or written statements furnished to Lenders by or on behalf of Holdings or any of its Subsidiaries for use in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact (known to the Credit Parties, in the case of any document not furnished by either of them) necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made.  Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Credit Parties to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results.  There are no facts known (or which should upon the reasonable exercise of diligence be known) to the Credit Parties (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby.
 
4.26.   Patriot Act .   To the extent applicable, each Credit Party is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the “Act” ).  No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
 
 
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4.27 Sanctions ; Anti-Corruption Laws . None of the Credit Parties, any of their respective Subsidiaries or any director, officer, employee, agent, or affiliate of the Credit Parties or any of their respective Subsidiaries is a Person that is, or is owned or controlled by Persons that are: (i) the subject or target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “ Sanctions ”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation Cuba, Iran, North Korea, Sudan and Syria). The Credit Parties and their Subsidiaries have implemented, and maintain in effect, policies and procedures designed to ensure compliance in all material respects by the Credit Parties, their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws, and the Credit Parties, their Subsidiaries and their respective officers and employees, and to the knowledge of the Credit Parties its directors and agents, are in compliance in all material respects with Anti-Corruption Laws.
 
SECTION 5.   AFFIRMATIVE COVENANTS
 
Each Credit Party covenants and agrees that so long as any Commitment is in effect and until payment in full of all Obligations, each Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
 
5.1.   Financial Statements and Other Reports .   Unless otherwise provided below, Holdings will deliver to Administrative Agent and Lenders:
 
(a)   Monthly Reports .  As soon as available, and in any event within 30 days after the end of each other month (including months which began prior to the Closing Date), the consolidated and consolidating balance sheet of Holdings and its Subsidiaries as at the end of such month and the related consolidated and consolidating statements of income, consolidated statements of stockholders’ equity and consolidated statements of cash flows of Holdings and its Subsidiaries for such month and for the period from the beginning of the then current Fiscal Year to the end of such month, and setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a schedule of reconciliations for any reclassifications with respect to prior months or periods (and, in connection therewith, copies of any restated financial statements for any impacted month or period) a Financial Officer Certification, a Narrative Report with respect thereto, and any operating reports prepared by management for such period;
 
(b)   Quarterly Financial Statements .  As soon as available, and in any event within 50 days after the end of the first Fiscal Quarter ending after the Closing Date and within 45 days after the end of each Fiscal Quarter of each Fiscal Year ending thereafter (in each case, including the fourth Fiscal Quarter), the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated (and with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the correspond­ing figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a Financial Officer Certification, a Narrative Report with respect thereto, a report setting forth the Key Performance Indicators and a revenue summary for the top ten customers of the Credit Parties, including a breakout of hauling and landfill revenue for each such customer;
 
 
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(c)   Annual Financial Statements .  As soon as available, and in any event within 120 days after the end of each Fiscal Year, (i) the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Year and the related consolidated (and with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with respect to such consolidated financial statements a report thereon of independent certified public accountants of recognized national standing selected by Holdings that is reasonably satisfactory to Administrative Agent (which report shall be unqualified as to going concern and scope of audit, and shall state that such consoli­dated financial statements fairly present, in all material respects, the consolidated financial position of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicat­ed in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial state­ments) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards) together with a written statement by such independent certified public accountants stating (1) that their audit examination has included a review of the terms of the Credit Documents, (2) whether, in connection therewith, any condition or event that constitutes a Default or an Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period of existence thereof, and (3) that nothing has come to their attention that causes them to believe that the information contained in any Compliance Certificate is not correct or that the matters set forth in such Compliance Certificate are not stated in accordance with the terms hereof (such report shall also include (x) a detailed summary of any audit adjustments; (y) a reconciliation of any audit adjustments or reclassifications to the previously provided monthly or quarterly financials; and (z) restated monthly or quarterly financials for any impacted periods);
 
(d)   Compliance Certificate .  Together with each delivery of financial statements of Holdings and its Subsidiaries pursuant to Sections 5.1(a), 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;
 
(e)   Statements of Reconciliation after Change in Accounting Principles .  If, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Holdings and its Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent;
 
 
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(f)   Notice of Default .  Promptly upon any officer of any Credit Party obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to any Credit Party with respect thereto; (ii) that any Person has given any notice to Holdings or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action the Credit Parties have taken, are taking and propose to take with respect thereto;
 
(g)   Notice of Litigation .  Promptly upon any officer of any Credit Party obtaining knowledge of (i) the institution of, or threat in writing of, any Adverse Proceeding not previously disclosed in writing by the Credit Parties to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either clause (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consumma­tion of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to the Credit Parties to enable Lenders and their counsel to evaluate such matters;
 
(h)   ERISA .  (i) Promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices received by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably request;
 
(i)   Financial Plan .  As soon as practicable and in any event no later than thirty days prior to the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year and each Fiscal Year (or portion thereof) through the final maturity date of the Loans (a “Financial Plan” ), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Holdings and its Subsidiaries for each such Fiscal Year, together with pro forma Compliance Certificates for each such Fiscal Year and an explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated statements of income and cash flows of Holdings and its Subsidiaries for each month of each such Fiscal Year, (iii) forecasts demonstrating projected compliance with the requirements of Section 6.8 through the final maturity date of the Loans, and (iv) forecasts demonstrating adequate liquidity through the final maturity date of the Loans, together, in each case, with an explanation of the assumptions on which such forecasts are based all in form and substance reasonably satisfactory to Agents;
 
 
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(j)   Insurance Report .  As soon as practicable and in any event by the last day of each Fiscal Year, a report in form and substance satisfactory to Administrative Agent outlining all material insurance coverage maintained as of the date of such report by Holdings and its Subsidiaries and all material insurance coverage planned to be maintained by Holdings and its Subsidiaries in the immediately succeeding Fiscal Year;
 
(k)   Notice of Change in Board of Directors .  With reasonable promptness, written notice of any change in the board of directors (or similar governing body) of any Credit Party;
 
(l)   Notice Regarding Material Contracts .  Promptly, and in any event within ten Business Days (i) after any Material Contract of Holdings or any of its Subsidiaries is terminated or amended in a manner that is materially adverse to Holdings or such Subsidiary, as the case may be, or (ii) any new Material Contract is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Administrative Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no such prohibition on delivery shall be effective if it were bargained for by Holdings or its applicable Subsidiary with the intent of avoiding compliance with this Section 5.1(l)), and an explanation of any actions being taken with respect thereto;
 
(m)   Environmental Reports and Audits .  As soon as practicable following receipt thereof, copies of all environmental audits and reports with respect to environmental matters at any Facility or which relate to any environmental liabilities of Holdings or its Subsidiaries which, in any such case, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
 
(n)   Information Regarding Collateral .  (a)  The Credit Parties will furnish to Collateral Agent prior written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit Party’s identity or corporate structure, or (iii) in any Credit Party’s Federal Taxpayer Identification Number.  Each Credit Party agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral and for the Collateral at all times following such change to have a valid, legal and perfected security interest as contemplated in the Collateral Documents.  Each Credit Party also agrees promptly to notify Collateral Agent if any material portion of the Collateral is damaged or destroyed;
 
(o)   Annual Collateral Verification .  Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), the Credit Parties shall deliver to Collateral Agent an Officer’s Certificate (i) either confirming that there has been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section and/or identifying such changes, or (ii) certifying that all UCC financing statements (including fixtures filings, as applicable) or other appropriate filings, recordings or registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified in the Collateral Questionnaire or pursuant to clause (i) above to the extent necessary to protect and perfect the security interests under the Collateral Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period);
 
 
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(p)   Aging Reports .  Together with each delivery of financial statements of Holdings and each other Credit Party pursuant to Sections 5.1(a), 5.1(b), and 5.1(c), (i) a summary of the accounts receivable aging report of each Credit Party as of the end of such period, and (ii) a summary of accounts payable aging report of each Credit Party as of the end of such period;
 
(q)   Tax Returns .  As soon as practicable and in any event within fifteen (15) days following the filing thereof, copies of each federal income tax return filed by or on behalf of any Credit Party; and
 
(r)   Other Information .  (A) Promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Holdings to its security holders acting in such capacity or by any Subsidiary of Holdings to its security holders other than Holdings or another Subsidiary of Holdings, and (ii) all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries, and (B) such other information and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent.
 
To the extent practical, together with any delivery of financial information required under this Section 5.1, the Credit Parties shall deliver to the Administrative Agent an Excel spreadsheet containing such financial information.
 
5.2.   Existence .   Except as otherwise permitted under Section 6.9, each Credit Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business, including, without limitation, all environmental permits necessary to its operations and all operating permits for any landfills operated by such Credit Party and any waste transport or other waste operations conducted by such Credit Party, including those necessary to operate the landfills in light of the business plan of the Company delivered to the Administrative Agent prior to the Closing Date); provided , no Credit Party or any of its Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and permits if such Person’s board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.
 
 
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5.3.   Payment of Taxes and Claims .   Each Credit Party will, and will cause each of its Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided , no such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim.  No Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to the filing of any consolidated income tax return with any Person (other than Holdings or any of its Subsidiaries).  In addition, each Company agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by any Governmental Authority that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement.
 
5.4.   Maintenance of Properties .   Each Credit Party will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of Holdings and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof.
 
5.5.   Insurance .   Holdings will maintain or cause to be maintained, with financially sound and reputable insurers, (i) business interruption insurance reasonably satisfactory to Administrative Agent, and (ii) casualty insurance, such public liability insurance, third party property damage insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons.  Without limiting the generality of the foregoing, Holdings will maintain or cause to be maintained (a) flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses.  Each such policy of insurance shall (i) name Collateral Agent, on behalf of Lenders as an additional insured thereunder as its interests may appear, and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral Agent, that names Collateral Agent, on behalf of Secured Parties as the loss payee thereunder and provides for at least thirty days’ prior written notice to Collateral Agent of any modification or cancellation of such policy.
 
 
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5.6.   Inspections .   Each Credit Party will, and will cause each of its Subsidiaries to, permit any authorized representatives designated by any Agent or any Lender to visit and inspect any of the properties of any Credit Party and any of its respective Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting records, and to discuss its and their affairs, finances and accounts with its and their officers and independent public accountants, all upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested.
 
5.7.   Lenders Meetings .   Holdings and the Companies will, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed to by the Company Representative and Administrative Agent) at such time as may be agreed to by the Company Representative and Administrative Agent.
 
5.8.   Compliance with Laws .   Each Credit Party will comply, and shall cause each of its Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including all Environmental Laws), noncompliance with which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 
5.9.   Environmental .
 
(a)   Environmental Disclosure .  Holdings will deliver to Administrative Agent and Lenders:
 
(i)   as soon as practicable following receipt thereof, copies of all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by personnel of Holdings or any of its Subsidiaries or by independent consultants, Governmental Authorities or any other Persons, with respect to significant environmental matters at any Facility or with respect to any Environmental Claims;
 
(ii)   promptly upon the occurrence thereof, written notice describing in reasonable detail (1) any Release required to be reported to any federal, state or local governmental or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken by Holdings or any other Person in response to (A) any Hazardous Materials Activities the existence of which has a reasonable possibility of resulting in one or more Environmental Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of resulting in a Material Adverse Effect, and (3) any Credit Party’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of any Facility that could cause such Facility or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws;
 
(iii)   as soon as practicable following the sending or receipt thereof by Holdings or any of its Subsidiaries, a copy of any and all written communications with respect to (1) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of giving rise to a Material Adverse Effect, (2) any Release required to be reported to any Governmental Authority, and (3) any request for information from any Governmental Authority that suggests such agency is investigating whether Holdings or any of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity;
 
 
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(iv)   prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or property by Holdings or any of its Subsidiaries that could reasonably be expected to (A) expose Holdings or any of its Subsidiaries to, or result in, Environmental Claims that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B) affect the ability of Holdings or any of its Subsidiaries to maintain in full force and effect all material Governmental Authorizations required under any Environmental Laws for their respective operations and (2) any proposed action to be taken by Holdings or any of its Subsidiaries to modify current operations in a manner that could reasonably be expected to subject Holdings or any of its Subsidiaries to any additional material obligations or requirements under any Environmental Laws; and
 
(v)   with reasonable promptness, such other documents and information as from time to time may be reasonably requested by Administrative Agent in relation to any matters disclosed pursuant to this Section 5.9(a).
 
(b)   Hazardous Materials Activities, Etc .  Each Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) make an appropriate response to any Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 
5.10.   Subsidiaries .   In the event that any Person becomes a Subsidiary of Holdings, the Credit Parties shall (a) concurrently with such Person becoming a Domestic Subsidiary cause such Subsidiary  to become a Company hereunder by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, and a Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement; and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates as are similar to those described in Sections 3.1(b), 3.1(i), 3.1(j), 3.1(k), and 3.1(n).  With respect to each such Subsidiary, the Company Representative shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary of Holdings, and (ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Holdings; provided, such written notice shall be deemed to supplement Schedule 4.1 and 4.2 for all purposes hereof.
 
5.11.   Additional Material Real Estate Assets .   In the event that any Credit Party acquires or leases a Material Real Estate Asset after the Closing Date or a Real Estate Asset owned or leased becomes a Material Real Estate Asset after the Closing Date and such interest has not otherwise been made subject to the Lien of the Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such Credit Party, contemporaneously with acquiring such Material Real Estate Asset, or promptly after a Real Estate Asset owned or leased becomes a Material Real Estate Asset (and in any event within 30 days or such longer period approved by the Administrative Agent in writing), shall take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates similar to those described in Sections 3.1(i), 3.1(j), 3.1(k) and 3.1(n) with respect to each such Material Real Estate Asset that Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Material Real Estate Assets.  In addition to the foregoing, the Credit Parties shall, at the request of Requisite Lenders, deliver, from time to time, to Administrative Agent such appraisals as are required by law or regulation of Real Estate Assets with respect to which Collateral Agent has been granted a Lien.
 
 
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5.12.   Reserved .
 
5.13.   Further Assurances .   At any time or from time to time upon the request of Administrative Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as Administrative Agent or Collateral Agent may reasonably request in order to effect fully the purposes of the Credit Documents, including providing Lenders with any information reasonably requested pursuant to Section 10.21.  In furtherance and not in limitation of the foregoing, each Credit Party shall take such actions as Administrative Agent or Collateral Agent may reasonably request from time to time to ensure that the Obligations remain the joint and several obligations of each and all Companies, remain guaranteed by the Guarantors and are secured by substantially all of the assets of Holdings, and its Subsidiaries and all of the outstanding Capital Stock of the Companies and their respective Subsidiaries.  No Credit Party (other than Holdings) shall, nor shall it permit any of its Subsidiaries to, issue any Capital Stock after the Closing Date unless concurrently with such issuance, the Credit Parties shall cause such Capital Stock to be subject to a perfected First Priority Lien in favor of the Collateral Agent for the benefit of the Secured Parties, and shall deliver all such documents, opinions, filings, searches and other deliverables as the Collateral Agent shall require in connection therewith.
 
5.14.   Miscellaneous Business Covenants .   Unless otherwise consented to by Agents and Requisite Lenders:
 
(a)            Non-Consolidation .  Holdings will and will cause each of its Subsidiaries to:  (i)  maintain entity records and books of account separate from those of any other entity which is an Affiliate of such entity; (ii) not commingle its funds or assets with those of any other entity which is an Affiliate of such entity; and (iii) provide that its board of directors or other analogous governing body will hold all appropriate meetings to authorize and approve such entity’s actions, which meetings will be separate from those of other entities.
 
 
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(b)            Cash Management Systems .  Holdings and its Subsidiaries shall establish and maintain cash management systems reasonably acceptable to Administrative Agent, including, without limitation, with respect to blocked account arrangements.
 
(c)            Communication with Accountants . Each Credit Party executing this Agreement authorizes Administrative Agent to communicate directly with such Credit Party’s independent certified public accountants and authorizes and shall instruct those accountants to communicate (including the delivery of audit drafts and letters to management) with Administrative Agent and each Lender information relating to any Credit Party with respect to the business, results of operations and financial condition of any Credit Party; provided however, that Administrative Agent or the applicable Lender, as the case may be, shall provide such Credit Party with notice at least two (2) Business Days prior to first initiating any such communication.
 
(d)       Activities of Management .  Each member of the senior management team of each Credit Party shall devote all or substantially all of his or her professional working time, attention, and energies to the management of the businesses of the Credit Parties.

5.15.   Post Closing Matters .  The Companies shall, and shall cause each of the Credit Parties to, satisfy the requirements set forth on Schedule 5.15 on or before the date specified for such requirement or such later date to be determined by the Agent.
 
 
SECTION 6.   NEGATIVE COVENANTS
 
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations, such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6.
 
6.1.   Indebtedness .   No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
 
(a)   the Obligations;
 
(b)   Indebtedness of any Company to any other Company; provided, (i) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Company under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to such Company or to any of its Subsidiaries for whose benefit such payment is made;
 
(c)   Indebtedness incurred by any Company or any of its Subsidiaries arising from agreements providing for indemnification or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Company or any such Subsidiary pursuant to such agreements, in connection with the Closing Date Acquisitions, Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of its Subsidiaries;
 
 
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(d)   Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory or appeal bonds or similar obligations incurred in the ordinary course of business;
 
(e)   Indebtedness in respect of netting services, overdraft protections and otherwise in connection with Deposit Accounts;
 
(f)   guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of any Company and its Subsidiaries;
 
(g)   guaranties by any Company of Indebtedness of another Company or guaranties by a Subsidiary of any Company of Indebtedness of such Company with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
 
(h)   Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided , such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
 
(i)     Indebtedness in an aggregate amount not to exceed at any time $5,000,000 with respect to (x) Capital Leases and (y) purchase money Indebtedness (including any Indebtedness acquired in connection with a Permitted Acquisition); provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (ii) constitute not less than 85% of the aggregate consideration paid with respect to such asset;
 
(j)   The Subordinated Debt in an aggregate principal amount not to exceed $2,700,000 at any time outstanding (other than any interest paid in kind in accordance with the subordination terms applicable to such Subordinated Debt); and
 
(k)   other unsecured Indebtedness of the Companies and their Subsidiaries other than the types listed in Section 6.1(a) – (j), which is unsecured and subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed at any time $250,000.
 
 
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No Credit Party shall, nor shall it permit any of its Subsidiaries to, issue any Capital Stock other than Qualified Capital Stock.  To the extent any other Capital Stock of the issuing Credit Party or Subsidiary is pledged to secure the Obligations, such additional Capital Stock shall also be pledged to secure the Obligations pursuant to the Pledge and Security Agreement.
 
6.2.   Liens .   No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC of any State or under any similar recording or notice statute, except:
 
(a)   Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Credit Document;
 
(b)   Liens for Taxes if obligations with respect to such Taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted (in a manner that causes the enforcement of any such Lien to be stayed) so long as the aggregate amount of such Taxes does not exceed $250,000;
 
(c)   statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) for amounts not yet overdue, or (ii) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings instituted and diligently conducted (in a manner that causes the enforcement of any such Lien to be stayed), so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;
 
(d)   Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof; provided , that the aggregate amount secured by Liens in connection with surety bonds and to secure the performance of tenders shall not exceed the sum of (x) $250,000 and (y) with respect to bonds posted in connection with customer contracts or the Credit Parties’ closure and post-closure obligations with respect to any landfill site, the minimum amount required by the bonding company (which shall be nationally or regionally recognized and reasonably acceptable to the Administrative Agent) with respect to such bond;
 
 
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(e)   easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of Holdings or any of its Subsidiaries;
 
(f)   any interest or title of a lessor or sublessor under any lease of real estate permitted hereunder;
 
(g)   Liens solely on any cash earnest money deposits made by Holdings or any of its Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
 
(h)   purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business;
 
(i)   Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
 
(j)   any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
 
(k)   licenses of patents, trademarks and other intellectual property rights granted by any Company or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of such Company or such Subsidiary;
 
(l)   Liens existing as of the Closing Date and described in Schedule 6.2;
 
(m)   Liens securing purchase money Indebtedness permitted pursuant to Section 6.1(i); provided , any such Lien shall encumber only the asset acquired with the proceeds of  such Indebtedness; and
 
(n)   other Liens on assets other than the Collateral and other than the types listed in Section 6.2(a) – (m) securing Indebtedness in an aggregate amount not to exceed $250,000 at any time outstanding.
 
6.3.   Equitable Lien .   If any Credit Party or any of its Subsidiaries shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall make or cause to be made effective provisions whereby the Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured; provided , notwithstanding the foregoing, this covenant shall not be construed as a consent by Requisite Lenders to the creation or assumption of any such Lien not otherwise permitted hereby.
 
6.4.   No Further Negative Pledges .   Except with respect to (a) specific property encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to a permitted Asset Sale and (b) restrictions by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to the property or assets secured by such Liens or the property or assets subject to such leases, licenses or similar agreements, as the case may be) no Credit Party nor any of its Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired.
 
 
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6.5.   Restricted Junior Payments .   No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except that so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Companies may make Restricted Junior Payments (i) to Holdings in an aggregate amount not to exceed $250,000 in any trailing twelve month period, to the extent necessary to permit Holdings to pay general administrative costs and expenses, (ii) to Holdings to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose, (iii) by any Credit Party to any Credit Party other than Holdings, (iv) consisting of the distribution of common stock of Holdings to Praesidian Capital Opportunity Fund III LP and Praesidian Capital Opportunity Fund III-A LP on the date hereof in exchange for the termination of warrants held by Praesidian Capital Opportunity Fund III LP and Praesidian Capital Opportunity Fund III-A LP on the terms set forth in that certain Warrant Cancellation Agreement, dated as of the date hereof, between Holdings and Praesidian Capital Opportunity Fund III LP and Praesidian Capital Opportunity Fund III-A LP, (v) so long as no Default or Event of Default has occurred and is continuing and such payment is otherwise permitted under the applicable subordination terms, (x) regularly scheduled interest payments on the Subordinated Debt at a rate not to exceed 8.00% per annum and (y) regularly scheduled payments of principal on the Drury Note in an amount not to exceed $80,000 in any period of four consecutive Fiscal Quarters; and (vi) in an aggregate amount not to exceed $2,000,000 to the sellers under the Christian Disposal Acquisition Agreement upon the renewal of that certain that certain Transfer Station Operation, Maintenance and Management Agreement, dated as of November 8, 2007, between FWCD, LLC and The City of O’Fallon Missouri; provided, that either (A) both prior to and after giving effect to such Restricted Junior Payment, (1) no Default or Event of Default shall have occurred and be continuing and (2) the Credit Parties shall be in pro forma compliance with the financial covenants set forth in Section 6.8 or (B) such Restricted Junior Payment is paid solely with the proceeds of issuances of common stock of Holdings.  Notwithstanding anything herein to the contrary, no amount shall be permitted to be distributed by any Credit Party to pay, or otherwise in connection with, any Tax resulting from the cancellation or discharge of Indebtedness.
 
6.6.   Restrictions on Subsidiary Distributions .   Except as provided herein, no Credit Party shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of Holdings to (a) pay dividends or make any other distributions on any of such Subsidiary’s Capital Stock owned by Holdings or any of its other Subsidiaries, (b) repay or prepay any Indebtedness owed by such Subsidiary to Holdings or any of its other Subsidiaries, (c) make loans or advances to any Credit Party, or (d) transfer any of its property or assets to any Credit Party other than restrictions (i) in agreements evidencing purchase money Indebtedness permitted by Section 6.1(j) that impose restrictions on the property so acquired, (ii) by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture agreements and similar agreements entered into in the ordinary course of business, and (iii) that are or were created by virtue of any transfer of, agreement to transfer or option or right with respect to any property, assets or Capital Stock not otherwise prohibited under this Agreement.
 
 
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6.7.   Investments .   No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including without limitation any Joint Venture and any Foreign Subsidiary, except:
 
(a)   Investments in Cash and Cash Equivalents;
 
(b)   equity Investments owned as of the Closing Date in any Subsidiary and Investments made after the Closing Date in any wholly owned Subsidiary of Holdings that becomes a Company as required hereunder;
 
(c)   Investments in deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Holdings and its Subsidiaries;
 
(d)   intercompany loans to the extent permitted under Section 6.1(b);
 
(e)   Consolidated Capital Expenditures permitted by Section 6.8(e);
 
(f)   loans and advances to employees of Holdings and its Subsidiaries (i) made in the ordinary course of business and described on Schedule 6.7, and (ii) any refinancings of such loans after the Closing Date in an aggregate amount not to exceed $250,000;
 
(g)   Investments made in connection with Permitted Acquisitions permitted pursuant to Section 6.9;
 
(h)   Investments described in Schedule 6.7;
 
(i)   the Closing Date Acquisitions; and
 
(j)   other Investments in an aggregate amount not to exceed at any time $250,000.
 
Notwithstanding the foregoing, in no event shall any Credit Party or any Subsidiary of a Credit Party make any Investment which results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under the terms of Section 6.5.
 
6.8.   Financial Covenants .
 
(a)   Fixed Charge Coverage Ratio .  Holdings shall not permit the Fixed Charge Coverage Ratio, as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2016, to be less than the correlative ratio indicated:
 
 
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Fiscal Quarter
Fixed Charge Coverage Ratio
March 31, 2016
1.00:1.00
June 30, 2016
1.00:1.00
September 30, 2016
1.00:1.00
December 31, 2016
1.00:1.00
March 31, 2017
1.10:1.00
June 30, 2017
1.10:1.00
September 30, 2017 and each Fiscal Quarter ending therafter
1.20:1.00

(b)   Leverage Ratio .  Holdings shall not permit the Leverage Ratio as of any date below, as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2015, to be less than the correlative ratio indicated:
 
Fiscal Quarter
Leverage Ratio
December 31, 2015
5.50:1.00
March 31, 2016
5.50:1.00
June 30, 2016
5.50:1.00
September 30, 2016
5.25:1.00
December 31, 2016
5.25:1.00
March 31, 2017
5.00:1.00
June 30, 2017
4.75:1.00
September 30, 2017
4.50:1.00
December 31, 2017
4.50:1.00
March 31, 2018
4.50:1.00
June 30, 2018
4.25:1.00
September 30, 2018
4.25:1.00
December 31, 2018
4.00:1.00
March 31, 2019
4.00:1.00
June 30, 2019
3.75:1.00
September 30, 2019
3.75:1.00
December 31, 2019
3.75:1.00
March 31, 2020
3.75:1.00
June 30, 2020
3.25:1.00
September 30, 2020
3.25:1.00
December 31, 2020 and each Fiscal Quarter ending thereafter
3.25:1.00

 
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(c)   Consolidated Adjusted EBITDA .  Holdings shall not permit Consolidated Adjusted EBITDA as at the end of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2016, for the four Fiscal Quarter period then ended to be less than the correlative amount indicated:
 
Fiscal Quarter
Consolidated Adjusted EBITDA
March 31, 2016
$8,000,000
June 30, 2016
$8,000,000
September 30, 2016
$8,000,000
December 31, 2016
$8,000,000
March 31, 2017
$8,500,000
June 30, 2017
$8,500,000
September 30, 2017
$8,750,000
December 31, 2017
$8,750,000
March 31, 2018
$9,000,000
June 30, 2018
$9,000,000
September 30, 2018
$9,250,000
December 31, 2018
$9,250,000
March 31, 2019 and each Fiscal Quarter ending thereafter
$9,500,000

(d)   Maximum Consolidated Growth Capital Expenditures .  Holdings shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Growth Capital Expenditures, in any Fiscal Year indicated below, in an aggregate amount for Holdings and its Subsidiaries in excess of the corresponding amount set forth below opposite such Fiscal Year; provided, such amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the aggregate amount for such Fiscal Year) of such amount for the previous Fiscal Year (as adjusted in accordance with this proviso) over the actual amount of Consolidated Growth Capital Expenditures for such previous Fiscal Year; provided further, that for the Fiscal Year ending December 31, 2015, Consolidated Growth Capital Expenditures shall be measured only for the period from the Closing Date through December 31, 2015:
 
Fiscal Year
Consolidated Growth Capital Expenditures
December 31, 2015
$250,000
December 31, 2016
$3,000,000
December 31, 2017
$750,000
December 31, 2018
$750,000
December 31, 2019
$1,750,000
December 31, 2020 and each Fiscal Year ending thereafter
$750,000

 
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(e)   Maximum Consolidated Corporate Overhead .  Holdings shall not permit Consolidated Corporate Overhead to exceed $1,200,000 in any period of twelve consecutive fiscal months.
 
(f)   Minimum Consolidated Liquidity .  Holdings shall not permit Consolidated Liquidity on any date to be less than $1,000,000.  From and after the date that is 90 days following the Closing Date for so long as the Drury Note is outstanding, Holdings shall not permit the amounts on deposit in the Drury Collateral Account to be less than $500,000.
 
(g)   Certain Calculations .  With respect to any period during which a Permitted Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of determining compliance with the financial covenants set forth in this Section 6.8 (but not for purposes of determining the Applicable Margin), Consolidated Adjusted EBITDA and the components of Consolidated Fixed Charges shall be calculated with respect to such period on a pro forma basis (including pro forma adjustments approved by Administrative Agent in its sole discretion) using the historical financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of Holdings and its Subsidiaries which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consum­mated or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans incurred during such period.
 
(h)   For the purposes of determining compliance with the covenant set forth at Section 6.8(c) following consummation of a Permitted Acquisition, each of the minimum Consolidated Adjusted EBITDA amounts set forth in Section 6.8(c) shall be increased by 100% of EBITDA of the entity or assets being acquired for the four quarter period most recently ended prior to the consummation of such Permitted Acquisition.
 
6.9.   Fundamental Changes; Disposition of Assets; Acquisitions .   No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
 
(a)   any Subsidiary of Holdings may be merged with or into any Company, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Company; provided, in the case of such a merger, such Company shall be the continuing or surviving Person;
 
 
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(b)   sales or other dispositions of assets that do not constitute Asset Sales;
 
(c)   Asset Sales, the proceeds of which (i) are less than $150,000 with respect to any single Asset Sale or series of related Asset Sales, and (ii) when aggregated with the proceeds of all other Asset Sales made within the trailing twelve month period, are less than $250,000; provided (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the applicable Company or Subsidiary (or similar governing body)), (2) no less than 100% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a);
 
(d)   disposals of obsolete or worn out property;
 
(e)   Permitted Acquisitions, the aggregate consideration (including without limitation, all transaction costs, assumed Indebtedness and other liabilities and deferred payments, including earnouts) for which constitutes less than (i) $3,500,000 with respect to any single Permitted Acquisition, (ii) $7,000,000 in any trailing twelve month period and (iii) $10,000,000 in the aggregate from the Closing Date to the date of determination;
 
(f)   the Closing Date Acquisitions; and
 
(g)   Investments made in accordance with Section 6.7.
 
6.10.   Disposal of Subsidiary Interests .   Except for any sale of all of its interests in the Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.9, no Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except to qualify directors if required by applicable law; or (b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except to another Credit Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify directors if required by applicable law.
 
6.11.   Sales and Lease-Backs .   No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell or to transfer to any other Person (other than Holdings or any of its Subsidiaries), or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by such Credit Party to any Person (other than Holdings or any of its Subsidiaries) in connection with such lease.
 
 
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6.12.   Transactions with Shareholders and Affiliates .   No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into, permit to exist or fail to enforce any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any holder of 5% or more of any class of Capital Stock of Holdings or any of its Subsidiaries (or any Affiliate of such holder) or with any Affiliate of Holdings or of any such holder; provided, however, that the Credit Parties and their Subsidiaries may enter into or permit to exist any such transaction if both (i) the Administrative Agent has consented thereto in writing prior to the consummation thereof and (ii) the terms of such transaction are not less favorable to Holdings or that Subsidiary, as the case may be, than those that might be obtained at the time from a Person who is not such a holder or Affiliate; further, provided, that the foregoing restrictions shall not apply to (a) any transaction between and among any Company and any other Company; (b) reasonable and customary fees paid to members of the board of directors (or similar governing body) of Holdings and its Subsidiaries; (c) compensation arrangements for officers and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business; and (d) transactions described in Schedule 6.12.  The Credit Parties shall disclose in writing each transaction with any holder of 5% or more of any class of Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or of any such holder to Administrative Agent.
 
6.13.   Conduct of Business; Foreign Subsidiaries .  From and after the Closing Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to, engage in any business other than the businesses engaged in by any Credit Party on the Closing Date. No Credit Party shall form, create, or incorporate any Foreign Subsidiary.
 
6.14.   Permitted Activities of Holdings .   Holdings shall not (a) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than the Indebtedness and obligations under the Credit Documents and Related Agreements; (b) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by it other than the Liens created under the Collateral Documents to which it is a party or permitted pursuant to Section 6.2; (c) engage in any business or activity or own any assets other than (i) holding 100% of the Capital Stock of the Companies; (ii) performing its obligations and activities incidental thereto under the Credit Documents, and to the extent not inconsistent therewith, the Related Agreements; and (iii) making Restricted Junior Payments and Investments to the extent permitted by this Agreement; (d) consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person; (e) sell or otherwise dispose of any Capital Stock of any of its Subsidiaries; (f) create or acquire any Subsidiary or make or own any Investment in any Person other than the Credit Parties; (g) issue any Capital Stock after the Closing Date, other than common shares of Capital Stock; or (h) fail to hold itself out to the public as a legal entity separate and distinct from all other Persons.
 
6.15.   Amendments or Waivers of Certain Related Agreements .   No Credit Party shall nor shall it permit any of its Subsidiaries to, agree to any material amendment, restatement, supplement or other modification to, or waiver of, any of its material rights under any Related Agreement after the Closing Date without in each case obtaining the prior written consent of Administrative Agent and Requisite Lenders to such amendment, restatement, supplement or other modification or waiver.
 
 
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6.16.   Compliance with Reporting Requirements. From and after the Closing Date, to the extent applicable to Holdings, Holdings shall comply with the Securities Act, Exchange Act, the rules and regulations promulgated thereunder and each other law, rule and regulation applicable to Holdings due to its status as a publicly traded company.  Holdings shall at all times maintain systems of internal controls and corporate governance standards consistent with best practices for a publicly traded company of its size.  Without limiting the foregoing, Holdings shall ensure that all filings with the Securities and Exchange Commission required under the Securities Act, Exchange Act or the rules and regulations thereunder are made on or prior to the date required thereunder without giving effect to any extension or possible extension of such dates permitted thereunder.

6.17.   Fiscal Year .   No Credit Party shall, nor shall it permit any of its Subsidiaries to change its Fiscal Year-end from December 31.
 
6.18.   Deposit Accounts .   From and after the date required under Section 5.15, no Credit Party shall establish or maintain a Deposit Account that is not a Controlled Account and no Credit Party will deposit proceeds in a Deposit Account which is not a Controlled Account.
 
6.19.   Amendments to Organizational Agreements and Material Contracts .   No Credit Party shall (a) amend or permit any amendments to any Credit Party's Organizational Documents; or (b) amend or permit any amendments to, or terminate or waive any provision of, any Material Contract if such amendment, termination, or waiver would be adverse to Administrative Agent or the Lenders.
 
6.20.   Prepayments of Certain Indebtedness .   No Credit Party shall, nor shall it permit any of its Affiliates to, directly or indirectly, purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than (i) the Obligations, and (ii) Indebtedness secured by a Permitted Lien if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Section 6.9 .
 
6.21.             Closure and Post-Closure Liabilities.   No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain liable with respect to any closure and/or post-closure liabilities, as reflected on the most recent balance sheet of Holdings and its Subsidiaries delivered in accordance Section 5.1(a), in excess of $2,500,000.  It is understood and agreed that the Credit Parties shall be required to deliver bonds or other financial assurance instruments to the Missouri Department of Natural Resources with respect to such closure and post-closure liabilities.
 
SECTION 7.   GUARANTY
 
7.1.   Guaranty of the Obligations .
 
 
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(a)   Subject to the provisions of Section 7.2, each Company, jointly and severally, hereby irrevocably and unconditionally guarantees to Administrative Agent for the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations of the other Companies when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “ Company Guaranteed Obligations ”) and agrees that all Obligations, including all interest, fees and expenses with respect thereto and all indemnity and reimbursement obligations hereunder, constitute one joint and several direct and general obligation of all Companies.  Notwithstanding anything to the contrary contained herein, each Company shall be jointly and severally, with each other Company, directly and unconditionally, liable for all Obligations, it being understood that the advances to each Company inure to the benefit of all Companies, and that the Administrative Agent and the Lenders are relying on the joint and several liability of the Companies as co-makers in extending the Loans hereunder.  Each Company hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any principal of, or interest on, any Obligation, it will forthwith pay the same, without notice or demand, unless such payment is then prohibited by applicable law.
 
(b)   Each Guarantor hereby irrevocably and unconditionally guaranty to Administrative Agent for the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively with the Company Guaranteed Obligations, the “ Guaranteed Obligations ”).
 
7.2.   Contribution by Credit Parties .   All Credit Parties desire to allocate among themselves (collectively, the “ Contributing Credit Parties ”), in a fair and equitable manner, their obligations arising under this Guaranty.  Accordingly, in the event any payment or distribution is made on any date by any Credit Party, as applicable (a “ Funding Credit Party ”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Credit Party shall be entitled to a contribution from each of the other Contributing Credit Parties in an amount sufficient to cause each Contributing Credit Party’s Aggregate Payments to equal its Fair Share as of such date.  “ Fair Share ” means, with respect to a Contributing Credit Party as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Credit Party, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Credit Parties multiplied by, (b) the aggregate amount paid or distributed on or before such date by all Funding Credit Parties under this Guaranty in respect of the obligations Guaranteed.  “Fair Share Contribution Amount” means, with respect to a Contributing Credit Party as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Credit Party under this Guaranty that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “ Fair Share Contribution Amount ” with respect to any Contributing Credit Party for purposes of this Section 7.2, any assets or liabilities of such Contributing Credit Party arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Credit Party.  “Aggregate Payments” means, with respect to a Contributing Credit Party as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Credit Party in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Credit Party from the other Contributing Credit Parties as contributions under this Section 7.2.  The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Credit Party.  The allocation among Contributing Credit Parties of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Credit Party hereunder.  Each Credit Party is a third party beneficiary to the contribution agreement set forth in this Section 7.2.
 
 
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7.3.   Payment by Credit Parties .   Subject to Section 7.2, the Credit Parties hereby jointly and severally agree, in furtherance of the foregoing and not in limitation of any other right which any Beneficiary may have at law or in equity against any Credit Party by virtue hereof, that upon the failure of any Credit Party to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.  § 362(a)), the other Credit Parties will upon demand pay, or cause to be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for any Credit Party’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against any Credit Party for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.
 
7.4.   Liability of Credit Parties Absolute .   Each Credit Party agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guaranteed Obligations.  In furtherance of the foregoing and without limiting the generality thereof, each Credit Party agrees as follows:
 
(a)   this Guaranty is a guaranty of payment when due and not of collectability.  This Guaranty is a primary obligation of each Credit Party and not merely a contract of surety;
 
(b)   Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between Company and any Beneficiary with respect to the existence of such Event of Default;
 
(c)   the obligations of each Credit Party hereunder are independent of the obligations of the other Credit Parties and the obligations of any other guarantor of the obligations of the Companies, and a separate action or actions may be brought and prosecuted against such Credit Party whether or not any action is brought against any other Credit Party or any of such other guarantors and whether or not any Credit Party is joined in any such action or actions;
 
 
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(d)   payment by any Credit Party of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Credit Party's liability for any portion of the Guaranteed Obligations which has not been paid.  Without limiting the generality of the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce any Credit Party's covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Credit Party from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Credit Party, limit, affect, modify or abridge any other Credit Party's liability hereunder in respect of the Guaranteed Obligations;
 
(e)   any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Credit Party's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Credit Party) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith or the applicable Interest Rate Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Credit Party against any other Credit Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit Documents or Interest Rate Agreements; and
 
(f)   this Guaranty and the obligations of Credit Parties hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any of the following, whether or not any Credit Party shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents or any Interest Rate Agreement, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Credit Documents, any of the Interest Rate Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Credit Documents or any of the Interest Rate Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set offs or counterclaims which any Credit Party may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Credit Party as an obligor in respect of the Guaranteed Obligations.
 
 
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7.5.   Waivers by Credit Parties .   Each Credit Party hereby waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition of payment or performance by such Credit Party, to (i) proceed against any Credit Party, any other guarantor of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from any Credit Party, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of any Credit Party or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any Credit Party including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Credit Party from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Credit Party’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Credit Party’s liability hereunder or the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, the Interest Rate Agreements  or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to any Company and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
 
 
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7.6.   Credit Parties’ Rights of Subrogation, Contribution, etc.   Until the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled, each Credit Party hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against any other Credit Party or any of its assets in connection with this Guaranty or the performance by such Credit Party of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (a) any right of subrogation, reimbursement or indemnification that such Credit Party now has or may hereafter have against any other Credit Party with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against any other Credit Party, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary.  In addition, until the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled, each Credit Party shall withhold exercise of any right of contribution such Credit Party may have against any other obligor (including any other Credit Party) of the Guaranteed Obligations, including, without limitation, any such right of contribution as contemplated by Section 7.2.  Each Credit Party further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Credit Party may have against any other Credit Party or against any collateral or security, and any rights of contribution such Credit Party may have against any such other guarantor, shall be junior and subordinate to any rights any Beneficiary may have against any Credit Party, to all right, title and interest any Beneficiary may have in any such collateral or security, and to any right any Beneficiary may have against such other guarantor.  If any amount shall be paid to any Credit Party on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
 
 
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7.7.   Subordination of Other Obligations .   Any Indebtedness of any Credit Party now or hereafter held by any other Credit Party (the “ Obligee Credit Party ”) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such indebtedness collected or received by the Obligee Credit Party after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Credit Party under any other provision hereof.
 
7.8.   Continuing Guaranty .   This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated.  Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.
 
7.9.   Authority of Credit Parties .   It is not necessary for any Beneficiary to inquire into the capacity or powers of any Credit Party or the officers, directors or any agents acting or purporting to act on behalf of any of them.
 
7.10.   Financial Condition of Credit Parties .   Any Credit Extension may be made to any Company or continued from time to time, and any Interest Rate Agreements may be entered into from time to time, in each case without notice to or authorization from any other Credit Party regardless of the financial or other condition of any Credit Party at the time of any such grant or continuation or at the time such Interest Rate Agreement is entered into, as the case may be.  No Beneficiary shall have any obligation to disclose or discuss with any Credit Party its assessment, or any Credit Party’s assessment, of the financial condition of any other Credit Party.  Each Credit Party has adequate means to obtain information from each other Credit Party on a continuing basis concerning the financial condition of such Credit Party and its ability to perform its obligations under the Credit Documents and the Interest Rate Agreements, and each Credit Party assumes the responsibility for being and keeping informed of the financial condition of each other Credit Party and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations.  Each Credit Party hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of any other Credit Party now known or hereafter known by any Beneficiary.
 
7.11.   Bankruptcy, etc.
 
(a)     (a)  So long as any Guaranteed Obligations remain outstanding, no Credit Party shall, without the prior written consent of Administrative Agent acting pursuant to the instructions of Requisite Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or proceeding of or against any other Credit Party.  The obligations of the Credit Parties hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of any other Credit Party or by any defense which any other Credit Party may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.
 
(b)   Each Credit Party acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of the Credit Parties and Beneficiaries that the Guaranteed Obligations which are guaranteed by the Credit Parties pursuant hereto should be determined without regard to any rule of law or order which may relieve any Credit Party of any portion of such Guaranteed Obligations.  The Credit Parties will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.
 
 
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(c)   In the event that all or any portion of the Guaranteed Obligations are paid by any Credit Party, the obligations of the other Credit Parties hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
 
7.12.   Discharge of Guaranty Upon Sale of Guarantor .   If all of the Capital Stock of any Credit Party or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such Credit Party or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by any Beneficiary or any other Person effective as of the time of such Asset Sale.
 
