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):
February 15, 2017
MERIDIAN WASTE SOLUTIONS, INC.
(Exact
name of registrant as specified in its charter)
|
New York
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001-13984
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13-3832215
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(State
or other jurisdiction
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(Commission
File Number)
|
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(IRS
Employer
|
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of
incorporation)
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Identification
No.)
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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:
☐
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
☐
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.
On
February 15, 2017 (the “
Restatement Date
”),
Meridian Waste Solutions, Inc. (the “
Company
”) closed an
Amended and Restated Credit and Guaranty Agreement (the
“
Credit
Agreement
”) by and among the Company, Meridian Waste
Operations, Inc. (“
Operations
”), 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
”),
FWCD, LLC (“
FWCD
”), The CFS Group,
LLC (“
CFS
”), The CFS Disposal
& Recycling Services, LLC (“
CFS Disposal
”), RWG5, LLC
(“
RWG5
”), Meridian Waste
Missouri, LLC (“
Meridian Missouri
”), and
Meridian Innovations, LLC (“
Innovations
” and together
with Operations, Missouri Waste, Georgia Waste, Meridian Land,
Christian Disposal, FWCD, CFS, CFS Disposal, RWG5, and Meridian
Missouri, 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., as Administrative Agent, Collateral Agent, and Lead
Arranger. The Credit Agreement amended and restated the Credit and
Guaranty Agreement entered into as of December 22, 2015 (the
“
Closing
Date
”) by and among the Company, certain of 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., as Administrative Agent, Collateral
Agent, and Lead Arranger (as amended prior to the Restatement Date,
the “
Prior Credit
Agreement
”).
Pursuant
to the Credit Agreement, the Lenders thereunder have agreed to
extend certain credit facilities to the Companies, in an aggregate
amount not to exceed $89,100,000, consisting of $65,500,000
aggregate principal amount of Tranche A Term Loans (the
“
Tranche A Term
Loans
”), $8,600,000 aggregate principal amount of
Tranche B Term Loans (the “
Tranche B Term Loans
”),
$10,000,000 aggregate principal amount of MDTL Term Loans (the
“
MDTL Term
Loans
”), and up to $5,000,000 aggregate principal
amount of Revolving Commitments (the “
Revolving Commitments
”,
the Revolving Commitments together with the Tranche A Term Loans,
Tranche B Term Loans and the MDTL Term Loans, the
“
Loans
”). The principal
amount of the Tranche A Term Loans in the Credit Agreement is
$25,500,000 greater than the principal amount provided in the Prior
Credit Agreement; the Tranche B Term Loans were not contemplated in
the Prior Credit Agreement; and the principal amount of the MDTL
Term Loans and Revolving Credit Agreements in the Credit Agreement
are the same as provided in the Prior Credit Agreement. The
proceeds of the Tranche A Term Loans made on the Closing Date were
used to pay a portion of the purchase price for the acquisitions
made in connection with the closing of the Prior Credit Agreement,
to refinance existing indebtedness, to fund consolidated capital
expenditures, and for other purposes permitted under Section 2.5 of
the Prior Credit Agreement. The proceeds of the Tranche A Term
Loans and Tranche B Term Loans made on the Restatement Date shall
be applied by Companies to (i) partially fund the Restatement Date
Acquisition (as defined below), (ii) refinance existing
indebtedness of the Companies, (iii) pay fees and expenses in
connection with the transactions contemplated by the Credit
Agreement, and (iv) for working capital and other general corporate
purposes. The “
Restatement Date
Acquisition
” means the acquisition of all membership
interests of CFS, CFS Disposal and RWG5, as contemplated in the
Purchase Agreement (defined below). The proceeds of the Revolving
Loans will be used for working capital and general corporate
purposes. The proceeds of the MDTL Term Loans may be used for
Permitted Acquisitions (as defined in the Credit Agreement). The
Loans are evidenced, respectively, by that certain Tranche A Term
Loan Note, Tranche B Term Loan Note, MDTL Note and Revolving Loan
Note, all issued on February 15, 2017 (collectively, the
“
Notes
”). Payment
obligations under the Loans are subject to certain prepayment
premiums, in addition to acceleration upon the occurrence of events
of default under the Credit Agreement.
The
amounts borrowed pursuant to the Loans are secured by a first
position security interest in substantially all of the
Company’s and the Companies’ assets in favor of Agent,
in accordance with that certain Amended and Restated Pledge and
Security Agreement dated as of February 15, 2017 (the
“
Pledge and Security
Agreement
”).
On
February 15, 2017, the Company consummated the closing of the
Membership Interest Purchase Agreement (the “
Purchase Agreement
”) by
and between the Company and Waste Services Industries, LLC
("
Seller
"),
pursuant to which the Company purchased from Seller 100% of the
membership interests of CFS, CFS Disposal and RWG5 in exchange for
the following: (i) $40,000,000 in cash and assumption of certain
capital leases, subject to a working capital adjustment in
accordance with Section 2.6 of the Purchase Agreement and (ii)
500,000 shares of the Company’s common stock. The Purchase
Agreement contains typical representations, warranties and
covenants.
The
above descriptions of the Credit Agreement, Notes, Pledge and
Security Agreement and Purchase Agreement do not purport to be
complete and are qualified in their entirety by the full text of
the applicable document itself, each of which is included as an
exhibit to this Current Report on Form 8-K and is incorporated by
reference.
In connection with the closing of the Credit Agreement and the
Purchase Agreement, the Company has paid fees in the aggregate
amount of approximately $629,044.
Item 2.01 Completion of Acquisition or Disposition of
Assets.
The information set forth in Item 1.01 is incorporated by
reference herein.
Item 2.03 Creation of a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
The
information regarding the Credit Agreement provided above under
Item 1.01 is incorporated into this Item 2.03 by
reference.
Item 3.02 Unregistered Sales of Equity
Securities.
The information described in Item 1.01 regarding the private
placement of our common stock is incorporated by reference into
this Item 3.02.
The
securities underlying issued pursuant to the Purchase Agreement
were not registered under the Securities Act of 1933, as amended
(the “Securities Act”). These securities qualified for
exemption under Section 4(a)(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(a)(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(a)(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(a)(2) of the Securities
Act.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit No.
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Description
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Amended
and Restated Credit and Guaranty Agreement, dated as of February
15, 2017, among Here to Serve – Missouri Waste Division, LLC,
Here to Serve – Georgia Waste Division, LLC, Meridian Waste
Operations, Inc., Meridian Land Company, LLC, Christian Disposal,
LLC, FWCD, LLC, The CFS Group, LLC, The CFS Group Disposal and
Recycling Services, LLC, RWG5, LLC, Meridian Waste Missouri, LLC,
and Meridian Innovations, LLC, as Companies, Meridian Waste
Solutions, Inc., as Holdings, the Lenders party thereto from time
to time and Goldman Sachs Specialty Lending Group, L.P., as
Administrative Agent, Collateral Agent, and Lead
Arranger
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Amended and Restated
Tranche A Term Loan Note, issued in
favor of Goldman Sachs Specialty Lending Holdings, Inc., in the
principal amount of $65,500,000, dated February 15,
2017
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Tranche B Term Loan Note, issued in favor of Goldman Sachs
Specialty Lending Holdings, Inc., in the principal amount of
$8,600,000, dated February 15, 2017
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Amended and Restated
MDTL Note, issued in favor of Goldman
Sachs Specialty Lending Holdings, Inc., in the principal amount of
$10,000,000, dated February 15, 2017
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Amended and Restated
Revolving Loan Note, issued in favor of
Goldman Sachs Specialty Lending Holdings, Inc., in the principal
amount of $5,000,000, dated February 15, 2017
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Amended and Restated
Pledge and Security Agreement between
the grantors party thereto and Goldman Sachs Specialty Lending
Group, L.P., dated February 15, 2017
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Membership
Interest Purchase Agreement made and entered into as of February
15, 2017, by and between Meridian Waste Solutions, Inc. and the
Waste Services Industries, LLC
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*
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.
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MERIDIAN
WASTE SOLUTIONS, INC.
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Date:
February 15, 2017
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By:
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/s/ Jeffrey Cosman
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Name: Jeffrey
Cosman
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Title: Chief
Executive Officer
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Exhibit 4.1
AMENDED
AND RESTATED
CREDIT
AND GUARANTY AGREEMENT
dated
as of February 15, 2017
among
HERE
TO SERVE – MISSOURI WASTE DIVISION, LLC,
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC,
MERIDIAN
WASTE OPERATIONS, INC.,
MERIDIAN
LAND COMPANY, LLC,
CHRISTIAN
DISPOSAL, LLC,
FWCD,
LLC,
THE
CFS GROUP, LLC,
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC,
RWG5,
LLC,
MERIDIAN
WASTE MISSOURI, LLC, and
MERIDIAN
INNOVATIONS, LLC
as
Companies
MERIDIAN
WASTE SOLUTIONS, INC.,
as
Holdings,
VARIOUS
LENDERS
and
GOLDMAN
SACHS SPECIALTY LENDING GROUP, L.P.
as
Administrative Agent, Collateral Agent, and Sole Lead
Arranger
________________________________________________________
$89,100,000
Senior Secured Credit Facilities
________________________________________________________
TABLE OF CONTENTS
Page
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SECTION
1. DEFINITIONS AND INTERPRETATION
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2
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1.1. Definitions
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2
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1.2. Accounting Terms
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34
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1.3. Interpretation, etc.
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34
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SECTION
2. LOANS
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35
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2.1. Term
Loans
.
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35
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2.2. Revolving Loans
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36
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2.3.
Reserved
.
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38
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2.4. Pro Rata Shares;
Availability of Funds
.
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38
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2.5. Use of Proceeds
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39
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2.6. Evidence of Debt;
Register; Lenders’ Books and Records;
Notes
.
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39
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2.7. Interest on
Loans
.
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40
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2.8.
Conversion/Continuation
.