7.13.   Qualified ECP Credit Party.
 
  Each Qualified ECP Credit Party hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Credit Party to honor all of its obligations under this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Credit Party shall only be liable under this Section 7.13 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 7.13 or otherwise under this Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Credit Party under this Section 7.13 shall remain in full force and effect until a payment in full in Cash of the Guaranteed Obligations.  Each Qualified ECP Credit Party intends that this Section 7.13 constitute, and this Section 7.13 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
 
 
SECTION 8.   EVENTS OF DEFAULT
 
 
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8.1.   Events of Default .   If any one or more of the following conditions or events shall occur:
 
(a)   Failure to Make Payments When Due .  Failure by Companies to pay (i) when due the principal of and premium, if any, on any Loan whether at stated maturity, by acceleration or otherwise; (ii) when due any installment of principal of any Loan, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (iii) within one Business Day of when due any interest on any Loan or any fee or any other amount due hereunder or under any other Credit Document.
 
(b)   Default in Other Agreements .  (i) Failure of any Credit Party or any of its Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of (x) the Subordinated Debt or (y) any other Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an individual principal amount of $50,000 or more or with an aggregate principal amount of $100,000 or more, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by any Credit Party or any of its Subsidiaries with respect to any other material term of (1) one or more items of Subordinated Debt or other Indebtedness in the individual or aggregate principal amounts referred to in clause (i) above, or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or
 
(c)   Breach of Certain Covenants .  Failure of any Credit Party to perform or comply with any term or condition contained in Section 2.5, Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.5, Section 5.6, Section 5.7, Section 5.8, Section 5.9, Section 5.10, Section 5.11, Section 5.14, Section 5.15 or Section 6; or
 
(d)   Breach of Representations, etc.   Any representation, warranty, certification or other statement made or deemed made by any Credit Party in any Credit Document or in any statement or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect as of the date made or deemed made; or
 
(e)   Other Defaults Under Credit Documents .  Any Credit Party shall default in the performance of or compliance with any term contained herein or any of the other Credit Documents, other than any such term referred to in any other Section of this Section 8.1, and such default shall not have been remedied or waived within thirty days after the earlier of (i) an officer of such Credit Party becoming aware of such default, or (ii) receipt by the Company of notice from Administrative Agent or any Lender of such default; or
 
(f)   Involuntary Bankruptcy; Appointment of Receiver, etc.   (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of Holdings or any of its Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against Holdings or any of its Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Holdings or any of its Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Holdings or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Holdings or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for sixty days without having been dismissed, bonded or discharged; or
 
 
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(g)   Voluntary Bankruptcy; Appointment of Receiver, etc .  (i) Holdings or any of its Subsidiaries shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or Holdings or any of its Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Holdings or any of its Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of Holdings or any of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 8.1(f); or
 
(h)   Judgments and Attachments .  Any money judgment, writ or warrant of attachment or similar process involving (i) in any individual case an amount in excess of $100,000 or (ii) in the aggregate at any time an amount in excess of $200,000 (in either case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Holdings or any of its Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty days (or in any event later than five days prior to the date of any proposed sale thereunder); or
 
(i)   Dissolution .  Any order, judgment or decree shall be entered against any Credit Party or any of its Subsidiaries decreeing the dissolution or split up of such Credit Party or any of its Subsidiaries and such order shall remain undischarged or unstayed for a period in excess of thirty days; or
 
(j)   Employee Benefit Plans .  (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or might reasonably be expected to result in liability of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of $100,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to result in the imposition of a Lien or security interest under Section 430(k) of the Internal Revenue Code or under Section 303(k) of ERISA; or
 
 
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(k)   Change of Control .  A Change of Control shall occur; or
 
(l)   Guaranties, Collateral Documents and other Credit Documents .  At any time after the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the priority required by the relevant Collateral Document, in each case for any reason other than the failure of Collateral Agent or any Secured Party to take any action within its control, or (iii) any Credit Party shall contest the validity or enforceability of any Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Credit Document to which it is a party; or
 
(m)   Termination of Material Contract .  At any time any Material Contract is terminated by the counterparty thereto prior to the stated expiration or termination date of such Material Contract (other than a termination without cause by such counterparty which constitutes a breach of the applicable Material Contract);
 
THEN , (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or with the consent of) Requisite Lenders, upon notice to the Company Representative by Administrative Agent, (A) the Commitments, if any, of each Lender having such Commitments shall immediately terminate; (B) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued interest on the Loans and (II) all other Obligations; and (C) Administrative Agent may cause Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents.
 
 
SECTION 9.   AGENTS
 
9.1.   Appointment of Agents .   GSSLG is hereby appointed Administrative Agent and Collateral Agent hereunder and under the other Credit Documents and each Lender hereby authorizes GSSLG, in such capacity, to act as its agent in accordance with the terms hereof and the other Credit Documents.  Each Agent hereby agrees to act upon the express conditions contained herein and the other Credit Documents, as applicable.  The provisions of this Section 9 are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any of the provisions thereof.  In performing its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings or any of its Subsidiaries.
 
 
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9.2.   Powers and Duties .   Each Lender irrevocably authorizes each Agent to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto.  Each Lender further irrevocably authorizes each of the Administrative Agent and Collateral Agent to execute and deliver the Credit Documents to which it is a party and to exercise its rights and remedies thereunder.  Each Agent shall have only those duties and responsibilities that are expressly specified herein and the other Credit Documents.  Each Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees.  No Agent shall have, by reason hereof or any of the other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents except as expressly set forth herein or therein.
 
9.3.   General Immunity .
 
(a)   No Responsibility for Certain Matters .  No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing.  Anything contained herein to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or the component amounts thereof.
 
(b)   Exculpatory Provisions .  No Agent nor any of its officers, partners, directors, employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order.  Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions.  Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Holdings and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5).
 
 
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9.4.   Agents Entitled to Act as Lender .   The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder.  With respect to its participation in the Loans, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity.  Any Agent and its Affiliates may accept deposits from, lend money to, own Securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Company for services in connection herewith and otherwise without having to account for the same to Lenders.
 
9.5.   Lenders’ Representations, Warranties and Acknowledgment .
 
(a)   Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Holdings and its Subsidiaries.  No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders.
 
(b)   Each Lender, by delivering its signature page to this Agreement and funding its Tranche A Term Loan, MDTL Term Loan and/or Revolving Loans on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date and on the date of funding of such Loans.
 
(c)   Each Lender (i) represents and warrants that as of the Closing Date neither such Lender nor its Affiliates or Related Funds owns or controls, or owns or controls any Person owning or controlling, any trade debt or Indebtedness of any Credit Party other than the Obligations or any Capital Stock of any Credit Party (other than the Warrants) and (ii) covenants and agrees that from and after the Closing Date neither such Lender nor its Affiliates and Related Funds shall purchase any trade debt or Indebtedness of any Credit Party other than the Obligations or Capital Stock described in clause (i) above without the prior written consent of the Administrative Agent.
 
 
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9.6.   Right to Indemnity .   Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, their Affiliates and their respective officers, partners, directors, trustees, employees and agents of each Agent (each, an “Indemnitee Agent Party” ), to the extent that such Indemnitee Agent Party shall not have been reimbursed by any Credit Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Credit Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY ; provided , no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order.  If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided , in no event shall this sentence require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further , this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
 
9.7.   Successor Administrative Agent and Collateral Agent .
 
(a)   Administrative Agent and Collateral Agent may resign at any time by giving thirty days’ prior written notice thereof to Lenders and the Company Representative.  Upon any such notice of resignation, Requisite Lenders shall have the right, upon five Business Days’ notice to the Company Representative, to appoint a successor Administrative Agent and Collateral Agent.  If, after 30 days after the date of the retiring Agent’s notice of resignation, no successor Agent has been appointed by the Requisite Lenders that has accepted such appointment, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent from among the Lenders.  Upon the acceptance of any appointment as Administrative Agent and Collateral Agent hereunder by a successor Administrative Agent and Collateral Agent, that successor Administrative Agent and Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and Collateral Agent and the retiring Administrative Agent and Collateral Agent shall promptly (i) transfer to such successor Administrative Agent and Collateral Agent all sums, Securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent and Collateral Agent under the Credit Documents, and (ii) execute and deliver to such successor Administrative Agent and Collateral Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent and Collateral Agent of the security interests created under the Collateral Documents, whereupon such retiring Administrative Agent and Collateral Agent shall be discharged from its duties and obligations hereunder.  After any retiring Administrative Agent’s and Collateral Agent’s resignation hereunder as Administrative Agent and Collateral Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent and Collateral Agent hereunder.
 
 
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(b)   Notwithstanding anything herein to the contrary, Administrative Agent and Collateral Agent may assign their rights and duties as Administrative Agent and Collateral Agent hereunder to an Affiliate of GSSLG without the prior written consent of, or prior written notice to, the Company Representative or the Lenders; provided that the Credit Parties and the Lenders may deem and treat such assigning Administrative Agent and Collateral Agent as the Administrative Agent and Collateral Agent for all purposes hereof, unless and until such assigning Administrative Agent or Collateral Agent, as the case may be, provides written notice to the Company Representative and the Lenders of such assignment.  Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent and Collateral Agent hereunder and under the other Credit Documents.
 
9.8.   Collateral Documents and Guaranty .
 
(a)   Agents under Collateral Documents and Guaranty .  Each Lender hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty, the Collateral and the Collateral Documents.  Subject to Section 10.5, without further written consent or authorization from Lenders, Administra­tive Agent or Collateral Agent, as applicable may execute any documents or instruments necessary to (i) release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented, or (ii) release any Credit Party from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented.
 
(b)   Right to Realize on Collateral and Enforce Guaranty .  Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, Administrative Agent, Collateral Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale.
 
 
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SECTION 10.   MISCELLANEOUS
 
10.1.   Notices .   Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Credit Party, Collateral Agent or Administrative Agent shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise indicated to Administrative Agent in writing.  Each notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided , no notice to any Agent shall be effective until received by such Agent.
 
10.2.   Expenses .   Whether or not the transactions contemplated hereby shall be consummated, the Companies agree to pay promptly (a) all the Administrative Agent’s actual and reasonable costs and expenses of preparation of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b) all the Agents’ costs of furnishing all opinions by counsel for the Credit Parties; (c) all the reasonable fees, expenses and disbursements of counsel to Agents in connection with the negotiation, preparation, execution and administration of the Credit Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by any Company; (d) all the actual costs and reasonable expenses of creating and perfecting Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of counsel to each Agent and of counsel providing any opinions that any Agent or Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (e) all the Administrative Agent’s actual costs and reasonable fees, expenses for, and disbursements of any of Administrative Agent’s, auditors, accountants, consultants or appraisers whether internal or external, and all reasonable attorneys’ fees (including allocated costs of internal counsel and expenses and disbursements of outside counsel) incurred by Administrative Agent; (f) all the actual costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (g) all other actual and reasonable costs and expenses incurred by each Agent in connection with the syndication of the Loans and Commitments and the negotiation, preparation and execution of the Credit Documents and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby; and (h) after the occurrence of a Default or an Event of Default, all costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel) and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.
 
 
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10.3.   Indemnity .
 
(a)   In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender, their Affiliates and their respective officers, partners, directors, trustees, employees and agents of each Agent and each Lender (each, an “Indemnitee” ), from and against any and all Indemnified Liabilities,   IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE ; provided , no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, of that Indemnitee.  To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.
 
(b)   To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against Lenders, Agents and their respective Affiliates, directors, employees, attorneys or agents, on any theory of liability, for special, indirect, consequential or punitive damages  (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
 
10.4.   Set-Off .   In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender and its Affiliates each of is hereby authorized by each Credit Party at any time or from time to time subject to the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Credit Party or to any other Person (other than Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts (in whatever currency)) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Credit Party (in whatever currency) against and on account of the obligations and liabilities of any Credit Party to such Lender hereunder, and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto or with any other Credit Document, irrespective of whether or not (a) such Lender shall have made any demand hereunder, (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Section 2 and although such obligations and liabilities, or any of them, may be contingent or unmatured or (c) such obligation or liability is owed to a branch or office of such Lender different from the branch or office holding such deposit or obligation or such Indebtedness.
 
 
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10.5.   Amendments and Waivers .
 
(a)   Requisite Lenders’ Consent .  Subject to Sections 10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the Credit Documents (other than the Fee Letter, Warrant Agreement or Warrants), or consent to any departure by any Credit Party therefrom, shall in any event be effective without the written concurrence of Administrative Agent and the Requisite Lenders.
 
(b)   Affected Lenders’ Consent .  Without the written consent of each Lender  (other than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination of, or any consent to departure from, any of the Credit Documents (other than the Fee Letter, Warrant Agreement or Warrants) shall be effective if the effect thereof would:
 
(i)   extend the scheduled final maturity of any Loan or Note;
 
(ii)   waive, reduce or postpone any scheduled repayment (but not prepayment);
 
(iii)   reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.9) or any fee payable hereunder;
 
(iv)   extend the time for payment of any such interest or fees;
 
(v)   reduce the principal amount of any Loan;
 
(vi)   amend, modify, terminate or waive any provision of this Section 10.5(b) or Section 10.5(c);
 
(vii)   amend the definition of “Requisite Lenders” or “Pro Rata Share”; provided , with the consent of Administrative Agent and the Requisite Lenders, additional extensions of credit pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the Term Loan Commitments, the Term Loans, the Revolving Commitments and the Revolving Loans are included on the Closing Date;
 
(viii)   release all or substantially all of the Collateral or all or substantially all of the Credit Parties from the Guaranty except as expressly provided in the Credit Documents; or
 
 
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(ix)   consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Credit Document.
 
(c)   Other Consents .  No amendment, modification, termination or waiver of any provision of the Credit Documents (other than the Fee Letter, Warrant Agreement or Warrants), or consent to any departure by any Credit Party therefrom, shall:
 
(i)   increase any Revolving Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided , no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Revolving Commitment of any Lender;
 
(ii)   amend the definition of “Requisite Class Lenders without the consent of Requisite Class Lenders of each Class; provided , with the consent of Administrative Agent and the Requisite Lenders, additional extensions of credit pursuant hereto may be included in the determination of such “Requisite Class Lenders” on substantially the same basis as the Term Loan Commitments, the Term Loans, the Revolving Commitments and the Revolving Loans are included on the Closing Date;
 
(iii)   amend, modify, terminate or waive any provision of Section 3.2(a) with regard to any Credit Extension (whether constituting a Revolving Loan or a Term Loan) without the consent of Requisite Class Lenders of the affected Class;
 
(iv)   alter the required application of any repayments or prepayments as between Classes pursuant to Section 2.14 without the consent of Requisite Class Lenders of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided , Administrative Agent and the Requisite Lenders may waive, in whole or in part, any prepayment so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered; or
 
(v)   amend, modify, terminate or waive any provision of Section 9 as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent.
 
(d)   Execution of Amendments, etc.   Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such  Lender.  Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.  No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances.  Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.
 
10.6.   Successors and Assigns; Participations .
 
(a)   Generally .  This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of the Lenders.  No Credit Party’s rights or obligations hereunder nor any interest therein may be assigned or delegated by any Credit Party without the prior written consent of all Lenders.  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, Indemnitee Agent Parties under Section 9.6, Indemnitees under Section 10.3, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
 
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(b)   Register .  The Companies, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been delivered to and accepted by Administrative Agent and recorded in the Register as provided in Section 10.6(e).  Prior to such recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.
 
(c)   Right to Assign .  Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including, without limitation, all or a portion of its Commitment or Loans owing to it or other Obligations ( provided , however , that each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any Loan and any related Commitments):
 
(i)   to any Person meeting the criteria of clause (i)(a) or clause (ii)(a) of the definition of the term of “Eligible Assignee” upon the giving of notice to Administrative Agent; and
 
(ii)   to any Person otherwise constituting an Eligible Assignee with the consent of Administrative Agent; provided , each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than (A) $1,000,000 (or such lesser amount as may be agreed to by the Company and Administrative Agent or as shall constitute the aggregate amount of the Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the assignment of the Revolving Commitments and Revolving Loans and (B) $1,000,000 (or such lesser amount as may be agreed to by the Company and Administrative Agent or as shall constitute the aggregate amount of the Tranche A Term Loan or MDTL Term Loan of the assigning Lender) with respect to the assignment of Term Loans.
 
(d)   Mechanics .  The assigning Lender and the assignee thereof shall execute and deliver to Administrative Agent an Assignment Agreement, together with such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to Section 2.19(c).
 
 
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(e)   Notice of Assignment .  Upon its receipt and acceptance of a duly executed and completed Assignment Agreement, any forms, certificates or other evidence required by this Agreement in connection therewith, Administrative Agent shall record the information contained in such Assignment Agreement in the Register, shall give prompt notice thereof to the Company Representative and shall maintain a copy of such Assignment Agreement.
 
(f)   Representations and Warranties of Assignee .  Each Lender, upon execution and delivery hereof or upon executing and delivering an Assignment Agreement, as the case may be, represents and warrants as of the Closing Date or as of the applicable Effective Date (as defined in the applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commit­ments or Loans, as the case may be; (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course of its business and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Revolving Commitments or Loans or any interests therein shall at all times remain within its exclusive control); and (iv) such Lender does not own or control, or own or control any Person owning or controlling, any trade debt or Indebtedness of any Credit Party other than the Obligations or any Capital Stock of any Credit Party.
 
(g)   Effect of Assignment .  Subject to the terms and conditions of this Section 10.6, as of the “Effective Date” specified in the applicable Assignment Agreement: (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent such rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto; provided , anything contained in any of the Credit Documents to the contrary notwithstanding such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be modified to reflect the Commitment of such assignee and any Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon Companies shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
 
 
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(h)   Participations .  Each Lender shall have the right at any time to sell one or more participations to any Person (other than Holdings, any of its Subsidiaries or any of its Affiliates) in all or any part of its Commitments, Loans or in any other Obligation.  The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement, or (iii) release all or substantially all of the Collateral under the Collateral Documents or all or substantially all of the Credit Parties from the Guaranty (in each case, except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating.  The Companies agrees that each participant shall be entitled to the benefits of Sections 2.17(c), 2.18 and 2.19 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (c) of this Section; provided , (i) a participant shall not be entitled to receive any greater payment under Section 2.18 or 2.19 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with the Company Representative’s prior written consent, and (ii) a participant that would be a Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.19 unless the Company Representative is notified of the participation sold to such participant and such participant agrees, for the benefit of the Companies, to comply with Section 2.19 as though it were a Lender.  To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16 as though it were a Lender.
 
(i)   Certain Other Assignments .  In addition to any other assignment permitted pursuant to this Section 10.6, any Lender may assign, pledge and/or grant a security interest in, all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender including, without limitation, any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank; provided , no Lender, as between Companies and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided further , in no event shall the applicable Federal Reserve Bank, pledgee or trustee be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
 
10.7.   Independence of Covenants .   All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
 
 
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10.8.   Survival of Representations, Warranties and Agreements .   All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension.  Notwithstanding anything herein or implied by law to the contrary, the agreements of each Credit Party set forth in Sections 2.17(c), 2.18, 2.19, 10.2, 10.3, 10.4, and 10.10 and the agreements of Lenders set forth in Sections 2.16, 9.3(b) and 9.6 shall survive the payment of the Loans, and the termination hereof.
 
10.9.   No Waiver; Remedies Cumulative .   No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege.  The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents or any of the Interest Rate Agreements.  Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
 
10.10.   Marshalling; Payments Set Aside .   Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations.  To the extent that any Credit Party makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative Agent, Collateral Agent or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
 
10.11.   Severability .   In case any provision in or obligation hereunder or any Note or other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
 
10.12.   Obligations Several; Actions in Concert .   The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder.  Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. Anything in this Agreement or any other Credit Document to the contrary notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights arising out of this Agreement or any Note or otherwise with respect to the Obligations without first obtaining the prior written consent of the Administrative Agent or Requisite Lenders (as applicable), it being the intent of Lenders that any such action to protect or enforce rights under this Agreement and any Note or otherwise with respect to the Obligations shall be taken in concert and at the direction or with the consent of Administrative Agent or Requisite Lenders (as applicable).
 
 
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10.13.   Headings .   Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
 
10.14.   APPLICABLE LAW .  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THEREOF.
 
10.15.   CONSENT TO JURISDICTION .  (A) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1 AND TO ANY PROCESS AGENT SELECTED IN ACCORDANCE WITH SECTION 3.1(cc) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEED­ING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (d) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
 
 (B)            EACH CREDIT PARTY HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES PERTAINING TO IT AS SPECIFIED IN SECTION 10.1 OR ON NATIONAL CORPORATE RESEARCH, LTD., LOCATED AT 10 E. 40TH STREET, 10TH FLOOR, NEW YORK, NY 10016 (ATTENTION:  COLLEEN DE VRIES), AND HEREBY APPOINTS NATIONAL CORPORATE RESEARCH, LTD. AS ITS AGENT TO RECEIVE SUCH SERVICE OF PROCESS.  ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST ANY CREDIT PARTY IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE.  IN THE EVENT NATIONAL CORPORATE RESEARCH, LTD. SHALL NOT BE ABLE TO ACCEPT SERVICE OF PROCESS AS AFORESAID AND IF ANY CREDIT PARTY SHALL NOT MAINTAIN AN OFFICE IN NEW YORK CITY, SUCH CREDIT PARTY SHALL PROMPTLY APPOINT AND MAINTAIN AN AGENT QUALIFIED TO ACT AS AN AGENT FOR SERVICE OF PROCESS WITH RESPECT TO THE COURTS SPECIFIED IN THIS SECTION 10.15 ABOVE, AND ACCEPTABLE TO THE ADMINISTRATIVE AGENT, AS EACH CREDIT PARTY'S AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON EACH CREDIT PARTY'S BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION, SUIT OR PROCEEDING.
 
 
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10.16.   WAIVER OF JURY TRIAL .  EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.  EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
 
 
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10.17.   Confidentiality .   Each Lender shall hold all non-public information regarding Companies and their respective Subsidiaries and their businesses identified as such by the Company Representative and obtained by such Lender pursuant to the requirements hereof in accordance with such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by Companies that, in any event, a Lender may make (i) disclosures of such information to Affiliates of such Lender and to their agents and advisors (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by such Lender of any Loans or any participations therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) in Interest Rate Agreements (provided, such counterparties and advisors are advised of and agree to be bound by the provisions of this Section 10.17), (iii) disclosure to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to the Credit Parties received by it from any of the Agents or any Lender, (iv) disclosure to any Lender’s financing sources, provided that prior to any disclosure, such financing source is informed of the confidential nature of the information, and (v) disclosures required or requested by any Governmental Authority or repre­sentative thereof or by the NAIC or pursuant to legal or judicial process or other legal proceeding; provided , unless specifically prohibited by applicable law or court order, each Lender shall make reasonable efforts to notify Company Representative of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such Governmental Authority) for disclosure of any such non-public information prior to disclosure of such information.  Notwithstanding the foregoing, on or after the Closing Date, Administrative Agent may, at its own expense issue news releases and publish “tombstone” advertisements and other announcements relating to this transaction in newspapers, trade journals and other appropriate media (which may include use of logos of one or more of the Credit Parties)(collectively, “ Trade Announcements ”).  No Credit Party shall issue any Trade Announcement except (i) disclosures required by applicable law, regulation, legal process or the rules of the Securities and Exchange Commission or (ii) with the prior approval of Administrative Agent.
 
10.18.   Usury Savings Clause .   Notwithstanding any other provision herein, the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate.  If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect.  In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Companies shall pay to Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect.  Notwithstanding the foregoing, it is the intention of Lenders and the Companies to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Companies.   In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.
 
 
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10.19.   Counterparts .   This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.  Signatures by facsimile or other electronic transmission (including by emailed “.pdf” file) to this Agreement and any other Credit Document shall bind the parties hereto and thereto to the same extent as would a manually executed counterpart.
 
10.20.   Effectiveness .   This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Companies and Administrative Agent of written or telephonic notification of such execution and authorization of delivery thereof.
 
10.21.   Patriot Act .   Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies such Credit Party, which information includes the name and address of such Credit Party and other information that will allow such Lender or Administrative Agent, as applicable, to identify such Credit Party in accordance with the Act.
 

[ Remainder of page intentionally left blank ]
 
 
117
 
 
IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
 

HERE TO SERVE – MISSOURI WASTE DIVISION, LLC


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Manager

MERIDIAN WASTE SOLUTIONS, INC., as Holdings


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Chief Executive Officer

HERE TO SERVE – GEORGIA WASTE DIVISION, LLC


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Manager

BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP.


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Manager

MERIDIAN LAND COMPANY, LLC


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Manager

 
S-1
 


CHRISTIAN DISPOSAL, LLC


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Manager

FWCD, LLC


By:                  /s/ Jeffrey Cosman                                       
Name: Jeffrey Cosman
Title: Manager

 
S-2
 




GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P.,
as Administrative Agent, Lead Arranger and Collateral Agent


By:            /s/ Stephen W. Hipp                                                                 
            Name: Stephen W. Hipp
            Title: Senior Vice President



GOLDMAN SACHS SPECIALTY LENDING HOLDINGS, INC.,
as a Lender

By:            /s/ Stephen W. Hipp                                                                 
            Name: Stephen W. Hipp
            Title: Senior Vice President

 
S-3
 
 
APPENDIX A-1
TO CREDIT AND GUARANTY AGREEMENT
 
Tranche A Term Loan Commitments
 
 
 
Lender
 
Tranche A
Term Loan Commitment
 
Pro
Rata Share
 
Goldman Sachs Specialty Lending Holdings, Inc.
 
$40,000,000.00
100%
 
Total
 
$40,000,000.00
 
100%

 
APPENDIX A-1
 

APPENDIX A-2
TO CREDIT AND GUARANTY AGREEMENT
 
MDTL Commitments
 
 
Lender
 
MDTL Commitment
 
Pro Rata Share
 
Goldman Sachs Specialty Lending Holdings, Inc.
 
$10,000,000.00
100%
 
Total
 
$10,000,000.00
 
100%

 
APPENDIX A-2
 
 
APPENDIX A-3
TO CREDIT AND GUARANTY AGREEMENT
 
Revolving Commitments
 
 
Lender
 
Revolving Commitment
 
Pro Rata Share
 
Goldman Sachs Specialty Lending Holdings, Inc.
 
$5,000,000.00
100%
 
Total
 
$5,000,000.00
 
100%
 
 
APPENDIX A-3
 
 
APPENDIX B
TO CREDIT AND GUARANTY AGREEMENT

Notice Addresses
 

Meridian Waste Solutions, Inc.
Here to Serve – Missouri Waste Division, LLC
Here to Serve – Georgia Waste Division, LLC
Meridian Land Company, LLC
Brooklyn Cheesecake & Dessert Acquisition Corp.
Christian Disposal, LLC
FWCD, LLC
12540 Broadwell Road
Suite 1203
Milton, GA 30004
Attention:  Jeff Cosman

in each case, with copies to:

Richard J. Dreger, Attorney at Law, P.C.
11660 Alpharetta Highway
Building 700, Suite 730
Roswell, Georgia 30076
(678) 566-6938 (Facsimile)

and

Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, New Jersey 08830
(732) 395 4401 (Facsimile)
Attention: Scott Linsky

 
APPENDIX B-1
 

GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P.
 as Administrative Agent, Collateral Agent and
Lead Arranger

Goldman Sachs Specialty Lending Group, L.P.
6011 Connection Drive
Irving, Texas 75039
Attention:  Meridian Waste Solutions, Account Manager
Telecopier:  (972) 368-5099


with a copy to:

Goldman Sachs Specialty Lending Group, L.P.
6011 Connection Drive
Irving, Texas 75039
Attention: GSSLG In-House Counsel
Telecopier:  (972) 368-5099

 
 
 
 
APPENDIX B-2
 
Exhibit 4.2
 
TRANCHE A TERM LOAN NOTE
 
 
$40,000,000.00
 
December 22, 2015  New York, New York
 
FOR VALUE RECEIVED, each of HERE TO SERVE – MISSOURI WASTE DIVISION, LLC , a Missouri limited liability company (“ HTS MWD ”), HERE TO SERVE – GEORGIA WASTE DIVISION, LLC , a Georgia limited liability company (“ HTS GWD ”), MERIDIAN LAND COMPANY, LLC , a Georgia limited liability company (“ MLC ”), BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP. , a New York corporation (“ BCDA ”), CHRISTIAN DISPOSAL, LLC , a Missouri limited liability company (“ Christian Disposal ”) and FWCD, LLC , a Missouri limited liability company (“ FWCD ” and together with HTS MWD, HTS GWD, MLC, BCDA and Christian Disposal, the “ Companies ” and each, a “ Company ”), jointly and severally promise to pay GOLDMAN SACHS SPECIALTY LENDING HOLDINGS, INC. ( “Payee” ) or its registered assigns the principal amount of FORTY MILLION DOLLARS ($40,000,000.00) in the installments referred to below.
 
Companies also jointly and severally promise to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit and Guaranty Agreement, dated as of December 22, 2015   (as amended, restated, replaced, supplemented or otherwise modified from time to time,  the “Credit Agreement” ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Companies, MERIDIAN WASTE SOLUTIONS, INC. , a New York corporation (“ Holdings” ),   certain Subsidiaries of Holdings, as Guarantors, the Lenders party thereto from time to time, and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. , as Administrative Agent, Collateral Agent and Lead Arranger.
 
Companies shall make scheduled principal payments on this Note as set forth in Section 2.11 of the Credit Agreement.
 
This Note is one of the “Tranche A Term Loan Notes” in the aggregate principal amount of $40,000,000 and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Term Loan evidenced hereby was made and is to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Principal Office of Administrative Agent or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.  Unless and until an Assignment Agreement effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by Administrative Agent and recorded in the Register, Companies, each Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby.  Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of Companies hereunder with respect to payments of principal of or interest on this Note.
 
This Note is subject to mandatory prepayment and to prepayment at the option of Companies, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANIES AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
 
 
1
 
 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of Companies, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
Companies jointly and severally promise to pay all costs and expenses, including reasonable attorneys’ fees, all as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  Companies and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 
[signature page follows]
 
 
2
 
 
IN WITNESS WHEREOF , Companies have caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 
HERE TO SERVE – MISSOURI WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
    Name: Jeffrey Cosman  
    Title: Manager  
       

 
HERE TO SERVE – GEORGIA WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
       
 
 
BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
     

 
MERIDIAN LAND COMPANY, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
   
 
 
CHRISTIAN DISPOSAL LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
FWCD, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
3
Exhibit 4.3
 
MDTL NOTE
 
 
Principal Amount: $10,000,000.00
 
December 22, 2015  New York, New York
 
FOR VALUE RECEIVED, each of HERE TO SERVE – MISSOURI WASTE DIVISION, LLC , a Missouri limited liability company (“ HTS MWD ”), HERE TO SERVE – GEORGIA WASTE DIVISION, LLC , a Georgia limited liability company (“ HTS GWD ”), MERIDIAN LAND COMPANY, LLC , a Georgia limited liability company (“ MLC ”), BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP. , a New York corporation (“ BCDA ”), CHRISTIAN DISPOSAL, LLC , a Missouri limited liability company (“ Christian Disposal ”) and FWCD, LLC , a Missouri limited liability company (“ FWCD ” and together with HTS MWD, HTS GWD, MLC, BCDA and Christian Disposal, the “ Companies ” and each, a “ Company ”), jointly and severally promise to pay GOLDMAN SACHS SPECIALTY LENDING HOLDINGS, INC. (“ Payee ”) or its registered assigns the principal amount set forth above, or, if less, the aggregate unpaid principal amount of MDTL Term Loans (as defined in the Credit Agreement referred to below) of the Payee to Companies in the installments referred to below.
 
Companies also promise to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit and Guaranty Agreement, dated as of December 22, 2015 (as amended, restated, replaced, supplemented or otherwise modified from time to time,  the “ Credit Agreement ”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Companies, MERIDIAN WASTE SOLUTIONS, INC. and the other Credit Parties party thereto from time to time, the Lenders party thereto from time to time and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. , as Administrative Agent, Collateral Agent and Lead Arranger.
 
Companies shall make scheduled principal payments on this Note as set forth in Section 2.11 of the Credit Agreement.
 
This Note is one of the “MDTL Notes” in an aggregate principal amount not to exceed $10,000,000 at any time and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Term Loan evidenced hereby was made and is to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Principal Office of Administrative Agent or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.  Unless and until an Assignment Agreement effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by Administrative Agent and recorded in the Register, each Company, each Agent  and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby.  Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of the Companies hereunder with respect to payments of principal of or interest on this Note.
 
This Note is subject to mandatory prepayment and to prepayment at the option of the Companies, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANIES AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
 
1
 
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of Companies, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
Companies promise to pay all costs and expenses, including reasonable attorneys’ fees, all as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  Companies and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 

 
[Remainder of Page Intentionally Left Blank]
 
 
2
 
 
IN WITNESS WHEREOF , Companies have caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 
HERE TO SERVE – MISSOURI WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
       
 
 
HERE TO SERVE – GEORGIA WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
     
 
 
BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
   

 
MERIDIAN LAND COMPANY, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
CHRISTIAN DISPOSAL LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
FWCD, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
3
 
 
TRANSACTIONS ON
MDTL NOTE
 
 
Date
Amount of Loan Made This Date
Amount of Principal Paid This Date
Outstanding Principal
Balance This Date
Notation
Made By
         
         
 
4
Exhibit 4.4
 
REVOLVING LOAN NOTE
 
 
$5,000,000.00
 
December 22, 2015  New York, New York
 
FOR VALUE RECEIVED , each of HERE TO SERVE – MISSOURI WASTE DIVISION, LLC , a Missouri limited liability company (“ HTS MWD ”), HERE TO SERVE – GEORGIA WASTE DIVISION, LLC , a Georgia limited liability company (“ HTS GWD ”), MERIDIAN LAND COMPANY, LLC , a Georgia limited liability company (“ MLC ”), BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP. , a New York corporation (“ BCDA ”), CHRISTIAN DISPOSAL, LLC , a Missouri limited liability company (“ Christian Disposal ”) and FWCD, LLC , a Missouri limited liability company (“ FWCD ” and together with HTS MWD, HTS GWD, MLC, BCDA and Christian Disposal, the “ Companies ” and each, a “ Company ”), jointly and severally promise to pay GOLDMAN SACHS SPECIALTY LENDING HOLDINGS, INC. ( “Payee” ) or its registered assigns, on or before December 22, 2020, the lesser of (a) FIVE MILLION DOLLARS ($5,000,000.00) and (b) the unpaid principal amount of all advances made by Payee to Companies as Revolving Loans under the Credit Agreement referred to below.
 
Companies also jointly and severally promise to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit and Guaranty Agreement, dated as of December 22, 2015 (as amended, restated, replaced, supplemented or otherwise modified from time to time,  the “Credit Agreement” ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Companies, MERIDIAN WASTE SOLUTIONS, INC. , a New York corporation (“ Holdings” ),   certain Subsidiaries of Holdings, as Guarantors, the Lenders party thereto from time to time, and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. , as Administrative Agent, Collateral Agent and Lead Arranger.
 
This Note is one of the “Revolving Loan Notes” in the aggregate principal amount of $5,000,000 and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Loans evidenced hereby were made and are to be repaid.
 
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Principal Office of Administrative Agent or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement.  Unless and until an Assignment Agreement effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by Administrative Agent and recorded in the Register, Companies, each Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby.  Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of Companies hereunder with respect to payments of principal of or interest on this Note.
 
This Note is subject to mandatory prepayment and to prepayment at the option of Companies, each as provided in the Credit Agreement.
 
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANIES AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
 
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
 
 
1
 
 
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
 
No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of Companies, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
 
Companies jointly and severally promise to pay all costs and expenses, including reasonable attorneys’ fees, all as provided in the Credit Agreement, incurred in the collection and enforcement of this Note.  Companies and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
 
[signature pages follows]
 
 
2
 
 
IN WITNESS WHEREOF , Companies have caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
 
 
HERE TO SERVE – MISSOURI WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
       
 
 
HERE TO SERVE – GEORGIA WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
MERIDIAN LAND COMPANY, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
CHRISTIAN DISPOSAL LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
FWCD, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
3
 
 
TRANSACTIONS ON
REVOLVING LOAN NOTE
 
 
Date
Amount of Loan Made This Date
Amount of Principal Paid This Date
Outstanding Principal
Balance This Date
Notation
Made By
         
         
 

4

Exhibit 4.5
 

 

 

 

 
Meridian Waste Solutions, Inc.
 
Purchase Warrant for Common Shares
 
December 22, 2015
 

 
 

 
 

 
 
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, OFFERED FOR SALE, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER OR EXEMPTION FROM SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
 
 
 
 
 
1.
 
EXERCISE OF WARRANT
1
       
 
1.1
Manner of Exercise; Payment
1
       
 
1.2
When Exercise Effective
2
       
 
1.3
Reserved.
2
       
 
1.4
Delivery of Stock Certificates and New Warrant
2
       
 
1.5
Company to Reaffirm Obligations
2
       
2.
 
DIVIDENDS, DISTRIBUTIONS, ETC..
2
       
 
2.1
Dividends, Distributions, etc
2
       
3.
 
CONSOLIDATION, MERGER, ETC.
3
       
 
3.1
Adjustments for Consolidation, Merger, Sale of Assets, Reorganizations, etc
3
       
 
3.2
Assumption of Obligations
3
       
4.
 
Reserved.
3
       
5.
 
NO DILUTION OR IMPAIRMENT
3
       
6.
 
NOTICES OF CORPORATE ACTION
4
       
7.
 
PREEMPTIVE RIGHTS.
4
       
 
7.1
Preemptive Right on Senior Capital
4
       
 
7.2
Notice to Holder
4
 
 
 
 
 
8.
 
REGISTRATION RIGHTS.
4
       
 
8.1
Generally
5
       
 
8.2
Demand Registration Rights
5
       
 
8.3
Piggyback Registration
5
       
 
8.4
Deemed Underwriter
6
       
 
8.5
Expenses
6
       
 
8.6
Obligations of the Company
7
       
 
8.7
Termination of Registration Rights
9
       
 
8.8
Indemnification.
9
       
9.
 
PUT OF WARRANTS.
11
       
 
9.1
Put Right.
11
       
 
9.2
Failure to Pay Redemption Price.
12
       
10.
 
AVAILABILITY OF INFORMATION.
13
       
 
10.1
Compliance
13
       
 
10.2
Cooperation
13
       
 
10.3
Reserved
13
       
 
10.4
Assistance with Sales of Warrant Shares
13
       
11.
 
RESERVATION OF EQUITY SECURITIES, ETC
14
 
 
 
 
 
12.
 
VOTING AND CONSENT RIGHTS
14
       
 
12.1
General
14
       
 
12.2
Consent Rights
14
       
13.
 
OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANTS.
15
       
 
13.1
Ownership of Warrants
15
       
 
13.2
Office; Transfer and Exchange of Warrants.
15
       
 
13.3
Assistance in Disposition of Warrant or Warrant Shares
15
       
 
13.4
Replacement of Warrants
16
       
14.
 
REPRESENTATIONS AND WARRANTIES.
16
       
 
14.1
Representations and Warranties of the Company
16
       
 
14.2
Representations and Warranties of the Holders
16
       
15.
 
DEFINITIONS
17
       
16.
 
EQUITY SECURITIES DEEMED OUTSTANDING
22
       
17.
 
INFORMATION AND OBSERVATION RIGHTS.
22
       
 
17.1
Information Rights
22
       
 
17.2
Right to Appoint Observer
22
 
 
 
 
 
18.
 
MULTIPLE HOLDERS; NO LIABILITIES AS A STOCKHOLDER.
23
       
 
18.1
Multiple Holders
23
       
 
18.2
No Liabilities As a Stockholder
23
       
19.
 
NO EFFECT ON LENDER RELATIONSHIP
23
       
20.
 
CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST.
23
       
 
20.1
General
23
       
 
20.2
Duties of the Purchasers
24
       
 
20.3
Duties of Certain of the Purchaser’s Affiliates
24
       
 
20.4
Corporate Opportunities Defined
24
       
21.
 
NON PROMOTION
25
       
22.
 
USE OF LOGO
25
       
23.
 
LOCK-UP LIMITATIONS
25
       
24.
 
NOTICES.
25
       
 
24.1
Manner of Delivery
25
       
 
24.2
Place of Delivery
25
 
 
 
 
 
25 .
 
WAIVERS; AMENDMENTS
25
       
26 .
 
INDEMNIFICATION.
26
       
 
26.1
Generally
26
       
 
26.2
Other Indemnitors
26
       
 
26.3
Certain Limitations
27
       
 
26.4
Other
27
       
27.
 
MISCELLANEOUS.
27
       
 
27.1
Expenses
27
       
 
27.2
Successors and Assigns
27
       
 
27.3
Severability
27
       
 
27.4
Equitable Remedies
27
       
 
27.5
Continued Effect
28
       
 
27.6
GOVERNING LAW
28
       
 
27.7
WAIVER OF JURY TRIAL
28
       
 
27.8
Section Headings; Construction
28
       
 
27.9
Counterparts
28
       

 
 
 
 
 
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, OFFERED FOR SALE, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER OR EXEMPTION FROM SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
 
Meridian Waste Solutions, Inc.
 
Purchase Warrant for Common Shares
 
 No. W-1  New York, New York
   December 22, 2015
 
Meridian Waste Solutions, Inc., a New York corporation (the “ Company ”), for value received, hereby certifies that Goldman, Sachs & Co. (the “ Purchaser ”) and the other Holders (if any), are entitled to purchase from the Company (i) a number of Common Shares, measured as of the time of exercise of this Warrant, equal to a 6.5% Percentage Interest (for the avoidance of doubt, the number of Aggregate Warrant Shares shall be calculated after giving effect to the exercise of this Warrant) (the “ Aggregate Warrant Shares ”), (ii) at an aggregate purchase price equal to $449,553 (the “ Aggregate Warrant Price ”), (iii) at any time on or before 5:00 P.M., New York, New York time on December 22, 2023 (the “ Expiration Date ”). Assuming that the representations and warranties contained in Section 14.1(e) are true and correct and that all Series B Shares are Subject Series B Shares, as of the date hereof, this Warrant is exercisable for 1,673,559 Aggregate Warrant Shares, as calculated on Schedule II hereto.
 
This Warrant is issued in connection with that certain Credit and Guaranty Agreement, dated as of the date hereof by and among the Company, certain of its Subsidiaries and Affiliates, the Purchasers named therein, and Goldman Sachs Specialty Lending Group, L.P., as administrative agent and lead arranger (as amended, restated or otherwise modified from time to time, the “ Credit Agreement ”). Certain capitalized terms used herein are defined in Section  15 .
 
1.   EXERCISE OF WARRANT
 
1.1   Manner of Exercise; Payment . The Holder may exercise this Warrant (or portion thereof owned by the Holder, as the case may be), in whole or in part, during normal business hours on any Business Day on or prior to the Expiration Date, by surrender of this Warrant to the Company at its Chief Executive Office, accompanied by a subscription (in the form attached to this Warrant as Exhibit I ) duly executed by the Holder and accompanied by payment, at the Holder’s election, (i) in cash, (ii) by certified check payable to the order of the Company, (iii) by wire transfer of immediately available funds, (iv) by cancellation of Warrant Shares, with any such Warrant Shares so cancelled being credited against such payment in an amount equal to the Fair Market Value thereof (a “ Cashless Exercise ”), or (v) if the Holder is the Purchaser or any of its Affiliates, by the surrender by the Holder to the Company of any Notes held by the Holder, with any such Notes so surrendered being credited against such payment in an amount equal to the then outstanding principal amount thereof plus accrued interest thereon through the date of surrender, or by any combination of any of the foregoing methods, of the amount obtained by multiplying (a) the number of Warrant Shares designated in such subscription by (b) the Per Share Warrant Price, and the Holder shall thereupon be entitled to receive the number and type of duly authorized Warrant Shares determined as provided in Sections 2 and 3 . In connection with any exercise of this Warrant, the Company shall provide the Holder with a certificate with the calculation of the Aggregate Warrant Shares as of the date of exercise. The Company acknowledges that the provisions of clause (iv) are intended, in part, to ensure that a full or partial exchange of this Warrant will qualify as a conversion, within the meaning of paragraph (d)(3)(ii) of Rule 144 under the Securities Act. At the request of the Holder, the Company will accept reasonable modifications to the exchange procedures provided for in this Section in order to accomplish such intent.
 
 
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1.2   When Exercise Effective . Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the Business Day on which this Warrant shall be deemed to have been surrendered to the Company as provided in Section 1.1 , and, at such time, the Person or Persons in whose name or names any certificate or certificates for Warrant Shares shall be issuable upon such exercise as provided in Section 1.4 shall be deemed to have become the holder or holders of record thereof.
 
1.3   Reserved.
 
1.4   Delivery of Stock Certificates and New Warrant . As soon as practicable after each exercise of this Warrant, in whole or in part, the Company at its sole expense (including the payment by it of any applicable stamp, documentary or similar taxes) will cause to be issued in the name of and delivered to the Holder or, subject to Section 13 , as the Holder (upon payment by the Holder of any applicable transfer taxes) may direct:
 
(a)   in lieu of any fractional Warrant Share to which the Holder would otherwise be entitled, cash in an amount equal to the Fair Market Value thereof on the day immediately preceding such exercise; and
 
(b)   in case such exercise is in part only, a new Warrant or Warrants of like tenor, dated the date hereof, entitling the Holder to purchase from the Company a Percentage Interest of Common Shares equal to (x) the Percentage Interest represented by the Aggregate Warrant Shares (measured immediately prior to such exercise) minus (y) the Percentage Interest represented by the Warrant Shares for which this Warrant was exercised, which new Warrant or Warrant shall be subject to adjustment and measurement on the same terms as set forth in this Warrant.
 
1.5   Company to Reaffirm Obligations . The Company will, at the time of each exercise of this Warrant, upon the request of the Holder, acknowledge in writing its continuing obligation to afford to the Holder all rights to which the Holder is entitled after such exercise in accordance with the terms of this Warrant; provided , however , that if the Holder shall fail to make any such request, then such failure shall not affect the continuing obligation of the Company to afford such rights to the Holder. Additionally, upon the request of the Holder, the Company shall provide the Holder with a calculation of the Aggregate Warrant Shares as of the date of the Holder’s request (or such other date provided for in such request).
 
2. DIVIDENDS, DISTRIBUTIONS, ETC. .
 
2.1   Dividends, Distributions, etc . If the Company at any time or from time to time after the date hereof declares, orders, pays or makes a dividend or other distribution (including any distribution of cash, Equity Securities or other property, by way of dividend or spin-off, reclassification, recapitalization or similar corporate rearrangement or otherwise) or makes any payment on or with respect to its Equity Securities then, and in each such case, the Holder shall be entitled to receive an amount in cash, Equity Securities or other property as if this Warrant had been exercised in full and converted to Warrant Shares in accordance with the provisions of Section 1.1 immediately prior to the close of business on the day immediately preceding the record date.
 
 
2
 
 
3.   CONSOLIDATION, MERGER, ETC.
 
3.1   Adjustments for Consolidation, Merger, Sale of Assets, Reorganizations, etc. If after the date hereof the Company (a) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation of such consolidation or merger, (b) shall permit any other Person to consolidate with or merge into the Company and the Company shall be the continuing or surviving Person but, in connection with such consolidation or merger, the Warrant Shares shall be changed into or exchanged for cash or Equity Securities of any other Person or any other property, (c) shall Transfer all or substantially all of its properties or assets to any other Person or (d) shall effect a capital reorganization or reclassification of the Warrant Shares and/or its Equity Securities or a conversion to a new domicile, then, and in the case of each such transaction, proper provision shall be made so that upon the basis and the terms and in the manner provided in this Warrant, the Holder, upon the exercise hereof at any time after the consummation of such transaction, shall be entitled to receive (after giving effect to the payment of the Aggregate Warrant Price), in lieu of Warrant Shares, the greatest amount of cash, Equity Securities or other property to which the Holder would actually have been entitled as an equity holder upon such consummation if the Holder had exercised the rights represented by this Warrant immediately prior thereto, subject to adjustments (subsequent to such consummation) as nearly equivalent as possible to the adjustments provided for in Sections 2 and 3 .
 
3.2   Assumption of Obligations . Notwithstanding anything contained in this Warrant or in the Credit Agreement to the contrary, the Company will not effect any of the transactions described in Section 3.1 unless, prior to the consummation thereof, each Person (other than the Company) that may be required to deliver any cash, Equity Securities or other property upon the exercise of this Warrant as provided herein shall assume, by written instrument delivered to, and reasonably satisfactory to, the Holder, (a) the obligations of the Company under this Warrant (and if the Company shall survive the consummation of such transaction, such assumption shall be in addition to, and shall not release the Company from, any continuing obligations of the Company under this Warrant) and (b) the obligation to deliver to the Holder such cash, Equity Securities or other property as, in accordance with the foregoing provisions of this Section 3 , the Holder may be entitled to receive, and such Person shall have similarly delivered to the Holder an opinion of counsel for such Person, which counsel and opinion shall be reasonably satisfactory to the Holder, stating that this Warrant shall thereafter continue in full force and effect and the terms hereof (including all of the provisions of this Section 3 ) shall be applicable to the cash, Equity Securities or other property that such Person may be required to deliver upon any exercise of this Warrant or the exercise of any rights pursuant hereto. Nothing in this Section 3 shall be deemed to authorize the Company to enter into any transaction requiring the consent of the Purchaser or any of its Affiliates (or any other Holder) in any Transaction Document.
 
4.   Reserved.
 
5.   NO DILUTION OR IMPAIRMENT. The Company shall not, by amendment of its Charter Documents or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder against dilution or other impairment. Without limiting the generality of the foregoing, the Company (a) will not permit the par value of any Warrant Shares to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be reasonably necessary or appropriate in order that the Company may validly and legally issue the Warrant Shares and (c) will not take any action that results in any adjustment of the Per Share Warrant Price if the Aggregate Warrant Shares after such action would exceed the total number of Common Shares then authorized by the Restated Certificate and available for the purpose of issuance upon such exercise.
 
 
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6.   NOTICES OF CORPORATE ACTION. If at any time prior to the expiration date of the Warrants and prior to their exercise in full, the Company agrees or commits to any one or more of the following events:
 
(a)   any taking by the Company of a record of the holders of any class of its Equity Securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any Equity Securities of the Company or any other property, or to receive any other right;
 
(b)   any Warrant Trigger Event or any other capital reorganization of the Company, any reclassification or recapitalization of the Equity Securities of the Company or any consolidation or merger involving the Company and any other Person or any Transfer of all or substantially all the assets of the Company (on a consolidated basis) to any other Person; or
 
(c)   any voluntary or involuntary dissolution, liquidation or winding-up of the Company,
 
then the Company will deliver to the Holder a notice (which notice may be delivered to the Holder Appointee), not less than ten (10) days prior to the proposed occurrence of such event, specifying (i) the expected date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right, (ii) the expected date on which any such reorganization, reclassification, recapitalization, consolidation, merger, Transfer, dissolution, liquidation or winding-up is to take place, and (iii) the time, if any such time is to be fixed, as of which the holders of record of Equity Securities shall be entitled to exchange their Equity Securities (or the Holder shall be entitled to exchange this Warrant) for the cash, Equity Securities or other property deliverable upon such reorganization, reclassification, recapitalization, consolidation, merger, Transfer, dissolution, liquidation or winding-up and a description in reasonable detail of the transaction. Additionally, within thirty (30) days following the written request of the Holder, the Company shall provide to the Holder its calculation of the Aggregate Warrant Shares and Per Share Warrant Price, along with supporting documentation relating thereto.
 
7.   PREEMPTIVE RIGHTS.
 
7.1   Preemptive Right on Senior Capital . From and after the date hereof, the Holder shall have the right to purchase its pro rata share of any issuance or sale of any Senior Capital of the Company or any of its Subsidiaries. The Holder’s “ pro rata share ” for purposes of this Section 7.1 shall be equal to the Percentage Interest represented by the Aggregate Warrant Shares. The Company shall not grant (or permit any Subsidiary to grant) any other Person preemptive rights inconsistent herewith.
 
7.2   Notice to Holder . If the Company or its Subsidiary proposes to issue or sell Senior Capital, then it will give the Holder written notice of its intention, describing the type of Senior Capital and the price and terms upon which the Company proposes to issue or sell the Senior Capital. The Holder will have fifteen (15) Business Days from the date of receipt of any such notice (and such other information as the Holder may reasonably request in order to facilitate its investment decision) to agree to purchase up to its pro rata share of the Senior Capital for the price and upon the terms specified in the notice from the Company described above by giving written notice to the Company stating the amount of Senior Capital agreed to be purchased.
 
8.   REGISTRATION RIGHTS.
 
 
4
 
 
8.1   Generally . If any Warrant Shares required to be reserved for purposes of exercise of this Warrant require registration with or approval of any governmental authority under any federal or state law (other than the Securities Act) before such Warrant Shares may be issued upon exercise, then the Company will, at its sole expense and as expeditiously as possible, cause such Warrant Shares to be duly registered or approved, as the case may be.
 
8.2   Demand Registration Rights . So long as the Holder holds Warrant Shares (or Warrants exercisable for Warrant Shares) anticipated to have an aggregate sale price (net underwriting discounts and commissions, if any) in excess of $500,000, the Holder (or, for the avoidance of doubt, if there are multiple Holders, then the Holder or Holders constituting the Requisite Holders) shall have the right to require the Company to file registration statements, including a shelf registration statement (if the Company is eligible at such time to utilize a shelf registration for the Warrant Shares), and if the Company is a well-known seasoned issuer, as defined in Rule 405 under the Securities Act, an automatic shelf registration statement, on Form S-3 or any successor form under the Securities Act covering all or any part of the Warrant Shares, by delivering a written request therefor to the Company. Such request shall state the number of Warrant Shares to be disposed of and the intended method of disposition of such shares by the Holder. In the event there are multiple Holders, the Company shall give notice to all other Holders of the receipt of a request for registration pursuant to this Section 8.2 and such Holders shall then have thirty (30) days to notify the Company in writing of their desire to participate in the registration. The Company shall use its commercially reasonable best efforts to effect promptly the registration statement registering all shares on Form S-3 (or a comparable successor form) to the extent requested by the Holder, but in any event shall cause the registration statement to become effective within ninety (90) days after the date of the request by the Holder (or 120 days in the event of a “full review” by the SEC). The Company shall use its commercially reasonable best efforts to keep such registration statement effective until the earlier of one hundred twenty (120) days or until the Holder has completed the distribution described in such registration statement. Notwithstanding the forgoing, to the extent that registration on Form S-3 is not available to the Holder under this Section 8.2 , the Company shall use commercially reasonable efforts to effect such registration on Form S-1 under the Securities Act.
 
8.3   Piggyback Registration . If, at any time and from time to time, the Company proposes to register any of its Equity Securities under the Securities Act in connection with an underwritten public offering of such shares of such Equity Securities, then the Company will promptly give notice to the Holder of its intention to do so. Upon the request of any Holder received within ten (10) days after receipt of any such notice from the Company, the Company will, in each instance, cause such Holder’s Warrant Shares to be registered under the Securities Act and registered or qualified, as the case may be, under any state securities laws; provided , however , that the obligation to give such notice and to cause such registration shall not apply to any registration (a) on Form S-8 (or any successor form), (b) of solely a dividend reinvestment plan or (c) for the sole purpose of offering registered securities to another Person in connection with the acquisition of assets or Equity Securities of such Person or in connection with a merger, consolidation, combination or similar transaction with such Person. In connection with any underwritten offering of securities on behalf of the Company or any Stockholder, the Company shall not be required to include any Warrant Shares held by a Holder unless the Holder agrees to the reasonable and customary terms of the underwriting; provided , however , that (i) such Holder shall not be required to make any representation other than that it being the owner of the applicable Warrant Shares (subject to exercise of the applicable portion of this Warrant) that are being included in the offering and that it has full power and authority to transfer them pursuant such offering, and (ii) the total indemnification or other liability of such Holder thereunder shall be limited to the aggregate net cash proceeds received by such Holder from the sale of such Warrant Shares in such offering. The Company will include in any registration effected pursuant to this Section 8.3 (i) first, securities offered to be sold by the Company and by any holder of demand registration rights that is exercising such rights in connection with such registration, (ii) second, the Piggyback Shares, in each case pro rata based on the number of Warrant Shares held thereby (in such quantity as will not, in the written opinion of the underwriters, jeopardize the success of the offering), and (iii) third, any other securities requested to be included in such registration (in such quantity as will not, in the written opinion of the underwriters, jeopardize the success of the offering).
 
 
5
 
 
8.4   Deemed Underwriter . The Company agrees that, if a Holder or any of its Affiliates could reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with any registration of the Company’s securities of any Holder or any of its Affiliates pursuant to this Warrant, and any amendment or supplement thereof (any such registration statement or amendment or supplement a “ Deemed Underwriter Registration Statement ”), then the Company will cooperate with such Holder or Affiliate in allowing such Holder or Affiliate to conduct reasonable and customary “underwriter’s due diligence” with respect to the Company and satisfy its obligations in respect thereof. In addition, at applicable Holder’s request, the Company will furnish to such Holder, on the date of the effectiveness of any Deemed Underwriter Registration Statement and thereafter from time to time on such dates as such Holder may reasonably request (a) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to such Holder, and (b) an opinion, dated as of such date, of counsel representing the Company for purposes of such Deemed Underwriter Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, including a standard “10b-5” statement for such offering, addressed to such Holder. The Company will also permit legal counsel to the applicable Holder to review and comment upon any such Deemed Underwriter Registration Statement at least ten (10) Business Days prior to its filing with the Commission and all amendments and supplements to any such Deemed Underwriter Registration Statement within a reasonable number of days prior to their filing with the Commission and not file any Deemed Underwriter Registration Statement or amendment or supplement thereto in a form to which such Holder’s legal counsel reasonably objects.
 
8.5   Expenses . The Company will pay all Registration Expenses in connection with all registrations (which, for purposes of this section, shall include any qualifications, notifications and exemptions) under this section. “Registration Expenses” means all reasonable expenses incident to the Company’s performance of or compliance with Section 8 , including all registration and filing fees (including fees of the Commission and a national stock exchange or national securities market), all fees and expenses of complying with state securities or blue sky laws, all word processing, duplicating and printing expenses, messenger and delivery expenses, the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of any special audits or “cold comfort” letters in underwritten offerings required by or incident to such performance and compliance, the reasonable fees and disbursements of Holder’s Counsel, not to exceed $25,000 in the aggregate (or such greater amount with the Company’s consent, which consent shall not be unreasonably withheld, conditioned or delayed), and any accountants retained by the Holders with respect to any Warrant Shares being registered, premiums and other costs of policies of insurance against liabilities arising out of the public offering of such securities and any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions and transfer taxes, if any, provided, however, that the Company shall not be required to pay for any expenses of the Holders for any registration proceeding pursuant to Section 8.2 if the registration request is subsequently withdrawn at the request of the Holders (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Requisite Holders agree to forfeit their right to one registration pursuant to Section 8.2 . All underwriting discounts, selling commissions, and stock transfer taxes and other non-Registration Expenses applicable to the sale of the Warrant Shares of the Holders shall be borne and paid by the Holders pro rata on the basis of the number of Warrant Shares registered on their behalf.
 
 
6
 
 
8.6   Obligations of the Company . Whenever required under this section to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible:
 
(a)   prepare and file with the Commission a registration statement with respect to such Warrant Shares and use commercially reasonable efforts to cause such registration statement to become effective and, unless the Holders of a majority of the Warrant Shares registered thereunder notify the Company otherwise, to keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided , that , the Company shall furnish, at least five (5) Business Days before filing such registration statement, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to counsel selected by the Holder (the “ Holder’s Counsel ”), copies of all such documents proposed to be filed for such counsel’s review and comment (it being understood that such five (5) Business Day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances) and not file any such registration statement, prospectus or amendment or supplement thereto in a form to which Holder’s Counsel reasonably objects;
 
(b)   prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement and to make public any material non-public information provided to the Purchaser Group during the effective period of such registration statement;
 
(c)   notify in writing the Holder’s Counsel promptly (x) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (y) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation of any action threatening any proceeding for that purpose and (z) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Warrant Shares for sale in any jurisdiction or the initiation of any action threatening the qualification of such Warrant and/or Warrant Shares for sale in any jurisdiction;
 
(d)   furnish to each Holder of Warrant Shares covered by such registration such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Warrant Shares owned thereby;
 
(e)   use commercially reasonable efforts to register, exempt from registration, and/or to qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as may be required for the Holder to sell securities under the registration statement or as shall be reasonably requested by the Holders; provided, however, that the Company shall not be required in connection therewith or as a condition thereto (x) to qualify to do business in any such states or jurisdictions, (y) to file a general consent to service of process in any such states or jurisdictions or (z) to subject itself to taxation in any such states or jurisdictions;
 
 
7
 
 
(f)   in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering, provided that each Holder participating in such underwriting shall also enter into and perform its obligations under such underwriting agreement;
 
(g)   notify each Holder of Warrant Shares covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and, at the request of such Holder, prepare and furnish to such Holder a reasonable number of copies of a supplement to or amendment of such prospectus so that, as thereafter delivered to any offeree of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
 
(h)   notify each Holder in advance of the delivery of any information under the Credit Agreement that would constitute material non-public information and cooperate with the Holders’ reasonable requests related to the coordination of such information with amendments to the registration to ensure the public availability of such information (which amendments shall be effected promptly upon the awareness by the Company of the new information);
 
(i)   make available for inspection by each Holder of Warrant Shares covered by such registration statement, the Holder’s Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the “ Inspectors ”) all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “ Records ”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “ Information ”) reasonably requested by any such Inspector in connection with such registration statement, including, but not limited to, monthly, quarterly and annual financial statements. Any of the Information that the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors to any third party unless (x) the disclosure of such Information is necessary to avoid or correct a misstatement or omission in the registration statement, (y) the release of such Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or a governmental agency having jurisdiction over such matter, or (z) such Information has been made generally available to the public by the Company, provided, in any event, that the Holders shall use commercially reasonable efforts to provide the Company with reasonable advance written notice prior to any such disclosure. The Holders of any Warrant Shares covered by such registration statement hereby agree that they will, upon learning that disclosure of such Information is sought by a court of competent jurisdiction or a governmental agency having jurisdiction over such matter, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of the Information deemed confidential;
 
(j)   in the case of an underwritten offering, use commercially reasonable efforts to obtain from its independent certified public accountants “comfort” letters (x) listing the Company and each selling Holder as an addressee thereof or otherwise naming the Company and each selling Holder as a third party beneficiary thereof and (y) otherwise in customary form and at customary times and covering matters of the type customarily covered by comfort letters given by independent certified public accountants in such transactions;
 
 
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(k)   in the case of an underwritten offering, use commercially reasonable efforts to obtain from its counsel an opinion or opinions (x) listing the Company and each selling Holder as an addressee thereof or otherwise naming the Company and each selling Holder as a third party beneficiary thereof and (y) otherwise covering such matters as are customary in such transactions, including a standard “10b-5” opinion for such offering;
 
(l)   provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Warrant Shares;
 
(m)   issue to any underwriter to which any Holder may sell Warrant Shares in such offering one or more certificates (or replacements warrants) evidencing such Warrant Shares;
 
(n)   use commercially reasonable efforts to assist the selling Holders and the managing underwriters or agents, if any, in marketing any Warrant Shares that are included in the registration statement, including causing its officers and employees to participate in any “roadshow” and other investor presentations that the Holders may reasonably request; and
 
(o)   subject to all of the other provisions of this Warrant, use commercially reasonable efforts to take all other steps necessary to effect the registration of the Warrant Shares contemplated hereby.
 
The Company may suspend the use of a prospectus included in any registration statement filed pursuant to this Section 8 if the Company is then in possession of material, non-public information, the disclosure of which the Company’s board of directors has reasonably determined in good faith would have a material adverse effect upon the Company. The Company shall promptly notify all Holders of Warrant Shares covered by such registration of any such determination by the board of directors and, upon receipt of such notice, each such Holder shall immediately discontinue any sales of securities pursuant to such registration statement. Upon such suspension, the Company shall take all commercially reasonable steps to cause the condition that caused such suspension to cease to exist as soon as practicable (but such efforts need not include the abandonment of any proposed transaction). The Company hereby agrees that no such suspension shall last more than ninety (90) days without the prior written consent of the Requisite Holders.
 
8.7   Termination of Registration Rights . The right to request registration of including of Equity Securities set forth on this Section 8 , shall terminate at such time as Rule 144 or another similar exemption under the Securities Act is available for the sale of all of the Holders’ Warrant Shares without limitation during a three-month period without registration.
 
8.8   Indemnification .
 
(a)   In connection with any registration, subject to Section 8.8(d) below, the Company shall indemnify and hold harmless each Holder selling Warrant Shares and each of its Affiliates, each underwriter (as defined in the Securities Act), and directors, officers, employees and agents of any of them, and each other Person who participates in the offering of such securities and each other Person, if any, who controls (within the meaning of the Securities Act) such seller, underwriter or participating Person (collectively, the “ Holder Indemnified Person ”) against any losses, claims, damages or liabilities (collectively, the “ liability ”), joint or several, to which such Holder Indemnified Person may become subject under the Securities Act or any other statute or at common law, insofar as such liability (or action in respect thereof) arises out of or is based upon (w) any untrue statement or alleged untrue statement of any material fact contained, on the effective date thereof, in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or any free writing prospectus used in connection with any offering, including but not limited to, any free writing prospectus used by the Company, the underwriters or the Holders, or (x) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (y) any violation by the Company of the Securities Act, any state securities or “blue sky” laws or any sale or regulation thereunder in connection with such registration, or (z) any information provided by the Company or at the instruction of the Company to any Person participating in the offer at the point of sale containing any untrue statement or alleged untrue statement of any material fact or omitting or allegedly omitting any material fact required to be included in such information or necessary to make the statements therein not misleading. Except as otherwise provided in Section 8.8(c) , the Company shall reimburse each such Holder Indemnified Person in connection with investigating or defending any such liability; provided , however , that the Company shall not be liable to any Holder Indemnified Person in any such case to the extent that any such liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, preliminary or final prospectus, or amendment or supplement thereto, free writing prospectus, or other information, in reliance upon and in conformity with information furnished in writing to the Company by such Person specifically for use therein; and provided further, however, that the Company shall not be required to indemnify any Person against any liability arising from any untrue or misleading statement or omission contained in any preliminary prospectus if such deficiency is corrected in the final prospectus or for any liability which arises out of the failure of any Person to deliver a prospectus as required by the Securities Act
 
 
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(b)   In connection with any registration, subject to Section 8.8(d) below, a Holder selling any Warrant Shares included in such registration being effected shall indemnify and hold harmless each other selling holder of any Warrant Shares, the Company, its directors and officers, each underwriter and each other Person, if any, who controls (within the meaning of the Securities Act) the Company or such underwriter (collectively, the “ Company Indemnified Persons ” and together with the “ Holder Indemnified Persons ,” collectively, the “ Indemnified Persons ”), against any liability, joint or several, to which any such Holder Indemnified Person may become subject under the Securities Act or any other statute or at common law, insofar as such liability (or actions in respect thereof) arises out of or is based upon (x) any untrue statement or alleged untrue statement of any material fact contained, on the effective date thereof, in any registration statement under which securities were registered under the Securities Act at the request of such selling Holder, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, any free writing prospectus used in connection with such offering, including but not limited to, any free writing prospectus used by the Company, the underwriters, or the Holders, or (y) any omission or alleged omission by such selling Holder to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (z) any information provided at the instruction of the Company to any Person participating in the offer at the point of sale containing any untrue statement or alleged untrue statement of any material fact or omitting or allegedly omitting any material fact required to be included in such information or necessary to make the statements therein not misleading, and in the case of (x), (y) and (z) to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement, preliminary or final prospectus, amendment or supplement thereto, free writing prospectus or other information, in reliance upon and in conformity with information furnished in writing to the Company by such selling Holder specifically for use therein. Such selling Holder shall reimburse any Holder Indemnified Person for any reasonable legal expenses incurred in investigating or defending any such liability; provided, however, that in no event shall the liability of any Holder for indemnification under this Section 8 in its capacity as a seller of Warrants and/or Warrant Shares exceed the lesser of (i) that proportion of the total of such losses, claims, damages, expenses or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being held by such Holder, or (ii) the amount equal to the proceeds to such Holder of the securities sold in any such registration; and provided further, however, that no selling Holder shall be required to indemnify any Person against any liability arising from any untrue or misleading statement or omission contained in any preliminary prospectus if such deficiency is corrected in the final prospectus or for any liability which arises out of the failure of any Person to deliver a prospectus as required by the Securities Act.
 
 
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(c)   In the event the Company, any selling Holder or other Person receives a complaint, claim or other notice of any liability or action, giving rise to a claim for indemnification under Section 8.2 or Section 8.3 above, the Person claiming indemnification under such paragraphs shall promptly notify the Person against whom indemnification is sought of such complaint, notice, claim or action, and such indemnifying Person shall have the right to investigate and defend any such loss, claim, damage, liability or action.
 
(d)   If the indemnification provided for in this Section 8.8 is held by a court of competent jurisdiction to be unavailable to an Indemnified Person with respect to any loss, claim, damage, expense or liability referred to therein, then the indemnifying party, in lieu of indemnifying such Indemnified Person hereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such any loss, claim, damage, expense or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the Indemnified Person, on the other hand, in connection with the statements or omissions that resulted in such any loss, claim, damage, expense or liability as well as any other relevant equitable considerations; provided, however, that in no event shall any contribution by a Holder under this Section 8.8(d) when combined with any other amounts paid by such Holder pursuant to this Section 8 exceed the lesser of (a) that proportion of the total of such losses, claims, damages, expenses or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being held by such Holder, or (b) the amount equal to the proceeds to such Holder of the securities sold in any such registration. The relative fault of the indemnifying party and of the Indemnified Person shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the Indemnified Person and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
 
(e)   Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 8.8 shall survive the completion of any offering of securities in a registration statement under this Section 8 or otherwise (and shall survive the termination of this Agreement).
 
9.   PUT OF WARRANTS.
 
9.1   Put Right .
 
 
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(a)   At any time from and after the earliest to occur of: (i) the Maturity Date; (ii) the payment in full of at least seventy-five percent (75%) of the outstanding Obligations under the Credit Agreement; (iii) an uncured Event of Default (as defined in the Credit Agreement); and (iv) the consummation of any Sale Transaction (the occurrence of any of the foregoing events being hereinafter referred to as a “ Warrant Trigger Event ”), the Holder may demand that the Company purchase all (but not less than all) of this Warrant for an amount equal to the Redemption Price by delivery of a written notice to the Company (the date such notice is delivered to the Company shall hereinafter be referred to as, the “ Put Demand Date ”). Subject to the other provisions of this Section 9.1 , the Redemption Price shall be payable to the Holder (A) in the case of the Holder’s exercise of the Put Right in connection with a Warrant Trigger Event set forth in clauses (ii) or (iii), on the date of the repayment of such Obligations under the Credit Agreement or consummation of such Sale Transaction or (B) in the case of the Holder’s exercise of the Put Right other than as provided in the foregoing clause (A), on the ninetieth (90th) day immediately following the Put Demand Date (the relevant date above, the “ Put Payment Date ”), upon surrender of this Warrant to the Company at its Chief Executive Office. Notwithstanding the foregoing, the commencement of a case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect in respect of the Company or any of its Subsidiaries (other than an involuntary case that is dismissed, bonded or discharged within sixty days) shall constitute a Warrant Trigger Event and the Holder shall be deemed to have automatically exercised its Put Right upon, and the Put Payment Date shall be the same day as, the occurrence thereof (without the requirement to deliver any notice).
 
(b)   In the event of a Sale Transaction, the Holder shall be entitled to receive the Redemption Price by wire transfer of immediately available funds to any account in the United States of America specified by written notice to the Company. In the event that there shall be more than one Holder, each other Holder acknowledges and agrees that only the Requisite Holders may exercise the Put Right and that the Requisite Holders may act on behalf of all other Holders with respect to the matters described in Section 9 .
 
(c)   Upon surrender of this Warrant in accordance with the procedures set forth in Section 9.1(a) , the right to purchase Warrant Shares represented by this Warrant shall terminate and this Warrant shall represent the right of the Holder to receive only the Redemption Price from the Company in accordance with Section 9.1 . The Holder’s right to demand redemption of this Warrant pursuant to this Section 9.1 shall be referred to herein as the Holder’s “ Put Right. ”
 
9.2   Failure to Pay Redemption Price .
 
(a)   Subject to the provisions of Section 9.2(b) , if the Company does not pay the Redemption Price in full on or before the Put Payment Date, then, on the day immediately following the Put Payment Date, all of the rights heretofore represented by this Warrant shall convert, automatically and irrevocably and without any further action or acknowledgment on the part of the Company or the Holder, into a secured obligation of the Company to pay to the Holder, on demand (or at such other time described below), an amount equal to the Unpaid Put Amount, together with accrued interest (based on a 365-day year) on the unpaid principal amount thereof at fifteen percent (15%) per annum, with interest payable-in-kind, compounding quarterly, until the maturity thereof.
 
(b)   Notwithstanding any other provision of this Section 9.2 , if on the Put Demand Date there are any Obligations owed to the Purchaser or its Affiliates under the Credit Agreement, then the Company shall be permitted, in lieu of paying all or any portion of the Redemption Price to the Holder, to issue to the Holder on or before the Put Payment Date, a note, the face amount of which shall equal the unpaid portion of the Redemption Price, with terms, covenants and other provisions substantially identical to those applicable to the Notes (a “ Put Note ”), except that (i) the Put Note shall accrue interest at a rate equal to fifteen percent (15%) per annum, with interest payable-in-kind, compounding quarterly, until the maturity thereof, and (ii) the maturity date of the Put Note shall be the date that is ninety-one (91) days after the earlier to occur of (a) the date of maturity of the Obligations or (b) the date that the Obligations are paid in full.
 
 
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(c)   The rate of interest payable on the Unpaid Put Amount shall increase by one percent (1%) as of the end of each three (3) month period following the end of Put Payment Date until the Unpaid Put Amount is paid or prepaid in full or until such interest rate reaches the maximum rate permitted by applicable law and the rate of interest shall automatically be reduced to the maximum rate permitted by applicable law for any period where it would otherwise be in excess thereof (it being acknowledged that nothing in this Section 9.2 shall require the Company to pay interest at a rate in excess of the maximum rate permitted by applicable law). “ Unpaid Put Amount ” means the aggregate amount of the unpaid portion of the Redemption Price, together with accrued interest thereon, as determined in accordance with Section 9.1(b) or 9.2(b) , as applicable, and this Section 9.2(c) .
 
(d)   Without limiting the Holder’s right to receive the Unpaid Put Amount on demand, the entire Unpaid Put Amount may be paid by the Company at any time without premium or penalty, but in any event shall be immediately due and payable (i) upon any acceleration by the Purchaser or its Affiliates of any of the Notes and (ii) upon the occurrence of any Sale Transaction. All payments of the Unpaid Put Amount shall be made by wire transfer of immediately available funds to an account or accounts designated in writing by the Holder. Upon the request of the Holder, the Company shall issue to the Holder one or more Put Notes (as defined below) evidencing the obligations of the Company to the Holder under this Section 9.2(c) .
 
10.   AVAILABILITY OF INFORMATION.
 
10.1   Compliance . The Company shall comply with the reporting requirements of Section 13 and 15(d) of the Exchange Act and shall comply with all public information reporting requirements of the Commission (including Rule 144 promulgated by the Commission under the Securities Act (“ Rule 144 ”)) from time to time in effect and relating to the availability of an exemption from the Securities Act for the sale of any Restricted Securities.
 
10.2   Cooperation . The Company shall also cooperate with the Holder (so long as it holds any Restricted Securities) in supplying such information as may be necessary for the Holder to complete and file any information reporting forms presently or hereafter required by the Commission as a condition to the availability of an exemption from the Securities Act for the sale of any Restricted Securities.
 
10.3   Reserved
 
10.4   Assistance with Sales of Warrant Shares . If requested by the Holder, the Company shall make a public disclosure of any material non­public information previously supplied to the Holder in order to facilitate the sale of Warrant Shares by the Holder pursuant to Rule 144; such disclosure shall be made no later than forty-five days following the request by the Holder. Notwithstanding the foregoing, Company may suspend the disclosure of material, non-public information, the disclosure of which the Board of Directors has reasonably determined in good faith would have a material adverse effect upon the Company, in which event the Company shall immediately provide notice of the determination to the Holder. Upon such determination, the Company shall take all commercially reasonable steps to cause the condition that caused such suspension to cease to exist as soon as practicable (but such efforts need not include the abandonment of any proposed transaction). The Company hereby agrees that no such suspension shall last more than ninety (90) days without the prior written consent of the Requisite Holders.
 
 
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11.   RESERVATION OF EQUITY SECURITIES, ETC. The Company shall at all times reserve and keep authorized and available, solely for issuance and delivery upon exercise of this Warrant, the number of the number of Common Shares from time to time issuable upon exercise in full of this Warrant. All Warrant Shares issuable upon exercise of this Warrant shall be duly authorized and, when issued upon such exercise, shall be validly issued and, in the case of shares, fully paid and nonassessable, with no liability on the part of the Holder.
 
12.   VOTING AND CONSENT RIGHTS
 
12.1   General . Except as otherwise required by law or provided herein, the Holder shall not be entitled to any voting rights in respect of this Warrant. Upon exercise of this Warrant, the holders of Warrant Shares shall vote with the holders of Common Shares (and not as a separate class) with respect to such shares at any meeting of the Stockholders, and may act by written consent in the same manner as the holders of such shares.
 
12.2   Consent Rights . In addition to any other vote or consent required herein or by law, the Company shall not, without the prior written consent of the Holder (which may be given or withheld in the Holder’s sole discretion):
 
(a)   amend (by merger or otherwise) the Restated Certificate or any other Transaction Document in any manner adverse to the Holder;
 
(b)   incur, or refinance on terms less favorable to the Company, any indebtedness (other than incurrence of indebtedness that is permitted pursuant to Section 6.1 of the Credit Agreement (as in effect on the date hereof));
 
(c)   enter into, amend, terminate or fail to enforce (or abandon any right under) any transaction with any Insider or Affiliate of the Company, other than compensation arrangements in the ordinary course and consistent with past practice or transactions between or among the Company and its direct or indirect wholly-owned Subsidiaries;
 
(d)   commence any voluntary bankruptcy proceedings;
 
(e)   enter into or otherwise permit the occurrence of any Sale Transaction or dissolution, liquidation or winding-up of the Company;
 
(f)   acquire or redeem any Equity Securities of the Company;
 
(g)   take any material action in connection with regulatory proceedings or material litigation;
 
(h)   reclassify any debt or Equity Securities of the Company or undertake any other corporate restructuring or reorganization, including any alteration of the rights, preferences or privileges of any Equity Securities of the Company;
 
 
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(i)   change the principal line of business of the Company;
 
(j)   commit or agree to any of the foregoing; or
 
(k)   permit any of its Subsidiaries to take any action which, if taken by the Company, would require the consent of the Holder.
 
13.   OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANTS.
 
13.1   Ownership of Warrants . The Company may treat any Person(s) in whose name this Warrant is registered on the register kept at the Chief Executive Office as the owner and holder thereof for all purposes, notwithstanding any notice to the contrary, except that, if and when this Warrant is properly assigned in blank, the Company may (but shall not be obligated to) treat the bearer thereof as the owner of this Warrant for all purposes, notwithstanding any notice to the contrary. This Warrant, if properly assigned, may be exercised by a new Holder without a new Warrant first having been issued.
 
13.2   Office; Transfer and Exchange of Warrants .
 
(a)   The Company shall maintain an office (which may be an agency maintained at a bank) in the State of Georgia where notices, presentations and demands in respect of this Warrant may be made upon it. Such office shall be the Company’s “ Chief Executive Office ,” until such time as the Company shall notify the Holders of any change of location of such office within the State of Georgia.
 
(b)   The Company shall cause to be kept at its Chief Executive Office a register for the registration and transfer of this Warrant. The names and addresses of the Holder, the transfer thereof and the names and addresses of any transferees of this Warrant shall be registered in such register. The Person(s) in whose names this Warrant shall be so registered shall be deemed and treated as the owner and Holder thereof for all purposes of this Warrant, and the Company shall not be affected by any notice or knowledge to the contrary.
 
(c)   Subject to the transfer restrictions referred to in the legend herein, this Warrant and all rights hereunder are transferable, in whole or in part, without charge to the Holder, upon surrender of this Warrant with a properly executed assignment (in the form of Exhibit II hereto) at the Company’s Chief Executive Office. Upon such surrender, the Company at its expense will execute and deliver to or upon the order of the applicable Holder a new Warrant or Warrants of like tenor, in the name of the Holder or as the Holder (upon payment by the Holder of any applicable transfer taxes) may direct, calling in the aggregate on the face or faces therefor for the number of Warrant Shares called for on the face or faces of the Warrant or Warrants so surrendered.
 
13.3   Assistance in Disposition of Warrant or Warrant Shares . Notwithstanding any other provision herein, in the event that it becomes unlawful for the Holder to continue to hold this Warrant, in whole or in part, or some or all of the Warrant Shares held by it, or restrictions are imposed on the Holder by any statute, regulation or governmental authority which, in the judgment of the Holder, make it unduly burdensome to continue to hold the Warrant or Warrant Shares, the Holder may sell or otherwise dispose of the Warrant or Warrant Shares (subject to any restrictions on transfer described herein), and the Company agrees to provide reasonable assistance to the Holder in disposing of the Warrant or Warrant Shares in a prompt and orderly manner and, at the request of the Holder, to provide (and authorize the Holder to provide) such financial and other information concerning the Company to any prospective purchaser of the Warrant or Warrant Shares owned by the Holder.
 
 
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13.4   Replacement of Warrants . Upon receipt of reasonable evidence of the loss, theft, destruction or mutilation of any Warrant and, in the case of any such loss, theft or destruction of any Warrant held by a Person other than a Purchaser or any other institutional investor to whom the Purchaser may Transfer this Warrant, upon delivery of indemnity satisfactory to the Company in form and amount or, in the case of any such mutilation, upon surrender of such Warrant for cancellation at the Company’s Chief Executive Office, the Company at its sole expense will execute and deliver, in lieu thereof, a new Warrant of like tenor and dated the date hereof.
 
14.   REPRESENTATIONS AND WARRANTIES.
 
14.1   Representations and Warranties of the Company . The Company hereby represents and warrants to the Purchaser as follows:
 
(a)   each of the representations and warranties of the Credit Parties set forth in the Credit Agreement are true and correct as of the date hereof, each such representation and warranty being hereby incorporated by reference herein, mutatis mutandis , for all purposes;
 
(b)   the Company is not party to any contract, agreement or other arrangement which conflicts with the terms of this Warrant or any of the rights conferred to the Holder, or obligations imposed on the Company, hereby;
 
(c)   the offer, sale, issuance and delivery of this Warrant in accordance with the terms herein will be exempt from the registration provisions of the Securities Act;
 
(d)   the issuance of the Warrant Shares upon the exercise of this Warrant in accordance with the terms herein will be exempt from the registration provisions of the Securities Act; and
 
(e)   immediately after giving effect to transactions contemplated by this Warrant, (i) the Company has duly authorized the issuance of the Warrant Shares and has reserved them and made them available for issuance and delivery upon exercise of this Warrant, (ii) the outstanding Equity Securities of the Company consists solely of this Warrant and the Equity Securities set forth on Schedule I hereto and (iii) each of the Company’s Subsidiaries is directly or indirectly wholly-owned by the Company.
 
14.2   Representations and Warranties of the Holders . Each Holder represents and warrants to the Company and to each other Holder, as of the date such Person becomes a Holder, as follows:
 
(a)   Organization and Qualification . Such Holder, if an entity, is a corporation, limited partnership or limited liability company, in either case duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
 
(b)   Authority; Enforceability . Such Holder has all requisite power and authority to execute and deliver this Warrant and to perform its obligations hereunder and to consummate the transactions contemplated hereby, and all action required on the part of such Holder for such execution, delivery and performance has been duly and validly taken. Assuming due execution and delivery by the Company, this Warrant constitutes the legal, valid and binding obligation of such Holder enforceable against such Holder in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and by general equitable principles.
 
 
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(c)   Accredited Investor; Securities Laws Compliance .
 
(i)   Such Holder either (a) is an “accredited investor” (as defined in Regulation D under the Securities Act) or (b) has such knowledge, skill and experience in business and financial matters, based on actual participation, that it is capable of evaluating the merits and risks of an investment in the Company and the suitability thereof as an investment for such Holder.
 
(ii)   Except as otherwise contemplated by this Warrant, such Holder is acquiring this Warrant and any Warrant Shares for investment for its own account and not with a view to any distribution thereof in violation of applicable securities laws.
 
(iii)   The Holder understands that (a) the offering and sale of this Warrant and any Warrant Shares by the Company is intended to be exempt from registration under the Securities Act pursuant to section 4(2) thereof and Regulation D, (b) there is no existing public or other market for this Warrant or the Warrant Shares, and (c) this Warrant and the Warrant Shares may be resold only pursuant to an effective registration statement under the Securities Act or pursuant to a valid exemption from the registration requirements of the Securities Act.
 
(iv)   Such Holder is familiar with Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act, including the Rule 144 condition that current information about the Company be made available to the public. Such Holder acknowledges that such information is not now available and that the Company has no present plans to make such information available.
 
15.   DEFINITIONS. As used herein, unless the context otherwise requires, the following terms have the respective meanings set forth below. All capitalized terms used and not defined below or otherwise defined herein shall have the respective meanings set forth in the Credit Agreement:
 
  “ Appraiser ” means an independent nationally recognized investment banking firm mutually agreeable to the Holder and the Company. If the Holder and the Company cannot agree on an Appraiser within fifteen (15) days after the applicable Valuation Request, then, the Company, on the one hand, and the Holder, on the other hand, shall each select an Appraiser within fifteen (15) days of the applicable Valuation Request. Each such Appraiser shall then independently determine the applicable Fair Market Value within thirty (30) days after the applicable Valuation Request (or if the Holder or the Company fails to timely select an Appraiser as contemplated in the immediately preceding sentence, the Appraiser timely selected by the Company or the Holder, as applicable, shall make such determination). Other than with respect to Publicly Traded Securities, the prevailing market prices for any security or property will not be dispositive of the Fair Market Value thereof. If each of the Holder and the Company timely selects an Appraiser and (i) the difference between the determinations of Fair Market Value by the Appraisers is less than twenty percent (20%), then the average of such determinations shall be the conclusive and binding determination of the applicable Fair Market Value or (ii) the difference between the determinations of Fair Market Value by the Appraisers is equal to or more than twenty percent (20%), then the Appraisers shall jointly select one independent Appraiser to determine the Fair Market Value, and the selection of the new Appraiser and its determination of Fair Market Value shall be made within sixty (60) days after the applicable Valuation Request. Any and all fees, costs and other expenses of the Appraiser(s) shall be borne by the Company. The determination of the Fair Market Value pursuant to this definition and the definition of Fair Market Value shall be conclusive and binding on all applicable parties.
 