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41
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2.9. Default Interest
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42
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2.10. Fees
.
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42
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2.11. Scheduled
Payments
.
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43
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2.12. Voluntary
Prepayments/Commitment Reductions
.
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43
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2.13. Mandatory
Prepayments/Commitment Reductions
.
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45
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2.14. Application of
Prepayments/Reductions
.
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47
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2.15. General Provisions
Regarding Payments
.
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48
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2.16. Ratable Sharing
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50
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2.17. Making or Maintaining
LIBOR Rate Loans
.
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50
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2.18. Increased Costs; Capital
Adequacy
.
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52
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2.19. Taxes; Withholding, etc.
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53
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2.20. Obligation to Mitigate
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56
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2.21. Defaulting Lenders
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56
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2.22. Removal or Replacement of a Lender
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57
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SECTION
3. CONDITIONS PRECEDENT
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58
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3.1. Restatement Date
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58
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3.2. Conditions to Each Credit
Extension
.
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63
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3.3. Conditions Subsequent to the Restatement Date
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65
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SECTION
4. REPRESENTATIONS AND WARRANTIES
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65
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4.1. Organization; Requisite Power and Authority;
Qualification
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65
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4.2. Capital Stock and Ownership
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65
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4.3. Due Authorization
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65
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4.4. No Conflict
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66
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4.5. Governmental Consents
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66
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4.6. Binding Obligation
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66
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4.7. Historical Financial Statements
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66
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4.8. Projections
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66
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4.9. No Material Adverse Change
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67
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4.10. No Restricted Junior Payments
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67
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4.11. Adverse Proceedings, etc.
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67
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4.12. Payment of Taxes
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67
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4.13.
Properties
.
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67
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4.14. Environmental Matters
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68
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4.15. No Defaults
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68
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4.16. Material Contracts
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68
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4.17. Governmental Regulation
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69
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4.18. Margin Stock
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69
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4.19. Employee Matters
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69
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4.20. Employee Benefit Plans
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69
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4.21. Certain Fees
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70
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4.22. Solvency
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70
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4.23. Related
Agreements
.
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70
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4.24. Compliance with Statutes,
Franchises, Permits, etc
.
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71
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4.25. Disclosure
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71
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4.26. Patriot Act
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71
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SECTION
5. AFFIRMATIVE COVENANTS
|
72
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5.1. Financial Statements and Other Reports
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72
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5.2. Existence
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77
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5.3. Payment of Taxes and Claims
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77
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5.4. Maintenance of Properties
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77
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5.5. Insurance
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77
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5.6. Inspections
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78
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5.7. Lenders Meetings
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78
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5.8. Compliance with Laws
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78
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5.9.
Environmental
.
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78
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5.10. Subsidiaries
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79
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5.11. Additional Material Real Estate Assets
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80
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5.12. Reserved
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80
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5.13. Further Assurances
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80
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5.14. Miscellaneous Business Covenants
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81
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5.15. Post Closing Matters
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81
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SECTION
6. NEGATIVE COVENANTS
|
81
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6.1. Indebtedness
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81
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6.2. Liens
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83
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6.3. Equitable Lien
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85
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6.4. No Further Negative Pledges
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85
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6.5. Restricted Junior Payments
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85
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6.6. Restrictions on Subsidiary Distributions
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86
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6.7. Investments
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86
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6.8. Financial
Covenants
.
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87
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6.9. Fundamental Changes; Disposition of Assets;
Acquisitions
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90
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6.10. Disposal of Subsidiary Interests
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91
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6.11. Sales and Lease‑Backs
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91
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6.12. Transactions with Shareholders and Affiliates
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91
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6.13. Conduct of Business; Foreign Subsidiaries
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91
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6.14. Permitted Activities of Holdings
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92
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6.15. Amendments or Waivers of Certain Related
Agreements
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92
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6.17. Fiscal Year
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92
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6.18. Deposit Accounts
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92
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6.19. Amendments to Organizational Agreements and Material
Contracts
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92
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6.20. Prepayments of Certain Indebtedness
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93
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SECTION
7. GUARANTY
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93
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7.1. Guaranty of the Obligations
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93
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7.2. Contribution by Credit Parties
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94
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7.3. Payment by Credit Parties
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94
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7.4. Liability of Credit Parties Absolute
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95
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7.5. Waivers by Credit Parties
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97
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7.6. Credit Parties’ Rights of Subrogation, Contribution,
etc.
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97
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7.7. Subordination of Other Obligations
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98
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7.8. Continuing Guaranty
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98
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7.9. Authority of Credit Parties
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98
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7.10. Financial Condition of Credit Parties
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98
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7.11. Bankruptcy, etc.
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99
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7.12. Discharge of Guaranty Upon Sale of Guarantor
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99
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7.13. Qualified ECP Credit Party.
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100
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SECTION
8. EVENTS OF DEFAULT
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100
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8.1. Events of Default
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100
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SECTION
9. AGENTS
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103
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9.1. Appointment of Agents
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103
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9.2. Powers and Duties
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103
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9.3. General
Immunity
.
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103
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9.4. Agents Entitled to Act as Lender
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104
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9.5. Lenders’ Representations, Warranties and
Acknowledgment
|
104
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9.6. Right to Indemnity
|
105
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9.7. Successor Administrative
Agent and Collateral Agent
.
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106
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9.8. Collateral Documents and
Guaranty
.
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106
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SECTION
10. MISCELLANEOUS
|
107
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10.1. Notices
|
107
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10.2. Expenses
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107
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10.3.
Indemnity
.
|
108
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10.4. Set‑Off
|
109
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|
10.5. Amendments and
Waivers
.
|
109
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10.6. Successors and Assigns;
Participations
.
|
111
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10.7. Independence of Covenants
|
114
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10.8. Survival of Representations, Warranties and
Agreements
|
114
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10.9. No Waiver; Remedies Cumulative
|
114
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10.10. Marshalling; Payments Set Aside
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114
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10.11. Severability
|
115
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10.12. Obligations Several; Actions in Concert
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115
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10.13. Headings
|
115
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10.14. APPLICABLE LAW
|
115
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10.15. CONSENT TO JURISDICTION
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115
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10.16. WAIVER OF JURY TRIAL
|
116
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10.17. Confidentiality
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117
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10.18. Usury Savings Clause
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118
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10.19. Counterparts
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118
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10.20. Effectiveness
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118
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10.21. Patriot Act
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119
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10.22. Amendment and Restatement.
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119
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APPENDICES:
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A‑1
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Tranche
A Term Loan Commitments
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A‑2
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Tranche
B Term Loan Commitments
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A‑3
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MDTL
Commitments
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A‑4
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Revolving
Commitments
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B
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Notice
Addresses
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SCHEDULES:
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1.1
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Certain
Material Real Estate Assets
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3.1(i)
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Restatement
Date Mortgaged Properties
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4.1
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Jurisdictions
of Organization and Qualification
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4.2
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Capital
Stock and Ownership
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4.13
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Real
Estate Assets
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4.16
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Material
Contracts
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5.15
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Certain
Post Closing Matters
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6.1
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Certain
Indebtedness
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6.2
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Certain
Liens
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6.7
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Certain
Investments
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6.12
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Certain
Affiliate Transactions
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10.22
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Specified
Events of Default
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EXHIBITS:
|
A‑1
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Funding
Notice
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A‑2
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Conversion/Continuation
Notice
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B‑1
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Tranche A
Term Loan Note
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B‑2
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Tranche
B Term Loan Note
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B‑3
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MDTL
Note
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B‑4
|
Revolving
Loan Note
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C
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Compliance
Certificate
|
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D
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Opinions
of Counsel
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E
|
Assignment
Agreement
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|
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F
|
Certificate
Regarding Non‑bank Status
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G‑1
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Restatement
Date Certificate
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G‑2
|
Solvency
Certificate
|
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H
|
Counterpart
Agreement
|
|
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I
|
Pledge
and Security Agreement
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|
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J
|
Mortgage
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K
|
Landlord
Collateral Access Agreement
|
AMENDED
AND RESTATED CREDIT AND GUARANTY AGREEMENT
This
AMENDED AND RESTATED
CREDIT AND GUARANTY
AGREEMENT
, dated as of February 15, 2017, 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
”),
MERIDIAN WASTE
OPERATIONS, INC.
, a New York corporation
(“
Operations
”),
MERIDIAN LAND COMPANY, LLC
,
a Georgia limited liability company (“
MLC
”),
CHRISTIAN DISPOSAL, LLC
, a Missouri
limited liability company (“
Christian Disposal
”),
FWCD, LLC
, a Missouri limited liability
company (“
FWCD
”),
THE CFS GROUP, LLC
, a Virginia limited
liability company (“
CFS
”),
THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC
, a Virginia limited liability company
(“
CFS
Disposal
”), and
RWG5,
LLC
, a Virginia limited liability company
(“
RWG5
”),
MERIDIAN WASTE MISSOURI,
LLC
, a Missouri limited liability company
(“
Meridian
Missouri
”), and
MERIDIAN INNOVATIONS, LLC
, a
Georgia limited liability company (“
Innovations
”, and together with
HTS MWD, HTS GWD, Operations, MLC, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5, and Meridian Missouri, 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
, pursuant to that certain Credit
and Guaranty Agreement, dated as of December 22, 2015, by and among
certain of the Companies, Holdings, the lenders party thereto from
time to time thereto and GSSLG as Administrative Agent, Collateral
Agent and Lead Arranger (as amended, restated, supplemented or
otherwise modified prior to the date hereof, the
“
Prior Credit
Agreement
”), the Lenders extended certain credit
facilities to the Companies, in an aggregate amount equal to
$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;
WHEREAS,
Companies have requested that
Administrative Agent and the Lenders amend and restate the Prior
Credit Agreement in the form of this Agreement, increase the
Tranche A Term Loan Commitments to $65,500,000, extend an
additional credit facility to the Companies, consisting of
$8,600,000 aggregate principal amount of Tranche B Term Loans
and make certain other modifications as set forth herein, and,
subject to the terms and conditions set forth herein, the Lenders
are willing to do so; and
NOW, THEREFORE,
in consideration of the
premises and the agreements, provisions and covenants herein
contained, the parties hereto agree that the Prior Credit Agreement
is amended and restated 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.
“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
Amended and Restated Credit and Guaranty Agreement, dated as of
February 15, 2017, 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
(a) with respect to Tranche A Term Loans, MDTL Term Loans and
Revolving Loans, (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%, and (b) with respect to Tranche B Term Loans, (i) from the
Restatement Date until and including September 30, 2017, a
percentage per annum equal to 11.00%, (ii) from and including
October 1, 2017 to and including December 31, 2017, a percentage
per annum equal to 11.50% and (iii) following December 31, 2017, a
percentage per annum equal to 12.50%.
“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.
“
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 Leverage
Multiple then in effect, less (ii) (A) the aggregate outstanding
principal amount of the Loans as of such date plus (B) all other
Consolidated Total Debt as of such date, minus (C) the aggregate
outstanding principal amount of Subordinated Debt (to the extent
permitted hereunder) as of such date, minus (D) the aggregate
outstanding principal amount of the Tranche B Term Loans 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.
“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.
“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
Restatement Date, or (b) were nominated for election by the board
of directors of Holdings, a majority of whom were directors on the
Restatement 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 Restatement 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 Tranche B Term Loan Exposure, (c) Lenders having
Revolving Exposure, and (d) Lenders having MDTL Exposure, and
(ii) with respect to Loans, each of the following classes of
Loans: (a) Tranche A Term Loans, (b) Tranche B Term Loans, (c)
Revolving Loans, and (d) MDTL Term Loans.
“Closing Date”
means
December 22, 2015.
“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.
“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, 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, Tranche B
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.
“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) with respect to any
period ending on or prior to July 31, 2018, the correlative amounts
set forth on the draft schedule of “Meridian Monthly
Scheduled Addbacks” delivered to the Administrative Agent
prior to the Restatement Date for each month in such period, in
each case, to the extent that such amount is satisfactory to the
Administrative Agent in its sole discretion at the time included in
the calculation of Consolidated Adjusted EBITDA, plus (i) any other
amounts approved by the Administrative Agent in its sole
discretion, 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, plus (d) an amount equal to the total pro
forma reduction in Consolidated Adjusted EBITDA attributable to the
termination of 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, determined as if
such contract had terminated on the first day of the applicable
period. Notwithstanding the foregoing, Consolidated Adjusted EBITDA
for the period of twelve consecutive fiscal months ending on
October 31, 2016 shall be equal to $13,509,437
“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, (iv) are operating expenses, and (v) are
other non-Cash or non-recurring items consented to by
Administrative Agent in writing in its sole
discretion.
“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.
“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) any amounts
deducted in the calculation of Consolidated Adjusted EBITDA
pursuant to clause (ii)(d) of such definition, plus (e) 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 (to the extent not in excess of the limit
with respect to such period set forth in Section 6.8), plus (f)
other cash amounts added back to Consolidated Net Income in the
calculation of Consolidated Adjusted EBITDA, in each case, to the
extent satisfactory to Administrative Agent in its sole
discretion.
“
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 Maintenance 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 Restatement 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), 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
Maintenance Capital Expenditures
” means, for any
period, Consolidated Capital Expenditures other than Consolidated
Growth Capital Expenditures.
“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.
“
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 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.
“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 their respective 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.
“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.
“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 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.
“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.
“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.
“
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) 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 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 Tranche A Term Loans
” as
defined in Section 2.1(a).
“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.
“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 amended and
restated letter agreement, dated the Restatement 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 Restatement 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 Restatement 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 Restatement 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.
“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 each of
Holdings and any other Person that joins this Agreement as a
“guarantor”.
“Guaranty”
means the
guaranty of the Guarantors, 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.
“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.
“Holdings”
as defined in the
preamble hereto.
“Host Agreements”
means (i)
that certain Host Agreement, between The City of Petersburg
Virginia and The CFS Group Disposal & Recycling Services, LLC,
dated August 31, 2009, (ii) that certain Host Agreement between
Lunenburg County Virginia and RWG5, LLC, dated February 21, 2013,
and (iii) any other landfill host agreement entered into by any
Credit Party.
“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).
“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 any commitment
letter delivered by any Lender to any Company or any of its
Affiliates with respect to the transactions contemplated by the
Prior Credit Agreement and 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.
“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
Restatement 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 Restatement 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.
“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.
“
Leverage Multiple
” means, as of
any date of determination in any Fiscal Quarter indicated below,
the correlative number indicated below:
|
Fiscal Quarter
|
|
Leverage Multiple
|
|
March
31, 2017
|
|
5.50
|
|
June
30, 2017
|
|
5.50
|
|
September 30,
2017
|
|
5.50
|
|
December 31,
2017
|
|
5.50
|
|
March
31, 2018
|
|
5.50
|
|
June
30, 2018
|
|
5.25
|
|
September 30,
2018
|
|
5.00
|
|
December 31,
2018
|
|
4.75
|
|
March
31, 2019
|
|
4.75
|
|
June
30, 2019
|
|
4.50
|
|
September 30,
2019
|
|
4.50
|
|
December 31, 2019
and each Fiscal Quarter ending thereafter
|
|
4.25
|
“Leverage Ratio”
means as of
any date of determination, the ratio of (a) (i) Consolidated Total
Debt as of such date, less (ii) the aggregate outstanding principal
amount of Subordinated 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.
“Loan”
means a
Tranche A Term Loan, Tranche B 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) the Municipal
Solid Waste Transfer and Disposal Agreement, dated as of January
24, 2008, between FWCD, LLC and the City of St. Peters, Missouri,
(iv) 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, (v)
that certain Exclusive Residential Solid Waste Collection Services
Agreement, dated May 15, 2013, between City of Florissant and
Meridian Waste Services LLC, (vi) that certain Solid Waste License
Agreement, dated October 22, 2007, between The City of Wildwood and
Meridian Waste Services, LLC, (vii) the hauling contract entered
into following the Closing Date between one or more of the Credit
Parties and the City of Webster Grove, (viii) the Tri-City
Recycling Center Lease, (ix) the Host Agreements, (x) that certain
agreement, dated January 5, 2017, between St. Louis County,
Missouri and Meridian Waste Missouri, LLC with respect to District
6, (xi) 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 (xii) 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.
“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 Restatement Date
is $10,000,000.
“MDTL Commitment Period”
means the time period commencing on the Restatement 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) June 30,
2018.
“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-3, 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)(iii).
“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.
“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 Tranche B 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.
“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 Restatement 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;
(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 Restatement 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).
“
Prior Credit Agreement
” as defined
in the recitals hereto.
“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
Tranche B Term Loan of any Lender, the percentage obtained by
dividing (a) the Tranche B Term Loan Exposure of that
Lender, by (b) the aggregate Tranche B Term Loan Exposure
of all Lenders; (iii) 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
(iv) 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, Tranche B 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 Tranche B 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.
“Qualified Offering”
means
the issuance by Holdings of shares of its Capital Stock in a
Qualified Offering (as defined in that certain Amended and Restated
Warrant Cancellation and Stock Issuance Agreement, dated as of
January 9, 2017, by and between Holdings and Goldman, Sachs &
Co. (the “
Warrant
Cancellation
”)) under that certain Form S-1
Registration Statement filed with the Securities and Exchange
Commission on September 9, 2016 (as amended by that certain
Amendment No. 1 to Form S-1, filed with the Securities and Exchange
Commission on November 18, 2016, that certain Amendment No. 2 to
Form S-1, filed with the Securities and Exchange Commission on
December 5, 2016, that certain Amendment No. 3 to Form S-1, filed
with the Securities and Exchange Commission on December 12, 2016
and that certain Amendment No. 4 to Form S-1, filed with the
Securities and Exchange Commission on December 12,
2016).
“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.
“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 WSI Acquisition Agreement and (ii)
each material agreement executed in connection with the WSI
Acquisition Agreement.
“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 Tranche B Term Loan
Exposure, Lenders holding more than 50% of the aggregate
Tranche B Term Loan Exposure of all Lenders; (iii) for the
Class of Lenders having MDTL Exposure, Lenders holding more than
50% of the aggregate MDTL Exposure of all Lenders; and
(iv) 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, Tranche B 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 Tranche B Term Loan Exposure
of all Lenders, (iii) the aggregate MDTL Exposure of all Lenders
and (iii) the aggregate Revolving Exposure of all
Lenders.
“
Restatement Date
” means February
15, 2017.
“
Restatement Date Certificate
”
means a Restatement Date Certificate substantially in the form of
Exhibit G-1.
“
Restatement Date Acquisition
”
means the acquisition of all membership interests of each of CFS,
CFS Disposal and RWG5 pursuant to and on the terms set forth in the
WSI Acquisition Agreement.
“Restatement Date Mortgaged
Property”
as defined in Section 3.1(i).
“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, the Restatement Date Acquisition and any 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.
“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 Restatement
Date is $5,000,000.
“Revolving Commitment
Period”
means the period from the Restatement 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-4, 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.
“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 Restatement Date and reflected in
the Projections or with respect to any transaction contemplated or
undertaken after the Restatement 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).
“Specified Events of
Default”
as defined in Section 10.22.
“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, and (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.
“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.
“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, Tranche B Term Loan or a MDTL Term
Loan.
“Term Loan Commitment”
means
the Tranche A Term Loan Commitment, Tranche B 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, Tranche B 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 under this
Agreement, including the Existing Tranche A Term Loans advanced
under the Prior Credit Agreement, as of the Restatement Date, is
$65,500,000.
“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.
“
Tranche B Term Loan
” means a
Tranche B Term Loan made by a Lender to Companies pursuant to
Section 2.1(a)(ii).