 
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  “ Articles ” means the Company’s Certificate of Incorporation, as described in the Credit Agreement as of the date hereof, as the same may be amended, restated or otherwise modified from time to time in accordance with the terms thereof (and as permitted by this Warrant).
 
  “ Board of Directors ” has the meaning given to such term in the Articles.
 
  “ Business Day ” means any day other than a Saturday or a Sunday or a day on which commercial banking institutions in New York, New York are authorized or obligated by law or executive order to be closed. Any reference to “days” (unless Business Days are specified) shall mean calendar days.
 
  “ Commission ” means the United States Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.
 
  “ Common Shares ” means shares of the Company’s Common Stock, par value $0.025, per share.
 
  “ Company ” has the meaning given to such term in the introduction to this Warrant and shall include any Person that shall succeed to or assume the obligations of the Company.
 
  “ Company Group ” means the Company and its Affiliates.
 
  “ Convertible Securities ” means any evidences of indebtedness or other instruments or securities (other than Options) directly or indirectly convertible into or exchangeable for Equity Securities of the Company.
 
  “ Equity Plan Securities ” means Common Shares issued, or reserved for issuance pursuant to an incentive equity plan (including any Common Shares issuable upon exercise of any Convertible Security or Option pursuant to any incentive equity plan) approved by a majority of the independent directors on the Board.
 
  “ Equity Securities ” means, as to any Person, such Person’s equity securities or other equity interests authorized from time to time, and any other securities, options, interests, participations or other equivalents (however designated) of or in such Person, whether voting or nonvoting, including options, warrants, phantom equity, equity appreciation rights, convertible notes or debentures, equity purchase rights, and all agreements, instruments, documents and securities convertible, exercisable, or exchangeable, in whole or in part, into any one or more of the foregoing. The Company’s Equity Securities, as of the date hereof, shall include Common Shares, shares of Series A Preferred Stock of the Company, par value $0.001 per share, shares of Series B Preferred Stock of the Company, par value $0.001 per share (the “ Series B Shares ”), and the other Equity Securities set forth on Schedule I hereto.
 
  “ Equity Value ” means an amount, determined in accordance with the definition of Fair Market Value, equal to the enterprise value of the Company and its Subsidiaries as a whole less the amount of indebtedness for borrowed money of the Company and/or its Subsidiaries. In connection with the determination of Equity Value in a Sale Transaction, the calculation of Equity Value shall be increased by (a) all amounts paid or payable under consulting agreements not on market terms, agreements not to compete or similar arrangements (including Excess Compensation) entered into in connection with such Sale Transaction, (b) the gross value of any post-closing payments (whether or not contingent) and (c) any extraordinary or special dividends or distributions paid or payable in connection with such Sale Transaction.
 
   “ Excess Compensation ” means any cash, Equity Securities, other property or other remuneration (including perquisites) payable to any Stockholder during the twelve (12) month period subsequent to the closing of a Sale Transaction (collectively, “ Remuneration ”), including any Remuneration related to future performance or payable subsequent to the closing of such Sale Transaction in excess of the sum of (a) 100% of the aggregate compensation in the form of salary and bonus (but excluding equity-based compensation) actually paid by the Company for services rendered by such Stockholder during the previous twelve (12) full months, plus (b) any consideration received by such Stockholder as a holder of Equity Securities in accordance with the distribution provisions of the Articles (other than consideration received in connection with a Sale Transaction); provided , that , with respect to any Remuneration payable or potentially payable subsequent to the closing of the applicable Sale Transaction, the value of such Remuneration shall be determined at the closing of the Sale Transaction (with any unliquidated or contingent payments equal to the maximum amount that may be payable), discounted at the time of such Sale Transaction at the Prime Rate. Excess Compensation does not include that portion of any equity based compensation resulting from an increase in the value of the equity underlying such compensation that occurs after the closing of a Sale Transaction.
 
 
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  “ Exchange Act ” means the Securities Exchange Act of 1934, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
 
  “ Fair Market Value ” means, as to securities or other property, the fair market value of such securities or property as mutually and reasonably agreed upon by the Company and the Holders, assuming such securities or property is to be sold in an arm’s length transaction between a willing seller and a willing buyer as a going concern, without any Impairment Deductions (but, for the avoidance of doubt, taking into account any liquidation preference, redemption or similar right relating to this Warrant, to the extent applicable to the valuation in question), at the time of the transaction requiring the applicable determination of Fair Market Value pursuant to this Warrant (each such transaction, a “ Valuation Event ”). If the Company and the Holder are unable to agree on any calculation of Fair Market Value in accordance with the foregoing provisions within fifteen (15) days after the occurrence of any Valuation Event, then, upon the written request of either the Holder or the Company delivered at any time thereafter (the “ Valuation Request ”), the Fair Market Value of such securities and/or other property will be determined by the Appraiser in accordance with this definition and the definition of Appraiser.
 
  “ Fully-Diluted Basis ” means at any time, without duplication, (i) as applied to any calculation of the number of securities of the Company, after giving effect to, without duplication, (w) all Common Shares of the Company outstanding at the time of determination, (x) all Equity Securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Shares and all interests, participations or other Common Shares equivalents; provided, however, for purposes of calculation in accordance with this defined term, the Subject Series B Shares shall be deemed convertible into Common Shares at a price not less than the price described in the Series B Side Letter, notwithstanding the certificate of designations, rights and preferences for the Series B Shares, (y) all Common Shares issuable upon the exercise of any Convertible Security or Option outstanding as of the date of determination, and (z) all Equity Plan Securities not otherwise covered by the foregoing; and (ii) as applied to any calculation of value, after giving effect to the foregoing securities and the payment of any consideration payable upon the exercise of any Convertible Security or Option referred to in clause (i) above if such Convertible Security or Option were exercisable at such time; provided , that, with respect to this clause (ii), Fully-Diluted Basis shall in all circumstances include the Warrant Shares but shall exclude any Common Shares that are issuable in connection with the exercise of any Option or Convertible Security (other than this Warrant) that is not “in the money,” nor shall it ascribe any value to any such Option or Convertible Security (other than this Warrant).
 
  “ Holder ” means each and every holder or beneficial owner of any portion of this Warrant, which shall initially be the Purchaser. For purposes of simplicity, this Warrant has been drafted in contemplation of one Holder. In the event that, at any given time, there shall be more than one Holder, (i) references to “Holder” and this “Warrant” shall mean each Holder and the portion of this Warrant held by each such Holder, (ii) all notices shall be delivered to each Holder in accordance with Section 24 and (iii) with respect to any action, approval, or consent of the Holder required or otherwise permitted pursuant to the provisions hereof (including Sections 9 and 12 ), or any amendment, modification or waiver under or with respect to this Warrant, such action, approval, consent, amendment, modification or waiver shall be deemed to have been taken, received or otherwise obtained if such action, approval or consent is taken, received or otherwise obtained by or from Requisite Holders, regardless of whether any such party has consented thereto, except that each Holder may, on an individual basis, exercise its rights described in Section 7 or exercise its portion of the Warrant. Without in any way limiting the foregoing, the term “Holder” shall include the Purchaser and each of their respective successors and/or assigns that at any time holds or otherwise owns any portion of this Warrant.
 
 
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  “ Impairment Deductions ” means, with respect to the determination of the Fair Market Value of any securities or other property, any deduction for (a) liquidity considerations, (b) minority equityholder status, or (c) any liquidation or other preference or any right of redemption in favor of any Equity Securities of the Company; provided , that , Impairment Deductions shall not include any liquidation preference, redemption or similar right relating to this Warrant (which shall be taken into account in determining Fair Market Value, to the extent applicable to the valuation in question).
 
  “ Insider ” means any officer or director of the Company, or any family member of such Person (to the second degree of consanguinity) or any Person that is an Affiliate of the foregoing.
 
  “ Majority-in-Interest ” means Stockholders of the Company holding Equity Securities accounting for fifty percent or more of the voting power of all of the Company’s Equity Securities.
 
  “ Net Debt ” means an amount equal to the Company’s Funded Debt minus its cash and cash equivalents.
 
  “ Options ” means any rights, options or warrants to subscribe for, purchase or otherwise acquire any of the Company’s Equity Securities.
 
  “ Per Share Warrant Price ” means, as of a date of determination, (a) the Aggregate Warrant Price divided by (b) the Aggregate Warrant Shares.
 
  “ Percentage Interest ” means, with respect to the Warrant Shares in question, an amount equal to (a) the number of Warrant Shares in question divided by (b) the total number of Common Shares on a Fully-Diluted Basis.
 
   “ Person ” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or any federal, state, county or municipal governmental or quasi-governmental agency, department, commission, board, bureau, instrumentality or similar entity, Person that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes or domestic, having jurisdiction over either the Company or any Holder.
 
  “ Piggyback Shares ” means, collectively, the Warrant Shares of each Holder requesting piggyback registration rights hereunder and the Common Shares requesting piggyback registration pursuant to that certain Warrant Cancellation and Stock Issuance Agreement, dated as of the date hereof, by and among the Company and the Praesidian Funds thereunder.
 
  “ Purchaser Group ” means the Purchaser and its Affiliates.
 
 
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  “ Redemption Price ” means an amount equal to the Equity Value multiplied by the Percentage Interest represented by the Aggregate Warrant Shares.
 
   “Requisite Holders” means the Holder or Holders that own or otherwise hold more than fifty-percent (50%) of the Aggregate Warrant Shares.
 
  “Restricted Securities” means all of the following: (a) any Warrants bearing the legend or legends contained herein or substantially similar thereto, (b) any Warrant Shares that have been issued upon the exercise of this Warrant and that are evidenced by a certificate or certificates bearing the applicable legend or legends contained herein or substantially similar thereto and (c) unless the context otherwise requires, any Warrant Shares that are at the time issuable upon the exercise of this Warrant and that, when so issued, will be evidenced by a certificate or certificates bearing the applicable legend or legends contained herein or substantially similar thereto.
 
  “Sale Transaction” means any transaction pursuant to which (a) the Company sells or disposes (in one or a series of related sales or dispositions) of all or substantially all of the assets of the Company on a consolidated basis (other than inventory in the ordinary course of business), including any sale or disposition of the Equity Securities or assets of the Subsidiaries of the Company, (b) the Company engages in any merger, consolidation, combination or similar transaction, (in one or a series of related transactions), such that the Majority-in-Interest immediately prior to the transaction or transactions will, immediately after such transaction or transactions, no longer constitute the Majority-in-Interest, (c) the Company engages in any transaction or series of related transactions that results in any change of control of the Company (as the term “control” is defined in Rule 405 the Securities Act), whether such change of control occurs through the sale of assets, Equity Securities or otherwise, or (d) any other transaction constituting a “Change of Control” as defined in the Credit Agreement on the date hereof.
 
  “Securities Act” means the Securities Act of 1933, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be amended and in effect at the time.
 
  “ Senior Capital ” means any and all Equity Securities, indebtedness or debt securities of the Company or any of its Subsidiaries (other than such issuances between or among the Company and its direct or indirect wholly-owned Subsidiaries), other than Common Shares (or Equity Securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Shares) or first lien indebtedness for borrowed money.
 
  “Specified Stockholders” means Jeffrey Cosman, Edward H. Kniep IV Trust, Patricia S. Reich Trust, Charles E. Barcom and James P. Canouse.
 
  “Stockholder” means each holder of the Company’s Equity Securities.
 
  “ Subject Series B Shares ” means the Series B Shares held by any Stockholder party to that certain letter agreement, dated on or about the date hereof, by and among the Company and the Stockholders from time to time party thereto.
 
  “ Transaction Documents ” means this Warrant, the Credit Agreement and any document contemplated hereby or thereby.
 
  “Transfer” means any direct or indirect sale, transfer, issuance, assignment, pledge or other disposition or conveyance of Equity Securities of the Company.
 
 
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  “Warrant” means this Purchase Warrant, as the same may be amended, restated or otherwise modified from time to time, together with any and all replacement and/or substitute warrants issued with respect hereto.
 
  “ Warrant Shares ” means the Common Shares issuable in connection with the exercise of this Warrant.
 
Unless the context of this Warrant clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term “including” is not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”
 
16.   EQUITY SECURITIES DEEMED OUTSTANDING. For all purposes of the computations to be made pursuant to this Warrant, there shall be deemed to be outstanding all Equity Securities issuable pursuant to the exercise of Options and conversion of Convertible Securities (including this Warrant), after giving effect to (a) antidilution provisions contained in all such outstanding Options and Convertible Securities that cause an adjustment in the number of Equity Securities so issuable, either by virtue of such issuance of Equity Securities or Options or Convertible Securities or by virtue of the operation of such antidilution provisions, and (b) the definition of Fully-Diluted Basis.
 
17.   INFORMATION AND OBSERVATION RIGHTS .
 
17.1   Information Rights . For so long as this Warrant is outstanding or the Purchaser or its Affiliates holds Equity Securities of the Company, the Company shall provide the Holder with (i) copies of any and all information that the Company is required to deliver pursuant to the following subsections of Section 5.1 of the Credit Agreement: (a) (monthly reports), (b) (quarterly financial statements), (c) (annual financial statements), (g) (notice of litigation), (i) financial plan, (l) (notice regarding material contracts) and (m) (environmental reports and audits) of the Credit Agreement (as of the date hereof and regardless of any termination thereof) and (ii) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as the Purchaser or its Affiliates may from time to time reasonably request; provided , however , that the Company shall not be obligated under this clause (ii) to provide information (a) to the extent that the Company reasonably determines such information to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (b) to the extent that providing such information would reasonably be expected to adversely affect the attorney-client privilege between the Company and its counsel.
 
17.2   Right to Appoint Observer . The Holder shall be entitled to appoint one Person (the “ Holder Appointee ”) to attend, as a non-voting observer, each meeting of the Board of Directors, or any committee thereof, whether such meeting is conducted in person or by telephone. The Holder Appointee shall be entitled to receive, with respect to each meeting of the Board of Directors or any committee thereof: (a)(i) written notice of each regular meeting at least ten (10) days in advance thereof and (ii) written notice of each special meeting at least two (2) Business Days in advance of such meeting, but, in any case involving any such regular or special meeting, such notice shall be delivered no later than the date on which the members of the Board of Directors or the committee, as applicable, are notified of such meeting, and (b) any and all information provided in connection with each such meeting to all other potential attendees of such meeting, in each case at the time and in the same manner as provided to such other attendees. Additionally, the Holder Appointee shall receive copies of all other notices, minutes, consents and other material items that the Company provides to its directors at the same time and in the same manner as provided to such directors. The Holder Appointee shall receive reimbursement from the Company for any and all reasonable out-of-pocket expenses incurred in connection with attending any and all meetings of the Board of Directors or any committee thereof. The Holder shall be entitled to fill any vacancy caused by the resignation, death or removal of a prior Holder Appointee.
 
 
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18.   MULTIPLE HOLDERS; NO LIABILITIES AS A STOCKHOLDER.
 
18.1   Multiple Holders . In the event that there shall be multiple Holders, each Holder agrees that (i) no other Holder will by virtue of this Warrant or exercise thereof be under any fiduciary or other duty to give or withhold any consent or approval under this Warrant or to take any other action or omit to take any action under this Warrant and (ii) each other Holder may act or refrain from acting under this Warrant as such other Holder may, in its discretion, elect.
 
18.2   No Liabilities As a Stockholder . Nothing contained in this Warrant shall be construed as imposing any obligation on any Holder to purchase any securities or as imposing any liabilities on any Holder as a holder of Equity Securities of the Company, whether such obligation or liabilities are asserted by the Company or by creditors of the Company.
 
19.   NO EFFECT ON LENDER RELATIONSHIP . Each of the Company (on its behalf and, to the extent possible, on behalf of the Stockholders), each Specified Stockholder and each Holder acknowledges and agrees that, notwithstanding anything in this Warrant or the Credit Agreement to the contrary, nothing contained in this Warrant or any other Transaction Document shall affect, limit or impair the rights and remedies of the Purchaser Group (a) in its or their capacity as a lender or as agent for lenders to the Company or any of its Subsidiaries pursuant to any agreement under which the Company or any of its Subsidiaries has borrowed money, including the Credit Agreement, or (b) in its or their capacity as a lender or as agent for lenders to any other Person who has borrowed money. Without limiting the generality of the foregoing, any such Person, in exercising its rights as a lender, including making its decision on whether to foreclose on any collateral security, will have no duty to consider (x) its or any of its Affiliates’ status as a Holder, (y) the interests of the Company or its Subsidiaries or (z) any duty it may have to any holder of the Company’s Equity Securities (including any other Holder, in the event that there shall be multiple Holders), except as may be required under the applicable loan documents or by commercial law applicable to creditors generally. No consent, approval, vote or other action taken or required to be taken by the Holder in such capacity shall in any way impact, affect or alter the rights and remedies of the Purchaser or any of its Affiliates as a lender or agent for lenders.
 
20.   CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST.
 
20.1   General . In recognition and anticipation (i) that the Purchaser will be a significant equityholder of the Company, (ii) that directors, officers and/or employees of the Purchaser Group may serve as the Holder Appointee (or in other capacities of the Company Group) , (iii) that the Company Group may, directly or indirectly, through ownership interests in a variety of enterprises, engage in activities that overlap with or compete with those in which the Company Group, directly or indirectly, may engage, (iv) that the Purchaser Group may have an interest in the same areas of corporate opportunity as the Company Group and (v) that, as a consequence of the foregoing, it is in the best interests of the Company Group that the respective rights and duties of the Company Group and of the Purchaser Group, and the duties of any Holder Appointee (or any other Person in service to the Company Group) who are also directors, officers or employees of the Purchaser Group, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for both, the Company Group, on the one hand, and the Purchaser Group, on the other hand, the provisions of this Section 20 shall to the fullest extent permitted by law regulate and define the conduct of certain of the business and affairs of the Company Group in relation to the Purchaser Group and the conduct of certain affairs of the Company Group as they may involve the Purchaser Group, their respective officers, directors and employees, and the power, rights, duties and liabilities of the Company Group and its officers, directors and equityholders in connection therewith. The Stockholders and any Person purchasing or otherwise acquiring this Warrant or any Warrant Shares, or any interest therein, shall be deemed to have notice of and to have consented to the provisions of this Section  20 .
 
 
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20.2   Duties of the Purchasers . Each of the Company (on its behalf and, to the extent possible, on behalf of the Stockholders), each Specified Stockholder and each Holder hereto acknowledges and agrees that nothing in this Warrant, any other Transaction Document or otherwise shall create a fiduciary duty of the Purchaser Group, or any officer, director or employee of the Purchaser Group, to the Company Group or any of its equityholders. Notwithstanding anything to the contrary in the Transaction Documents or any actions or omissions by representatives of the Purchaser Group in whatever capacity, including as a Holder Appointee, it is understood that the Purchaser Group is not acting as a financial advisor, agent or underwriter to the Company Group or otherwise on behalf of the Company Group unless retained to provide such services pursuant to a separate written agreement. Except as otherwise agreed in writing between the Company and the Purchaser, the Purchaser Group shall to the fullest extent permitted by law have no duty to refrain from (i) engaging in the same or similar activities or lines of business as the Company Group or (ii) doing business with any client, customer or vendor of the Company Group. If the Purchaser Group acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company Group and the Purchaser Group, then each of the Company (on its behalf and, to the extent possible, on behalf of the Stockholders), each Specified Stockholder and each Holder (that is not a member of the Purchaser Group) to the fullest extent permitted by law renounces any interest or expectancy in such business opportunity and waives any claim that such business opportunity constituted a corporate opportunity that should have been presented to the Company Group. In the case of any such corporate opportunity, the Purchaser Group shall to the fullest extent permitted by law not be liable to the Company Group or their equityholders or to any other Holder, as an equity holder of the Company by reason of the fact that the Purchaser Group acquires or seeks such corporate opportunity for themselves, direct such corporate opportunity to another Person or otherwise does not communicate information regarding such corporate opportunity to the Company Group.
 
20.3   Duties of Certain of the Purchaser’s Affiliates . If a Holder Appointee acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company Group and the Purchaser Group, then such Holder Appointee shall have no duty to communicate or present such corporate opportunity to the Company Group and shall, to the fullest extent permitted by law, not be liable to the Company Group or their equityholders, or to any other Holder, for breach of any fiduciary or other duty as an observer to the Board of Directors or committee thereof or in any other capacity by reason of the fact that the Purchaser Group pursues or acquires such corporate opportunity for themselves, direct such corporate opportunity to another Person or do not present such corporate opportunity to the Company Group, and each of the Company (on its behalf and, to the extent possible, on behalf of the Stockholders), each Specified Stockholder and each Holder (that is not a member of the Purchaser Group) to the fullest extent permitted by law renounces any interest or expectancy in such business opportunity and waives any claim that such business opportunity constituted a corporate opportunity that should be presented to the Company Group.
 
20.4   Corporate Opportunities Defined . For purposes of this Section 20 , “corporate opportunities” shall include, but not be limited to, business opportunities that the Company Group is financially able to undertake, that are, from their nature, in the line of the Company Group’s business, that are of practical advantage to it and that are ones in which the Company Group, but for the provisions of Sections 20.2 and 20.3 , would have an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of the Purchaser Group or their officers or directors will be brought into conflict with that of the Company Group.
 
 
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21.   NON PROMOTION. The Company agrees that it will not, without the prior written consent of the Purchaser, in each instance, (a) use in advertising, publicity or otherwise any name of the Purchaser Group, or any partner or employee of the Purchaser Group, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by the Purchaser Group, or (b) represent, directly or indirectly, that any product or any service provided by the Company Group has been approved or endorsed by such Purchaser Group.
 
22.   USE OF LOGO. The Company grants the Purchasers permission to use any name or logo of the Company Group in any marketing materials of the Purchaser Group. The Purchaser Group shall include a trademark attribution notice giving notice of the Company Group’s ownership of its trademarks in the marketing materials in which the Company Group’s name and logo appear.
 
23.   LOCK-UP LIMITATIONS. Notwithstanding anything in this Warrant, none of the provisions of this Warrant shall in any way limit the Purchaser Group from engaging in any brokerage, investment advisory, financial advisory, anti-raid advisory, principaling, merger advisory, financing, asset management, trading, market making, arbitrage, investment activity and other similar activities conducted in the ordinary course of their business. Notwithstanding anything to the contrary set forth in this Warrant, no restrictions set forth in this Warrant shall apply to Equity Interests acquired by the Purchaser Group following the effective date of the first registration statement of the Company covering Equity Securities to be sold on behalf of the Company in an underwritten public offering.
 
24.   NOTICES.
 
24.1   Manner of Delivery . Any notice or other communication in connection with this Warrant shall (i) if delivered personally, be deemed received upon delivery; (ii) if delivered by telecopy or electronic mail, be deemed received on the Business Day of confirmation; (iii) if delivered by certified mail, be deemed received upon actual receipt thereof or three Business Days after the date of deposit in the United States mail, as the case may be; and (iv) if delivered by nationally recognized overnight delivery service, be deemed received the Business Day after the date of deposit with the delivery service.
 
24.2   Place of Delivery. Any notice or other communication in connection with this Warrant shall be delivered to the following address (i) if to the Holder, to the address set forth on the signature page hereto (or any other address that the Holder may designate by written notice to the Company in accordance with this Section 24 ) with a copy of such notice delivered by electronic mail, (ii) if to the Company, to the attention of its Chief Executive Officer or President at its Chief Executive Office; provided , however , that the exercise of any Warrant shall be effective only in the manner provided in Section 1 .
 
25.   WAIVERS; AMENDMENTS. Any provision of this Warrant may be amended or waived with the written consent of the Company and the Holder (or, for the avoidance of doubt, if there are multiple Holders, then the Holder or Holders constituting the Requisite Holders), and no amendment or waiver of this Warrant shall require the consent of any Stockholder. Any amendment or waiver effected in compliance with this Section 25 shall be binding upon the Company and the Holder and, if such amendment or waiver is acknowledged by Specified Stockholders holding a majority of Common Shares (on a Fully-Diluted Basis) held by all Specified Stockholders, all Specified Stockholders. In the event that there shall be multiple Holders, the Company shall give prompt notice to each Holder of any amendment or waiver effected in compliance with this Section 25 . No failure or delay of the Company or the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereon or the exercise of any other right or power. No notice or demand on the Company in any case shall entitle the Company to any other or future notice or demand in similar or other circumstances. The rights and remedies of the Company and the Holder hereunder are cumulative and not exclusive of any rights or remedies which it would otherwise have.
 
 
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26.   INDEMNIFICATION.
 
26.1   Generally . Without limitation of any other provision of this Warrant or any agreement executed in connection herewith, the Company agrees to defend, indemnify and hold the Holder, its respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents and each person who controls any of them within the meaning of Section 15 of the Securities Act, or Section 20 of the Exchange Act (collectively, the “ Holder Indemnified Parties ” and, individually, a “ Holder Indemnified Party ”) harmless from and against any and all damages, liabilities, losses, taxes, fines, penalties, reasonable costs and expenses (including reasonable fees of a single counsel representing the Holder Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) which may be sustained or suffered by any such Holder Indemnified Party (“ Losses ”), based upon, arising out of, or by reason of (i) any breach of any representation or warranty made by the Company in this Warrant or any other agreement executed in connection herewith, (ii) any breach of any covenant or agreement made by the Company in this Warrant or in any other agreement executed in connection herewith, or (iii) any third party or governmental claims relating in any way to such Holder Indemnified Party’s status as a security holder, creditor, director, agent, representative or controlling person of the Company or otherwise relating to such Holder Indemnified Party’s involvement with the Company (including any and all Losses under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, which relate directly or indirectly to the registration, purchase, sale or ownership of any securities of the Company or to any fiduciary obligation owed with respect thereto), including in connection with any third party or governmental action or claim relating to any action taken or omitted to be taken or alleged to have been taken or omitted to have been taken by any Holder Indemnified Party as security holder, director, agent, representative or controlling person of the Company or otherwise, alleging so-called control person liability or securities law liability; provided , however , that the Company will not be liable to the extent (and then solely to such extent) that such Losses arise from and are based on (1) an untrue statement or omission or alleged untrue statement or omission in a registration statement or prospectus which is made in reliance on and in conformity with written information furnished to the Company by or on behalf of such Holder Indemnified Party, or (2) conduct by a Holder Indemnified Party which constitutes fraud or willful misconduct.
 
26.2   Other Indemnitors . The Company hereby acknowledges that certain of the Holder Indemnified Parties have certain rights to indemnification, advancement of expenses or insurance provided by the Purchaser Group (collectively, the “ Other Indemnitors ”). The Company hereby agrees, and the Stockholders acknowledge, that (a) to the extent legally permitted and as required by the terms of this Warrant (or by the terms of any other agreement between the Company and a Holder Indemnified Party), (i) the Company is the indemnitor of first resort (i.e., its obligations to each Holder Indemnified Party are primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Holder Indemnified Party are secondary) and (ii) the Company shall be required to advance the full amount of expenses incurred by a Holder Indemnified Party and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement, without regard to any rights that a Holder Indemnified Party may have against the Other Indemnitors and (b) the Company irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims for contribution, subrogation or any other recovery of any kind in respect of any of the matters described in clause (a) of this sentence for which any Holder Indemnified Party has received indemnification or advancement from the Company. The Company further agrees that no advancement or payment by the Other Indemnitors on behalf of any Holder Indemnified Party with respect to any claim for which a Holder Indemnified Party has sought indemnification from the Company shall affect the foregoing and that the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Holder Indemnified Party against the Company.
 
 
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26.3   Certain Limitations . If the indemnification provided for in Section 26.1 above for any reason is held by a court of competent jurisdiction to be unavailable to a Holder Indemnified Party in respect of any Losses referred to therein, then the Company, in lieu of indemnifying such Holder Indemnified Party thereunder, shall contribute to the amount paid or payable by such Holder Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Holder, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Holder in connection with the action or inaction which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the Company and the Holder shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
 
26.4   Other . Each of the Company and the Holder agrees that it would not be just and equitable if contribution pursuant to Section 26.2 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The rights to indemnification provided to the Purchaser (and any other Person who becomes a Holder) and the other Holder Indemnified Parties in this Section 26 shall survive the termination, exchange, exercise or transfer of this Warrant (or Warrant Shares, as applicable). The Holder Indemnified Parties and Other Indemnitors are express third party beneficiaries of the terms of this Section 26 .
 
27.   MISCELLANEOUS.
 
27.1   Expenses . The Company shall pay all reasonable expenses of the Holder, including reasonable legal expenses, in connection with the preparation of the Warrant, any waiver or consent hereunder or any amendment or modification hereof (regardless of whether the same becomes effective), or the enforcement of the provisions hereof.
 
27.2   Successors and Assigns . All the provisions of this Warrant by or for the benefit of the Company or the Holder shall bind and inure to the benefit of their respective successors and permitted assigns.
 
27.3   Severability . In case any one or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Furthermore, in lieu of any such invalid, illegal or unenforceable provision, there shall be added automatically as a part of this Warrant a provision as similar in terms to such invalid, illegal or unenforceable provision as may be possible and be legal, valid and enforceable, unless the requisite parties separately agree to a replacement provision that is valid, legal and enforceable.
 
27.4   Equitable Remedies . Without limiting the rights of the Company and the Holder to pursue all other legal rights available to such party (including equitable remedies) for the other parties’ failure to perform its obligations hereunder, the Company and the Holders each hereto acknowledge and agree that the remedy at law for any failure to perform any obligations hereunder (or any failure to observe the terms of this Warrant by any Stockholder) may be inadequate and that may shall be entitled to specific performance, injunctive relief or other equitable remedies in the event of any such failure.
 
 
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27.5   Continued Effect . Notwithstanding anything herein to the contrary, except as expressly provided herein (including as provided in Section 8.8 , Section 13.3 and Section 26 ), at such time as this Warrant is exercised in full or upon payment in full of the Redemption Price in connection with the exercise of the Put Right, this Agreement shall terminate. The Holder shall be entitled to retain a copy of this Warrant as evidence of the continued effect of the provisions hereof. The Company covenants and agrees not to become party to any contract, agreement or other arrangement which conflicts with the terms of this Warrant or any of the rights conferred to the Holder, or obligations imposed on the Company, hereby.
 
27.6   GOVERNING LAW . THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW.
 
27.7   WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS WARRANT OR ANY OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS WARRANT AND THE OTHER TRANSACTION DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
27.8   Section Headings; Construction . The section headings used herein are for convenience of reference only and shall not be construed in any way to affect the interpretation of any provisions of this Warrant. The titles and subtitles used in this Warrant are used for convenience only and are not to be considered in construing or interpreting this Warrant. Terms defined in the singular have the corresponding meanings in the plural, and vice versa. Unless the context of this Warrant clearly requires otherwise, words importing the masculine gender include the feminine and neutral genders and vice versa. The terms “include,” “includes” or “including” mean “including without limitation.” The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in this Warrant, refer to this Warrant as a whole and not to any particular section or article in which such words appear.
 
27.9   Counterparts . This Warrant may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together, shall be deemed to be one and the same instrument.
 
 
[Signature Page Follows]
 
 
28
 
 
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed as of the date hereof.
 
 
COMPANY:
 
   
MERIDIAN WASTE SOLUTIONS, INC.
 
       
 
By:
/s/ Jeffrey S. Cosman  
   
Name: Jeffrey S. Cosman
 
   
Title: Chief Executive Officer
 
       
The undersigned is executing this Warrant as of the date hereof to make the representations and warranties set forth in Section 14.2 of this Warrant and to evidence its consent to, and, to the extent applicable, its agreement to be bound by, the provisions of Sections 9 , 18 , 19 , 20 and 27 of this Warrant (and the defined terms referenced therein) for the benefit of the Company and each other Holder.
 
 
PURCHASER:
 
   
GOLDMAN, SACHS & CO.
 
       
 
By:
/s/ Stephen W. Hipp  
   
Name: Stephen W. Hipp
 
   
Title: Authorized Signatory
 
       
 

Address for Notices:

Goldman, Sachs & Co.
200 West Street
New York, New York 10272
Attn: AmSSG Legal Department

with a copies to (which shall not constitute notice):

Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Attn: Chris Rowley and Peter Marshall
 
 
 
Signature Page Purchase Warrant
 
 
ACKNOWLEDGED AND AGREED:
 
Jeffrey Cosman, Edward H. Kniep IV Trust, Patricia S. Reich Trust, Charles E. Barcom and James P. Canouse.
 
SPECIFIED STOCKHOLDERS:
 
     
       
 
 
/s/  Jeffrey Cosman  
   
Jeffrey Cosman
 
       
       

     
       
 
  /s/  Charles E. Barcom  
   
Charles E. Barco
 
       
       

 
     
       
 
  /s/ James P. Canouse  
   
James P. Canouse
 
       
     

EDWARD H. KNIEP IV TRUST

     
       
 
By:
/s/  Edward H. Kniep IV  
   
Name: Edward H. Kniep IV
 
   
Title: Partner
 
       
 
 
PATRICIA S. REICH TRUST


     
       
 
By:
/s/  Patricia S. Reich  
   
Name: Patricia S. Reich
 
   
Title: Trustee
 
     


 
Signature Page Purchase Warrant   
 



EXHIBIT I
FORM OF SUBSCRIPTION
 
[To be executed only upon exercise of Warrant]
 
To [____________________________]
 
The undersigned registered Holder of the within Warrant hereby irrevocably exercises such Warrant for, and purchases thereunder, ______ [Common Shares] and herewith makes payment of $_________ therefor, and requests that the certificates for such Common Shares be issued in the name of, and delivered to _______________________, whose address is __________________________.
 
Dated:

(Signature must conform in all respects to name of Holder as specified on the face of Warrant)
 
 
(Street Address)
 
 
(City)      (State)      (Zip Code)
 
 
 
I-1 
 
 
 
EXHIBIT II
FORM OF ASSIGNMENT
 
[To be executed only upon transfer of Warrant]
 
For value received, the undersigned registered Holder of the Warrant (the “ Transferor ”) hereby sells, assigns and transfers unto _________________________ (the “ Transferee ”) the rights represented by such Warrant to purchase _____ Common Shares of Meridian Waste Solutions, Inc. (the “ Company ”) to which and such Warrant relates, and appoints ____________________________ as its attorney-in-fact to make such transfer on the books of the Company maintained for such purpose, with full power of substitution in the premises. The Transferee makes the representations and warranties set forth in Section 14.2 of the Warrant, and consents to, and, to the extent applicable, agrees to be bound by, the provisions of Sections , 9 , 18 , 19 , 20 and 27 of the Warrant (and the defined terms referenced therein) for the benefit of the Company and each other Holder.
 
Dated: _________ __, _____
 
Transferor:

(Signature must conform in all respects to name of Holder as specified on the face of Warrant)
 
(Street Address)
 
(City)                                  (State)        (Zip Code)
 
 
Transferee:
 
(Signature must conform in all respects to name of Holder as specified on the face of Warrant)
 
 
(Street Address)
 
 
(City)                                  (State)         (Zip Code)
 

 

II-1
 
Exhibit 4.6







PLEDGE AND SECURITY AGREEMENT
 


dated as of December 22, 2015
 

between
 

EACH OF THE GRANTORS PARTY HERETO
 

and
 
GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P.,
 
as Collateral Agent
 
 
 
 
 
TABLE OF CONTENTS
 
 
    PAGE 
     
SECTION 1. DEFINITIONS; GRANT OF SECURITY
 
1
1.1
General Definitions
1
1.2
Definitions; Interpretation
8
     
SECTION 2. GRANT OF SECURITY
 
7
2.1
Grant of Security
8
2.2
Certain Limited Exclusions
9
     
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE
9
3.1
Security for Obligations
9
3.2
Continuing Liability Under Collateral
9
     
SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS
10
4.1
Generally.
10
4.2
Equipment and Inventory
13
4.3
Receivables
14
4.4
Investment Related Property
16
4.5
Material Contracts
24
4.6
Letter of Credit Rights
25
4.7
Intellectual Property
25
4.8
Commercial Tort Claims
28
     
SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL GRANTORS
29
5.1
Access; Right of Inspection
29
5.2
Further Assurances
29
5.3
Additional Grantors
30
     
SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT
30
6.1
Power of Attorney
30
6.2
No Duty on the Part of Collateral Agent or Secured Parties
31
     
SECTION 7. REMEDIES
 
33
7.1
Generally
33
7.2
Application of Proceeds
34
7.3
Sales on Credit
34
7.4
Deposit Accounts
35
7.5
Investment Related Property
35
7.6
Intellectual Property
36
7.7
Cash Proceeds
38
     
SECTION 8. COLLATERAL AGENT
 
38
SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS
39
SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM
39
SECTION 11. MISCELLANEOUS
 
40
 
 
 
 
 
SCHEDULE 4.1 — GENERAL INFORMATION

SCHEDULE 4.2  — LOCATION OF EQUIPMENT AND INVENTORY

SCHEDULE 4.4 — INVESTMENT RELATED PROPERTY

SCHEDULE 4.5 ­— MATERIAL CONTRACTS

SCHEDULE 4.6 — DESCRIPTION OF LETTERS OF CREDIT

SCHEDULE 4.7 — INTELLECTUAL PROPERTY - EXCEPTIONS

SCHEDULE 4.8 — COMMERCIAL TORT CLAIMS

EXHIBIT A — PLEDGE SUPPLEMENT

EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL AGREEMENT

EXHIBIT C — SECURITIES ACCOUNT CONTROL AGREEMENT

EXHIBIT D — DEPOSIT ACCOUNT CONTROL AGREEMENT

EXHIBIT E — TRADEMARK SECURITY AGREEMENT

EXHIBIT F — COPYRIGHT SECURITY AGREEMENT

EXHIBIT G — PATENT SECURITY AGREEMENT

EXHIBIT H — IRREVOCABLE PROXY

EXHIBIT I — REGISTRATION PAGE

EXHIBIT J — PLEDGE ACKNOWLEDGEMENT
 
 
 
 

1.   This PLEDGE AND SECURITY AGREEMENT , dated as of  December 22, 2015 (this “ Agreement ”), between EACH OF THE UNDERSIGNED , whether as an original signatory hereto or as an Additional Grantor (as herein defined) (each, a “ Grantor ”), and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. , as collateral agent for the Secured Parties (as herein defined) (in such capacity as collateral agent, the “ Collateral Agent ”).
 
RECITALS:
 
2.   WHEREAS, reference is made to that certain Credit and Guaranty Agreement, dated as of the date hereof (as it may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among HERE TO SERVE – MISSOURI WASTE DIVISION, LLC , a Missouri limited liability company (“ HTS MWD ”), HERE TO SERVE – GEORGIA WASTE DIVISION, LLC , a Georgia limited liability company (“ HTS GWD ”), MERIDIAN LAND COMPANY, LLC , a Georgia limited liability company (“ MLC ”), BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP. , a New York corporation (“ BCDA ”), CHRISTIAN DISPOSAL, LLC , a Missouri limited liability company (“ Christian Disposal ”), FWCD, LLC , a Missouri limited liability company (“ FWCD ” and together with HTS MWD, HTS GWD, MLC, BCDA and Christian Disposal, the “ Companies ” and each, a “ Company ”), MERIDIAN WASTE SOLUTIONS, INC. , a New York corporation (“ Holdings” ),   certain Subsidiaries of Holdings, as Guarantors, the Lenders party thereto from time to time, and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. (“ GSSLG ”), as Administrative Agent (in such capacity, “ Administrative Agent ”), Collateral Agent (in such capacity, “ Collateral Agent ”), and Lead Arranger;
 
3.   WHEREAS , subject to the terms and conditions of the Credit Agreement, certain Grantors may enter into one or more Interest Rate Agreements with one or more Lender Counterparties;
 
4.   WHEREAS , in consideration of the extensions of credit and other accommodations of Lenders and Lender Counterparties as set forth in the Credit Agreement and the Interest Rate Agreements, respectively, each Grantor has agreed to secure such Grantor’s obligations under the Credit Documents and the Interest Rate Agreements as set forth herein; and
 
5.   NOW, THEREFORE , in consideration of the premises and the agreements, provisions and covenants herein contained, each Grantor and the Collateral Agent agree as follows:
 
SECTION 1.  
DEFINITIONS; GRANT OF SECURITY.
 
1.1   General Definitions .   In this Agreement, the following terms shall have the following meanings:
 
“Account Debtor” shall mean each Person who is obligated on a Receivable or any Supporting Obligation related thereto.
 
“Accounts” shall mean all “accounts” as defined in Article 9 of the UCC.
 
“Additional Grantors” shall have the meaning assigned in Section 5.3.
 
“Agreement” shall have the meaning set forth in the preamble.
 
 
1
 
 
“Assigned Agreements” shall mean all agreements and contracts to which such Grantor is a party as of the date hereof, or to which such Grantor becomes a party after the date hereof, including, without limitation, each Material Contract, as each such agreement may be amended, supplemented or otherwise modified from time to time.
 
“Cash Proceeds” shall have the meaning assigned in Section 7.7.
 
“Chattel Paper” shall mean all “chattel paper” as defined in Article 9 of the UCC, including, without limitation, “electronic chattel paper” or “tangible chattel paper”, as each term is defined in Article 9 of the UCC.
 
“Collateral” shall have the meaning assigned in Section 2.1.
 
“Collateral Account” shall mean any account established by the Collateral Agent.
 
“Collateral Agent” shall have the meaning set forth in the preamble.
 
“Collateral Records” shall mean books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.
 
“Collateral Support” shall mean all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.
 
“Commercial Tort Claims” shall mean all “commercial tort claims” as defined in Article 9 of the UCC, including, without limitation, all commercial tort claims listed on Schedule 4.8 (as such schedule may be amended or supplemented from time to time).
 
“Commodities Accounts” (i) shall mean all “commodity accounts” as defined in Article 9 of the UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4 under the heading “Commodities Accounts” (as such schedule may be amended or supplemented from time to time).
 
“Companies” shall have the meaning set forth in the recitals.
 
“Controlled Foreign Corporation” shall mean “controlled foreign corporation” as defined in the Tax Code.
 
“Copyright Licenses” shall mean any and all agreements providing for the granting of any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement referred to in Schedule 4.7(B) (as such schedule may be amended or supplemented from time to time).
 
  “ Copyrights ” shall mean all United States, and foreign copyrights (including Community designs), including but not limited to copyrights in software and databases, and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, and, with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications referred to in Schedule 4.7(A) (as such schedule may be amended or supplemented from time to time), (ii) all extensions and renewals thereof, (iii) all rights corresponding thereto throughout the world, (iv) all rights to sue for past, present and future infringements thereof, and (v) all Proceeds of the foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages and proceeds of suit.
 
 
2
 
 
“Credit Agreement” shall have the meaning set forth in the recitals.
 
 “Deposit Accounts” (i) shall mean all “deposit accounts” as defined in Article 9 of the UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4 under the heading “Deposit Accounts” (as such schedule may be amended or supplemented from time to time).
 
“Documents” shall mean all “documents” as defined in Article 9 of the UCC.
 
“Equipment” shall mean:  (i) all “equipment” as defined in Article 9 of the UCC, (ii) all machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing, including any fixtures.
 
 “General Intangibles” (i) shall mean all “general intangibles” as defined in Article 9 of the UCC, including “payment intangibles” also as defined in Article 9 of the UCC and (ii) shall include, without limitation, all interest rate or currency protection or hedging arrangements, all tax refunds, all licenses, permits, concessions and authorizations, all Assigned Agreements and all Intellectual Property (in each case, regardless of whether characterized as general intangibles under the UCC).
 
“Goods” (i) shall mean all “goods” as defined in Article 9 of the UCC and (ii) shall include, without limitation, all Inventory and Equipment (in each case, regardless of whether characterized as goods under the UCC).
 
“Grantors” shall have the meaning set forth in the preamble.
 