“
Tranche B Term Loan Commitment
”
means the commitment of a Lender to make or otherwise fund a
Tranche B Term Loan and “Tranche B Term Loan
Commitments” means such commitments of all Lenders in the
aggregate. The amount of each Lender’s Tranche B Term Loan
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 Tranche B Term Loan Commitments as of the
Restatement Date is $8,600,000.00.
“
Tranche
B Term Loan Exposure
” means, with respect to any
Lender, as of any date of determination, the outstanding principal
amount of the Tranche B Term Loans of such Lender;
provided
, at any
time prior to the making of the Tranche B Term Loans, the
Tranche B Term Loan Exposure of any Lender shall be equal to
such Lender’s Tranche B Term Loan
Commitment.
“
Tranche B Term Loan Maturity Date
”
means the earlier of (i) December 22, 2020, and (ii) the date that
all Tranche B Term Loans shall become due and payable in full
hereunder, whether by acceleration or otherwise.
“
Tranche B Term Loan 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.
“Transaction Costs”
means
the fees, costs and expenses payable by Holdings or any Company on
or before the Restatement Date in connection with the transactions
contemplated by the Credit Documents and the Related
Agreements
,
to the extent
approved in writing by Administrative Agent.
“Tri-City Recycling Center
Lease”
means that certain Deed of Lease, dated January
21, 2011, by and between Tri-City Recycling Center, LLC, as
Landlord, and The CFS Group Disposal & Recycling Services, LLC,
as Tenant.
“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.
“
WSI Acquisition Agreement
” means
that certain Membership Interest Purchase Agreement, dated as of
February 15, 2017, between Waste Service Industries, LLC, as
seller, and Holdings.
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 financial statements for the Fiscal Year ending
December 31, 2015. 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.
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.
(a)
Loan
Commitments
. Subject to the
terms and conditions hereof,
(i)
each
Lender severally agrees to make, on the Closing Date and on the
Restatement Date, Tranche A Term Loans to the Companies an
aggregate amount not to exceed such Lender’s Tranche A Term
Loan Commitment;
(ii)
each
Lender severally agrees to make, on the Restatement Date, a Tranche
B Term Loan to the Companies in an amount equal to such
Lender’s Tranche B Term Loan Commitment; and
(iii)
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 two borrowings under the Tranche A Term
Loan Commitment on the Closing Date and Restatement Date and only
one borrowing under the Tranche B Term Loan Commitment which shall
be on the Restatement 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, Tranche B Term Loans
and MDTL Term Loans shall be paid in full on the Tranche A
Term Loan Maturity Date, Tranche B Term Loan Maturity Date and MDTL
Maturity Date, respectively. Each Lender’s Tranche A Term
Loan Commitment and Tranche B Term Loan Commitment shall terminate
immediately and without further action on the Restatement Date
after giving effect to the funding of such Lender’s Tranche A
Term Loan Commitment and such Lender’s Tranche B 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.
The
Companies acknowledge and agree that (A) on the Closing Date, the
Lenders severally made “Tranche A Term Loans” (as
defined in the Prior Credit Agreement) in an aggregate principal
amount equal to $40,000,000 (“
Existing Tranche A Term Loans
”),
(B) as of the Restatement Date, the aggregate outstanding principal
amount of the Tranche A Term Loans is equal to $40,000,000, and (C)
the outstanding balance of such Existing Tranche A Term Loans shall
continue to be outstanding hereunder as Tranche A Term Loans. After
the amendment and restatement of the Prior Credit Agreement is
given effect, an additional Tranche A Term Loan consisting of
$25,500,000 aggregate principal amount of such Term Loan shall be
advanced on the Restatement 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 Restatement Date with respect to Term Loans made on
the Restatement Date. Following the Restatement 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.
(ii)
Each
Lender shall make its Tranche A Term Loan, Tranche B 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.
(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.
(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.
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 were
used to pay a portion of the purchase price for the Closing Date
Acquisitions, to refinance existing Indebtedness, to fund
Consolidated Capital Expenditures, and for other purposes permitted
under Section 2.5 of the Prior Credit Agreement. The proceeds of
the Tranche A Term Loans and Tranche B Term Loans made on the
Restatement Date shall be applied by Companies to (i) partially
fund the Restatement Date Acquisition, (ii) refinance existing
Indebtedness of the Companies, (iii) pay fees and expenses in
connection with the transactions contemplated by this Agreement and
(iv) 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.
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 Restatement 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 Restatement Date (or, if such notice is delivered after the
Restatement Date, promptly after Company Representative’s
receipt of such notice) a Note or Notes to evidence such
Lender’s Tranche A Term Loan, Tranche B Term Loan, MDTL
Term Loan or Revolving Loan, as the case may
be.
(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 Revolving Loan, MDTL Term Loan or Tranche A Term
Loan:
(1)
if
a Base Rate Loan, at the Base Rate plus the Applicable
Margin;
(2)
if
a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus the Applicable
Margin; and
(ii)
if
a Tranche B Term Loan, at the Applicable Margin for Tranche B Term
Loans.
(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.
(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.
(f)
Notwithstanding
any of the foregoing to the contrary, accrued interest on the
Revolving Loans, Tranche A Term Loans and MDTL Term Loans will be
payable in cash and accrued interest on the Tranche B Term Loans
shall be paid in kind (rather than in cash) by adding such accrued
interest to the outstanding principal amount of the Tranche B Term
Loans as of the second Business Day following the last day of each
Fiscal Quarter (i.e. January, April, July, October). Amounts
representing accrued interest which are added to the outstanding
principal of Loans accruing such interest shall thereafter bear
interest in accordance with Section 2.7(a) and otherwise be treated
as Loans for purposes of this Agreement.
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.
(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 Restatement 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, 2019. Notwithstanding the foregoing, (x) such
Installments shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche A Term Loans or the Tranche B
Term Loans, in accordance with Sections 2.12 and 2.13, as
applicable; and (y) the Tranche A Term Loans and the Tranche B
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
.
(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.
(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 Restatement 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 Restatement 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).
(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 Restatement 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 (x) not to exceed $2,100,000 in any period of
twelve consecutive fiscal months ending on or prior to December 31,
2017 and (y) not to exceed $1,350,000 in any period of twelve
consecutive fiscal months ending after December 31, 2017; and (v)
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.
(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.
(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.
(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.
(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.
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.
(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.
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 Restatement 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).
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 Restatement 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.
(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 Restatement Date (in the case of each Lender
listed on the signature pages hereof on the Restatement 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 Restatement 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.
(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.
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).
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.
SECTION
3.
CONDITIONS
PRECEDENT
3.1.
Restatement Date
. The
amendment and restatement of the Prior Credit Agreement as provided
herein and the obligation of each Lender to make a Credit Extension
on the Restatement Date are subject to the satisfaction, or waiver
in accordance with Section 10.5, of the following conditions on or
before the Restatement Date, except as otherwise provided by
Section 5.15:
(a)
Credit
Documents
. Administrative Agent
shall have received sufficient copies of (i) this Agreement, (ii)
the Pledge and Security Agreement, (iii) the Fee Letter, (iv) each
Mortgage to be executed on the Restatement Date and (v) each other
Credit Document to be executed on the Restatement date, in each
case, 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 Restatement 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 Restatement
Date, certified as of the Restatement 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 Restatement 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 shall be as set forth on
Schedule 4.2.
(d)
Reserved
.
(e)
Consummation
of the Restatement Date Acquisition
.
(i)
(1)
All conditions to the Restatement Date Acquisition 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 Restatement Date Acquisition 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 Restatement Date in
connection with the Restatement Date Acquisition does not exceed
$40,000,000.
(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
Restatement Date, after giving effect to the transactions
contemplated by this Agreement, Holdings and its Subsidiaries shall
have no Indebtedness and Liens other than those permitted under
Sections 6.1 and 6.2, respectively.
(g)
Transaction
Costs
. On or prior to the
Restatement 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.
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
“Restatement Date
Mortgaged Property”
);
(ii)
in
the case of each Leasehold Property that is a Restatement 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 Restatement Date Mortgaged
Property (each, a
“Title
Policy”
), in amounts not
less than the fair market value of each Restatement 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
Restatement Date, (b) with respect to each Leasehold Property that
is a Restatement 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
Restatement 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 Restatement 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 Restatement Date Mortgaged Properties, certified to
Collateral Agent and dated not more than thirty days prior to the
Restatement 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); and
(ii)
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
. To the extent
requested by Administrative Agent, 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) pro forma
consolidated and consolidating balance sheets of Holdings and its
Subsidiaries as at the Restatement 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
Restatement Date, which pro forma financial statements shall be in
form and substance satisfactory to Administrative Agent, (ii) pro
forma consolidated and consolidating income statements of Holdings
and its Subsidiaries as at the Restatement 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
Restatement Date, and (iii) 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., ProTorae
Law PLLC 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 Restatement 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).
(o)
Fees
and Expenses
. The Companies
shall have paid to Administrative Agent the fees payable on the
Restatement 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 Restatement
Date, Administrative Agent shall have received a Solvency
Certificate from Holdings dated as of the Restatement 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 Restatement Date Acquisition and the
other transaction contemplated by the Related Agreements and the
Credit Extensions to be made on the Restatement Date, such Credit
Party is and will be Solvent.
(q)
Restatement
Date Certificate
. The Credit
Parties shall have delivered to Administrative Agent an originally
executed Restatement Date Certificate, together with all
attachments thereto.
(r)
Restatement
Date
. Lenders shall have made
the Tranche A Term Loan and Tranche B Term Loan to the Companies on
or before February 28, 2017.
(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
Restatement 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, 2016
of at least $13,400,000.
(v)
Minimum
Liquidity
. The Companies shall
demonstrate in form and substance reasonably satisfactory to
Administrative Agent that on the Restatement Date and immediately
after giving effect to any Credit Extensions to be made on the
Restatement 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 Restatement Date and immediately
after giving effect to any Credit Extensions to be made on the
Restatement 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 Restatement Date
(excluding the Subordinated Debt) to (ii) pro forma Consolidated
Adjusted EBITDA for the twelve month period ending October 31,
2016, shall not be greater than 6.00:1.00.
(x)
No
Material Adverse Change
. Since
December 31, 2015, 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 Restatement
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.
(aa)
Qualified
Offering
. The Credit Parties
shall have completed a Qualified Offering and shall have received
net cash proceeds of such Qualified Offering at least equal to
$10,000,000.
Each
Lender, by delivering its signature page to this Agreement and
funding a Loan on the Restatement 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
Restatement 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
Restatement 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;
(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
Restatement 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.
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
Restatement 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 Restatement
Date are deemed to be made concurrently with the consummation of
the Restatement 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
Restatement 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 Restatement Date both
before and after giving effect to the Restatement Date
Acquisition.
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 Restatement Date and disclosed in writing to
Lenders.
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 Restatement 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.
Contingent Liabilities
.
As of the Restatement 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 financial
statements most recently delivered under Section 5.1 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 Restatement Date, the
Projections of Holdings and its Subsidiaries for the period of
Fiscal Year 2017 through and including Fiscal Year 2019, including
monthly projections for each month during the Fiscal Year in which
the Restatement 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
Restatement Date, management of Holdings believed that the
Projections were reasonable and attainable.
4.9.
No Material Adverse
Change
.
Since December 31, 2015, no event,
circumstance or change has occurred that has caused or evidences,
either in any case or in the aggregate, a Material Adverse
Effect.
4.10.
No Restricted Junior
Payments
.
Since December 31, 2015, 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.
(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 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 Restaement
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.
(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 Restatement 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.
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.
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.
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 Restatement 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
Restatement 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 Restatement Date Acquisition have been obtained and
are in full force and effect.
(d)
Conditions
Precedent
. On the Restatement
Date, (i) all of the conditions to effecting or consummating the
Restatement Date Acquisition set forth in the Related Agreements
have been duly satisfied or, with the consent of Administrative
Agent, waived, and (ii) the Restatement Date Acquisition have been
consummated in accordance with the Related Agreements and all
applicable laws.
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
Restatement 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. Without limiting the foregoing, on or prior to the
Restatement Date, Holdings has made all filings with the Securities
and Exchange Commission required under the Securities Act, Exchange
Act or the rules and regulations thereunder with respect to the
Restatement Date Acquisition, the Qualified Offering, and the other
transactions contemplated by this Agreement to have occurred on or
prior to the Restatement Date, in each case, on or prior to the
date required thereunder (without giving effect to any extension or
possible extension of such dates permitted
thereunder).
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.
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 Restatement Date) (in
each case, including the fourth Fiscal Quarter) (or such later date
consented to by the Administrative Agent in writing (which may be
by email or other electronic transmission) so long as such later
date is not more than ten days following the date that such
financial statements would otherwise be required to delivered), 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 45 days after the end of each
Fiscal Quarter of each Fiscal Year ending (in each case, including
the fourth Fiscal Quarter) (or such later date consented to by the
Administrative Agent in writing (which may be by email or other
electronic transmission) so long as such later date is not more
than ten days following the date that such financial statements
would otherwise be required to delivered), 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;
(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; Reconciliation Statement
. 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 annual financial statements for the Fiscal
Year ended December 31, 2015, 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;
(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; notwithstanding the foregoing, it is
understood and agreed that with respect to the Fiscal Year ending
December 31, 2017, the Projections shall constitute the Financial
Plan for such year;
(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 Restatement 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);
(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 Restatement 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.
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.
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.
(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;
(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
Restatement Date or a Real Estate Asset owned or leased becomes a
Material Real Estate Asset after the Restatement 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.
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 Restatement 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.
(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,
Restatement Date Acquisition, Permitted Acquisitions or permitted
dispositions of any business, assets or Subsidiary of Holdings or
any of its Subsidiaries;
(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
$2,800,000 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.
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;
(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 Restatement 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.
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 Closing
Date 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 the Closing Date, 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, regularly scheduled interest payments on Subordinated Debt
at a rate not to exceed 8.00% per annum; 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.
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 Restatement Date in any Subsidiary and
Investments made after the Restatement 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 Restatement 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;
(j)
the
Restatement Date Acquisition; and
(k)
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, 2017, to be less than the correlative ratio
indicated:
|
Fiscal Quarter
|
|
Fixed Charge Coverage Ratio
|
|
March
31, 2017
|
|
1.10:1.00
|
|
June
30, 2017
|
|
1.10:1.00
|
|
September 30,
2017
|
|
1.10:1.00
|
|
December 31,
2017
|
|
1.10:1.00
|
|
March
31, 2018
|
|
1.25:1.00
|
|
June
30, 2018
|
|
1.25:1.00
|
|
September 30,
2018
|
|
1.25:1.00
|
|
December 31,
2018
|
|
1.25:1.00
|
|
March
31, 2019
|
|
1.25:1.00
|
|
June
30, 2019
|
|
1.25:1.00
|
|
September 30,
2019
|
|
1.25:1.00
|
|
December 31,
2019
|
|
1.25:1.00
|
|
March
31, 2020
|
|
1.25:1.00
|
|
June
30, 2020
|
|
1.25:1.00
|
|
September 30, 2020
and each Fiscal Quarter ending thereafter
|
|
1.25:1.00
|
(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
March 31, 2017, to be less than the correlative ratio
indicated:
|
Fiscal Quarter
|
|
Leverage Ratio
|
|
March
31, 2017
|
|
6.50:1.00
|
|
June
30, 2017
|
|
6.50:1.00
|
|
September 30,
2017
|
|
6.25:1.00
|
|
December 31,
2017
|
|
6.25:1.00
|
|
March
31, 2018
|
|
5.50:1.00
|
|
June
30, 2018
|
|
5.25:1.00
|
|
September 30,
2018
|
|
5.00:1.00
|
|
December 31,
2018
|
|
4.75:1.00
|
|
March
31, 2019
|
|
4.75:1.00
|
|
June
30, 2019
|
|
4.50:1.00
|
|
September 30,
2019
|
|
4.50:1.00
|
|
December 31,
2019
|
|
4.25:1.00
|
|
March
31, 2020
|
|
4.25:1.00
|
|
June
30, 2020
|
|
4.25:1.00
|
|
September 30, 2020
and each Fiscal Quarter ending thereafter
|
|
4.25:1.00
|
(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, 2017,
for the four Fiscal Quarter period then ended to be less than the
correlative amount indicated:
|
Fiscal Quarter
|
|
Consolidated Adjusted EBITDA
|
|
March
31, 2017
|
|
$
13,250,000
|
|
June
30, 2017
|
|
$
13,250,000
|
|
September 30,
2017
|
|
$
13,250,000
|
|
December 31,
2017
|
|
$
13,250,000
|
|
March
31, 2018
|
|
$
13,500,000
|
|
June
30, 2018
|
|
$
13,500,000
|
|
September 30,
2018
|
|
$
14,000,000
|
|
December 31,
2018
|
|
$
14,000,000
|
|
March
31, 2019
|
|
$
14,500,000
|
|
June
30, 2019
|
|
$
14,500,000
|
|
September 30,
2019
|
|
$
15,000,000
|
|
December 31,
2019
|
|
$
15,000,000
|
|
March
31, 2020
|
|
$
15,000,000
|
|
June
30, 2020
|
|
$
15,000,000
|
|
September 30, 2020
and each Fiscal Quarter ending thereafter
|
|
$
15,000,000
|
(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:
|
Fiscal Year
|
|
Consolidated Growth Capital Expenditures
|
|
December 31,
2017
|
|
$8,000,000
|
|
December 31,
2018
|
|
$2,500,000
|
|
December 31,
2019
|
|
$4,000,000
|
|
December 31, 2020
and each Fiscal Year ending thereafter
|
|
$4,000,000
|
(e)
Maximum
Consolidated Corporate Overhead
. Holdings shall not permit Consolidated Corporate
Overhead to exceed $2,750,000 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.
(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;
(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 Restatement
Date to the date of determination;
(f)
the
Closing Date Acquisitions;
(g)
the
Restatement Date Acquisition; and
(h)
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.
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 Restatement 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 Restatement 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
Restatement 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
Restatement 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.
6.16.
Compliance
with Reporting Requirements.
From and after the Restatement
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
.
Subject to 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 $8,500,000. It is understood and
agreed that the Credit Parties shall be required to deliver bonds
or other financial assurance instruments to the Missouri and
Virginia Departments of Natural Resources with respect to such
closure and post-closure liabilities.
7.1.
Guaranty of the
Obligations
.
(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.
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;
(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.
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.
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.
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.
(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.
(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
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
(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
(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.
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.
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.
(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).
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, Tranche B Term Loan, MDTL Term
Loan and/or Revolving Loans on the Restatement 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 Restatement Date and on the date of funding of
such Loans.
(c)
Each
Lender (i) represents and warrants that as of the Restatement 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 Capital Stock held by Goldman Sachs & Co.) and (ii)
covenants and agrees that from and after the Restatement 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.
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.
(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.
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.
(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.
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), 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) 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
Restatement 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
(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), 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
Restatement 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.
(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, Tranche
B 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).
(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 Restatement 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.
(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.
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).
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 (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT
LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS
WITH RESPECT TO POST-JUDGMENT INTEREST) 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
THIS AGREEMENT 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.
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.
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 Restatement 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.
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.
10.22.
Amendment and Restatement.
(a) Effective
upon satisfaction of the conditions set forth in Section 3.1, this
Agreement amends, restates, supersedes and replaces the Prior
Credit Agreement in its entirety. This Agreement constitutes an
amendment and restatement of the Prior Credit Agreement and is not,
and is not intended by the parties to be, a novation of the Prior
Credit Agreement. All rights and obligations of the parties shall
continue in effect, except as otherwise expressly set forth herein.