“Instruments” shall mean all “instruments” as defined in Article 9 of the UCC.
 
“Insurance” shall mean (i) all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the loss payee thereof) and (ii) any key man life insurance policies.
 
“Intellectual Property” shall mean, collectively, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.
 
“Inventory” shall mean (i) all “inventory” as defined in Article 9 of the UCC and (ii) all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, all raw materials, work in process, finished goods, and materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Grantor’s business; all goods in which any Grantor has an interest in mass or a joint or other interest or right of any kind; and all goods which are returned to or repossessed by any Grantor, all computer programs embedded in any goods and all accessions thereto and products thereof (in each case, regardless of whether characterized as inventory under the UCC).
 
 
3
 
 
“Investment Accounts” shall mean the Collateral Account, Securities Accounts, Commodities Accounts and Deposit Accounts.
 
“Investment Related Property” shall mean:  (i) all “investment property” (as such term is defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as investment property under the UCC): all Pledged Equity Interests, Pledged Debt, the Investment Accounts and certificates of deposit.
 
“Irrevocable Proxy” shall have the meaning set forth in Section   4.4.1(b)(i).
 
“Issuer” shall mean the issuer of any Pledged Equity Interests.
 
“Lender” shall have the meaning set forth in the recitals.
 
“Letter of Credit Right” shall mean “letter-of-credit right” as defined in Article 9 of the UCC.
 
“Money” shall mean “money” as defined in the UCC.
 
“Non-Assignable Contract” shall mean any agreement, contract or license to which any Grantor is a party that by its terms purports to restrict or prevent the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise irrespective of whether such prohibition or restriction is enforceable under Section 9-406 through 409 of the UCC).
 
“Patent Licenses” shall mean all agreements providing for the granting of any right in or to Patents (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement referred to in Schedule 4.7(D) (as such schedule may be amended or supplemented from time to time).
 
“Patents” shall mean all United States and foreign patents and certificates of invention, or similar industrial property rights, and applications for any of the foregoing, including, but not limited to: (i) each patent and patent application referred to in Schedule 4.7(C) hereto (as such schedule may be amended or supplemented from time to time), (ii) all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof, (iii) all rights corresponding thereto throughout the world, (iv) all inventions and improvements described therein, (v) all rights to sue for past, present and future infringements thereof, (vi) all licenses, claims, damages, and proceeds of suit arising therefrom, and (vii) all Proceeds of the foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages, and proceeds of suit.
 
“Pledge Supplement” shall mean any supplement to this agreement in substantially the form of Exhibit A.
 
 
4
 
 
“Pledged Debt” shall mean all Indebtedness owed to such Grantor, including, without limitation, all Indebtedness described on Schedule 4.4(A) under the heading “Pledged Debt” (as such schedule may be amended or supplemented from time to time), issued by the obligors named therein, the instruments evidencing such Indebtedness, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Indebtedness.
 
“Pledged Equity Interests” shall mean (i) all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests owned by any Grantor, (ii) all rights, privileges, authorities, and powers of such Grantor as an owner or holder of such Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests, including, without limitation, all economic rights, all control rights, authority, and powers, all status rights of such Grantor as a member, shareholder, or other owner (as applicable), and all rights and interests, if any, to participate in the management of each applicable Issuer, (iii) all of such Grantor's options and other rights and interests, contractual or otherwise, in respect of the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests, (iv) all of the certificates and/or instruments, if any, evidencing or representing the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests from time to time, (v) all other property hereafter delivered to, or in the possession or custody of, Collateral Agent in substitution for, or in addition to, the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests, and (vi) any other property of such Grantor in connection with the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests now or hereafter delivered to, or in the possession or custody of, Grantors.
 
“Pledged LLC Interests” shall mean all interests in any limited liability company including, without limitation, all limited liability company interests listed on Schedule 4.4(A) under the heading “Pledged LLC Interests” (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests.
 
“Pledged Partnership Interests” shall mean all interests in any general partnership, limited partnership, limited liability partnership or other partnership including, without limitation, all partnership interests listed on Schedule 4.4(A) under the heading “Pledged Partnership Interests” (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests.
 
“Pledged Stock” shall mean all shares of capital stock owned by such Grantor, including, without limitation, all shares of capital stock described on Schedule 4.4(A) under the heading “Pledged Stock” (as such schedule may be amended or supplemented from time to time), and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares or on the books of any securities intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares.
 
 
5
 
 
“Pledged Trust Interests” shall mean all interests in a Delaware business trust or other trust including, without limitation, all trust interests listed on Schedule 4.4(A) under the heading “Pledged Trust Interests” (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such trust interests and any interest of such Grantor on the books and records of such trust or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such trust interests.
 
“Proceeds” shall mean:  (i) all “proceeds” as defined in Article 9 of the UCC, (ii) payments or distributions made with respect to any Investment Related Property and (iii) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary.
 
“Receivables” shall mean all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Receivables Records.
 
“Receivables Records” shall mean (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or secured parties, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or nonwritten forms of information related in any way to the foregoing or any Receivable.
 
“Record” shall have the meaning specified in Article 9 of the UCC.
 
“Registration Page” shall have the meaning assigned in Section 4.4.1.
 
“Secured Obligations” shall have the meaning assigned in Section 3.1.
 
“Secured Parties” shall mean the Agents, Lenders and the Lender Counterparties and shall include, without limitation, all former Agents, Lenders and Lender Counterparties to the extent that any Obligations owing to such Persons were incurred while such Persons were Agents, Lenders or Lender Counterparties and such Obligations have not been paid or satisfied in full.
 
 
6
 
 
“Securities” shall mean any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
 
“Securities Accounts” (i) shall mean all “securities accounts” as defined in Article 8 of the UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4(A) under the heading “Securities Accounts” (as such schedule may be amended or supplemented from time to time).
 
“Supporting Obligation” shall mean all “supporting obligations” as defined in Article 9 of the UCC.
 
“Trademark Licenses” shall mean any and all agreements providing for the granting of any right in or to Trademarks (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement referred to in Schedule 4.7(F) (as such schedule may be amended or supplemented from time to time).
 
“Trademarks” shall mean all United States, and foreign trademarks, trade names, corporate names, company names, business names, fictitious business names, Internet domain names, service marks, certification marks, collective marks, logos, other source or business identifiers, designs and general intangibles of a like nature, all registrations and applications for any of the foregoing including, but not limited to: (i) the registrations and applications referred to in Schedule 4.7(E) (as such schedule may be amended or supplemented from time to time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by the foregoing, (iv) the right to sue for past, present and future infringement or dilution of any of the foregoing or for any injury to goodwill, and (v) all Proceeds of the foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages, and proceeds of suit.
 
“Trade Secret Licenses” shall mean any and all agreements providing for the granting of any right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement referred to in Schedule 4.7(G) (as such schedule may be amended or supplemented from time to time).
 
“Trade Secrets” shall mean all trade secrets and all other confidential or proprietary information and know-how whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating, or referring in any way to such Trade Secret, including but not limited to: (i) the right to sue for past, present and future misappropriation or other violation of any Trade Secret, and (ii) all Proceeds of the foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages, and proceeds of suit.
 
 
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“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York or, when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction.
 
“United States” shall mean the United States of America.
 
1.2   Definitions; Interpretation .  All capitalized terms used herein (including the preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement or, if not defined therein, in the UCC.  References to “Sections,” “Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, as the case may be, of this Agreement unless otherwise specifically provided.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.  Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.  The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.  If any conflict or inconsistency exists between this Agreement and the Credit Agreement, the Credit Agreement shall govern.  All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.
 
SECTION 2.  
GRANT OF SECURITY.
 
2.1   Grant of Security .  As security for the payment and performance in full of all Secured Obligations, each Grantor hereby grants to the Collateral Agent a security interest in and continuing lien on all of such Grantor’s right, title and interest in, to and under all personal property of such Grantor including, but not limited to the following, in each case whether now owned or existing or hereafter acquired or arising and wherever located (all of which being hereinafter collectively referred to as the “Collateral” ):
 
(a)   Accounts;
 
(b)   Chattel Paper;
 
(c)   Documents;
 
(d)   General Intangibles;
 
(e)   Goods;
 
(f)   Instruments;
 
(g)   Insurance;
 
(h)   Intellectual Property;
 
(i)   Investment Related Property;
 
 
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(j)   Letter of Credit Rights;
 
(k)   Money;
 
(l)   Receivables and Receivable Records;
 
(m)   Commercial Tort Claims;
 
(n)   to the extent not otherwise included above, all Collateral Records, Collateral Support and Supporting Obligations relating to any of the foregoing; and
 
(o)   to the extent not otherwise included above, all Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing.
 
2.2   Certain Limited Exclusions .  Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
 
SECTION 3.  
SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
 
3.1   Security for Obligations .  This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all Obligations with respect to every Grantor (the “Secured Obligations” ).
 
3.2   Continuing Liability Under Collateral .  Notwithstanding anything herein to the contrary, (i) each   Grantor shall remain liable for all obligations under the Collateral and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including, without limitation, any agreements relating to Pledged Equity Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Collateral Agent nor any Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall the Collateral Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including, without limitation, any agreements relating to Pledged Equity Interests, and (iii) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.
 
 
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SECTION 4.  
REPRESENTATIONS AND WARRANTIES AND COVENANTS.
 
4.1   Generally.
 
(a)   Representations and Warranties .  Each Grantor hereby represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   it owns the Collateral purported to be owned by it or otherwise has the rights it purports to have in each item of Collateral and, as to all Collateral whether now existing or hereafter acquired, will continue to own or have such rights in each item of the Collateral, in each case free and clear of any and all Liens, rights or claims of all other Persons, including, without limitation, liens arising as a result of such Grantor becoming bound (as a result of merger or otherwise) as debtor under a security agreement entered into by another Person, other than Permitted Liens;
 
(ii)   it has indicated on Schedule 4.1(A) (as such schedule may be amended or supplemented from time to time): (w) the type of organization of such Grantor, (x) the jurisdiction of organization of such Grantor, (y) its organizational identification number and (z) the jurisdiction where the chief executive office or its sole place of business is (or the principal residence if such Grantor is a natural person), and for the one-year period preceding the date hereof has been, located;
 
(iii)   the full legal name of such Grantor is as set forth on Schedule 4.1(A) and it has not done in the last five (5) years, and does not do, business under any other name (including any trade-name or fictitious business name) except for those names set forth on Schedule 4.1(B) (as such schedule may be amended or supplemented from time to time);
 
(iv)   except as provided on Schedule 4.1(C), it has not changed its name, jurisdiction of organization, chief executive office or sole place of business (or principal residence if such Grantor is a natural person) or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past five (5) years;
 
(v)   it has not within the last five (5) years become bound (whether as a result of merger or otherwise) as debtor under a security agreement entered into by another Person, which has not heretofore been terminated or will be terminated on the date hereof concurrently with the funding of the initial Loans;
 
 
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(vi)   (u) upon the filing of all UCC financing statements naming each Grantor as “debtor” and the Collateral Agent as “secured party” and describing the Collateral in the filing offices set forth opposite such Grantor’s name on Schedule 4.1(E) hereof (as such schedule may be amended or supplemented from time to time) and other filings delivered by each Grantor, (v) upon delivery of all Instruments, Chattel Paper and certificated Pledged Equity Interests and Pledged Debt, (w) upon sufficient identification of Commercial Tort Claims, (x) upon execution of a control agreement establishing the Collateral Agent’s “control” (within the meaning of Section 8-106, 9-106 or 9-104 of the UCC, as applicable) with respect to any Investment Account, (y) upon consent of the issuer with respect to Letter of Credit Rights, and (z) to the extent not subject to Article 9 of the UCC, upon recordation of the security interests granted hereunder in Patents, Trademarks and Copyrights in the applicable intellectual property registries, including but not limited to the United States Patent and Trademark Office and the United States Copyright Office, the security interests granted to the Collateral Agent hereunder constitute valid and perfected first priority Liens (subject in the case of priority only to Permitted Liens and to the rights of the United States government (including any agency or department thereof) with respect to United States government Receivables) on all of the Collateral;
 
(vii)   all actions and consents, including all filings, notices, registrations and recordings necessary or desirable for the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect of the Collateral have been made or obtained;
 
(viii)   other than the financing statements filed in favor of the Collateral Agent, no effective UCC financing statement, fixture filing or other instrument similar in effect under any applicable law covering all or any part of the Collateral is on file in any filing or recording office except for (x) financing statements for which proper termination statements have been delivered to the Collateral Agent for filing and (y) financing statements filed in connection with Permitted Liens;
 
(ix)   no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for either (i) the pledge or grant by any Grantor of the Liens purported to be created in favor of the Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable law), except (A) for the filings contemplated by clause (vii) above and (B) as may be required, in connection with the disposition of any Investment Related Property, by laws generally affecting the offering and sale of Securities;
 
(x)   all information supplied by any Grantor with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is accurate and complete in all material respects;
 
(xi)   none of the Collateral constitutes, or is the Proceeds of, “farm products” (as defined in the UCC);
 
(xii)   it does not own any “as extracted collateral” (as defined in the UCC) or any timber to be cut;
 
 
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(xiii)   except as described on Schedule 4.1(D),   such Grantor has not become bound as a debtor, either by contract or by operation of law, by a security agreement previously entered into by another Person; and
 
(xiv)   such Grantor has been duly organized  as an entity of the type as set forth opposite such Grantor’s name on Schedule 4.1(A) solely under the laws of the jurisdiction as set forth opposite such Grantor’s name on Schedule 4.1(A) and remains duly existing as such.  Such Grantor has not filed any certificates of domestication, transfer or continuance in any other jurisdiction.
 
(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that:
 
(i)   except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
 
(ii)   it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral;
 
(iii)   it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
 
(iv)   if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
 
(v)   it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
 
 
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(vi)   upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that may have a material adverse effect on the value of the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
 
(vii)   it shall not take or permit any action which could impair the Collateral Agent’s rights in the Collateral; and
 
(viii)   it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise in accordance with the Credit Agreement.
 
4.2   Equipment and Inventory .
 
(a)   Representations and Warranties .  Each Grantor represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   all of the Equipment and Inventory included in the Collateral is kept for the past four (4) years only at the locations specified in Schedule 4.2 (as such schedule may be amended or supplemented from time to time);
 
(ii)   any Goods now or hereafter produced by any Grantor included in the Collateral have been and will be produced in compliance with the requirements of the Fair Labor Standards Act, as amended; and
 
(iii)   none of the Inventory or Equipment is in the possession of an issuer of a negotiable document (as defined in Section 7-104 of the UCC) therefor or otherwise in the possession of a bailee or a warehouseman.
 
(b)   Covenants and Agreements .  Each Grantor covenants and agrees that:
 
(i)   it shall keep the Equipment, Inventory and any Documents evidencing any Equipment and Inventory in the locations specified on Schedule 4.2 (as such schedule may be amended or supplemented from time to time) unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any change in locations, identifying such new locations and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby, or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder, with respect to such Equipment and Inventory;
 
 
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(ii)   it shall keep correct and accurate records of the Inventory, as is customarily maintained under similar circumstances by Persons of established reputation engaged in similar business, and in any event in conformity with GAAP;
 
(iii)   it shall not deliver any Document evidencing any Equipment and Inventory to any Person other than the issuer of such Document to claim the Goods evidenced therefor or the Collateral Agent;
 
(iv)   if any Equipment or Inventory is in possession or control of any third party, each Grantor shall join with the Collateral Agent in notifying the third party of the Collateral Agent’s security interest and obtaining an acknowledgment from the third party that it is holding the Equipment and Inventory for the benefit of the Collateral Agent; and
 
(v)   with respect to any item of Equipment which is covered by a certificate of title under a statute of any jurisdiction under the law of which indication of a security interest on such certificate is required as a condition of perfection thereof, upon the reasonable request of the Collateral Agent, (A) provide information with respect to any such Equipment in excess of  $250,000 in the aggregate, (B) execute and file with the registrar of motor vehicles or other appropriate authority in such jurisdiction an application or other document requesting the notation or other indication of the security interest created hereunder on such certificate of title, and (C) deliver to the Collateral Agent copies of all such applications or other documents filed during such calendar quarter and copies of all such certificates of title issued during such calendar quarter indicating the security interest created hereunder in the items of Equipment covered thereby.
 
4.3   Receivables .
 
(a)   Representations and Warranties .  Each Grantor represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   each Receivable (a) is and will be the legal, valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied obligation of such Account Debtor, (b) is and will be enforceable in accordance with its terms, (c) is not and will not be subject to any setoffs, defenses, taxes, counterclaims (except with respect to refunds, returns and allowances in the ordinary course of business with respect to damaged merchandise) and (d) is and will be in compliance with all applicable laws, whether federal, state, local or foreign;
 
(ii)   other than hauling contracts with municipalities entered into in the ordinary course of business, none of the Account Debtors in respect of any Receivable is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign.  No Receivable in excess of $250,000 in the aggregate   requires the consent of the Account Debtor in respect thereof in connection with the pledge hereunder, except any consent which has been obtained;
 
(iii)   no Receivable is evidenced by, or constitutes, an Instrument or Chattel Paper which has not been delivered to, or otherwise subjected to the control of, the Collateral Agent to the extent required by, and in accordance with Section 4.3(c); and
 
 
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(iv)   each Grantor has delivered to the Collateral Agent a complete and correct copy of each standard form of document under which a Receivable may arise.
 
(b)   Covenants and Agreements :  Each Grantor hereby covenants and agrees that:
 
(i)   it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
 
(ii)   it shall mark conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
 
(iii)   it shall perform in all material respects all of its obligations with respect to the Receivables;
 
(iv)   it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a material adverse effect on the value of such Receivable as Collateral.  Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
 
(v)   except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable.  Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may:  (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done.  If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
 
 
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(vi)   it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
 
(c)   Delivery and Control of Receivables .  With respect to any Receivables in excess of $50,000 in the aggregate that is evidenced by, or constitutes, Chattel Paper or Instruments, each Grantor shall cause each originally executed copy thereof to be delivered to the Collateral Agent (or its agent or designee) appropriately indorsed to the Collateral Agent or indorsed in blank:  (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring rights therein.  With respect to any Receivables in excess of $50,000 in the aggregate which would constitute “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Collateral Agent control over such Receivables (within the meaning of Section 9-105 of the UCC):  (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring rights therein.  Any Receivable not otherwise required to be delivered or subjected to the control of the Collateral Agent in accordance with this subsection (c) shall be delivered or subjected to such control upon request of the Collateral Agent.
 
4.4   Investment Related Property.
 
4.4.1  
 
4.4.1   Investment Related Property Generally
 
(a)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that:
 
(i)   in the event it acquires rights in any Investment Related Property after the date hereof, it shall deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, reflecting such new Investment Related Property and all other Investment Related Property.  Notwithstanding the foregoing, it is understood and agreed that the security interest of the Collateral Agent shall attach to all Investment Related Property immediately upon any Grantor’s acquisition of rights therein and shall not be affected by the failure of any Grantor to deliver a supplement to Schedule 4.4 as required hereby;
 
 
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(ii)   except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any Investment Related Property, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any issuer of any Investment Related Property, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) such Grantor shall immediately take all steps, if any, necessary or advisable to ensure the validity, perfection, priority and, if applicable, control of the Collateral Agent over such Investment Related Property (including, without limitation, delivery thereof to the Collateral Agent) and pending any such action such Grantor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of the Collateral Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor.  Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each Grantor to retain all ordinary cash dividends and distributions paid in the normal course of the business of the issuer and consistent with the past practice of the issuer and all scheduled payments of interest;
 
(iii)   each Grantor consents to the grant by each other Grantor of a Security Interest in all Investment Related Property to the Collateral Agent.
 
(b)   Delivery and Control .
 
(i)   Each Grantor agrees that with respect to any Investment Related Property in which it currently has rights it shall comply with the provisions of this Section 4.4.1(b) on or before the Credit Date and with respect to any Investment Related Property hereafter acquired by such Grantor it shall comply with the provisions of this Section 4.4.1(b) immediately upon acquiring rights therein, in each case in form and substance satisfactory to the Collateral Agent.  With respect to any Investment Related Property that is represented by a certificate or that is an “instrument” (other than any Investment Related Property credited to a Securities Account) it shall cause such certificate or instrument to be delivered to the Collateral Agent, indorsed in blank by an “effective indorsement” (as defined in Section 8-107 of the UCC), regardless of whether such certificate constitutes a “certificated security” for purposes of the UCC.  With respect to any Investment Related Property that is an “uncertificated security” for purposes of the UCC  (other than any “uncertificated securities” credited to a Securities Account), it shall cause the issuer of such uncertificated security to either (i) register the Collateral Agent as the registered owner thereof on the books and records of the issuer or (ii) execute an agreement substantially in the form of Exhibit B hereto, pursuant to which such issuer agrees to comply with the Collateral Agent’s instructions with respect to such uncertificated security without further consent by such Grantor. In addition to the foregoing, with respect to all Investment Related Property (including, without limitation, Investment Related Property acquired after the Closing Date), each Grantor shall deliver to Collateral Agent (x) a duly executed irrevocable proxy coupled with an interest, in substantially the form of Exhibit H hereto (“ Irrevocable Proxy ”), (y) a duly acknowledged equity interest registration page, in blank, from each Issuer, substantially in the form of Exhibit I hereto, or otherwise in form and substance satisfactory to Collateral Agent (“ Registration Page ”) and (z) cause each Issuer to execute and deliver  a pledge acknowledgement substantially in the form of Exhibit J hereto (“ Pledge Acknowledgement ”).
 
 
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(c)   Voting and Distributions .
 
(i)   So long as no Event of Default shall have occurred and be continuing:
 
(1)  
except as otherwise provided under the covenants and agreements relating to Investment Related Property in this Agreement or elsewhere herein or in the Credit Agreement, each Grantor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Investment Related Property or any part thereof for any purpose not inconsistent with the terms of this Agreement or the Credit Agreement; provided, no Grantor shall exercise or refrain from exercising any such right if the Collateral Agent shall have notified such Grantor that, in the Collateral Agent’s reasonable judgment, such action would have a Material Adverse Effect on the value of the Investment Related Property or any part thereof; and provided further, such Grantor shall give the Collateral Agent at least five (5) Business Days prior written notice of the manner in which it intends to exercise, or the reasons for refraining from exercising, any such right; it being understood, however, that neither the voting by such Grantor of any Pledged Stock for, or such Grantor’s consent to, the election of directors (or similar governing body) at a regularly scheduled annual or other meeting of stockholders or with respect to incidental matters at any such meeting, nor such Grantor’s consent to or approval of any action otherwise permitted under this Agreement and the Credit Agreement, shall be deemed inconsistent with the terms of this Agreement or the Credit Agreement within the meaning of this Section 4.4(c)(i)(1), and no notice of any such voting or consent need be given to the Collateral Agent; and
 
(2)  
the Collateral Agent shall promptly execute and deliver (or cause to be executed and delivered) to each Grantor all proxies, and other instruments as such Grantor may from time to time reasonably request for the purpose of enabling such Grantor to exercise the voting and other consensual rights when and to the extent which it is entitled to exercise pursuant to clause (1) above;
 
(3)  
Upon the occurrence and during the continuation of an Event of Default:
 
 
(A)
all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and Collateral Agent (personally or through an agent) shall thereupon be solely authorized and empowered to (i) transfer and register in the Collateral Agent’s name, or in the name of the Collateral Agent's nominee, the whole or any part of the Investment Related Property, it being acknowledged by each Grantor (in its capacity as a Grantor and, if such Grantor is an Issuer, in its capacity as an Issuer) that such transfer and registration may be effected by the Collateral Agent by the delivery of a Registration Page to the applicable Issuer, reflecting the Collateral Agent or its designee as the holder of such Investment Related Property, or otherwise by the Collateral Agent through its irrevocable appointment as attorney-in-fact pursuant to the terms hereof, (ii) exchange certificates or instruments evidencing or representing Investment Related Property for certificates or instruments of smaller or larger denominations, (iii) exercise the voting and all other rights in respect of the Investment Related Property as a holder with respect thereto with or without actually becoming the holder thereof (including, without limitation, all economic rights, all control rights, authority and powers, and all status rights of such Grantor as a member, shareholder, or other owner of any Issuer) with full power of substitution to do so, (iv) collect and receive all dividends and other payments and distributions made thereon, (v) notify the parties obligated on any of the Investment Related Property to make payment to the Collateral Agent of any amounts due or to become due thereunder, (vi) endorse instruments in the name of such Grantor to allow collection of any of the Investment Related Property, (vii) enforce collection of any of the Investment Related Property by suit or otherwise, and surrender, release, or exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any liabilities of any nature of any Person with respect thereto, (viii) consummate any sales of Investment Related Property or exercise other rights as set forth herein, (ix) otherwise act with respect to the Investment Related Property as though the Collateral Agent was the outright owner thereof, and/or (x) exercise any other rights or remedies the Collateral Agent may have under the UCC or other applicable law; and; and
 
 
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(B)
in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder: (1) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may utilize the power of attorney and proxy set forth in Section 6.1.
 
4.4.2   Pledged Equity Interests
 
(a)   Representations and Warranties .  Each Grantor hereby represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   Schedule 4.4(A) (as such schedule may be amended or supplemented from time to time) sets forth under the headings “Pledged Stock, “Pledged LLC Interests,” “Pledged Partnership Interests” and “Pledged Trust Interests,” respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests owned by any Grantor and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests or percentage of beneficial interest of the respective issuers thereof indicated on such Schedule;
 
(ii)   except as set forth on Schedule 4.4(B), it has not acquired any equity interests of another entity or substantially all the assets of another entity within the past five (5) years;
 
 
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(iii)   it is the record and beneficial owner of the Pledged Equity Interests free of all Liens, rights or claims of other Persons and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests;
 
(iv)   it has the requisite authority to pledge, assign, transfer, deliver, deposit and set over the Pledged Equity Interests to the Collateral Agent as provided herein;
 
(v)   the pledge by such Grantor of the Pledged Equity Interests pursuant to this Agreement does not violate (1) the Organizational Documents of such Grantor or any Issuer of such Pledged Equity Interests, or any indenture, mortgage or material agreement to which such Grantor is a party or by which such Grantor’s properties or assets may be bound, (2) any restriction on such transfer or encumbrance of such Pledged Equity Interests or (3) any applicable securities law or other applicable law;
 
(vi)   without limiting the generality of Section 4.1(a)(v), no consent of any Person including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary or desirable in connection with the creation, perfection or first priority status of the security interest of the Collateral Agent in any Pledged Equity Interests or the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof;
 
(vii)   such Grantor has caused each Issuer to amend or to otherwise modify its Organizational Documents, books, records, and related agreements, documents, and instruments, as applicable, to reflect the rights and interests of the Collateral Agent hereunder, and to the extent required to enable and empower the Collateral Agent to exercise and enforce its rights and remedies hereunder in respect of the Pledged Equity Interests;
 
(viii)   No material authorization or approval or other action by, and no material notice to or filing with, any Governmental Authority is required to be obtained or made by such Grantor for (a) the due execution, delivery, and performance by such Grantor of this Agreement, (b) the grant by such Grantor, or the perfection, of the Liens and security interests created hereby in the Pledged Equity Interests, or (c) the exercise by the Collateral Agent in all material respects of its rights and remedies hereunder, except as may be required in connection with any sale of any Pledged Equity Interests by laws affecting the offering and sale of securities generally;
 
(ix)   none of the Pledged Equity Interests are or represent interests in Issuers that: (a) are registered as investment companies or (b) are dealt in or traded on securities exchanges or markets;
 
(x)   except as otherwise set forth on Schedule 4.4(C), none of the Pledged Equity Interests are or represent interests in Issuers that have opted to be treated as securities under the uniform commercial code of any jurisdiction; and
 
(xi)   with respect to any Pledged Equity Interests constituting uncertificated securities, the execution and delivery of this Agreement by the applicable Grantor and Issuer will perfect Collateral Agent’s security interest in such Pledged Equity Interests and proceeds thereof by “control”, and with respect to any Pledged Equity Interest constituting certificated securities, the delivery of the certificate representing such Pledged Equity Interest endorsed to Collateral Agent or in blank will perfect Collateral Agent’s security interest in such Pledged Equity Interests and any proceeds thereof by “control”.
 
 
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(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that:
 
(i)   without the prior written consent of the Collateral Agent, it shall not vote to enable or take any other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially changes the rights of such Grantor with respect to any Investment Related Property or adversely affects the validity, perfection or priority of the Collateral Agent’s security interest, (b) permit any Issuer of any Pledged Equity Interest to issue any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer, (c) other than as permitted under the Credit Agreement, permit any Issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, (d) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, (e) cause any issuer of any Pledged Equity Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Equity Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any Issuer of any Pledged Equity Interests takes any such action in violation of the foregoing in this clause (e), such Grantor shall promptly notify the Collateral Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish the Collateral Agent’s “control” thereof, or (f) alter the voting rights with respect to any of the Pledged Equity Interests;
 
(ii)   it shall comply with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with respect to any Investment Related Property;
 
(iii)   without the prior written consent of the Collateral Agent, it shall not permit any issuer of any Pledged Equity Interest to merge or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Grantor; provided that if the surviving or resulting Grantors upon any such merger or consolidation involving an issuer which is a Controlled Foreign Corporation, then such Grantor shall only be required to pledge equity interests in accordance with Section 2.2; and
 
 
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(iv)   each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Collateral Agent and, without limiting the foregoing, consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or its nominee following an Event of Default and to the substitution of the Collateral Agent or its nominee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.
 
4.4.3   Pledged Debt
 
(a)   Representations and Warranties .  Each Grantor hereby represents and warrants, on the Closing Date and each Credit Date, that:
 
(i)   Schedule 4.4 (as such schedule may be amended or supplemented from time to time) sets forth under the heading “Pledged Debt” all of the Pledged Debt owned by any Grantor and all of such Pledged Debt has been duly authorized, authenticated or issued, and delivered and is the legal, valid and binding obligation of the issuers thereof and is not in default and constitutes all of the issued and outstanding inter-company Indebtedness;
 
(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that:
 
(i)   it shall notify the Collateral Agent of any default under any Pledged Debt that has caused, either in any individual case or in the aggregate, a Material Adverse Effect.
 
4.4.4   Investment Accounts
 
(a)   Representations and Warranties . Each Grantor hereby represents and warrants, on the Closing Date and each Credit Date, that:
 
(i)   Schedule 4.4 hereto (as such schedule may be amended or supplemented from time to time) sets forth under the headings “Securities Accounts” and “Commodities Accounts,” respectively, all of the Securities Accounts and Commodities Accounts in which each Grantor has an interest.  Each Grantor is the sole entitlement holder of each such Securities Account and Commodity Account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto) having “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over, or any other interest in, any such Securities Account or Commodity Account or securities or other property credited thereto;
 
(ii)   Schedule 4.4 hereto (as such schedule may be amended or supplemented from time to time) sets forth under the headings “Deposit Accounts” all of the Deposit Accounts in which each Grantor has an interest.  Each Grantor is the sole account holder of each such Deposit Account and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto) having either sole dominion and control (within the meaning of common law) or “control” (within the meanings of Section 9-104 of the UCC) over, or any other interest in, any such Deposit Account or any money or other property deposited therein; and
 
 
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(iii)   Each Grantor has taken all actions necessary or desirable, including those specified in Section 4.4.4(c), to: (a) establish Collateral Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Related Property constituting Certificated Securities, Uncertificated Securities, Securities Accounts, Securities Entitlements or Commodities Accounts (each as defined in the UCC); (b) establish the Collateral Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts; and (c) deliver all Instruments to the Collateral Agent.
 
(b)   Covenant and Agreement .  Each Grantor hereby covenants and agrees with the  Collateral Agent and each other Secured Party that it shall not close or terminate any Investment Account without the prior consent of the Collateral Agent and unless a successor or replacement account has been established with the consent of the Collateral Agent with respect to which successor or replacement account a control agreement has been entered into by the appropriate Grantor, Collateral Agent and securities intermediary or depository institution at which such successor or replacement account is to be maintained in accordance with the provisions of Section 4.4.4(c).
 
(c)   Delivery and Control
 
(i)   With respect to any Investment Related Property consisting of Securities Accounts or Securities Entitlements, it shall cause the securities intermediary maintaining such Securities Account or Securities Entitlement to enter into an agreement substantially in the form of Exhibit C hereto pursuant to which it shall agree to comply with the Collateral Agent’s “entitlement orders” without further consent by such Grantor.  With respect to any Investment Related Property that is a “Deposit Account,” it shall cause the depositary institution maintaining such account to enter into an agreement substantially in the form of Exhibit D hereto, pursuant to which the Collateral Agent shall have both sole dominion and control over such Deposit Account (within the meaning of the common law) and “control” (within the meaning of Section 9-104 of the UCC) over such Deposit Account.  Each Grantor shall have entered into such control agreement or agreements with respect to: (i) any Securities Accounts, Securities Entitlements or Deposit Accounts that exist on the Credit Date, as of or prior to the Credit Date and (ii) any Securities Accounts, Securities Entitlements or Deposit Accounts that are created or acquired after the Credit Date, as of or prior to the deposit or transfer of any such Securities Entitlements or funds, whether constituting moneys or investments, into such Securities Accounts or Deposit Accounts.
 
In addition to the foregoing, if any issuer of any Investment Related Property is located in a jurisdiction outside of the United States, each Grantor shall take such additional actions, including, without limitation, causing the issuer to register the pledge on its books and records or making such filings or recordings, in each case as may be necessary or advisable,  under the laws of such issuer’s jurisdiction to insure the validity, perfection and priority of the security interest of the Collateral Agent.   Upon the occurrence of an Event of Default, the Collateral Agent shall have the right, without notice to any Grantor, to transfer all or any portion of the Investment Related Property to its name or the name of its nominee or agent.  In addition, the Collateral Agent shall have the right at any time, without notice to any Grantor, to exchange any certificates or instruments representing any Investment Related Property for certificates or instruments of smaller or larger denominations.
 
 
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4.5   Material Contracts .
 
(a)   Representations and Warranties .  Each Grantor hereby represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   Schedule 4.5 (as such schedule may be amended or supplemented from time to time) sets forth all of the Material Contracts to which such Grantor has rights;
 
(ii)   the Material Contracts, true and complete copies (including any amendments or supplements thereof) of which have been furnished to the Collateral Agent, have been duly authorized, executed and delivered by all parties thereto, are in full force and effect and are binding upon and enforceable against all parties thereto in accordance with their respective terms.  There exists no default under any Material Contract by any party thereto and neither such Grantor, nor to its best knowledge, any other Person party thereto is likely to become in default thereunder and no Person party thereto has any defenses, counterclaims or right of set-off with respect to any Material Contract.
 
(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that:
 
(i)   in addition to any rights under the Section of this Agreement relating to Receivables, the Collateral Agent may, upon notice to the Grantor or Company Representative on behalf of Grantors, at any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the security interest of the Collateral Agent therein.  In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under the Material Contracts directly to the Collateral Agent;
 
(ii)   each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
 
(iii)   each Grantor shall deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Collateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
 
(iv)   it shall perform in all material respects all of its obligations with respect to the Material Contracts;
 
(v)   it shall promptly and diligently exercise each material right (except the right of termination) it may have under any Material Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable;
 
 
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(vi)   it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract; and
 
(vii)   each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
 
4.6   Letter of Credit Rights .
 
(a)   Representations and Warranties .  Each Grantor hereby represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   all material letters of credit to which such Grantor has rights is listed on Schedule 4.6 (as such schedule may be amended or supplemented from time to time) hereto; and
 
(ii)   it has obtained the consent of each issuer of any material letter of credit to the assignment of the proceeds of the letter of credit to the Collateral Agent.
 
(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that with respect to any material letter of credit hereafter arising it shall obtain the consent of the issuer thereof to the assignment of the proceeds of the letter of credit to the Collateral Agent and shall deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto.
 
4.7   Intellectual Property .
 
(a)   Representations and Warranties .  Except as disclosed in Schedule 4.7(H) (as such schedule may be amended or supplemented from time to time), each Grantor hereby represents and warrants, on the Closing Date and on each Credit Date, that:
 
(i)   Schedule 4.7 (as such schedule may be amended or supplemented from time to time) sets forth a true and complete list of (i) all United States, state and foreign registrations of and applications for Patents, Trademarks, and Copyrights owned by each Grantor and (ii) all Patent Licenses, Trademark Licenses, Trade Secret Licenses and Copyright Licenses material to the business of such Grantor;
 
(ii)   it is the sole and exclusive owner of the entire right, title, and interest in and to all Intellectual Property listed on Schedule 4.7 (as such schedule may be amended or supplemented from time to time), and owns or has the valid right to use all other Intellectual Property used in or necessary to conduct its business, free and clear of all Liens, claims, encumbrances and licenses, except for Permitted Liens and the licenses set forth on Schedule 4.7(B), (D), (F) and (G) (as each may be amended or supplemented from time to time);
 
 
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(iii)   all Intellectual Property is subsisting and has not been adjudged invalid or unenforceable, in whole or in part, and each Grantor has performed all acts and has paid all renewal, maintenance, and other fees and taxes required to maintain each and every registration and application of Copyrights, Patents and Trademarks in full force and effect;
 
(iv)   all Intellectual Property is valid and enforceable; no holding, decision, or judgment has been rendered in any action or proceeding before any court or administrative authority challenging the validity of, such Grantor’s right to register, or such Grantor’s rights to own or use, any Intellectual Property and no such action or proceeding is pending or, to the best of such Grantor’s knowledge, threatened;
 
(v)   all registrations and applications for Copyrights, Patents and Trademarks are standing in the name of each Grantor, and none of the Trademarks, Patents, Copyrights or Trade Secrets has been licensed by any Grantor to any Affiliate or third party, except as disclosed in Schedule 4.7(B), (D), (F), or (G) (as each may be amended or supplemented from time to time);
 
(vi)   each Grantor has been using appropriate statutory notice of registration in connection with its use of registered Trademarks, proper marking practices in connection with the use of Patents, and appropriate notice of copyright in connection with the publication of Copyrights material to the business of such Grantor;
 
(vii)   each Grantor uses adequate standards of quality in the manufacture, distribution, and sale of all products sold and in the provision of all services rendered under or in connection with all Trademark Collateral and has taken all action necessary to insure that all licensees of  the Trademark Collateral owned by such Grantor use such adequate standards of quality;
 
(viii)   the conduct of such Grantor’s business does not infringe upon or otherwise violate any trademark, patent, copyright, trade secret or other intellectual property right owned or controlled by a third party; no claim has been made that the use of any Intellectual Property owned or used by Grantor (or any of its respective licensees) violates the asserted rights of any third party;
 
(ix)   to the best of each Grantor’s knowledge, no third party is infringing upon or otherwise violating any rights in any Intellectual Property owned or used by such Grantor, or any of its respective licensees;
 
(x)   no settlement or consents, covenants not to sue, nonassertion assurances, or releases  have been entered into by Grantor or to which Grantor is bound that adversely affect Grantor’s rights to own or use any Intellectual Property; and
 
(xi)   each Grantor has not made a previous assignment, sale, transfer or agreement constituting a present or future assignment, sale, transfer or agreement of any Intellectual Property that has not been terminated or released.  There is no effective financing statement or other document or instrument now executed, or on file or recorded in any public office, granting a security interest in or otherwise encumbering any part of the Intellectual Property, other than in favor of the Collateral Agent.
 
 
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(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees as follows:
 
(i)   it shall not do any act or omit to do any act whereby any of the Intellectual Property which is material to the business of Grantor may lapse, or become abandoned, dedicated to the public, or unenforceable, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
 
(ii)   it shall not, with respect to any Trademarks which are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
 
(iii)   it shall, within thirty (30) days of the creation or acquisition of any Copyrightable work which is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
 
(iv)   it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of the Intellectual Property that is material to the business of any Grantor may become (a) abandoned or dedicated to the public or placed in the public domain, (b) invalid or unenforceable, or (c) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court;
 
(v)   it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Intellectual Property including, but not limited to, those items on Schedule 4.7(A), (C) and (E) (as each may be amended or supplemented from time to time);
 
(vi)   in the event that any Intellectual Property owned by or exclusively licensed to any Grantor is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation,  or dilution and protect its rights in such Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
 
(vii)   it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
 
 
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(viii)   it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
 
(ix)   except with the prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents;
 
(x)   it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
 
(xi)   it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
 
(xii)   it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
 
(xiii)   it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof.  In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts.  Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
 
4.8   Commercial Tort Claims
 
(a)   Representations and Warranties .  Each Grantor hereby represents and warrants, on the Closing Date and on each Credit Date, that Schedule 4.8 (as such schedule may be amended or supplemented from time to time) sets forth all Commercial Tort Claims of each Grantor in excess of $250,000; and
 
(b)   Covenants and Agreements .  Each Grantor hereby covenants and agrees that with respect to any Commercial Tort Claim in excess of $250,000 hereafter arising it shall deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, identifying such new Commercial Tort Claims.
 
 
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SECTION 5.  
ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES;
 
 
ADDITIONAL GRANTORS.

5.1   Access; Right of Inspection .  The Collateral Agent shall at all times have full and free access during normal business hours to all the books, correspondence and records of each Grantor, and the Collateral Agent and its representatives may examine the same, take extracts therefrom and make photocopies thereof, and each Grantor agrees to render to the Collateral Agent, at such Grantor’s cost and expense, such clerical and other assistance as may be reasonably requested with regard thereto.  The Collateral Agent and its representatives shall at all times also have the right to enter any premises of each Grantor and inspect any property of each Grantor where any of the Collateral of such Grantor granted pursuant to this Agreement is located for the purpose of inspecting the same, observing its use or otherwise protecting its interests therein.  Unless an Event of Default has occurred and is continuing, Collateral Agent shall provide the applicable Grantor with reasonable prior notice prior to exercising its rights under this Section 5.1.
 
5.2   Further Assurances .
 
(a)   Each Grantor agrees that from time to time, at the expense of such Grantor, that it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that the Collateral Agent may reasonably request, in order to create and/or maintain the validity, perfection or priority of and protect any security interest granted hereby or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:
 
(i)   file such financing or continuation statements, or amendments thereto, and execute and deliver such other agreements, instruments, endorsements, powers of attorney or notices, as may be necessary or desirable, or as the Collateral Agent may reasonably request, in order to perfect and preserve the security interests granted or purported to be granted hereby;
 
(ii)   take all actions necessary to ensure the recordation of appropriate evidence of the liens and security interest granted hereunder in the Intellectual Property with any intellectual property registry in which said Intellectual Property is registered or in which an application for registration is pending including, without limitation, the United States Patent and Trademark Office, the United States Copyright Office, the various Secretaries of State, and the foreign counterparts on any of the foregoing;
 
(iii)   at any reasonable time, upon request by the Collateral Agent, assemble the Collateral and allow inspection of the Collateral by the Collateral Agent, or persons designated by the Collateral Agent; and
 
(iv)   at the Collateral Agent’s request, appear in and defend any action or proceeding that may affect such Grantor’s title to or the Collateral Agent’s security interest in all or any part of the Collateral.
 
 
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(b)   Each Grantor hereby authorizes the Collateral Agent to file a Record or Records, including, without limitation, financing or continuation statements, and amendments thereto, in any jurisdictions and with any filing offices as the Collateral Agent may determine, in its sole discretion, are necessary or advisable to perfect the security interest granted to the Collateral Agent herein.  Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including, without limitation, describing such property as “all assets” or “all personal property, whether now owned or hereafter acquired.”  Each Grantor shall furnish to the Collateral Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Collateral Agent may reasonably request, all in reasonable detail.
 
(c)   Each Grantor hereby authorizes the Collateral Agent to modify this Agreement after obtaining such Grantor’s approval of or signature to such modification by amending Schedule 4.7 (as such schedule may be amended or supplemented from time to time) to include reference to any right, title or interest in any existing Intellectual Property or any Intellectual Property acquired or developed by any Grantor after the execution hereof or to delete any reference to any right, title or interest in any Intellectual Property in which any Grantor no longer has or claims any right, title or interest.
 
5.3   Additional Grantors .  From time to time subsequent to the date hereof, additional Persons may become parties hereto as additional Grantors (each, an “Additional Grantor”), by executing a Counterpart Agreement.  Upon delivery of any such counterpart agreement to the Collateral Agent, notice of which is hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if Additional Grantor were an original signatory hereto.  Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Holdings to become an Additional Grantor hereunder.  This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.
 
SECTION 6.  
COLLATERAL AGENT APPOINTED PROXY ATTORNEY-IN-FACT.
 
6.1   Power of Attorney .  Each Grantor hereby irrevocably appoints the Collateral Agent (such appointment being coupled with an interest and terminable only upon the payment in full of the Secured Obligations (other than contingent indemnification obligations arising under the Credit Documents for which no claims have been asserted)) as such Grantor’s attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from time to time in the Collateral Agent’s discretion to take any action and to execute any instrument that the Collateral Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, the following:
 
(a)   upon the occurrence and during the continuance of any Event of Default, to obtain and adjust insurance required to be maintained by such Grantor or paid to the Collateral Agent pursuant to the Credit Agreement;
 
 
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(b)   upon the occurrence and during the continuance of any Event of Default, to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral;
 
(c)   upon the occurrence and during the continuance of any Event of Default, to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (b) above;
 
(d)   upon the occurrence and during the continuance of any Event of Default, to file any claims or take any action or institute any proceedings that the Collateral Agent may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Collateral Agent with respect to any of the Collateral;
 
(e)   to prepare and file any UCC financing statements against such Grantor as debtor;
 
(f)   to prepare, sign, and file for recordation in any intellectual property registry, appropriate evidence of the lien and security interest granted herein in the Intellectual Property in the name of such Grantor as debtor;
 
(g)   to take or cause to be taken all actions necessary to perform or comply or cause performance or compliance with the terms of this Agreement, including, without limitation, access to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed upon or threatened against the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be determined by the Collateral Agent in its sole discretion, any such payments made by the Collateral Agent to become obligations of such Grantor to the Collateral Agent, due and payable immediately without demand; and
 
(h)   generally to sell, transfer, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and to do, at the Collateral Agent’s option and such Grantor’s expense, at any time or from time to time, all acts and things that the Collateral Agent deems reasonably necessary to protect, preserve or realize upon the Collateral and the Collateral Agent’s security interest therein in order to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
 
6.2   Voting Rights; Proxy
 
(a)   EACH GRANTOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS COLLATERAL AGENT AS ITS PROXY AND ATTORNEY-IN-FACT FOR SUCH GRANTOR WITH RESPECT TO THE PLEDGED EQUITY INTERESTS WITH THE RIGHT TO, DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, TAKE ANY OF THE FOLLOWING ACTIONS (I) TRANSFER AND REGISTER IN ITS NAME OR IN THE NAME OF ITS NOMINEE THE WHOLE OR ANY PART OF THE PLEDGED EQUITY INTERESTS, (II) VOTE THE PLEDGED EQUITY INTERESTS, WITH FULL POWER OF SUBSTITUTION TO DO SO, (III) RECEIVE AND COLLECT ANY DIVIDEND OR OTHER PAYMENT OR DISTRIBUTION IN RESPECT OF OR IN EXCHANGE FOR THE PLEDGED COLLATERAL OR ANY PORTION THEREOF, TO GIVE FULL DISCHARGE FOR THE SAME AND TO INDORSE ANY INSTRUMENT MADE PAYABLE TO PLEDGOR FOR SAME, (IV) EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED EQUITY INTERESTS WOULD BE ENTITLED (INCLUDING, WITH RESPECT TO THE PLEDGED EQUITY INTERESTS, GIVING OR WITHHOLDING WRITTEN CONSENTS OF MEMBERS, CALLING SPECIAL MEETINGS OF MEMBERS AND VOTING AT SUCH MEETINGS), AND (V) TAKE ANY ACTION AND TO EXECUTE ANY INSTRUMENT WHICH COLLATERAL AGENT MAY DEEM NECESSARY OR ADVISABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT.  THE APPOINTMENT OF COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE VALID AND IRREVOCABLE UNTIL (X) THE SECURED OBLIGATIONS HAVE BEEN INDEFEASIBLY PAID IN FULL IN ACCORDANCE WITH THE PROVISIONS OF THE CREDIT AGREEMENT and THE OTHER CREDIT DOCUMENTS AND, (Y) ALL THE SECURED OBLIGATIONS HAVE BEEN PAID IN FULL AND THE COMMITMENTS UNDER THE CREDIT AGREEMENT HAVE EXPIRED OR BEEN TERMINATED (THE OCCURRENCE OF EACH OF THE FOREGOING, THE “ TERMINATION DATE ”); IT BEING UNDERSTOOD THAT SUCH SECURED OBLIGATIONS AND COMMITMENTS WILL CONTINUE TO BE EFFECTIVE OR AUTOMATICALLY REINSTATED, AS THE CASE MAY BE, IF AT ANY TIME PAYMENT, IN WHOLE OR IN PART, OF ANY OF THE SECURED OBLIGATIONS IS RESCINDED OR MUST OTHERWISE BE RESTORED OR RETURNED BY THE COLLATERAL AGENT, ADMINISTRATIVE AGENT OR ANY LENDER FOR ANY REASON, INCLUDING AS A PREFERENCE, FRAUDULENT CONVEYANCE, OR OTHERWISE UNDER ANY BANKRUPTCY, INSOLVENCY, OR SIMILAR LAW, ALL AS THOUGH SUCH PAYMENT HAD NOT BEEN MADE; IT BEING FURTHER UNDERSTOOD THAT IN THE EVENT PAYMENT OF ALL OR ANY PART OF THE SECURED OBLIGATIONS IS RESCINDED OR MUST BE RESTORED OR RETURNED, ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED BY THE COLLATERAL AGENT IN DEFENDING AND ENFORCING SUCH REINSTATEMENT SHALL BE DEEMED TO BE INCLUDED AS A PART OF THE SECURED OBLIGATIONS).  SUCH APPOINTMENT OF COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL BE VALID AND IRREVOCABLE AS PROVIDED HEREIN NOTWITHSTANDING ANY LIMITATIONS TO THE CONTRARY SET FORTH IN THE ORGANIZATIONAL DOCUMENTS OF ANY GRANTOR OR ANY ISSUER.  In order to further affect the foregoing transfer of rights in favor of Collateral Agent, Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, to present to any Grantor or any Issuer an Irrevocable Proxy and/or Registration Page.
 
 
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(b)   Upon the occurrence and during the continuation of an Event of Default, Collateral Agent (personally or through an agent) is hereby authorized and empowered to take any or all of the actions set forth in Section 4.4.1(c)(i)(3)(A) and exercise any other rights or remedies Collateral Agent may have under the UCC or other applicable law.
 
(c)   All prior proxies given by any Grantor with respect to any of the Investment Related Property (other than to Collateral Agent), are hereby revoked, and no subsequent proxies (other than to Collateral Agent) will be given with respect to any of the Investment Related Property, unless the Collateral Agent otherwise subsequently agrees in writing.  The Collateral Agent, as proxy, will be empowered and may exercise the irrevocable proxy to vote the Investment Related Property at any and all times during the existence of an Event of Default, including, but not limited to, at any meeting of shareholders, partners, or members, as the case may be, however called, and at any adjournment thereof, or in any action by written consent, and may waive any notice otherwise required in connection therewith.  To the fullest extent permitted by applicable law, the Collateral Agent shall have no agency, fiduciary, or other implied duties to any Grantor, any Credit Party, or any other Person when acting in its capacity as such proxy or attorney-in-fact.  Each Grantor hereby waives and releases to the fullest extent permitted by applicable law any claims that it may otherwise have against the Collateral Agent with respect to any breach or alleged breach of any such agency, fiduciary, or other duty.
 
 
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6.3   No Duty on the Part of Collateral Agent or Secured Parties . The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any Secured Party to exercise any such powers.  The Collateral Agent and the Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.
 
SECTION 7.  
REMEDIES.
 
7.1   Generally .
 
(a)   If any Event of Default shall have occurred and be continuing, the Collateral Agent may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at law or in equity, all the rights and remedies of the Collateral Agent on default under the UCC (whether or not the UCC applies to the affected Collateral) to collect, enforce or satisfy any Secured Obligations then owing, whether by acceleration or otherwise, and also may pursue any of the following separately, successively or simultaneously:
 
(i)   require any Grantor to, and each Grantor hereby agrees that it shall at its expense and promptly upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be designated by the Collateral Agent that is reasonably convenient to both parties;
 
(ii)   enter onto the property where any Collateral is located and take possession thereof with or without judicial process;
 
(iii)   prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Collateral Agent deems appropriate; and
 
(iv)   without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable.
 
(b)   The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral at any public or private (to the extent to the portion of the Collateral being privately sold is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations) sale in accordance with the UCC and the Collateral Agent, as collateral agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.  Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.  Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification.  The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given.  The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.  Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets.  Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree.  If the proceeds of any sale or other disposition of the Collateral are insufficient to pay all the Secured Obligations, Grantors shall be liable for the deficiency and the fees of any attorneys employed by the Collateral Agent to collect such deficiency.  Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Collateral Agent, that the Collateral Agent has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred giving rise to the Secured Obligations becoming due and payable prior to their stated maturities.  Nothing in this Section shall in any way alter the rights of the Collateral Agent hereunder.
 
 
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(c)   The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral.  The Collateral Agent may specifically disclaim or modify any warranties of title or the like.  This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.
 
(d)    The Collateral Agent shall have no obligation to marshal any of the Collateral.
 
7.2   Application of Proceeds .  Except as expressly provided elsewhere in this Agreement, all proceeds received by the Collateral Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral shall be applied in full or in part by the Collateral Agent against the Secured Obligations as set forth in Section 2.15(h) of the Credit Agreement.
 
7.3   Sales on Credit .  If Collateral Agent sells any of the Collateral upon credit, Grantor will be credited only with payments actually made by purchaser and received by Collateral Agent and applied to indebtedness of the purchaser.  In the event the purchaser fails to pay for the Collateral, Collateral Agent may resell the Collateral and Grantor shall be credited with proceeds of the sale.
 
 
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7.4   Deposit Accounts .
 
If any Event of Default shall have occurred and be continuing, the Collateral Agent may apply the balance from any Deposit Account or instruct the bank at which any Deposit Account is maintained to pay the balance of any Deposit Account to or for the benefit of the Collateral Agent.
 
7.5   Investment Related Property .
 
(a)   Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Investment Related Property conducted without prior registration or qualification of such Investment Related Property under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Investment Related Property for their own account, for investment and not with a view to the distribution or resale thereof.  Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances, each Grantor agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Investment Related Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it.  If the Collateral Agent determines to exercise its right to sell any or all of the Investment Related Property, upon written request, each Grantor shall and shall cause each Issuer of any Pledged Equity Interest to be sold hereunder from time to time to furnish to the Collateral Agent all such information as the Collateral Agent may request in order to determine the number and nature of interest, shares or other instruments included in the Investment Related Property which may be sold by the Collateral Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
 
(b)   Any transfer to Collateral Agent or its nominee, or registration in the name of Collateral Agent or its nominee, of the whole or any part of the Investment Related Property, whether by the delivery of a Registration Page to any issuer of Investment Related Property or otherwise, shall, absent the election of Collateral Agent to the contrary, be made solely for purposes of effectuating voting or other consensual rights with respect to the Investment Related Property in accordance with the terms hereof, and (absent the Collateral Agent’s election) is not intended to effectuate any transfer whatsoever of ownership of any of the Investment Related Property.  Notwithstanding any transfer to the Collateral Agent or its nominee, or any registration in the name of the Collateral Agent or its nominee, or any delivery or any modification of a Registration Page, or any exercise of an Irrevocable Proxy, the Collateral Agent shall not be deemed the owner of, or assume any obligations of the owner or holder of, the Investment Related Property unless and until the Collateral Agent subsequently expressly accepts such obligations in a duly authorized and executed writing, or otherwise becomes the owner thereof under applicable law (including, without limitation, through a sale as described herein).  In no event shall the acceptance of this Agreement by the Collateral Agent, or the exercise by the Collateral Agent of any rights hereunder or assigned hereby, constitute an assumption of any liability or obligation whatsoever of any Grantor, any Issuer, or any other Person to, under, or in connection with any Organizational Document thereof or any related agreements, documents, instruments, or otherwise.
 
 
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(c)   Each Grantor agrees that it hereby waives any and all rights of subrogation, reimbursement, exoneration, contribution, and similar rights it may have against any Issuer of Investment Related Property, upon the sale or sales or dispositions of any portion or all of the Collateral by Collateral Agent.
 
(d)   Each Grantor further agrees that a breach of any of the covenants contained in Section 4.4 and this Section 7.5 will cause irreparable injury to Collateral Agent, that Collateral Agent shall have no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in Section 4.4 and this Section 7.5 shall be specifically enforceable against such Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable in accordance with the agreements and instruments governing and evidencing such obligations.
 
7.6   Intellectual Property .
 
(a)   Anything contained herein to the contrary notwithstanding, upon the occurrence and during the continuation of an Event of Default:
 
(i)   the Collateral Agent shall have the right (but not the obligation) to bring suit or otherwise commence any action or proceeding in the name of any Grantor, the Collateral Agent or otherwise, in the Collateral Agent’s sole discretion, to enforce any Intellectual Property, in which event such Grantor shall, at the request of the Collateral Agent, do any and all lawful acts and execute any and all documents required by the Collateral Agent in aid of such enforcement and such Grantor shall promptly, upon demand, reimburse and indemnify the Collateral Agent as provided in Section 10 hereof in connection with the exercise of its rights under this Section, and, to the extent that the Collateral Agent shall elect not to bring suit to enforce any Intellectual Property as provided in this Section, each Grantor agrees to use all reasonable measures, whether by action, suit, proceeding or otherwise, to prevent the infringement or other violation of any of such Grantor’s rights in the Intellectual Property by others and for that purpose agrees to diligently maintain any action, suit or proceeding against any Person so infringing as shall be necessary to prevent such infringement or violation;
 
(ii)   upon written demand from the Collateral Agent, each Grantor shall grant, assign, convey or otherwise transfer to the Collateral Agent or such Collateral Agent’s designee all of such Grantor’s right, title and interest in and to the Intellectual Property and shall execute and deliver to the Collateral Agent such documents as are necessary or appropriate to carry out the intent and purposes of this Agreement;
 
(iii)   each Grantor agrees that such an assignment and/or recording shall be applied to reduce the Secured Obligations outstanding only to the extent that the Collateral Agent (or any Secured Party) receives cash proceeds in respect of the sale of, or other realization upon, the Intellectual Property;
 
(iv)   within five (5) Business Days after written notice from the Collateral Agent, each Grantor shall make available to the Collateral Agent, to the extent within such Grantor’s power and authority, such personnel in such Grantor’s employ on the date of such Event of Default as the Collateral Agent may reasonably designate, by name, title or job responsibility, to permit such Grantor to continue, directly or indirectly, to produce, advertise and sell the products and services sold or delivered by such Grantor under or in connection with the Trademarks, Trademark Licenses, such persons to be available to perform their prior functions on the Collateral Agent’s behalf and to be compensated by the Collateral Agent at such Grantor’s expense on a per diem, pro-rata basis consistent with the salary and benefit structure applicable to each as of the date of such Event of Default; and
 
 
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(v)   the Collateral Agent shall have the right to notify, or require each Grantor to notify, any obligors with respect to amounts due or to become due to such Grantor in respect of the Intellectual Property, of the existence of the security interest created herein, to direct such obligors to make payment of all such amounts directly to the Collateral Agent, and, upon such notification and at the expense of such Grantor, to enforce collection of any such amounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done;
 
(1)  
all amounts and proceeds (including checks and other instruments) received by Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over or delivered to the Collateral Agent in the same form as so received (with any necessary endorsement) to be held as cash Collateral and applied as provided by Section 7.7 hereof; and
 
(2)  
Grantor shall not adjust, settle or compromise the amount or payment of any such amount or release wholly or partly any obligor with respect thereto or allow any credit or discount thereon.
 
(b)   If (i) an Event of Default shall have occurred and, by reason of cure, waiver, modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall have occurred and be continuing, (iii) an assignment or other transfer to the Collateral Agent of any rights, title and interests in and to the Intellectual Property shall have been previously made and shall have become absolute and effective, and (iv) the Secured Obligations shall not have become immediately due and payable, upon the written request of any Grantor, the Collateral Agent shall promptly execute and deliver to such Grantor, at such Grantor’s sole cost and expense, such assignments or other transfer as may be necessary to reassign to such Grantor any such rights, title and interests as may have been assigned to the Collateral Agent as aforesaid, subject to any disposition thereof that may have been made by the Collateral Agent; provided, after giving effect to such reassignment, the Collateral Agent’s security interest granted pursuant hereto, as well as all other rights and remedies of the Collateral Agent granted hereunder, shall continue to be in full force and effect; and provided further, the rights, title and interests so reassigned shall be free and clear of any other Liens granted by or on behalf of the Collateral Agent and the Secured Parties.
 
(c)   Solely for the purpose of enabling the Collateral Agent to exercise rights and remedies under this Section 7 and at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent, to the extent it has the right to do so, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of said Trademarks, to use, operate under, license, or sublicense any Intellectual Property  now owned or hereafter acquired by such Grantor, and wherever the same may be located.
 
 
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7.7   Cash Proceeds .  In addition to the rights of the Collateral Agent specified in Section 4.3 with respect to payments of Receivables, all proceeds of any Collateral received by any Grantor consisting of cash, checks and other non-cash items (collectively, “ Cash Proceeds ”) shall be held by such Grantor in trust for the Collateral Agent, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, unless otherwise provided pursuant to Section 4.4(a)(ii), be turned over to the Collateral Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the Collateral Agent, if required) and held by the Collateral Agent in the Collateral Account.  Any Cash Proceeds received by the Collateral Agent (whether from a Grantor or otherwise):  (i) if no Event of Default shall have occurred and be continuing, shall be held by the Collateral Agent for the ratable benefit of the Secured Parties, as collateral security for the Secured Obligations (whether matured or unmatured) and (ii) if an Event of Default shall have occurred and be continuing, may, in the sole discretion of the Collateral Agent, (A) be held by the Collateral Agent for the ratable benefit of the Secured Parties, as collateral security for the Secured Obligations (whether matured or unmatured) and/or (B) then or at any time thereafter may be applied by the Collateral Agent against the Secured Obligations then due and owing.
 
SECTION 8.  
COLLATERAL AGENT.
 
7.   The Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the instructions of the holders of a majority of the aggregate notional amount (or, with respect to any Interest Rate Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Interest Rate Agreement) under all Interest Rate Agreements.  In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Collateral Agent signed by the Requisite Lenders.  Upon any such notice of resignation or any such removal, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to the Administrative Agent, to appoint a successor Collateral Agent.  Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement.  After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent hereunder.
 
 
38
 
 
SECTION 9.  
CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.
 
8.   This Agreement shall create a continuing security interest in the Collateral and shall remain in full force and effect until the payment in full of all Secured Obligations, the cancellation or termination of the Commitments, be binding upon each Grantor, its successors and assigns, and inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and its successors, transferees and assigns.  Without limiting the generality of the foregoing, but subject to the terms of the Credit Agreement, any Lender may assign or otherwise transfer any Loans held by it to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to Lenders herein or otherwise.  Upon the payment in full of all Secured Obligations, the cancellation or termination of the Commitments, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Collateral shall revert to Grantors.  Upon any such termination the Collateral Agent shall, at Grantors’ expense, execute and deliver to Grantors or otherwise authorize the filing of such documents as Grantors shall reasonably request, including financing statement amendments to evidence such termination.  Upon any disposition of property permitted by the Credit Agreement, the Liens granted herein shall be deemed to be automatically released and such property shall automatically revert to the applicable Grantor with no further action on the part of any Person.  The Collateral Agent shall, at Grantor’s expense, execute and deliver or otherwise authorize the filing of such documents as Grantors shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including financing statement amendments to evidence such release.
 
SECTION 10.  
STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.
 
9.   The powers conferred on the Collateral Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers.  Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral.  The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property.  Neither the Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or otherwise.  If any Grantor fails to perform any agreement contained herein, the Collateral Agent may itself perform, or cause performance of, such agreement, and the expenses of the Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the Credit Agreement.
 
 
39
 
 
SECTION 11.  
MISCELLANEOUS.
 
10.   Any notice required or permitted to be given under this Agreement shall be given in accordance with Section 10.1 of the Credit Agreement.  No failure or delay on the part of the Collateral Agent in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege.  All rights and remedies existing under this Agreement and the other Credit Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available.  In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.  All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.  This Agreement shall be binding upon and inure to the benefit of the Collateral Agent and Grantors and their respective successors and assigns.  No Grantor shall, without the prior written consent of the Collateral Agent given in accordance with the Credit Agreement, assign any right, duty or obligation hereunder.  This Agreement and the other Credit Documents embody the entire agreement and understanding between Grantors and the Collateral Agent and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof.  Accordingly, the Credit Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.  There are no unwritten oral agreements between the parties.  This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.
 
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAWS).
 
 
40
 
 
IN WITNESS WHEREOF, each Grantor and the Collateral Agent have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
 
 
MERIDIAN WASTE SOLUTIONS, INC.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Chief Executive Officer
 
       
 
 
 
HERE TO SERVE – MISSOURI WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
     

 
HERE TO SERVE – GEORGIA WASTE DIVISION, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
BROOKLYN CHEESECAKE & DESSERT ACQUISITION CORP.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
MERIDIAN LAND COMPANY, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
41
 
 
 
CHRISTIAN DISPOSAL LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager

 
FWCD, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
 
GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P.,
 
 
as the Collateral Agent
 
       
 
By:
/s/ Stephen W. Hipp  
   
Name: Stephen W. Hipp
 
   
Title: Senior Vice President

42
Exhibit 4.15
 
WARRANT CANCELLATION
AND STOCK ISSUANCE AGREEMENT

This WARRANT CANCELLATION AND STOCK ISSUANCE AGREEMENT (this “ Agreement ”) is made and entered into as of December 22, 2015 (the “ Effective Date ”), by and among Praesidian Capital Opportunity Fund III, LP, a Delaware limited partnership (“ Fund III ”), Praesidian Capital Opportunity Fund III-A, LP, a Delaware limited partnership (“ Fund III-A ”, together with Fund III , the “ Praesidian Funds ”), and Meridian Waste Solutions, Inc., a New York corporation (f.k.a., Brooklyn Cheesecake & Desserts Company, Inc.) (“ Meridian ”).

RECITALS

WHEREAS, pursuant to that certain Warrant, dated as of August 6, 2015, by and among Fund III and Meridian, and that other certain Warrant, dated as of August 6, 2015, by and among Fund III-A and Meridian (collectively, the “ Warrant Agreements ”) Meridian granted to Praesidian Funds certain warrants (the “ Warrants ”) to subscribe for and purchase interests collectively in the amount of one million, two hundred ninety-three thousand, twenty two (1,293,022) shares of the common stock of Meridian, par value $0.025 per share (the “ Common Stock ”); and

WHEREAS, the Warrant Agreements and Warrants were entered into in connection with that certain Note and Warrant Purchase and Security Agreement, dated as of the same date as the Warrant, by and among the Company, the Praesidian Funds, and certain other parties thereto (the “ Note Agreement ”) and certain loans made by Praesidian Funds to Meridian; and

WHEREAS, the loans underlying the Note Agreement are being paid off in advance; and

WHEREAS, in connection with the payoff of the Note Agreement, the parties desire to
cancel the Warrant Agreements, and in exchange for agreeing to terminate its rights under the Warrant Agreements, Praesidian Funds shall receive a collective sum of one million, six hundred thousand (1,600,000) shares of Common Stock issued by Meridian.

AGREEMENT

In consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.            Cancellation of Warrant .  Praesidian Funds hereby agrees, subject to payment of the Cancellation Consideration (as defined below), that the Warrants and all rights and obligations of Praesidian Funds thereunder, and the Warrant Agreements and all rights and obligations of Praesidian Funds thereunder, shall be cancelled and terminated in their entirety and be of no further force and effect.  In exchange for the obligation of Meridian to deliver to Praesidian Funds the Cancellation Consideration, Praesidian Funds hereby irrevocably waives all of its rights to exercise the Warrants and all of its rights under the Warrant Agreements and hereby transfers all of its rights, title and interest in and to the Warrants and the Warrant Agreements to Meridian, free and clear of any liens or other encumbrances.  Upon payment of the Cancellation Consideration, Meridian shall, within its corporate books, record the Warrants as cancelled and all rights and obligations of the parties thereunder shall terminate and be of no further force and effect.
 
 
1
 

2.            Issuance of Stock .  In consideration for Praesidian Funds cancelling the Warrants and waiving its rights and obligations under the Warrant Agreements as provided in the immediately preceding sentence, Meridian shall (a) cause Praesidian Funds to be issued on and as of the Effective Date, the sum of one million, six hundred thousand (1,600,000) shares to be divided between the Praesidian Funds as indicated on Schedule A , and such shares shall be subject to the terms and conditions contained in this Agreement (the “ Cancellation Shares ”) and (b) pay by wire transfer in immediately available funds to an account(s) designated by the Praesidian Funds an amount in cash equal to $150,000 (the “ Cancellation Cash ” and, together with the Cancellation Shares, the “ Cancellation Consideration ”).

3.            Representations and Warranties of Meridian .  Meridian hereby represents and warrants to Praesidian Funds that as of the Effective Date:

(a)           Meridian has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and to consummate the transactions contemplated hereby.  The execution and delivery by Meridian of this Agreement, the performance by Meridian of its obligations hereunder, and the consummation by Meridian of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Meridian.  This Agreement is duly and validly executed and delivered by Meridian and, assuming the due authorization, execution and delivery hereof by Praesidian Funds, constitutes a valid and binding obligation of Meridian, enforceable against Meridian in accordance with its terms.

(b)           The execution, delivery and performance by Meridian of this Agreement and the consummation of the transactions contemplated hereby (with or without the giving of notice, lapse of time or both):  (i) will not conflict with any provision of the certificate of incorporation, bylaws or any other organizational documents of Meridian; (ii) will not conflict with in any respect, violate, result in a breach of, or constitute a default under any law, rule, regulation or order to which Meridian is bound; (iii) do not require the consent of any governmental authority or any other person or entity under any governmental permit, authorization or license or any contract or agreement to which Meridian is a party or by which it or its assets are bound; (iv) will not conflict with in any respect, constitute grounds for termination of, result in a breach of, constitute a default under, give rise to any third party’s right(s) of first refusal or similar right in respect of or adversely affect the rights or obligations of any party under, or accelerate or permit the acceleration of any performance required by the terms of any such permit, authorization, license, contract or agreement; or (v) result in the creation or imposition of any lien or encumbrance of any kind against or upon any asset of Meridian.
 
 
2
 

(c)           Meridian is a New York corporation, validly existing and in good standing under the laws of the State of New York and has all requisite corporate power and authority to own, lease and operate its property and to carry on its business as now being conducted.
 
(d)           The Cancellation Shares, when issued and delivered in accordance with the terms set forth in this Agreement, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under Meridian’s corporate charter or bylaws and applicable federal and state securities laws.
 
(e)   The authorized capital stock of Meridian consists of 75,000,000 Common
Shares, 51 shares of Preferred Series A, 71,210  shares of Preferred Series B and 4,928,739 shares of Blank Check Preferred Stock.  As of the date hereof, there are 51 Preferred Shares A shares issued and outstanding; 71,210 Preferred Shares B shares issued and outstanding; 4,928,739 Blank Check Preferred Stock shares issued and outstanding and 17,918,650 Common Shares issued and outstanding.  Meridian has no other class or series of authorized, issued or outstanding shares of capital stock.

There are   9,321,893 shares of Common Stock issuable upon conversion or exchange of all options, rights, warrants, calls, or other outstanding securities exchangeable for capital stock of Meridian, including, without limitation, shares issuable pursuant to that certain Purchase Warrant for Common Shares dated as of the date hereof, issued in connection with that certain Credit and Guaranty Agreement of even date herewith (the “Credit Agreement”) by and among Meridian, its subsidiary and those certain lenders (such warrant, together with any replacement warrants or additional warrants issued in connection with the Credit Agreement, the “Lender Warrant”).

4.            Preemptive and Registration Rights .  Meridian hereby agrees:

(a)           From the Effective Date until the fourth anniversary thereof, so long as Praesidian Funds owns at least 2% of the issued and outstanding Common Stock, in the event that Meridian proposes to undertake an issuance of capital stock (“ New Securities ”) (other than New Securities issued in a transaction or transactions that is / are not an equity securities financing not exceeding in the aggregate 10% of the shares of Common Stock issued and outstanding as of the date of this Agreement on a fully diluted basis), Meridian shall give each of the Praesidian Funds written notice of its intention, describing the New Securities and the price and general terms upon which Meridian proposes to issue the same.  Each of the Praesidian Funds shall have ten (10) days from the date any such notice is given to agree to purchase all or any part of its pro rata share of such New Securities (based on its ownership of the issued and outstanding Common Stock) for the price and upon the terms specified in such notice by giving written notice to Meridian and stating therein the quantity of New Securities to be purchased.

(b)           In the event that either of the Praesidian Funds fails to exercise in full its preemptive right within such ten (10) day period, Meridian shall have one hundred eighty (180) days thereafter to sell the New Securities with respect to which any such Praesidian Funds’ preemptive rights were not exercised, at a price and upon terms no more favorable to the purchasers thereof than specified in Meridian’s notice.  In the event the Meridian has not sold the New Securities within such one hundred eighty (180) day period or changes the price and/or terms to those more favorable to the purchasers, the Company shall not thereafter issue or sell any New Securities without first offering such securities to the Praesidian Funds in the manner provided above.
 
 
3
 

(c)    In the event, and for so long as, the Praesidian Funds own ten percent (10%) or greater of Common Stock, then Meridian shall provide Praesidian Funds with registration rights substantially similar to those provided for under Section 6 of the Warrant Agreements; provided, however, that notwithstanding anything to the contrary set forth herein or in such Section 6 of the Warrant Agreements, holders of the Lender Warrant and the Praesidian Funds shall have pari passu rights on piggyback registrations.

(d) For the avoidance of doubt, notwithstanding anything to the contrary herein, the provisions of this Section 4 shall not apply to the Lender Warrant and neither the Lender Warrant nor the common shares issuable upon exercise thereof will be deemed New Securities.

5.            Assignment .  This Agreement shall be freely assignable by Praesidian Funds to any of its affiliates.

6.            Counterparts .  This Agreement may be signed in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures on each counterpart were upon the same instrument.  Facsimile signatures or signatures received as a pdf attachment to electronic media shall be treated as original signatures for all purposes hereunder.

7.             Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware (without regard to the choice of law provisions thereof).

[Signature Pages Follow.]
 
 
4
 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
 
 
MERIDIAN WASTE SOLUTIONS, INC.
 
       
 
By:
/s/ Jeffrey Cosman  
    Name: Jeffrey Cosman  
   
Title: Chief Executive Officer
 
       
 
Consented and agreed:
 
 
PRAESIDIAN CAPITAL OPPORTUNITY FUND III
 
       
 
By:
/s/ Jason Drattel  
   
Name: Jason Drattel
 
   
Title: Managing Partner
 
     

 
PRAESIDIAN CAPITAL OPPORTUNITY FUND III-A
 
       
 
By:
/s/ Jason Drattel  
   
Name: Jason Drattel
 
   
Title: Managing Partner
 
   

 
 
5
 
 
SCHEDULE A


Entity
Cancellation Consideration Shares
Praesidian Capital Opportunity Fund III
1,153,052
Praesidian Capital Opportunity Fund III-A
446,948

6












 

 
 
Exhibit 4.16
 
 
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS DOCUMENT NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.  NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN SECTION 4 OF THIS NOTE TO THE SENIOR DEBT (AS DEFINED BELOW); EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF SECTION 4.
 
 
  Principal Amount: US $1,250,000   Issue Date: December 22, 2015
 
CONVERTIBLE PROMISSORY NOTE

FOR VALUE RECEIVED , MERIDIAN WASTE SOLUTIONS, INC. , a corporation incorporated under the laws of the State of New York (hereinafter called the “Company”), hereby promises to pay to the order of TIMOTHY M. DRURY an individual (the “Holder”), the sum of One Million Two Hundred Fifty Thousand United States Dollars (US $1,250,000) or, if less, such amount which may be outstanding from time to time, together with interest on the outstanding unpaid principal balance hereof at the rate of eight percent (8%) (the “Interest Rate”) per annum compounded on the last day of each calendar quarter from the date hereof (the “Issue Date”) until the same becomes due and payable, whether at maturity or upon acceleration or by prepayment or otherwise.  Principal and interest are payable as follows (the "Payments"): (i)  all accrued and unpaid interest shall be paid on or before the last day of the first four calendar quarters ending after the Issue Date ( i.e., December 31, 2015, March 31, 2016, June 30, 2016 and September 30, 2016); and (ii) thereafter the full unpaid principal balance and all accrued and unpaid interest shall be paid in sixteen (16) equal quarterly installments of principal and accrued interest with the final payment of principal and interest, if not sooner paid, due on December 31, 2020 (the “Maturity Date”). 

This Note may be prepaid in whole or in part at any time (the "Prepayment" and, together with the Payments, the "Scheduled Payments").  Any amount of principal or interest on this Note which is not paid when due shall bear interest at the rate of twelve percent (12%) per annum from the due date thereof until the same is paid (“Default Interest”).  Interest shall commence accruing on the Issue Date and shall be computed on the basis of a 360-day year and the actual number of days elapsed.  All payments due hereunder (to the extent not converted into common stock, $0.025 par value per share (the “Common Stock”) in accordance with the terms hereof) shall be made in lawful money of the United States of America.  All payments shall be remitted to the following address: 15 Squires Lane, St. Louis, Missouri 63131.  Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a business day, the same shall instead be due on the next succeeding day which is a business day.  As used in this Note, the term “business day” shall mean any day other than a Saturday, Sunday or a day on which commercial banks in the city of New York, New York are authorized or required by law or executive order to remain closed.  Each capitalized term used herein, and not otherwise defined, shall have the meaning ascribed thereto in that certain Amended and Restated Membership Interest Purchase Agreement dated October 16, 2015, as amended by that certain First Amendment to Amended and Restated Membership Interest Purchase Agreement dated December 4, 2015, pursuant to which this Note was originally issued (the “Purchase Agreement”).

This Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Company and will not impose personal liability upon the holder thereof.
 
 
1
 

The following terms shall apply to this Note:

1.             CONVERSION RIGHTS

1.1.   Conversion Rights .  The Holder shall have the right (the "Conversion Rights") from time to time and in accordance with the terms of this Section 1, beginning on the date which is one hundred eighty (180) days following the date of this Note and ending on the Maturity Date, to convert all or any part of the outstanding and unpaid amount of this Note into fully paid and non-assessable shares of Common Stock, as such Common Stock exists on the Issue Date, or any shares of capital stock or other securities of the Company into which such Common Stock shall hereafter be changed or reclassified at the conversion price (the “Conversion Price”) determined as provided herein (a “Conversion”); provided , however , that in no event shall the Holder be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by the Holder (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Note or the unexercised or unconverted portion of any other security of the Company subject to a limitation on conversion or exercise analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of this Note with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.99% of the outstanding shares of Common Stock.  For purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such proviso, provided , further , however , that the limitations on conversion may be waived by the Holder upon, at the election of the Holder, not less than 61 days’ prior notice to the Company, and the provisions of the conversion limitation shall continue to apply until such 61st day (or such later date, as determined by the Holder, as may be specified in such notice of waiver).  The number of shares of Common Stock to be issued upon each conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by the applicable Conversion Price then in effect on the date specified in the notice of conversion, in the form attached hereto as Exhibit A (the “Notice of Conversion”), delivered to the Company by the Holder in accordance with Section 1.4 below; provided that the Notice of Conversion is submitted by facsimile or e-mail (or by other means resulting in, or reasonably expected to result in, notice) to the Company before 5:00 p.m., New York, New York time on such conversion date (the “Conversion Date”).  The term “Conversion Amount” means, with respect to any conversion of this Note, the sum of (1) the principal amount of this Note to be converted in such conversion plus (2) at the Holder’s option, accrued and unpaid interest, if any, on such principal amount at the interest rates provided in this Note to the Conversion Date, provided however, that the Company shall have the right to pay any or all interest in cash plus (3) at the Holder’s option, Default Interest, if any, on the amounts referred to in the immediately preceding clauses (1) and/or (2).

1.2.   Calculation of Conversion Price .  The conversion price (subject to equitable adjustments for stock splits, stock dividends or rights offerings by the Company relating to the Company’s securities or the securities of any subsidiary of the Company, combinations, recapitalization, reclassifications, extraordinary distributions and similar events, the “Conversion Price”) shall equal the volume weighted average prices (“VWAP”), as reported by Bloomberg L.P., of the Company’s Common Stock in the ten (10) Trading Days (as defined below) immediately prior to the date upon which this Note is converted.  If the VWAP cannot be calculated for such security on such date in the manner provided above, the VWAP shall be the fair market value as mutually determined by the Company and the Holder.  “Trading Day” shall mean any day on which the Common Stock is tradable for any period on the OTCBB, OTCQB or on the principal securities exchange or other securities market on which the Common Stock is then being traded.

1.3.   Authorized Shares .  The Company represents that upon issuance, such shares will be duly and validly issued, fully paid and non-assessable.  In addition, if the Company shall issue any securities or make any change to its capital structure which would change the number of shares of Common Stock into which the Note shall be convertible at the then current Conversion Price, the Company shall at the same time make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved, free from preemptive rights, for conversion of the outstanding Note.  The Company agrees that its issuance of this Note shall constitute full authority to its officers and agents who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock in accordance with the terms and conditions of this Note.

1.4.   Method of Conversion .

1.4.1.   Mechanics of Conversion .  Subject to Section 1.1, this Note may be converted by the Holder in whole or in part at any time from time to time after the Issue Date, by (A) submitting to the Company a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 5:00 p.m., New York, New York time) and (B) subject to Section 1.4(b), surrendering this Note at the principal office of the Company.

1.4.2.   Surrender of Note Upon Conversion .  Notwithstanding anything to the contrary set forth herein, upon conversion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company unless the entire unpaid principal amount of this Note is so converted.  The Holder and the Company shall maintain records showing the principal amount so converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon each such conversion.  In the event of any dispute or discrepancy, such records of the Company shall, prima facie, be controlling and determinative in the absence of manifest error.  Notwithstanding the foregoing, if any portion of this Note is converted as aforesaid, the Holder may not transfer this Note unless the Holder first physically surrenders this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note of like tenor, registered as the Holder (upon payment by the Holder of any applicable transfer taxes) may request, representing in the aggregate the remaining unpaid principal amount and accrued unpaid interest of this Note.  The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note represented by this Note may be less than the amount stated on the face hereof.
 
 
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1.4.3.   Payment of Taxes .  The Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock or other securities or property on conversion of this Note in a name other than that of the Holder (or in street name), and the Company shall not be required to issue or deliver any such shares or other securities or property unless and until the person or persons (other than the Holder or the custodian in whose street name such shares are to be held for the Holder’s account) requesting the issuance thereof shall have paid to the Company the amount of any such tax or shall have established to the satisfaction of the Company that such tax has been paid.

1.4.4.   Delivery of Common Stock Upon Conversion .  Upon receipt by the Company from the Holder of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements for conversion as provided in this Section, the Company shall issue and deliver or cause to be issued and delivered to or upon the order of the Holder certificates for the Common Stock issuable upon such conversion within five (5) business days after such receipt (the “Deadline”) (and, solely in the case of conversion of the entire unpaid principal amount hereof, surrender of this Note) in accordance with the terms hereof.

1.4.5.   Obligation of Company to Deliver Common Stock .  Upon receipt by the Company of a Notice of Conversion, the Holder shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, the outstanding principal amount and the amount of accrued and unpaid interest on this Note shall be reduced to reflect such conversion, and, unless the Company defaults on its obligations under this Article I, all rights with respect to the portion of this Note being so converted shall forthwith terminate except the right to receive the Common Stock or other securities, cash or other assets, as herein provided, on such conversion.  If the Holder shall have given a Notice of Conversion as provided herein, the Company’s obligation to issue and deliver the certificates for Common Stock shall be absolute and unconditional, irrespective of the absence of any action by the Holder to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of the Company to the holder of record, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder of any obligation to the Company, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with such conversion.  The Conversion Date specified in the Notice of Conversion shall be the Conversion Date so long as the Notice of Conversion is received by the Company before 5:00 p.m., New York, New York time, on such date.

1.4.6.   Delivery of Common Stock by Electronic Transfer .  In lieu of delivering physical certificates representing the Common Stock issuable upon conversion, provided the Company is participating in the Depository Trust Company (DTC) Fast Automated Securities Transfer (FAST) program, upon request of the Holder and its compliance with the provisions contained in Section 1.1 and in this Section, the Company shall use its commercially reasonable best efforts to cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder by crediting the account of Holder’s Prime Broker with DTC through its Deposit Withdrawal At Custodian (“DWAC”) system.

1.5.   Concerning the Shares .  The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless  (i) such shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”) or (ii) the Company or its transfer agent shall have been furnished with an opinion of  counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Company who agrees to sell or otherwise transfer the shares only in accordance with this Section and who is an Accredited Investor (as defined in the Act).  Except as otherwise provided in the Purchase Agreement (and subject to the removal provisions set forth below), until such time as the shares of Common Stock issuable upon conversion of this Note have been registered under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for shares of Common Stock issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:

“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.  NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
 
 
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The legend set forth above shall be removed and the Company shall issue to the Holder a new certificate therefore free of any transfer legend if (i) the Company or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made without registration under the Act, which opinion shall be reasonably accepted by the Company so that the sale or transfer is effected or (ii) in the case of the Common Stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold. In the event that the Company does not accept the opinion of counsel provided by the Buyer with respect to the transfer of Securities pursuant to an exemption from registration, such as Rule 144 or Regulation S, at the Deadline, it will be considered an Event of Default.

1.6.   Effect of Certain Events .

1.6.1.   Effect of Merger, Consolidation, Etc .  At the option of the Holder, the sale, conveyance or disposition of all or substantially all of the assets of the Company, the effectuation by the Company of a transaction or series of related transactions in which more than 50% of the voting power of the Company is disposed of, or the consolidation, merger or other business combination of the Company with or into any other Person (as defined below) or Persons when the Company is not the survivor shall be treated pursuant to Section 1.6(b) hereof.  “Person” shall mean any individual, corporation, limited liability company, partnership, association, trust or other entity or organization.

1.6.2.   Adjustment Due to Merger, Consolidation, Etc .  If, at any time when this Note is issued and outstanding and prior to conversion, there shall be any merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event, as a result of which shares of Common Stock of the Company shall be changed into the same or a different number of shares of another class or classes of stock or securities of the Company or another entity, or in case of any sale or conveyance of all or substantially all of the assets of the Company other than in connection with a plan of complete liquidation of the Company, then the Holder of this Note shall thereafter have the right to receive upon conversion of this Note, upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately theretofore issuable upon conversion, such stock, securities or assets which the Holder would have been entitled to receive in such transaction had this Note been converted in full immediately prior to such transaction (without regard to any limitations on conversion set forth herein), and in any such case appropriate provisions shall be made with respect to the rights and interests of the Holder of this Note to the end that the provisions hereof (including, without limitation, provisions for adjustment of the Conversion Price and of the number of shares issuable upon conversion of the Note) shall thereafter be applicable, as nearly as may be practicable in relation to any securities or assets thereafter deliverable upon the conversion hereof.  The Company shall not affect any transaction described in this Section unless (a) it first gives, to the extent practicable, ten (10) days prior written notice of the record date of the special meeting of shareholders to approve, or if there is no such record date, the consummation of, such merger, consolidation, exchange of shares, recapitalization, reorganization or other similar event or sale of assets (during which time the Holder shall be entitled to convert this Note) and (b) the resulting successor or acquiring entity (if not the Company) assumes by written instrument the obligations of this Note.  The above provisions shall similarly apply to successive consolidations, mergers, sales, transfers or share exchanges.