Without limiting the foregoing, except as expressly set forth
herein, no Default or Event of Default existing under the Prior
Credit Agreement as of the Restatement Date shall be deemed waived
or cured by this amendment and restatement thereof, except to the
extent that such Default or Event of Default would not otherwise be
a Default or Event of Default hereunder after giving effect to the
provisions hereof. After giving effect to this amendment and
restatement, as of the Restatement Date, the Term Loan Commitments
of the Lenders under this Agreement are set forth on Appendix A.
All references in the other Credit Documents to the Prior Credit
Agreement shall be deemed to refer to and mean this Agreement, as
the same may be further amended, supplemented, and restated from
time to time. In addition to the foregoing, each Collateral
Document, as amended or amended and restated as contemplated
herein, shall remain in full force and effect and shall continue to
secure the Obligations.
(b) Each
Credit Party ratifies and confirms the terms of the Credit
Documents executed prior to the date hereof, and its obligations
hereunder and thereunder, after giving effect to the amendment and
restatement of this Agreement and the modifications contemplated
hereby. Each Guarantor acknowledges that, notwithstanding anything
to the contrary contained herein or in any other document
evidencing any indebtedness of Companies to the Lenders or any
other obligation of the Companies, or any actions now or hereafter
taken by the Lenders with respect to any obligation of the
Companies, the obligations of the Guarantors under Article 7 of
this Agreement (i) are and shall continue to be a primary
obligation of the Guarantors, (ii) are and shall continue to be an
absolute, unconditional, joint and several, continuing and
irrevocable guaranty of payment, and (iii) are and shall continue
to be in full force and effect in accordance with their terms.
Nothing contained herein to the contrary shall release, discharge,
modify, change or affect the original liability of the Guarantors
under Article 7 of this Agreement. Each Credit Party hereby
reaffirms the security interests and liens granted under the Credit
Documents and acknowledges that, as of the date hereof and after
giving effect to the transactions contemplated by this Agreement,
the security interests and liens granted to the Agents and the
other Secured Parties under the Credit Documents are in full force
and effect, are properly perfected and are enforceable in
accordance with the terms of this Agreement and the other Credit
Documents.
(c)
As
of the date hereof, the Events of Default set forth on Schedule
10.22 (the “
Specified Events of
Default
”) have occurred
and are continuing. The Lenders hereby waive the Specified Events
of Default. Nothing herein, nor any communications among
Administrative Agent, any Lender or any Credit Party shall be
deemed a waiver with respect to any Events of Default (other than
the Specified Events of Default), or any future failure of any
Credit Party to comply fully with any provision of this Agreement
or any provision of any other Credit Document (including, but not
limited to, any possible future Event of Default of which the
Administrative Agent or any Lender may have been
advised).
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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 S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
WASTE SOLUTIONS, INC., as Holdings
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Chief Executive Officer
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
WASTE OPERATIONS, INC.
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Chief Executive Officer
MERIDIAN
LAND COMPANY, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
CHRISTIAN
DISPOSAL, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
FWCD,
LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
THE
CFS GROUP, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
RWG5,
LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
WASTE MISSOURI, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
INNOVATIONS, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
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
APPENDIX
A-1
TO
CREDIT AND GUARANTY AGREEMENT
Tranche
A Term Loan Commitments
|
Lender
|
TrancheA Term Loan Commitment
|
Pro Rata Share
|
|
Goldman Sachs
Specialty Lending Holdings, Inc.
|
$
65,500,000.00
|
100
%
|
|
Total
|
$
65,500,000.00
|
100
%
|
APPENDIX
A-2
TO
CREDIT AND GUARANTY AGREEMENT
Tranche
B Term Loan Commitments
|
Lender
|
TrancheB Term Loan Commitment
|
Pro Rata Share
|
|
Goldman Sachs
Specialty Lending Holdings, Inc.
|
$
8,600,000.00
|
100
%
|
|
Total
|
$
8,600,000.00
|
100
%
|
APPENDIX
A-3
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-4
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
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
Meridian Waste
Operations, Inc.
Christian Disposal,
LLC
FWCD,
LLC
The CFS
Group, LLC
The CFS
Group Disposal & Recycling, LLC
RWG5,
LLC
Meridian Waste
Missouri, LLC
Meridian
Innovations, 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
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
SCHEDULE
5.15
CERTAIN
POST CLOSING MATTERS
1.
On
or prior to the date that is 15 days following the Restatement
Date, the Credit Parties shall have delivered an original stock
certificate and undated stock power, executed in blank, with
respect to the Capital Stock in Mobile Science, Inc. owned by the
Credit Parties or otherwise caused the Collateral Agent to have a
perfected First Priority Lien on such Capital Stock.
2.
On or prior to the
date that is 30 days following the Restatement Date the Credit
Parties shall have obtained the consent of each of Commercial
Credit Group, Mack Financial (Volvo Financial) and Wells Fargo
Bank, N.A. to the transfer of each Capital Lease with CFS, CFS
Disposal and RWG5 transferred in connection with the WSI
Acquisition.
3.
On or prior to the
date that is 30 days following the Restatement Date, the Credit
Parties shall have caused each Deposit Account of CFS, CFS Disposal
and RWG5 to be a Controlled Account.
4.
On or prior to the
date that is 30 day following the Restatement Date, the Credit
Parties shall have taken all such actions and executed and
delivered, or caused 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 Material Real Estate Asset
acquired in the WSI Acquisition.
5.
On or prior to the
date that is 45 days following the Restatement Date, the Credit
Parties shall have delivered a certificate from Companies’
insurance broker or other evidence satisfactory to the Collateral
Agent 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.
SCHEDULE
10.22
SPECIFIED
EVENTS OF DEFAULT
1. The Events of
Default that have occurred and are continuing under Section 8.1(c)
of this Agreement due to the failure of the Credit Parties to
deliver (i) the monthly reporting required under Section 5.1(a) for
the fiscal months ended November 30, 2016 and December 31, 2016 on
or prior to the dates required under Section 5.1(a), (ii) the
compliance certificate for the financial statements referred to in
clause (i) on or prior to the date required under Section 5.1(d),
and (iii) when due prior to the Restatement Date, the items
required under Sections 5.1(f), 5.1(i), 5.1(p) and 5.1(q). In
addition, the Companies have notified the Administrative Agent and
Lenders that they expect to deliver the financial statements
required under Section 5.1(b) for the Fiscal Quarter ending
December 31, 2016 and the related Compliance Certificate required
under Section 5.1(d) after the dates required under such
Sections.
2. The Events of
Default that have occurred and are continuing under Section 8.1(c)
of this Agreement due to the failure of the Credit Parties to
satisfy the requirements of Section 5.10 of the Credit Agreement
with respect to each of Meridian Missouri and Meridian
Innovations.
AMENDED
AND RESTATED TRANCHE A TERM LOAN NOTE
$65,500,000.00
February 15,
2017
|
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
”),
MERIDIAN WASTE OPERATIONS, INC.
, a New
York corporation (“
Operations
”),
CHRISTIAN DISPOSAL LLC
, a Missouri
limited liability company (“
Christian Disposal
”),
FWCD, LLC
, a Missouri limited liability
company (“
FWCD
”),
THE CFS GROUP, LLC
, a Virginia limited
liability company (“
CFS
”),
THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC
, a Virginia limited liability company
(“
CFS
Disposal
”), and
RWG5,
LLC
, a Virginia limited liability company
(“
RWG5
”),
MERIDIAN WASTE MISSOURI,
LLC
, a Missouri limited liability company
(“
Meridian
Missouri
”), and
MERIDIAN INNOVATIONS, LLC
, a
Georgia limited liability company (“
Innovations
”, and together with
HTS MWD, HTS GWD, MLC, Operations, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5 and Meridian Missouri, 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 SIXTY-FIVE MILLION FIVE HUNDRED
THOUSAND ($65,000,000.00) 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 Amended and Restated
Credit and Guaranty Agreement, dated as of February 15,
2017
(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 $65,500,000 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.
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]
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 S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
WASTE OPERATIONS, INC.
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Chief Executive Officer
MERIDIAN
LAND COMPANY, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
CHRISTIAN
DISPOSAL LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
FWCD,
LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
THE
CFS GROUP, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
|
[Signature
Page to Amended and Restated Tranche A Term Loan Note]
3
|
|
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
RWG5,
LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
WASTE MISSOURI, LLC
By:
s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
INNOVATIONS, LLC
By:
s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
|
[Signature Page to
Amended and Restated Tranche A Term Loan Note]
4
TRANCHE
B TERM LOAN NOTE
$8,600,000.00
February 15,
2017
|
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
”),
MERIDIAN WASTE OPERATIONS, INC.
, a New
York corporation (“
Operations
”),
CHRISTIAN DISPOSAL LLC
, a Missouri
limited liability company (“
Christian Disposal
”),
FWCD, LLC
, a Missouri limited liability
company (“
FWCD
”),
THE CFS GROUP, LLC
, a Virginia limited
liability company (“
CFS
”),
THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC
, a Virginia limited liability company
(“
CFS
Disposal
”), and
RWG5,
LLC
, a Virginia limited liability company
(“
RWG5
”),
MERIDIAN WASTE MISSOURI,
LLC
, a Missouri limited liability company
(“
Meridian
Missouri
”), and
MERIDIAN INNOVATIONS, LLC
, a
Georgia limited liability company (“
Innovations
”, and together with
HTS MWD, HTS GWD, MLC, Operations, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5 and Meridian Missouri, 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
EIGHT MILLION AND SIX HUNDRED THOUSAND
DOLLARS
($8,600,000.00) 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 Amended and Restated
Credit and Guaranty Agreement, dated as of February 15,
2017
(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 B Term Loan Notes” in the
aggregate principal amount of $8,600,000.00 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.