1.6.3.   Notice of Adjustments .  Upon the occurrence of each adjustment or readjustment of the Conversion Price as a result of the events described in this Section, the Company, at its expense, shall promptly compute such adjustment or readjustment and prepare and furnish to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based.  The Company shall, upon the written request at any time of the Holder, furnish to such Holder a like certificate setting forth (i) such adjustment or readjustment, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon conversion of the Note.

1.7.   Trading Market Limitations . Unless permitted by the applicable rules and regulations of the principal securities market on which the Common Stock is then listed or traded, in no event shall the Company issue upon conversion of or otherwise pursuant to this Note more than the maximum number of shares of Common Stock that the Company can issue pursuant to any rule of the principal United States securities market on which the Common Stock is then traded (the “Maximum Share Amount”), which shall be 4.99% of the total shares outstanding on the Issue Date, subject to equitable adjustment from time to time for stock splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date hereof.  Once the Maximum Share Amount has been issued, if the Company fails to eliminate any prohibitions under applicable law or the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities on the Company’s ability to issue shares of Common Stock in excess of the Maximum Share Amount, in lieu of any further right to convert this Note, this will be considered an Event of Default.

1.8.   Status as Shareholder .  Upon submission of a Notice of Conversion by a Holder, (i) the shares covered thereby (other than the shares, if any, which cannot be issued because their issuance would exceed such Holder’s allocated portion of the Maximum Share Amount) shall be deemed converted into shares of Common Stock and (ii) the Holder’s rights as a Holder of such converted portion of this Note shall cease and terminate, excepting only the right to receive certificates for such shares of Common Stock and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Company to comply with the terms of this Note.  Notwithstanding the foregoing, if a Holder has not received certificates for all shares of Common Stock prior to the tenth (10th) business day after the expiration of the Deadline with respect to a conversion of any portion of this Note for any reason, then (unless the Holder otherwise elects to retain its status as a holder of Common Stock by so notifying the Company) the Holder shall regain the rights of a Holder of this Note with respect to such unconverted portions of this Note and the Company shall, as soon as practicable, return such unconverted Note to the Holder or, if the Note has not been surrendered, adjust its records to reflect that such portion of this Note has not been converted.  In all cases, the Holder shall retain all of its rights and remedies.
 
 
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2.             EVENTS OF DEFAULT

The Holder, without notice or demand of any kind, shall be in default under this Agreement upon the occurrence of any of the following events (each an “Event of Default”):

2.1.   Failure to Pay Principal or Interest .  The Company fails to pay the principal hereof or interest thereon when due on this Note, whether at maturity, upon acceleration or otherwise.

2.2.   Conversion and the Shares .  The Company fails to issue shares of Common Stock to the Holder (or announces or threatens in writing that it will not honor its obligation to do so) upon exercise by the Holder of the conversion rights of the Holder in accordance with the terms of this Note, fails to transfer or cause its transfer agent to transfer (issue) (electronically or in certificated form) any certificate for shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, the Company directs its transfer agent not to transfer or delays, impairs, and/or hinders its transfer agent in transferring (or issuing) (electronically or in certificated form) any certificate for shares of Common Stock to be issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, or fails to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note (or makes any written announcement, statement or threat that it does not intend to honor the obligations described in this paragraph) and any such failure shall continue uncured (or any written announcement, statement or threat not to honor its obligations shall not be rescinded in writing) for five (5) business days after the Holder shall have delivered a Notice of Conversion.  It is an obligation of the Company to remain current in its obligations to its transfer agent. It shall be an event of default of this Note, if a conversion of this Note is delayed, hindered or frustrated due to a balance owed by the Company to its transfer agent. If at the option of the Holder, the Holder advances any funds to the Company’s transfer agent in order to process a conversion, such advanced funds shall be paid by the Company to the Holder within forty-eight (48) hours of a demand from the Holder.

2.3.   Breach of Covenants .  The Company breaches any material covenant or other material term or condition contained in this Note and such breach continues for a period of five (5) days after written notice thereof to the Company from the Holder.

2.4.   Breach of Representations and Warranties .  Any representation or warranty of the Company made herein or in any agreement, written statement or certificate given in writing pursuant hereto or in connection herewith (including, without limitation, the Purchase Agreement), shall be false or misleading in any material respect when made and the breach of which has (or with the passage of time will have) a material adverse effect on the rights of the Holder with respect to this Note.

2.5.   Receiver or Trustee .  The Company or any subsidiary of the Company shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be appointed.

2.6.   Bankruptcy .  Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Company or any subsidiary of the Company.

2.7.   Delisting of Common Stock .  The Company shall fail to maintain the listing of the Common Stock on at least one of the OTCBB, OTCQB or an equivalent replacement exchange, the Nasdaq National Market, the Nasdaq Small Cap Market, the New York Stock Exchange, or the NYSE AMEX.

2.8.   Failure to Comply with the Exchange Act .  The Company shall fail to comply with the reporting requirements of the Exchange Act; and/or immediately upon the Company ceasing to be subject to the reporting requirements of the Exchange Act; provided, however, that the Company shall have fifteen (15) days to cure any failure of the Company’s obligation pursuant to the Exchange Act to file a current report on Form 8-K.

2.9.   Liquidation .  Any dissolution, liquidation, or winding up of Company or any substantial portion of its business.

2.10.   Cessation of Operations .  Any cessation of operations by Company or Company admits it is otherwise generally unable to pay its debts as such debts become due, provided, however, that any disclosure of the Company’s ability to continue as a “going concern” shall not be an admission that the Company cannot pay its debts as they become due.
 
 
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Upon the occurrence and during the continuance of an Event of Default, Holder may, upon expiration of any stated grace period and upon written notice to the Company, declare all or any portion of the outstanding principal amount of the Note and all accrued interest thereon, to be due and payable and any or all other obligations hereunder to be due and payable, whereupon the full unpaid principal amount hereof, and any and all other such obligations which shall be so declared due and payable shall be and become immediately due and payable, without further notice, demand, or presentment.

3.             MISCELLANEOUS

3.1.   Parties in Interest .  All covenants, agreements and undertakings in this Note binding upon the Company or the Holder shall bind and inure to the benefit of the successors and permitted assigns of the Company and the Holder, respectively, whether so expressed or not.

3.2.   Governing Law . This Note shall be governed by and construed in accordance with the laws of the State of Missouri without regard to principles of conflicts of laws.  Any action brought by either party against the other concerning the transactions contemplated by this Note shall be brought only in the state courts of Missouri or in the federal courts located in the State of New York.  The parties to this Note hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens .  The Company and Holder waive trial by jury.  The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs.  In the event that any provision of this Note or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law.  Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement.
 
 
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3.3.   Notices .  Any notice pursuant to this Note to be given or made (i) by the Holder to or upon the Company or (ii) by the Company to or upon the Holder, shall be sufficiently given or made if sent by certified or registered mail, postage prepaid, addressed (until another address is sent by the Company or the Holder to the other party) as follows:
 
 
 To the Company:  
Meridian Waste Solutions, Inc.
Attn: Jeffrey Cosman, CEO
12540 Broadwell Road, Suite 1203
Milton, GA 30004
E-Mail: jeff@meridianwastesolutions.com
     
 With a copy to:  
  Lucosky Brookman LLP
Attn: Scott Linsky
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08830
Facsimile: (732) 395-4401
E-Mail: slinsky@lucbro.com
     
 To the Holder:  
Timothy M. Drury
15 Squires Lane
St. Louis, MO 63131
E-Mail: tim.drury@ddcmail.com
     
  With a copy to:  
 Summers Compton Wells LLC
Attn: Stephen L. Wells, Esq.
8909 Ladue Road
St. Louis, MO 63124
Facsimile: (314) 872-0338
E-Mail: swells@summerscomptonwells.com

 
3.4.   No Waiver .  No delay in exercising any right hereunder shall be deemed a waiver thereof, and no waiver shall be deemed to have any application to any future default or exercise of rights hereunder.

3.5.   Modification and Severability .  If, in any action before any court or agency legally empowered to enforce any provision contained herein, any provision hereof is found to be unenforceable, then such provision shall be deemed modified to the extent necessary to make it enforceable by such court or agency.  If any such provision is not enforceable as set forth in the preceding sentence, the unenforceability of such provision shall not affect the other provisions of this Note but this Note shall be construed as if such unenforceable provision had never been contained herein.
 
 
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3.6.   Usury Savings Clause.   Notwithstanding any provision in this Note, the total liability for payments of interest and payments in the nature of interest, including, without limitation, all charges, fees, exactions, or other sums which may at any time be deemed to be interest, shall not exceed the limit imposed by the usury laws of the jurisdiction governing this Note or any other applicable law.  In the event the total liability of payments of interest and payments in the nature of interest, including, without limitation, all charges, fees, exactions or other sums which may at any time be deemed to be interest, shall, for any reason whatsoever, result in an effective rate of interest, which for any month or other interest payment period exceeds the limit imposed by the usury laws of the jurisdiction governing this Note, all sums in excess of those lawfully collectible as interest for the period in question shall, without further agreement or notice by, between, or to any party hereto, be added to the outstanding principal balance due under this Note, and the Company shall issue a new note reflecting this revised principal amount due upon request of the Holder.
 
4.           SUBORDINATION

4.1            Payment Subordination .  Notwithstanding anything in this Note to the contrary, except for the Scheduled Payments and/or the Conversion Rights under Section 1 hereof and as provided in Section 4.10 below, no payment or distribution of any kind, whether direct or indirect (by set-off, recoupment or otherwise) and whether in cash, securities or other property, shall be made on account of any Subordinated Debt, or in respect of any redemption, retirement, purchase or other acquisition of any Subordinated Debt, by or for the account of Debtor or any guarantor, at any time during which any Senior Debt shall be outstanding or any commitment to extend Senior Debt exists, other than any increase to the principal amount owing under this Note resulting from the compounding of interest or the payment of interest in kind rather than cash; provided, that (other than payments in kind or the Conversion Rights under Section 1) no payment or distribution of any kind shall be made on account of the Subordinated Debt if a Senior Default shall have occurred and is continuing; provided further, that no prepayment of this Note shall be permitted unless such prepayment is permitted under the Senior Credit Agreement.

4.2            Subordination in the Event of Bankruptcy, Dissolution, Etc .  (a)  In the event of any Proceeding: (i) all Senior Debt shall first be indefeasibly paid in full in cash before any payment or distribution of any kind, whether direct or indirect (by set-off, recoupment or otherwise) and whether in cash, securities or other property, shall be made in respect of Subordinated Debt, and (ii) any payment or distribution of assets of any kind which would otherwise (but for this Section 4.2) be payable or deliverable on account of Subordinated Debt shall be paid or delivered directly to the holders of Senior Debt or their designated representative for application to and payment of Senior Debt until all Senior Debt shall have been paid in full in cash.  The Holder shall not initiate, prosecute or participate directly or indirectly (including through participation on any unsecured creditor committee) in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of the Senior Debt or any Liens securing the Senior Debt.

(b)           In the event of any Proceeding, if the Holder shall fail to do so at least thirty (30) days prior to any bar date therefor, the Holder hereby irrevocably authorizes and empowers the holders of Senior Debt or their designated representative (in their own names or in the name of such Payee or otherwise) for the benefit of the holders of Senior Debt, to demand, sue for, collect and receive every payment or distribution referred to in respect of the Subordinated Debt of such and to file appropriate claims or proofs of claim and take such other action as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Holder in respect of any Subordinated Debt.  The holders of Senior Debt or their designated representative shall have the right, but are not obligated to, vote the claim of the Holder in any Proceeding.  In the event the holders of Senior Debt or their designated representative vote any claim in accordance with the authority granted hereby, the Holder shall not be entitled to change or withdraw such vote.  The Holder agrees to execute and deliver to the holders of Senior Debt or their designated representative such powers of attorney, assignments or other instruments as the holders of Senior Debt may reasonably request to enable it to accomplish the matters set forth in this paragraph.

(c)           The Senior Debt shall continue to be treated as Senior Debt and the provisions of this Section 4.2 shall continue to govern the relative rights and priorities of the holders of the Senior Debt, on the one hand, and the Holder, on the other hand, even if all or part of the liens securing such Senior Debt are subordinated, set aside, avoided or disallowed in connection with any such Proceeding (or if all or part of the Senior Debt is subordinated, set aside, avoided or disallowed in connection with any such Proceeding as a result of a fraudulent conveyance or fraudulent transfer statute or if any interest accruing on the Senior Debt following the commencement of such Proceeding is otherwise disallowed).
 
 
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4.3            Turnover of Improper Payments .  In the event that, notwithstanding the foregoing, any payment or distribution of assets of Debtor or any guarantor of any kind or character, whether direct or indirect (by set-off, recoupment or otherwise) and whether in cash, property or securities, shall be received by any Holder on account of the Subordinated Debt in violation of the provisions of this Note and before all Senior Debt is paid in full in cash, such payment or distribution shall not be commingled with any asset of the Holder, shall be received and held in trust by the Holder for the benefit of the holders of Senior Debt, or their designated representative, ratably according to the respective amounts of Senior Debt held or represented by each, and shall be promptly paid over to the holders of Senior Debt, or their designated representative in precisely the form received by the Holder (except for any necessary endorsement), for application to the payment of the Senior Debt then remaining unpaid,

4.4            Remedy Standstill .  At any time during any Senior Debt, or any commitment to extent Senior Debt, shall remain outstanding, the Holder shall not (i) accelerate the maturity of or otherwise declare due and payable any of the Subordinated Debt, (ii) commence or join with any other creditor (other than the holders of the Senior Debt) in commencing any Proceeding, or (iii) take any other action to secure, collect or enforce any right to receive any payment on account of the Subordinated Debt or enforce any rights or remedies with respect thereto; provided , however , that (x) upon the commencement of any Proceeding, the Holder may accelerate the maturity of the Subordinated Debt, and (y) following the later of the date that is 120 days after the occurrence of an Event of Default under this Note and the date that the Senior Agent ceases to diligently exercise remedies with respect to the corresponding Senior Default, the Holder shall be permitted to accelerate the maturity of the Subordinated Debt, deliver a notice of default to the Debtor and file a claim or proceeding to enforce payment of the indebtedness outstanding hereunder (but not, for the avoidance of doubt, to commence or join with any other creditor (other than the holders of the Senior Debt) in commencing a Proceeding).  If at any time hereafter, the Holder obtains any judgment against Debtor in respect of any Subordinated Debt, such judgment shall be subject to the subordination provisions of this Note and the rights of the holders of Senior Debt to the same extent as such rights apply to Subordinated Debt under this Note.

4.5            Subrogation .  Each Holder waives any subrogation rights that it may have with respect to the Senior Debt until such time that the Senior Debt is indefeasibly paid in full and all commitments to extend Senior Debt are terminated, at which point, the Holder shall be immediately subrogated to the rights of the holders of Senior Debt (to the extent of payments and distributions made to such holders of Senior Debt pursuant to the provisions of this Section 4) to receive payments and distributions on account of Senior Debt until all amounts owing on account of Subordinated Debt shall be paid in full.  No payments or distributions on account of Senior Debt which the Holder shall receive by reason of this subrogation, as between Debtor, any guarantor, any of their respective creditors (other than the holders of Senior Debt) and the Holder, shall be deemed to be a payment on account of any Subordinated Debt and, for purposes of such subrogation, no payments or distributions to the holders of Senior Debt to which the Holder would be entitled except for the provisions of this Section 4, and no payment over pursuant to the provisions of this Section 4 to the holders of Senior Debt by the Holder, as between Debtor, any guarantor, any of their respective creditors (other than the holders of Senior Debt) and the Holder, shall be deemed to be a payment on account of any Senior Debt, it being understood that the provisions of this Section 4 are intended solely for the purpose of defining the relative rights of the Holder, on the one hand, and the holders of Senior Debt, on the other hand.

4.6            Reinstatement .  The provisions of this Section 4 shall continue to be effective or be reinstated, as the case may be, if at any time any payment in respect of any Senior Debt is rescinded or must otherwise be returned by any holders of Senior Debt (including, without limitation, in the event of any Proceeding), all as though such payment had not been made.  Without limitation to the foregoing, in the event that any Senior Debt is avoided, disallowed or subordinated pursuant to Section 548 of the U.S. Bankruptcy Code or any applicable state fraudulent conveyance laws, whether asserted directly or under Section 544 of the U.S. Bankruptcy Code, the provisions of this Section 4 shall continue to be effective or be reinstated, as the case may be.

4.7            Instrument Legend .  This Note and all other instruments (and all replacements thereof) evidencing the Subordinated Debt or any part thereof shall be inscribed with a legend, in the form appearing on the first page of this Note, conspicuously indicating that the payment thereof is subordinated to the payment of Senior Debt pursuant to the provisions of this Section.  In addition, the books of Debtor and each guarantor shall be marked to evidence the subordination of all of the Subordinated Debt to the Senior Debt in accordance with the terms hereof.  The holders of the Senior Debt or their representative is authorized to examine such books from time to time and to make any notations required hereby.

4.8            Subordination Not Impaired .  All rights of the holders of Senior Debt and all agreements and obligations of the Holder under this Section 4 shall remain in full force and effect irrespective of (a) any amendment, modification, waiver or consent of any term or provision set forth in any Senior Debt Document or any other document, instrument or other agreement evidencing or securing any of the Senior Debt; (b) any change in the time, manner or place of payment of, or any other term of, all or any portion of the Senior Debt; (c)any change, release or non-perfection of any security interest in or lien on any collateral securing all or any portion of the Senior Debt, or any amendment or waiver of or consent to the departure from, any guaranty for all or any part of the Senior Debt; or (d)any circumstances which might otherwise constitute a defense available to, or a discharge of, Debtor or any guarantor in respect of any of the Senior Debt, or a defense available to, or a discharge of, any Holder in respect of its obligations under this Section 4.
 
 
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4.9            Continuing Subordination .  This Section 4 shall constitute a continuing offer to all Persons who become holders of, or continue to hold, Senior Debt; and such holders of the Senior Debt are made obligees hereunder and third party beneficiaries this Section 4; any one or more of them, or their designated representative, may enforce such provisions, and all such holders of the Senior Debt shall be deemed to have relied thereon.  The subordination effected by this Section 4 is a continuing subordination, and each Holder hereby unconditionally waives notice of the incurring of any Senior Debt or any part thereof and reliance by any holders of Senior Debt upon the subordination contained herein.  Each Holder acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement to and a consideration of the holders of Senior Debt, whether such Senior Debt was created or acquired before or after the incurrence or creation of any Subordinated Debt and whether such holders of Senior Debt are now known or hereafter become known, and each holder of Senior Debt shall be deemed conclusively to have relied upon such subordination provisions in acquiring and holding, or in continuing to hold, such Senior Debt and shall be entitled to enforce the provisions of this Section 4 directly as if it were a party to this Note.   No right of any present or future holders of Senior Debt to enforce subordination provisions contained in this Section 4 shall at any time be prejudiced or impaired by any act or failure to act on the part of Debtor or by any noncompliance by Debtor with the terms of this Note.

Insolvency.  The terms of this Section 4 shall be applicable both before and after the filing of any petition by or against any Obligor under the Bankruptcy Code and all converted or succeeding cases in respect thereof, and all references herein to any Obligor shall be deemed to apply to a trustee for such Obligor and such Obligor as debtor-in-possession.  The relative rights of Senior Lenders, and Holder to repayment of the Senior Debt and the Subordinated Debt, respectively, and in or to any Distributions from or in respect of the Obligors or any collateral or proceeds of collateral, shall continue after the filing thereof on the same basis as prior to the date of the petition, subject to any court order approving the financing of, or use of cash collateral by, such Obligor as debtor-in-possession.

4.10            No Impairment .  Nothing contained herein is intended to or shall impair, as between Debtor, its creditors (other than the holders of Senior Debt) and the Holder, the obligation of Debtor and the rights of the Holder under the Note, which are absolute and unconditional, to pay to the Holder and perform all other obligations under the Note, subject to the rights of the holders of Senior Debt, this Note, as and when the same shall become due and payable in accordance with its terms, or is intended to or shall affect the relative rights of the holders and creditors of Debtor other than the holders of Senior Debt, nor shall anything herein or therein prevent the Holder from exercising all remedies otherwise permitted by applicable law or under the terms of this Notes subject to Section 4 and the rights of the holders of Senior Debt.

4.11            Inconsistent or Conflicting Provisions .  In the event a provision of the Senior Debt Documents or the Note is inconsistent or conflicts with the provisions of this Section 4, the provisions of this Section 4 shall govern and prevail.

4.12            No Amendment; Third Party Beneficiary .  This Note may not be amended without the prior written consent of the holders of the Senior Debt.  All holders of Senior Debt shall be third party beneficiaries of the provisions of this Section 4, entitled to rely on such provisions as if parties to this Note.

4.13      Absence of Liens; Guaranties .  The Holder does not, and shall not acquire, without the prior written consent of the holders of the Senior Debt or their representative, any Lien against Debtor or any property owned by Debtor.  If, notwithstanding the foregoing, Holder has or acquires any Lien of any kind against Debtor or any property owned by Debtor, (x) any such Liens to which the Senior Agent have not consented in writing shall be promptly released, discharged and terminated of record, and (y) until released, discharged and terminated, such Liens shall be subordinate and subject to the Liens of the Senior Agent against the Obligors and the Property, regardless of the order or time as of which any Liens attach to any of such Property, the order or time of UCC filings or any other filings or recordings, the order or time of granting of any such Liens, or the physical possession of any of such Property, until the Senior Debt is Paid in Full.  Holder hereby appoints Senior Agent as its attorney-in-fact for purposes of releasing, discharging and terminating of record such Liens (such appointment of Senior Agent as attorney-in-fact shall be deemed irrevocable until such time as the Senior Debt has been Paid in Full).  Holder shall not accept a guaranty from any Person with respect to any of the Subordinated Debt unless such Person has given to Senior Agent, on behalf of the Senior Lenders, a like guaranty of the Senior Debt and such Person’s guaranty of the Subordinated Obligations is subordinate to such Person’s guaranty of the Senior Debt on the same terms and conditions contained herein.  The appointment of Senior Agent as attorney-in-fact hereunder shall be deemed irrevocable until such time as the Senior Debt has been Paid in Full.

4.14      Additional Documentation .  Debtor and Holder shall execute and deliver to Senior Agent such further instruments and shall take such further action as Senior Lenders may at any time or times reasonably request in order to carry out the provisions and intent of this Section 4.
 
 
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4.14            Definitions .  For the purpose Section 4 of this Note, capitalized terms used in this Section 4, unless otherwise defined above, shall have the respective meanings specified below:

“ Proceeding ” shall mean (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to Debtor, its subsidiaries or any of their properties, whether voluntary or involuntary, (b) any proceeding for any liquidation, dissolution or other winding-up of Debtor or any of its subsidiaries, whether voluntary or involuntary, and whether or not involving insolvency or bankruptcy proceedings, or (c) any assignment for the benefit of creditors or marshaling of assets of Debtor or any of its subsidiaries, or the appointment of a trustee, receiver, sequestrator, custodian or similar official for Debtor, its subsidiaries or any of their properties.
 
“ Senior Agent ” shall mean Goldman Sachs Specialty Lending Group, L.P., as administrative agent, together with its successors and assigns.

“ Senior Credit Agreement ” shall mean that certain Credit and Guaranty Agreement, dated as of even date herewith, among Meridian Waste Solutions, Inc., the other Credit Parties party thereto, the lenders from time to time parties thereto and the Senior Agent, as amended, restated, refinanced, extended, renewed, supplemented or otherwise modified from time to time.

“ Senior Debt ” shall mean all indebtedness, guaranties and obligations owed by Debtor or any of its subsidiaries, if any, pursuant to or in connection with the Senior Debt Documents, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to Debtor or any of its subsidiaries, whether or not such claim is permitted or allowed in such proceeding), reimbursement obligations, prepayment premium, fees, expenses, indemnification payments, costs and expenses (including all fees and expenses of counsel to any holders of Senior Debt) incurred pursuant to any Senior Debt Document, whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, and all obligations and liabilities incurred in connection with collecting and enforcing the foregoing, together with all renewals, extensions, modifications or refinancings thereof.

“ Senior Debt Documents ” shall mean the Senior Credit Agreement, any other loan agreement or other debt instrument that governs any indebtedness that extends, refinances, renews, replaces or refunds, in whole or in part, any indebtedness outstanding under the foregoing agreements, or that is incurred pursuant to a credit commitment under a credit facility that extends, refinances, renews, replaces or refunds, in whole or in part, any indebtedness outstanding under Senior Credit Agreement, all hedging obligations, all bank product obligations, and all notes, guarantees, security agreements, mortgages, pledge agreements and other documents and instruments related to or delivered pursuant to the foregoing, in each case as amended, restated, extended, renewed, supplemented or otherwise modified from time to time.

“ Senior Default ” shall mean any “Default” or “Event of Default” arising under the Senior Credit Agreement or any other Senior Debt Documents.

“ Subordinated Debt ” shall mean all indebtedness and obligations owed by Debtor and all of its affiliates and subsidiaries, if any, to the Holder incurred pursuant to or in connection with this Note and all guarantees of such indebtedness and obligations, including without limitation, all principal, interest, fees, expenses, indemnification payments, costs and expenses (including all fees and expenses of counsel to the Holder incurred pursuant to this Note), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, and all obligations and liabilities incurred in connection with collecting and enforcing the foregoing, together with all renewals, extensions, modifications or refinancing thereof provided, however, the "Subordinated Debt" shall not include any obligations of Debtor to Holder other than the obligation under this Note pursuant to the Purchase Agreement and provided further, Section 4 of this Note shall have no effect on any obligations of Debtor to Holder under the Purchase Agreement other than as provided for herein with respect to the Note.

 
[signature page follows]
 
 
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IN WITNESS WHEREOF, Company has caused this Note to be signed in its name by its duly authorized officer as of the above-mentioned Issue Date.
 
 
Meridian Waste Solutions, Inc.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Chief Executive Officer
 
       

 
 
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EXHIBIT A
NOTICE OF CONVERSION

The undersigned hereby elects to convert $_________________principal amount and/or $ of the accrued and unpaid interest due under the Note (defined below) into that number of shares of Common Stock to be issued pursuant to the conversion of the Note (“Common Stock”) as set forth below, of MERIDIAN WASTE SOLUTIONS, INC., a New York corporation (the “Company”) according to the conditions of the convertible note of the Company dated as of December 22, 2015 (the “Note”), as of the date written below.  No fee will be charged to the Holder for any conversion, except for transfer taxes, if any.

Box Checked as to applicable instructions:

 
[ ]
The Company shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal At Custodian system (“DWAC Transfer”).

Name of DTC Prime Broker:
Account Number:

 
[  ]
The undersigned hereby requests that the Company issue a certificate or certificates for the number of shares of Common Stock set forth below (which numbers are based on the Holder’s calculation attached hereto) in the name(s) specified immediately below or, if additional space is necessary, on an attachment hereto:

Name: [NAME]
Address: [ADDRESS]

Date of Conversion:                                                                            _____________
Applicable Conversion Price:                                                           $____________
Number of Shares of Common Stock to be Issued
    Pursuant to Conversion of the Note:                                           ______________
Amount of Principal Balance Due remaining
    Under the Note after this conversion:                                         ______________

[HOLDER]


By:_____________________________
Name:  [NAME]
Title:    [TITLE]
Date:   [DATE]
 
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Exhibit 10.3
 
LEASE AGREEMENT

THIS LEASE AGREEMENT (the "Lease") is made and entered into this 22 nd day of December, 2015, by and between 4551 Commerce Holdings LLC, a Missouri limited liability company ("Landlord") and Christian Disposal LLC, a Missouri limited company ("Tenant").

IN CONSIDERATION OF One Dollar ($1.00) and other good and valuable consideration, paid by Tenant to Landlord, receipt of which is hereby acknowledged, the parties agree as follows:

Section 1.      Basic Terms .  The parties hereto acknowledge and agree to the following provisions:
 
 
   
Leased Premises:
 
The property and improvements commonly known and numbered as 4551 Commerce Avenue, High Ridge, Missouri as shown as the hatched area on Exhibit “A,” excepting therefrom the gravel paved fenced parking area of approximately 1.2 acres.
     
  Property 4551 Commerce Avenue, High Ridge, Missouri
     
  Term: Five (5) years, terminating on December 17, 2020
     
  Commencing on: 18 th day of December, 2015 (the "Commencement Date")
     
  Monthly Rent: Six Thousand Five Hundred Dollars ($6,500.00)
     
  Security Deposit: Six Thousand Five Hundred Dollars ($6,500.00)
     
  Rent Payment Address:
15 Squires Lane
St. Louis, Missouri 63131
     
  Late Payment Fee:  $200.00
     
  Permitted Use: office and vehicle repair shop and vehicle parking and storage
     
  Tenant's Notice Address:
103 Pine Street
Post Office Box 9
Winfield, Missouri 63389
     
 

 
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Section 2.      Leased Premises .  Landlord for and in consideration of the rents, covenants and agreements hereinafter mentioned and hereby agreed to be paid, kept and performed by Tenant, has leased and by these presents does lease to Tenant, and Tenant does hereby lease from Landlord, the Leased Premises set forth in Section 1.  Tenant accepts the Leased Premises subject to: (i) conditions, restrictions and limitations, if any, now appearing of record; and (ii) zoning ordinances of any municipality and any other governmental body now existing or which may hereafter exist by reason of any legal authority during the Lease Term.

Section 3.   Use of Leased Premises .  Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Leased Premises, for the Permitted Use set forth in Section 1 and for no other use.

Section 4.   Term .  This Lease shall be for the Term set forth in Section 1 with the Term commencing on the Commencement Date set forth in Section 1.  At the expiration of the tenancy hereby created, Tenant agrees to remove such of Tenant's equipment, goods and effects as are not permanently affixed to the Leased Premises and Tenant shall peaceably yield up the Leased Premises clean and in good order, repair and condition, normal wear and tear excepted.  Tenant at its expense shall repair any damage to the Leased Premises incurred in complying with the provisions of this Lease.  Tenant's obligation to observe or perform the covenants contained in this Section shall survive the expiration or other termination of the Lease Term.  Any personal property of Tenant not removed prior to the termination of this Lease shall, at Landlord's option, either: (i) be removed and disposed of by Landlord at Tenant's expense; or (ii) become the property of Landlord.  Tenant agrees to pay rent, on a pro rata basis, in an amount based on 125% of the agreed Monthly Rent for each day Tenant or anyone holding under Tenant shall retain the Leased Premises after the termination of this Lease (unless renewed with Landlord's written approval), whether by limitation or forfeiture, and shall indemnify Landlord against all loss or liability resulting from such delay by Tenant in surrendering the Leased Premises including, without limitation, any claims made by any succeeding occupant founded on such delay.

Section 5.   Rental Amount and Payment .

A.   The Monthly Rent shall be the amount set forth in Section 1 (prorated on a daily basis for any partial month) and shall be paid, in advance, without notice, on or before the first day of each month during the Term.

B.   Tenant shall pay as additional rent any money required to be paid by Tenant under this Lease, whether or not the same be designated "additional rent".  If such amounts or charges are not paid at the time provided in this Lease, they shall nevertheless be collectable as additional rent with the next installment of rent thereafter falling due hereunder, but nothing herein contained shall be deemed to suspend or delay the payment of any amount of money or charge at the time the same becomes due and payable hereunder or limit any other remedy of Landlord.

C.   All rental payments are to be made to Landlord at the Rent Payment Address set forth in Section 1 or such other address as Landlord shall from time to time designate in a notice to Tenant.

D.   All rental installments shall be paid without any deduction, set-off, or offset whatsoever and without any prior demand being required in advance.
 
 
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E.   If Tenant shall fail to pay, when the same is due and payable, subject to a grace period of five (5) days, any rent or any additional rent, Tenant agrees to pay Landlord as additional rent, the following: (i) the Late Payment Fee set forth in Section 1; and (ii) interest at the rate of fourteen percent (14%) per annum from the 10th day of delinquency to the date of payment.  Tenant shall pay to Landlord a Twenty-Five Dollar ($25.00) service charge for any checks of Tenant that are returned or dishonored by Tenant's bank.

F.   Tenant shall pay to Landlord all charges for any services, goods, or materials furnished by Landlord at Tenant's request, which are not required to be furnished by Landlord under this Lease, within thirty (30) days after Landlord renders a statement therefor to Tenant.

G.   Tenant acknowledges and agrees that the Security Deposit and any advanced rents received by Landlord shall not be held by any managing agent in an escrow account and shall be held by Landlord as its sole property, subject to the rights of Tenant pursuant to this Lease.

Section 6.                 Security Deposit .  Concurrently with the execution of this Lease, Tenant shall deliver to Landlord the Security Deposit set forth in Section 1 as security for Tenant's performance of the covenants and conditions of this Lease.  The deposited money may be co-mingled with other funds of Landlord and Landlord shall not be liable for interest.  If Tenant shall default with respect to any covenant or condition of this Lease, including but not limited to the payment of rent, Landlord may apply all or part of the Security Deposit to the payment of any sum in default or any other sum which Landlord may be required to spend by reason of Tenant's default.  Should Tenant comply with all of the covenants and conditions of this Lease, the Security Deposit or any balance thereof shall be returned to Tenant within fifteen (15) days following the expiration of the term hereof.  Landlord may deliver the funds deposited hereunder by Tenant to the purchaser of Landlord's interest in the Leased Premises in the event that such interest be sold, and thereupon Landlord shall be discharged from any further liability with respect to such deposit.

Section 7.      Trash and Utilities .

A.   Tenant shall keep all trash and garbage in appropriate containers and bags will arrange at its expense for a trash collection service to pick up the trash and garbage, and will comply with such reasonable rules and requirements as Landlord shall from time to time establish regarding garbage and trash.  Tenant shall not deposit any rubbish or waste in any other dumpster on the Property.

B.   Tenant shall promptly pay all charges for all utilities used in or on the Leased Premises, including but not limited to electricity, gas, fuel, water, sewer service, trash collection service, telephone service, and other utilities used in or on the Leased Premises, as they become due and shall contract for such utilities in its own name.  If not separately metered, the cost of any utility service will be shared based upon Landlord's reasonable estimate of actual consumption.

C.   Landlord shall not be responsible for any discontinuation or interruption of any utility service and any such discontinuation or interruption shall not give either party the right to terminate this Lease or cause the rent or additional rent provided herein to be abated.
 
 
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Section 8.   Insurance .

A.   Tenant shall, during the entire term hereof, keep in full force and effect a policy of commercial general liability coverage with broad form public liability and property damage insurance with respect to the Leased Premises and the business operated by Tenant in which the limits of public liability shall be not less than One Million Dollars per person and One Million Dollars per accident and in which the property damage liability shall be not less than Five Hundred Thousand Dollars ($500,000.00).  The policy shall include Landlord, any persons, firms or corporations designated by Landlord and Tenant as an additional insured, and shall contain a provision or endorsement that the insurer will not cancel or change the insurance without first giving Landlord thirty (30) days prior written notice.  The insurance shall be in an insurance company approved by Landlord and a copy of the policy and a certificate of insurance shall be delivered to Landlord prior to Tenant taking possession of the Leased Premises.

B.   If a policy initially procured by Tenant terminates during the Term hereof, a renewal policy and new certificate of insurance shall be delivered to Landlord at least thirty (30) days before the termination date of the initial policy.  If Tenant does not procure or maintain any insurance required to be kept and maintained by it hereunder, Landlord may procure such insurance and pay the premium therefor, and Tenant agrees to pay to Landlord the amount paid by Landlord as the premium.  Such payment by Tenant to Landlord shall be deemed additional rent and payable as such on the first day of the month succeeding the month in which the premium was paid by Landlord.

C.   Tenant shall not use, or permit the Leased Premises, or any part thereof to be used, for any purpose or purposes other than the purpose or purposes for which the Leased Premises are hereby leased; and no use shall be made or permitted to be made of the Leased Premises, nor acts done, which will increase the existing rate of insurance upon the Property in which the Leased Premises are located once said rate has been established, or cause a cancellation of any insurance policy covering said Property or any part thereof, nor shall Tenant sell or permit to be kept, used or sold in or about the Leased Premises any article which may be prohibited by standard form of fire insurance policies.  Tenant shall, at its sole cost, comply with any and all requirements pertaining to the use of the Leased Premises of any insurance organization or company necessary for the maintenance of reasonable fire and public liability insurance, covering the Property.  In the event Tenant's use of the Leased Premises results in a rate increase for the Property, Tenant shall pay to Landlord as additional rent, as and when requested by Landlord, a sum equal to the additional premium occasioned by said rate increase.

Section 9.                 Tenant's   Duty to Maintain and Repair .  Tenant shall keep and maintain in good order, condition and repair (including any such replacement and restoration as is required for that purpose) the Leased Premises and every part thereof and any and all appurtenances thereto including, but not limited, to all access routes to public roads and removal of ice and snow.  If Tenant refuses or neglects to perform any repair as required hereunder, and to the reasonable satisfaction of Landlord as soon as reasonably possible after written demand, Landlord may make such repairs without liability to Tenant for any loss or damage that may occur to Tenant's merchandise, fixtures or other property or to Tenant's business by reason thereof, and upon completion thereof, Tenant shall pay Landlord's costs for making such repairs, upon presentation of a bill therefor, as additional rent.  Tenant shall, upon demand, as additional rent, reimburse Landlord for the cost of repairing any damage to the Property, caused by Tenant or its employees, agents, invitees, licensees or contractors.
 
 
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Section 10.               Taxes .

A.   Tenant's Taxes .  Tenant will pay promptly when due all personal property taxes, if any, on Tenant's movable equipment and personal property that Tenant places on the Premises.  If Tenant's property is assessed together with Landlord's property, the parties will use commercially reasonable efforts to seek a separate assessment; if such efforts are not successful, the parties will negotiate a reasonable allocation of the taxes between Landlord's interests and Tenant's equipment and personal property.

B.   Landlord's Taxes .  Landlord will pay when due all general real estate taxes and assessments which may be imposed upon the Premises during the Term.  In addition, Landlord will pay when due any other taxes (including rent, gross receipts, income and franchise taxes, if any), assessments or other impositions by any authority having the direct or indirect power to tax the Rent, any interest in the Premises, Landlord's business of leasing the Premises, or upon Tenant's use or occupancy of the Premises.

Section 11.   Condition of Leased Premises .

A.   Tenant accepts the Leased Premises and the Property in their present condition and without any representation or warranty by Landlord as to the condition thereof or as to the use or occupancy which may be made thereof.

B.   Tenant shall not, without first obtaining Landlord's written approval and consent: (i) make or cause to be made any alterations, additions, or improvements to the Leased Premises; or (ii) install or cause to be installed any fixtures, improvements, signs or equipment, on the Leased Premises.

C.   Tenant shall not do or suffer anything to be done whereby the Leased Premises or the Property may be encumbered by any mechanic's, laborer's or materialman's lien.  In addition, Tenant shall, whenever and as often as any such lien is filed against the Leased Premises or the Property or any part thereof purporting to be for labor or material furnished for or to Tenant or upon the Leased Premises, discharge the same of record within thirty (30) days after the filing.  Notwithstanding anything herein to the contrary, Tenant may in good faith contest any such lien as long as Tenant furnishes to Landlord a bond in an amount equal to the lien claim which bond shall be issued by a surety company approved by Landlord and duly authorized and licensed to transact surety business in the State of Missouri.

D.   Nothing herein contained shall be construed as a consent on the part of the Landlord to subject the estate of the Landlord to liability under the Mechanic's Lien Law of the State of Missouri, it being expressly understood that the Landlord's estate shall not be subject to such liability.  The Tenant shall have no power or right to do any act or make any contract which may create or be the basis for any lien, mortgage or other encumbrance upon the estate of the Landlord.

Section 12.                 Condemnation .  If, during the Lease Term, or any extension or renewal thereof, all or a any part of the Leased Premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain, or sold to the condemning authority under threat of condemnation, this Lease shall terminate and the rent shall be abated during the unexpired portion of this Lease, effective as of the date of taking or conveyance of said Leased Premises by the condemning authority.  Landlord shall be entitled to receive the entire award in any condemnation or eminent domain proceeding or in any purchase in lieu thereof, including any award made for the value of the estate vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord all of its right, title and interest in and to all and any part of such award, provided, however, Tenant shall be entitled to receive any award made for loss or damage to its removable personal property, trade fixtures, leasehold improvements installed at Tenant's expense during the Lease Term.
 
 
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Section 13.   Default .

A.   In the event of (i) any failure of Tenant to pay any rent or additional rent  due hereunder for more than five (5) days after written notice of such failure to pay shall have been given to Tenant, or (ii) any failure of Tenant to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than fifteen (15) days after written notice of such default shall have been given to Tenant, or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or file or have filed against Tenant or any guarantor of this Lease in any court pursuant to any statute either of the United States or of any State a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's or any such guarantor's property, or if Tenant shall abandon the Leased Premises, Landlord besides other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Leased Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.  By setting forth in this Section certain specific rights and remedies of Landlord upon the happening of any of the events set forth in this Section, Landlord does not waive its right to pursue any other right or remedy to which it may be entitled at law or in equity, including but not limited to (1) an action to recover any amount due it by Tenant without exercising its right of re-entry or taking possession as provided in this Section or (2) an action for injunctive relief.

B.   Should Landlord elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Leased Premises and relet said Leased Premises or any part thereof for such term or terms (which may be for a term extending beyond the Lease Term) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable; upon each such reletting all rentals received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys' fees and of costs of alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder.  If such rentals received from such reletting during any month shall be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.  Such deficiency shall be calculated and paid monthly.  No such re-entry or taking possession of said Leased Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention shall be given to Tenant or unless the termination thereof shall be decreed by a court of competent jurisdiction.  Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.  Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Leased Premises, reasonable attorneys' fees, and including the worth at the time of such termination of the rent and charges equivalent to rent reserved in this Lease for the remainder of the stated Term, all of which amounts shall be immediately due and payable from Tenant to Landlord as additional rent due hereunder.  Any judgment ordering Tenant to pay Landlord money, which judgment arises out of this Lease or any provision thereof shall bear interest at the rate of eighteen percent (18%) per annum.

C.   In the event suit shall be brought for recovery of possession of the Leased Premises or for the recovery of rent or any other amount due under the provisions of this Lease, or in the event Tenant shall breach any covenant, agreement, condition or provision herein contained on the part of Tenant to be kept or performed, Tenant shall pay to Landlord as additional rent due hereunder all expenses incurred in connection with such suit or breach, including Landlord's reasonable attorneys' fees.

Section 14.      Indemnity and Release .  Tenant hereby agrees to defend, pay, indemnify and save free and harmless Landlord, and any person claiming by, through or under Landlord, from and against any and all claims, demands, fines, suits, actions, proceedings, orders, decrees or judgments of any kind or nature by or in favor of anyone whomsoever and from and against any and all costs and expenses, including attorneys' fees, resulting from or in connection with loss of life, bodily or personal injury or property damage arising directly or indirectly out of or from or on account of any occurrence in, upon, at or from the Leased Premises or occasioned wholly or in part through the use or occupancy of the Leased Premises or by any act or omission of Tenant or any sublessee, concessionaire or licensee of Tenant or their respective employees, agents, contractors or invitees, or any other person, including the persons indemnified hereby, in, upon, at, or from the Leased Premises, or the Property or on the property, street, sidewalk or parking areas adjacent to the Property, except claims arising out of the gross negligence or willful act of Landlord and/or other persons sought herein to be indemnified against loss.  Tenant and all those claiming by, through or under Tenant shall occupy and use the Leased Premises solely at their own risk and Tenant and all those claiming by, through or under Tenant hereby release Landlord, to the full extent permitted by law, from all claims of every kind, including loss of life, personal or bodily injury, damage to merchandise, equipment, fixtures or other property, or damage to business or from business interruption, arising, directly or indirectly, out of or from or on account of such occupancy and use or resulting from any present or future condition or state of repair thereof except those claims arising out of the gross negligence or willful act of Landlord.  Landlord shall not be responsible or liable at any time to Tenant, or to those claiming by, through or under Tenant, for any loss of life, bodily or personal injury or damage to property or business, or for business interruption, that may be occasioned by or through the acts, omissions or negligence of any other persons.
 
 
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Section 15.      Waiver of Subrogation .  Landlord and Tenant and all parties claiming under them hereby mutually release and discharge the other from all claims and liabilities arising from or caused by any hazard covered by insurance on the Leased Premises, or covered by insurance in connection with property on or activities conducted at the Leased Premises, regardless of the cause of the damage or loss, including, but not limited to, Tenant's negligence.  This waiver of subrogation shall apply only to the extent that such loss or damage is covered by insurance and only so long as the applicable insurance policies contain a clause to the effect that this waiver of subrogation shall not affect the right of the insured to recover under such policies.

Section 16.      Right of Entry .  Tenant authorizes the Landlord or any of Landlord's agents to enter the Leased Premises at all times upon at least twenty-four (24) hours prior notice, except in the case of an emergency when no notice shall be required, to inspect, renovate, repair, alter, show the Leased Premises to prospective tenants or purchasers, place upon the Leased Premises the usual notices "For Sale" or "For Lease" and advertise the Leased Premises for sale or lease.  When reasonably necessary Landlord may close entrances, doors, corridors, elevators or other facilities without liability to Tenant by reason of such closure and without such action by Landlord being construed as an eviction of Tenant or relieving Tenant from the duty of observing and performing any of the provisions of this Lease.

Section 17.   Rights Reserved by Landlord .  Landlord reserves the right to put billboards, outdoor advertising structures and any other improvements on the Property, and Landlord shall be entitled to all rent attributable thereto.  Landlord may also grant easements or convey title to such portions of the Property as may be required, in Landlord's sole judgment, to facilitate the construction of such billboards, outdoor advertising structures and other improvements.  The Landlord reserves the right to grant easements over, under and through the Leased Premises, and to enter on the Leased Premises during normal business hours and after notice to Tenant in order to install, at its own cost and expense, utility lines and fixtures and other improvements beneficial to the Leased Premises and in connection therewith as may be required by the Landlord.  The Landlord covenants that such easements shall not interfere with the normal operation of Tenant's business.

Section 18.      Assignment and Sublease .  This Lease is not assignable by Tenant, nor shall the Leased Premises or any part thereof be sublet without the written consent of Landlord, which consent may be withheld in Landlord’s sole and absolute discretion.  No part of the Leased Premises shall be used or be permitted to be used for any purpose other than the Permitted Use, without the prior written consent of Landlord.  Any transfer of this Lease from Tenant by merger, consolidation or liquidation, or any change in ownership of Tenant from its current owners as of the date of this Lease shall constitute an assignment for the purpose of this Lease, said assignment requiring the consent of Landlord; provided, however, that any such merger of Tenant, with or into, or transfer of Tenant’s ownership interests to, an entity that owns, is a member of, or is otherwise an affiliate of Tenant shall not constitute an assignment hereunder.

Section 19.      Landlord's Liability .  In the event of any sale of the Leased Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all covenants and obligations contained in or derived from this Lease, arising out of any act, occurrence or omission occurring after the consummation of the sale; and the purchaser at the sale or any subsequent sale of the Leased Premises shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of Landlord under this Lease.  Anything contained in this Lease to the contrary notwithstanding, Tenant agrees that Tenant shall look solely to the estate and property of Landlord in the land comprising the Leased Premises for the collection of any judgment (or any judicial process) requiring the payment of money by Landlord in the event of any default or breach by Landlord with respect to any of the terms and provisions of this Lease to be observed and/or performed by Landlord; subject, however, to the prior rights of any secured party or mortgagee, and no other assets of the Landlord shall be subject to levy, execution or other judicial process for the satisfaction of Tenant's claim.

Section 20.   Waiver .  The waiver by Landlord of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same or any other term, covenant or condition herein contained; nor shall any consent by Landlord to any assignment or sub-letting of the Leased Premises, or any part thereof, be held to waive or release any assignee or sublessee from any of the foregoing conditions or covenants as against him or them; but every such assignee and sublessee shall be expressly subject thereto.  The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent.  No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord, unless such waiver be in writing by Landlord.  Time is strictly of the essence of Tenant's performance of all covenants and agreements to be kept and performed by Tenant and in the payment of all sums to be paid to Landlord by Tenant.

Section 21.   Surrender of Lease .  The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies, or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subleases or subtenancies.

Section 22.   Accord and Satisfaction .  No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment of rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy in this Lease provided.
 
 
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Section 23.   Subordination of Lease .  This Lease and the Term and estate hereby granted are and shall be subject and subordinate to the lien of all mortgages and deeds of trust which may now or at any time hereafter affect all or any portion of the Leased Premises or the Property or the Landlord's interest therein, and to all renewals, modifications, consolidations, replacements and extensions thereof.  The foregoing provisions for the subordination of this Lease shall be self-operative and no further instrument shall be required to effect any such subordination; but Tenant shall, however, upon request by Landlord, at any time or times execute and deliver any and all reasonable instruments that may be necessary or proper to effect such subordination or to confirm or evidence the same.  If Tenant shall fail or otherwise refuse to execute a subordination in accordance with this Section, then, and upon such event, Tenant shall be deemed to have appointed Landlord and Landlord shall thereupon be regarded as the attorney-in-fact of Tenant, duly authorized to execute and deliver the required subordination for and on behalf of Tenant, but the exercise of such power by Landlord shall not be deemed a waiver of Tenant's default.  Landlord shall use its best efforts to obtain from any mortgagee or secured party an agreement providing that so long as Tenant is not in default under the terms of this Lease, the leasehold estate of Tenant created hereby and Tenant's peaceful and quiet possession of the Leased Premises shall be undisturbed by any foreclosure so long as Tenant continues to comply with the terms of this Lease.  Such agreement may also provide that Tenant shall attorn to such mortgagee if such holder succeeds to the interest of Landlord in the Property, the Leased Premises or any part or parts thereof by foreclosure proceedings or as a result of any conveyance in lieu of foreclosure proceedings.

Section 24.   Tenant's Covenants .

A.   Tenant shall keep the Leased Premises in a neat, clean and sanitary condition, shall properly contain and remove all litter, debris and garbage and shall keep the Leased Premises and neighboring properties clear of any blowing or drifting trash.

B.   Tenant shall be solely responsible for any and all repairs, improvements, modifications or changes of any kind whatsoever that are required to be made to the Leased   Premises   or the access thereto as a result of the requirements contained within: (i) the Americans With Disabilities Act (Pub.L.101-336, 104 Stat.327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611) and the regulations promulgated thereunder (collectively the "ADA"); and (ii) any other federal, state or local laws that are similar to, supplement or enhance such legislation.

C.   Tenant shall, at Tenant's sole cost and expense, comply with all of the requirements of all county, municipal, state, federal and other applicable governmental authorities, now in force, or which may hereafter be in force, pertaining to the Leased Premises, and shall faithfully observe in the use of the Leased Premises all municipal and county ordinances and state and federal statutes now in force or which may hereafter be in force.

D.   Tenant shall not commit or suffer to be committed any waste upon the Leased Premises or any nuisance, odors or other act or thing which may disturb the quiet enjoyment of any other tenant in the Property, or which may disturb the quiet enjoyment of any person within five hundred (500) feet of the boundaries of the Property.

E.   Landlord reserves the right from time to time to adopt, amend or supplement reasonable and nondiscriminatory rules and regulations applicable to the Leased Premises and the Property.  Notice of adoption of any rules and regulations, and amendments and supplements, if any, shall be given to Tenant, and Tenant agrees thereupon to comply with and observe all such rules, regulations and amendments.

Section 25.      Estoppel Certificate .  Upon the request of either party, at any time or from time to time, Landlord and Tenant agree to execute, acknowledge and deliver to the other, within ten (10) days after such request, a written instrument, duly executed and acknowledged, (a) certifying that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the fixed annual rent and charges have been paid, (c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is in default, and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and termination date, (e) containing such other matters and provisions as shall be reasonably requested.
 
 
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Section 26.   Environmental Responsibility .  Tenant covenants that it will not dispose of or place on the Leased Premises any hazardous materials, hazardous substances, asbestos or underground tanks.  Tenant will comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter collectively referred to as "Standards") issued by any federal, state or local governmental body or agency established thereby (hereinafter collectively referred to as "Authority") relating to Tenant's use, occupancy and maintenance of the Leased Premises and the conduct of its business on the Leased Premises including, but not limited to, full and complete compliance with all Standards, present or future, set by any Authority concerning air quality, water quality, noise, hazardous substances and hazardous waste.  Tenant agrees to notify Landlord immediately of any claim by or notice from any Authority asserting any violation of any Standard with respect to the condition, use or occupancy of the Leased Premises.  Tenant agrees to indemnify, defend and hold Landlord harmless against any claim, damage, liability, cost, penalty, fine or expense (including Landlord's attorneys' fees, engineering and consulting costs, and Landlord's cost of cleanup, disposal or compliance), resulting from any actual, asserted or threatened violation of any Standard with respect to the Leased Premises, provided that the actual, asserted or threatened violation occurred during the term of this Lease or as a result of Tenant's use, occupancy or maintenance of the Leased Premises.  Tenant's liability pursuant to this indemnity shall survive the termination of this Lease.

Section 27.                 Miscellaneous .

A.   Any and all notices required or permitted to be served hereunder shall be given in writing and shall be effective upon its deposit in the United States mails, postage prepaid, return receipt requested, addressed as follows, or to such other place as either party shall designate by notice to the other party:

If to Landlord:                       4551 Commerce Holdings LLC
15 Squires Lane
St. Louis, Missouri  63131

If to Tenant:                         at Tenant's Notice Address set
forth in Section 1 of this Lease

B.   Whenever the word "Landlord" is used herein it shall be construed to include the heirs, executors, administrators, successors, assigns or legal representatives of Landlord; and the word "Tenant" shall, subject to the restrictions on assignment contained in this Lease, include the heirs, executors, administrators, successors, assigns, or legal representatives of Tenant and the words Landlord and Tenant shall include singular and plural, individual or corporation.

C.   The captions, section numbers, article numbers, and index appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease nor in any way affect this Lease.

D.   Each of the parties represents and warrants that such party is not aware of and has not created any claim for brokerage commissions or finder's fees in connection with the execution of this Lease, and each of the parties agrees to indemnify the other against, and hold harmless from, all liabilities arising from any such claim (including, without limitation, the cost of counsel fees in connection therewith).

E.   Time is of the essence of this Lease.

F.   If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, and of the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law.

G.   The submission of this Lease for examination does not constitute a reservation of or option for the Leased Premises and this Lease becomes effective as a lease only upon execution and delivery thereof by Landlord and Tenant.
 
 
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H.   Upon payment by Tenant of the rents herein provided, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the term hereby leased without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease.

I.   The terms and conditions of this Lease shall be governed by the laws of the State of Missouri.

J.   This Lease and the exhibits hereto constitute the entire agreement between the parties hereto and may not be changed orally.

K.   Tenant agrees that it will not record this Lease or any notice or memorandum of this Lease without Landlord's prior written approval.

[ Signature page immediately follows]
 
 
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above written.
 
  4551 Commerce Holdings LLC,  
      a Missouri limited liability company  
       
Landlord :
By:
/s/ Timothy Drury  
   
Name: Timothy Drury
 
   
Title: Manager
 
       

   Christian Disposal LLC,  
      a Missouri limited liability company  
       
Tenant :
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
       


 
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EXHIBIT A
to
LEASE AGREEMENT

PROPERTY DESCRIPTION

 
12 




Exhibit 10.4
 
EMPLOYMENT AGREEMENT
 
This EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of December 22, 2015 (the “Effective Date”), by and among Christian Disposal, LLC, a Missouri limited liability company (the “Company”), Meridian Waste Solutions, Inc. a New York corporation that owns all of the outstanding membership interests of the Company (the “ Parent ”), and Patrick McLaughlin, an individual (the “ Employee ” and, together with the Company and the Parent, the “ Parties ” and each, a “ Party ”).
 
W I T N E S S E T H:
 
WHEREAS, as of the Effective Date hereof, the Company, the Parent and certain other parties consummated the closing of that certain Amended and Restated Membership Interest Purchase Agreement dated October 16, 2015, as amended by that certain First Amendment to Amended and Restated Membership Interest Purchase Agreement dated December 4, 2015, pursuant to which the Parent acquired all of the outstanding membership interests of the Company (collectively, the “Purchase Agreement”);
 
WHEREAS, prior to the date of the Purchase Agreement, the Employee was employed by the Company on an at-will basis; and
 
WHEREAS, the Company desires to employ the Employee as Area Vice President of Business Development and Marketing to perform services for the Company, and the Employee desires to perform such services, on the terms and conditions set forth in this Agreement.
 
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
 
1.  
EMPLOYMENT
 
The Company agrees to employ the Employee as Area Vice President of Business Development and Marketing, and the Employee agrees to serve the Company in such capacity upon the terms and conditions hereinafter set forth.
 
2.  
TERM
 
The term for this Agreement shall be five (5) years, beginning on the Effective Date (the “ Term ”), unless sooner terminated in accordance with the provisions of this Agreement.
 
3.  
COMPENSATION .
 
(a)   Fees for Services .  In consideration of the services rendered by Employee (the “ Services ”) and Employee’s other obligations under this Agreement, the starting monthly base compensation (the “ Base Salary ”) for this position will be $12,500, totaling $150,000 annually which will be payable in equal periodic installments according to the Company's payroll practices, but not less frequent than monthly.  The Base Salary will be reviewed by the Company and Parent at least annually during the Term and may be adjusted upward (but not downward).
 
(b)   Quarterly Bonus .  Beginning with the fiscal quarter ending March 31, 2016, the Company shall pay the Employee a quarterly bonus of $25,000, earned on the last day of each fiscal quarter during the Term (each, a “ Quarterly Bonus ”) which will be payable within ten (10) days of the end of the fiscal quarter in which such Quarterly Bonus was earned.  The Quarterly Bonus amount will be reviewed by the Company and Parent at least annually and may be adjusted upward (but now downward).  The amount of the Quarterly Bonus payable shall be prorated to account for any partial quarter immediately preceding the end of the term of Employee's employment.
 
 
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(c)   Stock .  Commencing on January 1, 2017, the Parent shall issue an annual bonus (“Stock Bonus”) on January 1 of each year in which the Employee is employed by the Company equal to Sixty-five Thousand Dollars ($65,000.00) (the “Stock Bonus Amount”) in the form of fully paid and non-assessable shares of Parent’s restricted voting common stock, par value $0.025 per share (the “Common Stock”), as such Common Stock exists on the date of issuance, or any shares of capital stock or other securities of the Parent into which such Common Stock shall hereafter be changed or reclassified.  The number of shares of Common Stock to be issued upon each annual Stock Bonus shall be determined by dividing the Stock Bonus Amount by the Stock Bonus Price (as hereinafter defined) in effect on January 1 in the year in which the Stock Bonus becomes due.  The Stock Bonus Price (subject to equitable adjustments for stock splits, stock dividends or rights offerings by the Parent relating to the Parent’s securities or the securities of any subsidiary of the Parent, combinations, recapitalization, reclassifications, extraordinary distributions and similar events) shall equal the average of the lowest five (5) volume weighted average prices (“VWAP”), as reported by Bloomberg L.P., of the Parent’s Common Stock in the ten (10) Trading Days (as defined below) immediately prior to the date upon which the Stock Bonus becomes due.  If the VWAP cannot be calculated for such security on such date in the manner provided above, the VWAP shall be the fair market value as mutually determined by the Parent and the Employee.  “Trading Day” shall mean any day on which the Common Stock is tradable for any period on the OTCBB, OTCQB or on the principal securities exchange or other securities market on which the Common Stock is then being traded.  The Parent represents that upon issuance, such shares will be duly and validly issued, fully paid and non-assessable.  In addition, if the Parent shall issue any securities or make any change to its capital structure which would change the number of shares of Common Stock from which the Stock Bonus will be issued, the Parent shall at the same time make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved, free from preemptive rights, for issuance of the Stock Bonus.  The Parent agrees that its execution of this Agreement shall constitute full authority to its officers and agents who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock in accordance with the terms and conditions of this Agreement.
 
(d)   E quity .  The Parent may grant to Executive certain equity and option awards, in Parent, on terms substantially similar to those received by senior-level employees of Parent, as may be agreed and approved from time to time by the board of directors of Parent.
 
(e)   Bonus .  Employee may also be eligible to participate in any bonus plans or discretionary bonus reviews the Company and/or the Parent makes available to their employees.
 
4.  
DUTIES
 
The Employee is hereby employed as Area Vice President of Business Development and Marketing and shall perform the following services in connection with the general business of the Company:
 
(i)   Duties as Area Vice President of Business Development and Marketing .  Employee shall have such reasonable duties, responsibilities and authority as are commensurate and consistent with the position of  Area Vice President of Business Development and Marketing of a company and as may, from time to time, be assigned to him by the Board of Managers of the Company and/or any executive officer of Parent, including, without limitation, consolidating and integrating the business of the Company with and into the business of the Parent, services in connection with promotion, business development and marketing, and performing oversight to ensure Company’s continued compliance under existing agreements.  Employee shall report directly to the Board of Managers of the Company and/or any executive officer of Parent.  During the Term, Employee shall devote his full business time and efforts to the performance of his duties hereunder, unless otherwise explicitly authorized by the Board of Managers of the Company and/or any executive officer of Parent or as otherwise permitted herein.  The Employee will comply and be bound by the Company’s reasonable written operating policies, procedures and practices from time to time in effect during Employee’s employment.  Employee represents and warrants that he is free to enter into and fully perform this Agreement and the agreements referred to herein without breach of any agreement or contract to which he is a party or by which he is bound.
 
(ii)   Compliance .  Employee hereby agrees to observe and comply with such reasonable rules and regulations of the Company as may be duly adopted from time to time by the Company's Manager and otherwise to carry out and perform those orders, directions and policies stated to him from time to time that are reasonably necessary and appropriate to carry out his duties hereunder.  Such orders, directions and policies shall be legal and shall be consistent with the Employee's position as Area Vice President of Business Development and Marketing.
 
 
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(iii)   Location .  The Company will furnish Employee office space, equipment, supplies, resources and such other facilities and personnel that are appropriate and necessary for the performance of Employee's duties under this Agreement.  Employee's office space shall be located in the greater St. Louis metropolitan area and Employee will not be required to relocate for purposes of providing the services set forth in this Agreement.
 
5.  
EXTENT OF SERVICES
 
The Employee agrees to serve the Company faithfully and to the best of his ability and shall devote his full time, attention and energies to the business of the Company during customary business hours.  The Employee agrees to carry out his duties in a competent and professional manner and to at all times promote the best interests of the Company.  The Employee shall not , during the term of his employment hereunder, engage in any other business, during customary business hours whether or not pursued for profit, provided, however, Employee may own and participate in passive business investments, except as may be otherwise prohibited or restricted hereunder.  Nothing contained herein shall be construed as preventing the Employee from investing in any other business or entity which is not in competition with the business of the Company.  Nothing contained herein shall be construed as preventing the Employee from (1) engaging in personal business affairs and other personal matters, (2) serving on civic or charitable boards or committees, or (3) serving on the board of directors of companies that do not compete directly or indirectly with the Company, provided however, that none of such activities materially interferes with the performance of his duties under this Agreement and provided further that the Board of Directors approves of each such proposed appointment which approval shall not be unreasonably withheld.
 
6.  
BENEFITS AND EXPENSES
 
During the Term, Employee shall be entitled to, and the Company shall provide, the following benefits in addition to the compensation specified in Section 3:
 
(a)   Vacation .  Beginning on January 1, 2016, the Employee shall be entitled to (i) three (3) weeks’ vacation during the first twelve (12) month period during the Term and (ii) four (4) weeks’ vacation in each twelve (12) month period thereafter during the Term. Vacation may be taken at such time(s) as Employee may determine provided that such vacation does not unreasonably interfere with the Company's business operations.  The Employee must use his vacation in any event by January 31 of the year next following the year in which the vacation accrues or such vacation time shall expire.  The Employee shall not be entitled to compensation for unused vacation except that, upon termination of his employment, the Company shall pay to the Employee for all of his accrued, unexpired vacation time.  The Employee shall accrue 1.66 vacation days per month beginning on January 1, 2016.
 
(b)   Expense Reimbursement .  The Company shall reimburse the Employee upon submission of vouchers or receipts for his out-of-pocket expenses for travel, vehicle fuel expenses, entertainment, meals, promotional activities and the like reasonably incurred by him pursuant to his employment hereunder and, to the extent such expenses exceed $250, approved in writing in advance by an executive officer of Parent; provided, however, that the Employee shall also be entitled to reimbursement for all expenses to the extent that such reimbursement complies with the written policies of the Company and/or Parent.  Employee will receive an automobile allowance of not less than Eight Hundred Dollars ($800.00) per month which may be adjusted upward (but not downward) by the Company.
 
(c)   Health Insurance .  The Company shall provide the Employee, his spouse and his eligible children with health and dental insurance in the coverages consistent with those provided to other similarly situated employees of the Parent and/or the Company.
 
(d)   Disability Insurance .  If the Company maintains disability insurance, then the Company shall provide a disability policy for the Employee comparable to the policies in force for other similarly situated employees of the Company.
 
 
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(e)   Other Benefits .  The Company shall provide to the Employee, the same benefits it makes available to other employees of the Parent and/or the Company to the extent Employee is eligible to participate in such benefits.
 
7.  
TERMINATION; RESIGNATION
 
The Company shall have the right to terminate the Employee’s employment hereunder for “Cause” and upon such termination, Employee shall have no further duties or obligations under this Agreement (except as provided in Section 8 below) and the obligations of the Company to Employee shall be as set forth below.  For purposes of this Agreement, “Cause” shall mean:
 
(i)   Employee’s conviction of a felony or any crime involving moral turpitude under federal, state or local law;
 
(ii)   Employee’s failure to perform (other than as a result of Employee being Disabled as hereinafter defined), in any material respect, any of his duties or obligations under or in accordance with this Agreement for any reason whatsoever and the Employee fails to cure such failure within ten (10) business days following receipt of notice from the Company;
 
(iii)   Employee commits any dishonest, malicious or grossly negligent act which is materially detrimental to the business or reputation of the Company, or the Company’s business relationships, provided, however, that in such event the Company shall give the Employee written notice specifying in reasonable detail such dishonest, malicious or grossly negligent act and Employee shall have ten (10) days to cure following receipt of such notice from the Company;
 
(iv)   Any intentional misapplication by Employee of the Company’s funds or other material assets; or
 
(v)   Employee’s illegal use or possession of any controlled substance or chronic abuse of alcoholic beverages, which illegal use or possession the Board of Directors of the Parent reasonably determines renders Employee unfit to serve in his capacity as an employee of the Company.
 
Upon termination of Employee’s employment for any reason, including Employee’s resignation or expiration of the Term, Employee shall have no further duties or obligations under this Agreement (except as provided in Section 8) and the Employee shall be entitled to receive through the date of termination: (a) his Base Salary through date of termination; (b) his Quarterly Bonus accrued as of the date of termination; (c) the Stock Bonus accrued as of the date of termination; (d) the benefits provided in Section 3 and Section 6 hereof, to the extent earned or incurred, but not yet paid, including all accrued but unpaid vacation.
 
Employee may resign and terminate his employment by the Company at any time, upon two (2) weeks prior written notice to the Company.  In the event Employee elects to terminate his employment by the Company as a result of any of the following events (“Good Reason”): (i) a breach of this Agreement by Parent and/or Company; (ii) a material change to the duties and obligation of Employee under or in accordance with this Agreement; (iii) a change in title, position or other demotion of Employee; or (iv) Jeffrey Cosman ceases to serve as Chief Executive officer of Parent, Employee shall be entitled to receive (in addition to the items set forth in the paragraph above) an amount equal to: (a) $250,000.00; and (b) the cost of the Employee's COBRA premiums for continuing health and dental insurance coverages for Employee, his spouse and his eligible children for one (1) year.  In the event of a Change in Control (as hereinafter defined), Employee shall be entitled to terminate this Agreement and pursuant to such election will receive upon termination (in addition to the items set forth in the paragraph above) an amount equal to the following: (y) the Change in Control Amount (as defined below); and (z) the cost of the Employee's COBRA premiums for continuing health and dental insurance coverages for Employee, his spouse and his eligible children for a period equal to the amount of time remaining in the Term after the date of the Change in Control. “Change in Control Amount” means: (A) in the event the Change in Control has occurred on or prior to December 31, 2016, Five Hundred Seventy-five Thousand Dollars ($575,000); or (B) in the event the Change in Control has occurred on January 1, 2017 or later, the lesser of (i) Five Hundred Thousand Dollars ($500,000); and (ii) the aggregate amount of all payments of the Base Salary, the Quarterly Bonuses and the Stock Bonus that would be otherwise be owed for the period beginning on the date of the Change in Control and ending on the last day of the Term.
 
 
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Employee will be deemed to be "Disabled" if, for physical or mental reasons, Employee is unable to perform the essential functions of Employee's duties under this Agreement for one hundred twenty (120) consecutive days, or one hundred eighty (180) days during any twelve (12) month period, as determined in accordance with this Section.  The Disability of Employee will be determined by a medical doctor selected by written agreement of the Company and Employee upon the request of either party by notice to the other.  If the Company and Employee cannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical doctor who will determine whether Employee has a Disability.  The determination of the medical doctor selected under this Section will be binding on both parties.  Employee must submit to a reasonable number of examinations by the medical doctor making the determination of Disability under this Section, and Employee hereby authorizes the disclosure and release to the Company of such determination.  If Employee is not legally competent, Employee's legal guardian or duly authorized attorney-in-fact will act in Employee's stead under this Section, for the purposes of submitting Employee to the examinations, and providing the authorization of disclosure, required under this Section.
 
For purposes of this Section 7, the term "Change in Control" shall mean either: (i) a “change in the ownership of the Company or Parent”, or (ii) a “change in the ownership of the Company or Parent’s assets.”  In the event of a Change of Control, the date of the Change of Control shall be deemed to have occurred on the date of closing of such Change of Control transaction.  A “change in the ownership of the Company or Parent” occurs on the date that any Person, or more than one Person acting as a group, acquires ownership of more than fifty percent (50%) of the total fair market value or total voting power of the stock of the Parent or fifty percent (50%) of the total fair market value or total voting power of the membership interests in the Company. Notwithstanding the foregoing, if any one Person, or more than one Person acting as a group, is considered to own more than fifty percent (50%) of the total fair market value or total voting power of the stock of the Parent or more than fifty percent (50%) of the total fair market value or total voting power of the interests in the Company, the acquisition of additional stock or membership interest by the same Person or Persons is not considered to cause a change in the ownership of the Parent or the Company.  A “change in the ownership of the Company or Parent’s assets” occurs on the date that any Person, or more than one Person acting as a group, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition by such Person or Persons) assets from the Company or the Parent that have a total gross fair market value that is greater than fifty percent (50%) of the total gross fair market value of all of the assets of the Company or Parent immediately prior to such acquisition or acquisitions. For this purpose, “gross fair market value” means the value of the assets of the Company or the Parent, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. For purposes of this paragraph, Person means any individual or any general partnership, limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative or association or any foreign trust or foreign business organization, and the heirs, executors, administrators, legal representatives, successors and assigns of such "Person" where the context so permits.  For purposes of this paragraph, Persons will be considered to be acting as a group if they are owners of a corporation or other entity that enters into a merger, consolidation, purchase or acquisition of stock, membership interests or assets, or other similar business transaction with the Company or Parent.  Persons will not be considered to be acting as a group solely because they purchase or own an equity interest of the same entity at the same time or as a result of the same public offering.
 
8.  
CONFIDENTIALITY; RESTRICTIVE COVENANTS; NON COMPETITION
 
(a)   Non-Disclosure of Information .
 
(1)   The Employee recognizes and acknowledges that by virtue of his position, he will have access to the lists of the Company's referral sources, suppliers, advertisers and customers, financial records and business procedures, sales force and personnel, programs, software, selling practices, plans, special methods and processes for electronic data processing, special techniques for testing commercial and sales materials and products, custom research services in product development, marketing strategy, product manufacturing techniques and formulas, and other unique business information and records (collectively “Proprietary Information”), as same may exist from time to time, and that they are valuable, special and unique assets of the Company's business.  The Employee also may develop on behalf of the Company a personal acquaintance with the present and potential future clients and customers of the Company, and the Employee’s acquaintance may constitute the Company’s sole contact with such clients and customers.
 
(2)   The Employee will not, without the prior written consent of the Company, during the term of his employment or at any time thereafter, except as may be required by competent legal authority, or as required by the Company to be disclosed in the course of performing Employee’s duties under this Agreement, disclose trade secrets or other confidential information about the Company, including but not limited to Proprietary Information, to any person, firm, corporation, association or other entity for any reason or any purpose whatsoever or utilize such Proprietary Information for his own benefit or the benefit of any third party; provided, however, that nothing contained herein shall prohibit the Employee from using his personal acquaintance with any clients or customers of the Company at any time in a manner that is not inconsistent with their remaining as clients or customers of the Company.
 
 
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(3)   All equipment, records, files, memoranda, computer print-outs and data, reports, correspondence and the like, relating to the business of the Company which Employee shall use or prepare or come into contact with shall remain the sole property of the Company.  The Employee shall immediately turn over to the Company all such material in Employee's possession, custody or control at such time as this Agreement is terminated.
 
(4)   "Proprietary Information” shall not include information that (i) was a matter of public knowledge on the date of this Agreement, (ii) was known to the Employee prior to the date hereof, (iii) was made known to the Employee outside of the context of his employment hereunder, except to the extent such disclosure was made in violation of an agreement to keep such information confidential, or (iv) subsequently becomes public knowledge other than as a result of having been revealed, disclosed or disseminated by Employee, directly or indirectly, in violation of this Agreement.
 
(b)   Non-Solicitation .  The Employee covenants and agrees that during the term of his employment, and for a two (2) year period immediately following the termination of employment by reason of the expiration of the Term, the Employee's resignation or termination of Employee's employment for Cause, the Employee shall not solicit, induce or aid: (i) any employee to leave employment of the Company, (ii) any contractor, consultant or other service provider to terminate any relationship with the Company, or (iii) any customer, agency, vendor, or supplier of the Company to cease doing business with the Company.
 
(c)   Non-Competition .  The  Employee covenants and agrees that during the term of Employee's employment by the Company, Employee shall not engage in any activity or render service in any capacity, directly or, to the knowledge of Employee, indirectly (whether as principal, director, officer, investor, employee, consultant or otherwise), for or on behalf of any person or persons or entity in the United States or anywhere else in the world if such activity or service directly or, to the actual knowledge of Employee, indirectly involves or relates to any business which is in competition with the Business of the Company.  It is understood and agreed that nothing herein contained shall prevent the Employee from engaging in discussions concerning business arrangements to become effective upon the expiration of the Term.  For purposes of this Section 8(c) the parties agree that the “Business of the Company” shall be defined to include the solid waste, recycling, transfer, hauling, and/or disposal industries.
 
(d)   Enforcement .  In view of the foregoing, the Employee acknowledges and agrees that it is reasonable and necessary for the protection of the good will, business, trade secrets, confidential information and Proprietary Information of the Company that he makes the covenants in this Section 8 and that the Company will suffer irreparable injury if the Employee engages in the conduct prohibited by Section 8(a), (b) or (c) of this Agreement.  The Employee agrees that upon a breach or violation by him of any of the foregoing provisions of this Section 8, the Company, in addition to all other remedies it may have including an action at law for damages, shall be entitled as a matter of right to injunctive relief, specific performance or any other form of equitable relief in any court of competent jurisdiction without being required to prove the inadequacy of the available remedies at law, to enjoin and restrain the Employee and each and every other person, partnership, association, corporation or organization acting in concert with the Employee, from the continuance of any action constituting such breach.  The Employee acknowledges that the terms of Section 8(a), (b) and (c) are reasonable and enforceable and that, should there be a violation or attempted or threatened violation by the Employee of any of the provisions contained in these subsections, the Company shall be entitled to relief by way of injunction, specific performance or other form of equitable relief.  In the event that any of the foregoing covenants in Sections 8(a), (b) or (c) shall be deemed by any court of competent jurisdiction, in any proceedings in which the Company shall be a party, to be unenforceable because of its duration, scope, or area, it shall be deemed to be and shall be amended to conform to the scope, period of time and geographical area which would permit it to be enforced.
 
(e)   Default .  Notwithstanding anything to contrary contained herein, in the event the Company defaults in the performance of any of its obligations or covenants under this Agreement or any other agreement between the Company or Parent and the Employee, the covenants contained in Section 8(b) and 8(c), shall automatically terminate and be of no further force or effect and the Company and Parent shall waive any rights to enforce such covenants.
 
9.  
DISCLOSURE AND ASSIGNMENT OF RIGHTS .
 
(a)   Disclosure .  The Employee agrees that he will promptly assign to the Company or its nominee(s) all right, title and interest of the Employee in and to any and all ideas, inventions, discoveries, secret processes, and methods and improvements, together with any and all patents or other forms of intellectual property protection that may be obtainable in connection therewith or that may be issued thereon, such as trademarks, service marks and copyrights, in the United States and in all foreign countries, which the Employee may invent, develop, or improve or cause to be invented developed or improved, on behalf of the Company while engaged in work for the Company on the Business of the Company, during the Term or within three (3) months after the Term or earlier termination of this Agreement, which are or were related to the Business of the Company or to any problems and projects specifically assigned to the Employee.  All works and writings which relate to the Business of the Company are works for hire under the Copyright Act, and any and all copyrights therefor shall be placed in the name of and inure to the benefit of the Company.
 
 
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(b)   Assignment of Interest .  The Employee agrees to disclose immediately to duly authorized representatives of the Company any ideas, inventions, discoveries, processes, methods and improvements covered by the terms of this Section 9 and to execute, at the Company’s expense, all documents reasonably required in connection with the Company’s application for appropriate protection and registration under the federal and foreign patent, trademark, and copyright law and the assignment thereof to the Company’s nominee (s).
 
10.  
NOTICES .
 
(a)   Any and all notices or other communications given under this Agreement shall be in writing and shall be deemed to have been duly given on (1) the date of delivery, if delivered in person to the addressee, (2) the next business day if sent by overnight courier, or (3) three (3) days after mailing, if mailed within the continental United States, postage prepaid, by certified or registered mail, return receipt requested, to the party entitled to receive same, at his or its address set forth below.
 
If to the Parent:

Meridian Waste Solutions, Inc.
12549 Broadwell Road, Suite 1203
Milton, GA 30004
Attn: Jeffrey Cosman, CEO

If to the Company:

Christian Disposal, LLC
103 Pine Street
Post Office Box 9
Winfield, MO 63389
Attn: Jeffrey Cosman, Manager

If to the Employee:

Patrick McLaughlin
41 Fair Oaks Drive
St. Louis, MO 63124
 
(b)   The parties may designate by notice to each other any new address for the purposes of this Agreement as provided in this Section 10.
 
 
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11.  
MISCELLANEOUS PROVISIONS .
 
(a)   This agreement represents the entire Agreement between the parties and supersedes any prior agreement or understanding between them with respect to the subject matter hereof.  No provision hereof may be amended, modified, terminated, or revoked except by a writing signed by all parties hereto.
 
(b)   This Agreement shall be binding upon the parties and their respective heirs, legal representatives, and successors.  The rights, obligations, duties and interests of the Company hereunder may be assigned to: (1) the Parent or (2) a successor business or successor business entity that is not a subsidiary or affiliate of the Company without the Employee's prior written consent; provided, however, that in either case the assignee continues the same business of the Company and agrees in writing to be bound by the terms of this Agreement.  The rights, interests and obligations of Employee are non-assignable.
 
(c)   No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party against whom the waiver is asserted, and no such waiver shall be deemed the waiver of any subsequent breach or default of the same or similar nature.
 
(d)   If any provision of this Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall affect only such provision and shall not in any manner affect or render invalid or unenforceable any other severable provision of this Agreement, and this Agreement shall be carried out as if any such invalid or unenforceable provision were not contained herein.
 
(e)   The captions and headings contained in this Agreement are for convenience only and shall not be construed as a part of this Agreement.
 
(f)   Wherever it appears appropriate from the context, each term stated in this the singular or the plural shall include the singular and the plural.
 
(g)   The parties hereto agree that they will take such action and execute and deliver such documents as may be reasonably necessary to fulfill the terms of this Agreement.
 
(h)   The agreements and covenants set forth in Section 8 above shall survive termination or expiration of this Agreement.
 
(i)   The Employee represents and warrants that he is not subject to any prohibition or restriction, oral or written, preventing him from entering into this Agreement and undertaking his duties hereunder.
 
(j)   The Employee acknowledges that he has consulted with counsel and been advised of his rights in connection with the negotiation, execution and delivery of this Agreement including in particular Section 8 of this Agreement.
 
12.   Governing Law .  The Agreement shall be construed in accordance with the laws of the State of Missouri and any dispute under this Agreement will only be brought in the state and federal courts located in the State of Missouri.
 
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
 
 
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement on the date first above written.
 
 
CHRISTIAN DISPOSAL, LLC
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
       
 
 
MERIDIAN WASTE SOLUTIONS, INC.
 
       
 
By:
/s/ Jeffrey Cosman  
   
Name: Jeffrey Cosman
 
   
Title: Manager
 
     

 
EMPLOYEE
 
       
 
By:
/s/ Patrick McLaughlin  
   
Patrick McLaughlin, an individual
 
       
       
 
 
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Exhibit 10.6
 
AMENDMENT TO ASSET PURCHASE AGREEMENT
 
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (the “Amendment”) made and entered into as of the 18th day of December, 2015 among by and among: (i) Meridian Land Company, LLC, a Georgia limited liability company (“ Buyer ” or “ Purchaser ”) (ii) Eagle Ridge Landfill, LLC, an Ohio limited liability company (“ Seller ”) and, solely with respect to new Section 8.5 of the Agreement (as defined hereinbelow), (iii) Meridian Waste Solutions, Inc. a New York corporation and Buyer’s parent company (“ Buyer Parent ”), and (iv) WCA Waste Corporation, a Delaware corporation and Seller’s top-tier parent company (“ WCA Waste ”).
 
BACKGROUND
 
WHEREAS, the Seller and Buyer entered into an Asset Purchase Agreement (the "Agreement"), on the 13 th day of November, 2015 for the purchase and sale of substantially all the assets of Seller as more particularly described in the Agreement; and
 
WHEREAS, the parties are now desirous of amending the Agreement to extend the closing date; and
 
NOW THEREFORE, for and in consideration of Ten and 00/100ths Dollars ($10.00) and other good and valuable consideration, in hand paid, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
 
1.  Section 2.5 of the Agreement shall be deleted in its entirety, and a new Section 2.5 shall be inserted in its place which shall read as follows:
 
“2.5            Closing; Effective Time . Unless the parties otherwise agree in writing, the parties agree the Contemplated Transactions shall be consummated and closed on or before December 22, 2015 (the “ Closing Date ”).  The Contemplated Transactions and the transfer of title to and ownership of the Assets and the Property and the assumption of the Buyer Assumed Liabilities shall be effective as of 12:01 a.m. on the next business day following the Closing Date.  On or before the Closing Date, any document necessary to either affect any of the Contemplated Transactions or consummate this Agreement, and not already in the possession of Buyer, shall be, or have been, sent via facsimile or via electronic mail, in PDF format, to Counsel for Buyer at the Offices of Richard J. Dreger, Attorney at Law, P.C., 11660 Alpharetta Highway, Building 700, Suite 730, Roswell, Georgia, 30076, (678) 566-6938 (Fax), Rick@rdregerlaw.com , with original executed copies to be sent via overnight courier to the same.”

2.  The Agreement is hereby amended to (i) add new Section 8.5 to the terms, conditions and provisions of the Agreement and (ii) have Buyer Parent and WCA Waste join in and be bound by the provisions of Section 8.5 of the Agreement.

Section 8.5 of the Agreement shall read as follows:

“8.5            Closing Assurance Fee .  If the Contemplated Transactions are not consummated by Buyer for any reason other than a breach or default of Seller that is not cured or waived as of the Closing Date or the Closing Date occurs later than December 22, 2015, Buyer Parent shall and hereby agrees to issue (the “ Closing Assurance Fee ”) to WCA Waste One Hundred Thousand (100,000) authorized, unrestricted, and non-assessable shares of common stock, par value $0.25 per share, of Buyer Parent.  If the Closing Assurance Fee is required to be paid in accordance with this Section 8.5, Buyer Parent agrees to cause its registrar and transfer agent to issue the original stock certificate evidencing payment of the Closing Assurance Fee to WCA Waste no later than December 28, 2015.  The parties acknowledge and agree that the Closing Assurance Fee is an inducement and represents additional and separate consideration from the Purchase Price for Seller’s agreement to extend the Closing Date to December 22, 2015, and that without the agreement of Buyer Parent relating to the Closing Assurance Fee, Seller would not enter into this Amendment.  For purposes of this Section 8.5, Buyer and Buyer Parent hereby acknowledge and agree that Seller’s failure to deliver the consent of the City of Bowling Green, Missouri (the “ Bowling Green Consent ”) relating to the assignment of that certain Solid Waste Franchise Agreement dated October 1, 2015, between Waste Corporation of Missouri, Inc. and Bowling Green by the Closing Date shall not constitute a breach or default by Buyer; provided, however, the Closing Assurance Fee shall not be due and payable unless and until the Bowling Green Consent has been obtained and delivered to Buyer by Seller.

3.           Except as amended hereby, the Agreement shall remain in full force and effect.
 
This AMENDMENT may be executed in several counterparts each which shall be deemed an original and all of which counterparts together shall constitute one and the same instrument.
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT to be executed under seal as of the day and year first above written.
 
“BUYER”
  MERIDIAN LAND COMPANY, LLC,  
  a Missouri limited liability company  
       
 
By:
/s/ Jeffrey S. Cosman  
    Jeffrey S. Cosman, Manager  
       
       
                                                    
“BUYER PARENT”
 
MERIDIAN WASTE SOLUTIONS, INC.,
 
  a New York corporation  
       
 
By:
/s/ Jeffrey S. Cosman  
    Jeffrey S. Cosman, Chief Executive Officer  
       
       
 
                                                                          “SELLER”
  EAGLE RIDGE LANDFILL, LLC,  
  an Ohio limited liability company  
       
 
By:
Waste Corporation of Missouri, Inc.,  
     a Delaware corporation, its sole member  
       
 
By:
/s/ Michael A. Roy  
    Michael A. Roy, Vice President  
                                                                 
“WCA WASTE”
  WCA WASTE CORPORATION  
   a Delaware corporation  
       
 
By:
/s/ Michael A. Roy  
    Michael A. Roy  
    Senior Vice President – General Counsel  
       
 
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