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]
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 S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
WASTE OPERATIONS, INC.
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title: Chief
Executive Officer
MERIDIAN
LAND COMPANY, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
CHRISTIAN
DISPOSAL LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
FWCD,
LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
THE
CFS GROUP, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
|
[Signature
Page to Tranche B Term Loan Note]
3
|
|
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
RWG5,
LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
WASTE MISSOURI, LLC
By:
s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
INNOVATIONS, LLC
By:
s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
|
[Signature Page to
Tranche B Term Loan Note]
4
AMENDED
AND RESTATED MDTL NOTE
Principal
Amount: $10,000,000.00
February 15,
2017
|
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
”),
MERIDIAN WASTE OPERATIONS, INC.
, a New
York corporation (“
Operations
”),
CHRISTIAN DISPOSAL LLC
, a Missouri
limited liability company (“
Christian Disposal
”),
FWCD, LLC
, a Missouri limited liability
company (“
FWCD
”),
THE CFS GROUP, LLC
, a Virginia limited
liability company (“
CFS
”),
THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC
, a Virginia limited liability company
(“
CFS
Disposal
”), and
RWG5,
LLC
, a Virginia limited liability company
(“
RWG5
”),
MERIDIAN WASTE MISSOURI,
LLC
, a Missouri limited liability company
(“
Meridian
Missouri
”), and
MERIDIAN INNOVATIONS, LLC
, a
Georgia limited liability company (“
Innovations
”, and together with
HTS MWD, HTS GWD, MLC, Operations, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5 and Meridian Missouri, 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 Amended and Restated Credit and Guaranty Agreement, dated
as of February 15, 2017 (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.
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]
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 S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
WASTE OPERATIONS, INC.
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title: Chief
Executive Officer
MERIDIAN
LAND COMPANY, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
CHRISTIAN
DISPOSAL LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
FWCD,
LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
THE
CFS GROUP, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
|
[
[Signature
Page to Amended and Restated MDTL Term Loan Note]
3
|
|
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
RWG5,
LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
WASTE MISSOURI, LLC
By:
s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
INNOVATIONS, LLC
By:
s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
|
[Signature
Page to Amended and Restated MDTL Term Loan Note]
4
|
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
|
|
|
|
|
|
|
|
|
|
|
|
|
AMENDED
AND RESTATED REVOLVING LOAN NOTE
$5,000,000.00
February 15,
2017
|
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
”),
MERIDIAN WASTE OPERATIONS, INC.
, a New
York corporation (“
Operations
”),
CHRISTIAN DISPOSAL LLC
, a Missouri
limited liability company (“
Christian Disposal
”),
FWCD, LLC
, a Missouri limited liability
company (“
FWCD
”),
THE CFS GROUP, LLC
, a Virginia limited
liability company (“
CFS
”),
THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC
, a Virginia limited liability company
(“
CFS
Disposal
”), and
RWG5,
LLC
, a Virginia limited liability company
(“
RWG5
”),
MERIDIAN WASTE MISSOURI,
LLC
, a Missouri limited liability company
(“
Meridian
Missouri
”), and
MERIDIAN INNOVATIONS, LLC
, a
Georgia limited liability company (“
Innovations
”, and together with
HTS MWD, HTS GWD, MLC, Operations, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5 and Meridian Missouri, 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) 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 Amended and Restated
Credit and Guaranty Agreement, dated as of February 15, 2017 (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.
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]
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 S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
WASTE OPERATIONS, INC.
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title: Chief
Executive Officer
MERIDIAN
LAND COMPANY, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
CHRISTIAN
DISPOSAL LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
FWCD,
LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
THE
CFS GROUP, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
|
[Signature
Page to Amended and Restated Revolving Loan Note]
3
|
|
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
RWG5,
LLC
By:
/s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
WASTE MISSOURI, LLC
By:
s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
MERIDIAN
INNOVATIONS, LLC
By:
s/ Jeffrey S.
Cosman
Name: Jeffrey S.
Cosman
Title:
Manager
|
[Signature Page to
Amended and Restated Revolving Loan Note]
4
|
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
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
4.6
AMENDED AND RESTATED
PLEDGE
AND SECURITY AGREEMENT
dated
as of February 15, 2017
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
|
2
|
|
1.2
|
Definitions; Interpretation
|
8
|
|
SECTION 2. GRANT
OF SECURITY.
|
9
|
|
2.1
|
Grant of Security
|
9
|
|
2.2
|
Certain Limited Exclusions
|
9
|
|
SECTION 3.
SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
|
10
|
|
3.1
|
Security for Obligations
|
10
|
|
3.2
|
Continuing Liability Under Collateral
|
10
|
|
SECTION 4.
REPRESENTATIONS AND WARRANTIES AND COVENANTS.
|
10
|
|
4.1
|
Generally.
|
10
|
|
4.2
|
Equipment and Inventory
|
13
|
|
4.3
|
Receivables
|
15
|
|
4.4
|
Investment Related Property.
|
17
|
|
4.5
|
Material Contracts
|
24
|
|
4.6
|
Letter of Credit Rights
|
25
|
|
4.7
|
Intellectual Property
.
|
26
|
|
4.8
|
Commercial Tort Claims
|
29
|
|
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.
|
31
|
|
6.1
|
Power of Attorney
|
31
|
|
6.2
|
No Duty on the Part of Collateral Agent or Secured
Parties
|
33
|
|
SECTION 7.
REMEDIES.
|
33
|
|
7.1
|
Generally
.
|
33
|
|
7.2
|
Application of Proceeds
|
35
|
|
7.3
|
Sales on Credit
|
35
|
|
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.
|
40
|
|
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
This
AMENDED AND RESTATED
PLEDGE AND SECURITY
AGREEMENT
, dated as of February 15, 2017 (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:
WHEREAS
, reference is made to that
certain Credit and Guaranty Agreement, dated as of December 22,
2015 (as it may be amended, restated, supplemented or otherwise
modified from time to time, the “
Prior Credit Agreement
”), by and
among certain of the Companies (as defined below), Holdings, the
lenders party thereto from time to time (the “
Lenders
”), and
GOLDMAN SACHS SPECIALTY LENDING GROUP,
L.P.
(“
GSSLG
”), as Administrative Agent,
Collateral Agent and Lead Arranger;
WHEREAS
, in connection with the Prior
Credit Agreement, certain Grantors and the Collateral Agent entered
into that certain Pledge and Security Agreement, dated as of
December 22, 2015 (as it may be amended, restated, supplemented or
otherwise modified from time to time, the “
Prior Security Agreement
”),
whereby the Grantors party to the Prior Security Agreement granted
to the Collateral Agent for the benefit of the Collateral Agent and
the Secured Parties, a lien on and a security interest in certain
of each of such Grantor’s personal property in accordance
with the Prior Credit Agreement in order to the secure the payment
and performance of the obligations under the Prior Credit
Agreement;
WHEREAS
, the parties are amending and
restating the Prior Credit Agreement pursuant to that certain
Amended and Restated 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
”),
MERIDIAN WASTE OPERATIONS, INC.
, a New
York corporation (“
Operations
”),
CHRISTIAN DISPOSAL LLC
, a Missouri
limited liability company (“
Christian Disposal
”),
FWCD, LLC
, a Missouri limited liability
company (“
FWCD
”),
THE CFS GROUP, LLC
, a Virginia limited
liability company (“
CFS
”),
THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC
, a Virginia limited liability company
(“
CFS
Disposal
”), and
RWG5,
LLC
, a Virginia limited liability company
(“
RWG5
”),
MERIDIAN WASTE MISSOURI, LLC
, a Missouri
limited liability company (“
Meridian
Missouri
”), and
MERIDIAN INNOVATIONS, LLC
, a Georgia
limited liability company (“
Innovations
”, and together with
HTS MWD, HTS GWD, MLC, Operations, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5 and Meridian Missouri, 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
GSSLG
, as Administrative
Agent (in such capacity, “
Administrative Agent
”), Collateral
Agent and Lead Arranger;
WHEREAS
, it is a condition precedent to
the Credit Agreement that the Grantors and the Collateral Agent
enter into this Agreement to amend and restate the Prior Security
Agreement; and
NOW, THEREFORE
, in consideration of the
premises and the agreements, provisions and covenants herein
contained, each Grantor and the Collateral Agent agree that the
Prior Security Agreement is amended and restated 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.
“
Administrative Agent
” shall have
the meaning set forth in the recitals.
“Agreement”
shall have the
meaning set forth in the preamble.
“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.
“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).
“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.
“
New Grantors
” shall mean CFS
Group, CFS Disposal and RWG5.
“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.
“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.
“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.
“
Prior Credit Agreement
” shall have
the meaning set forth in the recitals.
“
Prior Security Agreement
” shall
have the meaning set forth in the recitals.
“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.
“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.
“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.
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;
(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.
SECTION
4.
REPRESENTATIONS AND WARRANTIES
AND COVENANTS.
(a)
Representations and
Warranties
. Each Grantor hereby represents and warrants, on
the Restatement 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;
(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;
(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;
(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
Restatement 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;
(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.
(a)
Representations and
Warranties
. Each Grantor represents and warrants, on the
Restatement 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
(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
(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;
(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 Restatement 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
”).
(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
(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 Restatement 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;
(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”.
(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
(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 Restatement 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 Restatement 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
(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.
(a)
Representations and
Warranties
. Each Grantor hereby represents and warrants, on
the Restatement 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;
(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 Restatement 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 Restatement 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 Restatement 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);
(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.
(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;
(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 Restatement 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.
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.
(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.
(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;
(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.
(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.
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.
(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.
(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.
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.
(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
(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.
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.
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.
SECTION
9.
CONTINUING SECURITY INTEREST;
TRANSFER OF LOANS.
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.
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.
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 amends and restates the Prior Security Agreement.
Each Grantor party to the Prior Security Agreement hereby reaffirms
the liens and security interests granted pursuant to the terms of
the Prior Security Agreement and its obligations thereunder, and
each New Grantor hereby agrees to be fully bound by the Prior
Security Agreement as if it had been party to and executed the
Prior Security Agreement. Each Grantor confirms that the security
interests granted pursuant to the terms of the Prior Security
Agreement continue to secure the Secured Obligations and remain in
full force and effect except as expressly modified hereby, and each
Grantor agrees that the liens securing the Collateral are perfected
first priority liens. No novation is intended or
implied.
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).
[
Signature Pages Follow
]
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 S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Chief Executive Officer
HERE
TO SERVE – MISSOURI WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
MERIDIAN
WASTE OPERATIONS, INC.
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Chief Executive Officer
MERIDIAN
LAND COMPANY, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
CHRISTIAN
DISPOSAL LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
FWCD,
LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
THE
CFS GROUP, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
RWG5,
LLC
By:
/s/ Jeffrey S.
Cosman
Name:
Jeffrey S. Cosman
Title:
Manager
GOLDMAN
SACHS SPECIALTY LENDING GROUP, L.P.,
as the
Collateral Agent
Name:
Stephen W. Hipp
Title:
Senior Vice President
Exhibit 10.1
Membership Interest Purchase Agreement
(Waste Services Industries, LLC)
This
Membership Interest Purchase Agreement (this “
Agreement
”) is entered
into as of February 15, 2017 (the “
Effective Date
”), by and
between Meridian Waste Solutions, Inc., a New York corporation
(“
Buyer
”), and Waste
Services Industries, LLC, a Delaware limited liability company
(“
Seller
”). Buyer and
Seller are referred to collectively herein as the
“
Parties
” and each a
“
Party
.”
BACKGROUND FACTS
Seller
owns all legal and beneficial right, title and interest in and to
all of the issued and outstanding membership interests of The CFS
Group, LLC, a Virginia limited liability company
(“
CFS
Group
”), The CFS Group Disposal & Recycling
Services, LLC, a Virginia limited liability company
(“
CFS
Disposal
”), and RWG5, LLC, a Virginia limited
liability company (“
RWG5
” and together with
CFS Group and CFS Disposal, the “
Companies
” and each a
“
Company
”).
The
Companies, collectively, (i) own fee simple title
to approximately 200+/- acres of real property located at 45
Old Mansion Road, Lunenburg Virginia, 23952, including all
Improvements, structures and fixtures located thereon and
appurtenances thereto, as more particularly described in
Exhibit A
attached
hereto (the “
Lunenburg Property
”),
which is operated as a municipal solid waste landfill on the
Lunenburg Property having not less than 250,000 cubic yards of
useable airspace at Closing (the “
Lunenburg Landfill
”),
together with all applicable state and local Permits, Governmental
Authorizations, Consents, Approvals, licenses, and any other
permits and approvals necessary or required to own, operate,
develop and construct the Lunenburg Landfill; (ii) own fee simple
title to (A) approximately 83+/- acres of real property located at
390 Industrial Drive, Petersburg, Virginia, 23803, (B)
approximately 2.926+/- acres of real property located at 2053 North
Factory Lane, Petersburg, Virginia 23803, and (C) approximately
8.6471+/- acres of real property located at 350 Industrial Drive,
Petersburg, Virginia 23803, including all Improvements, structures
and fixtures located thereon and appurtenances thereto, as more
particularly described in
Exhibit B
attached here to (the
“
Petersburg
Property
”), which the parcel described in the forgoing
(A) is operated as a municipal solid waste landfill on the
Petersburg Property having not less than 2,477,000 cubic yards of
useable airspace at Closing (the “
Petersburg Landfill
”) and
the parcels described in the forgoing (B) and (C) are intended for
use in the future expansion of the Petersburg Landfill, together
with all applicable state and local Permits, Governmental
Authorizations, Consents, Approvals, licenses, and any other
permits and approvals necessary or required to own, operate,
develop and construct the Petersburg Landfill; (iii) lease
approximately 1.265+/- acres of real property located at 337-B
Industrial Drive, Petersburg, Virginia, 23803, including all
Improvements, structures and fixtures located thereon and
appurtenances thereto, as more particularly described in
Exhibit C
attached
here to (the “
Transfer Station
Property
”), which is operated as a municipal solid
waste transfer station located on the Transfer Station Property
(the “
Transfer
Station
”), together with all applicable state and
local Permits, Governmental Authorizations, Consents, Approvals,
licenses, and any other permits and approvals necessary or required
to own or lease, operate, develop and construct the Transfer
Station; (iv) lease warehouse space in two buildings located
at 333-B and 333-C Industrial Drive, Petersburg, Virginia 23803, as
more particularly described in
Exhibit D
attached here to (the
“
Hauling Company
Property
”), which is operated as a residential,
commercial roll-off, and front load solid waste collection,
transportation and disposal business (the “
Hauling Company
Business
”), together with all applicable state and
local Permits, Governmental Authorizations, Consents, Approvals,
licenses, and any other permits and approvals necessary or required
to own or lease and operate the Hauling Company Business; and (v)
lease warehouse space located at 337 Industrial Drive, Petersburg,
Virginia, 23803, as more particularly described in
Exhibit E
attached hereto (the
“
DuPont Recycle
Property
”), which is operated as a recycling facility
for DuPont Tyvek post-industrial scrap collected by the Hauling
Company Business (the “
DuPont Recycle
Business
”). The Lunenburg Landfill, Petersburg
Landfill, Transfer Station, Hauling Company Business and DuPont
Recycle Business are collectively, the “
Businesses
” and each a
“
Business
.” The Lunenburg
Property, Petersburg Property, Transfer Station Property, Hauling
Company Property and DuPont Recycle Property are collectively, the
“
Properties
” and each a
“
Property
.”
Buyer
desires to purchase and acquire from Seller all of the issued and
outstanding membership interests of the Companies, and Seller
desires to sell all of the issued and outstanding membership
interests of the Companies to Buyer, all in accordance with the
terms and conditions set forth in this Agreement.
RECITAL OF CONSIDERATION
Now,
therefore, in consideration of the premises and the mutual
covenants and agreements contained herein, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending
to be legally bound, agree as follows:
SECTION
1
DEFINITIONS AND
USAGE
1.1
Definitions
. For purposes of
this Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires, initially capitalized terms
used in this Agreement have the meanings set forth in
Schedule 1.1
.
1.2
Interpretation and Usage
. In
this Agreement, unless a clear contrary intention appears: (a) the
singular number includes the plural number and vice versa; (b)
reference to any Person includes such Person’s successors and
assigns but, if applicable, only if such successors and assigns are
not prohibited by this Agreement, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually; (c) reference to any gender includes the other gender
and the neuter, as applicable; (d) reference to any agreement,
document or instrument means such agreement, document or instrument
as amended or modified and in effect from time to time in
accordance with the terms thereof; (e) reference to any Legal
Requirement means such Legal Requirement as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder, and reference to any section or other provision of any
Legal Requirement means that provision of such Legal Requirement
from time to time in effect and constituting the substantive
amendment, modification, codification, replacement or reenactment
of such section or other provision; (f) “hereunder,”
“hereof,” “hereto,” and words of similar
import will be deemed references to this Agreement as a whole and
not to any particular Section or other provision hereof or any
Exhibit or Schedule attached hereto; (g) “including”
(and with correlative meaning “include” and
“includes”) means including, without limiting the
generality of any description preceding such term, and will be
deemed to be followed by the words “without
limitation”; (h) Section headings are provided for
convenience of reference only and will not affect the construction
or interpretation of any provision hereof; (i) any references to
“Section”, “Schedule” or
“Exhibit” followed by a number or letter or combination
of the two refers to the corresponding Section, Schedule or Exhibit
of or to this Agreement; (j) with respect to the determination of
any period of time, “from” means “from and
including” and “to” means “to but
excluding”; and (k) references to documents, instruments or
agreements will be deemed to refer as well to all addenda,
exhibits, schedules or amendments thereto.
1.3
Legal Representation of the
Parties
. This Agreement was negotiated by the Parties with
the benefit of legal representation, and any rule of construction
or interpretation otherwise requiring this Agreement to be
construed or interpreted against any Party will not apply to any
construction or interpretation hereof.
1.4
Incorporation by Reference
. The
Parties agree that the Background Facts set forth above are true
and correct and are hereby incorporated herein by this
reference.
SECTION
2
PURCHASE OF THE
MEMBERSHIP INTERESTS FROM THE SELLER
2.1
Purchase and Sale of Membership
Interests
. On and subject to the terms and conditions of
this Agreement, Buyer agrees to purchase from Seller, and Seller
agrees to sell to Buyer, all of the membership interests in the
Companies, free and clear of all Liens (the “
Membership Interests
”),
for the consideration specified in
Section 2.2
.
2.2
Consideration
. For and in
consideration of the sale, assignment, transfer and conveyance of
the Membership Interests by Seller, Buyer agrees to pay to Seller,
as follows (the “
Purchase
Price
”):
(i)
Prior to the
execution of this Agreement, Buyer has deposited with Seller the
sum of One Million Five Hundred Thousand and 00/100 DOLLARS
($1,500,000.00) (the “
Deposit
”). The Deposit
has been used by Seller to pay the amounts set forth on
Schedule 2.2(i)
to the parties set forth on
Schedule
2.2(i)
.
(ii)
At the Closing,
Forty Million and no/100 Dollars ($40,000,000.00) (the “Cash
Purchase Price”), less the Deposit and amounts payable
pursuant to
Section
2.4
and subject to the Working Capital Adjustment set forth
at shall be delivered by Buyer to Seller by wire transfer pursuant
to the wiring instructions set forth on
Schedule 2.2(ii)
.
(iii)
Five Hundred
Thousand and no/100ths (500,000.00) shares of Buyer’s
restricted voting common stock, par value $0.025 per share (the
“
Purchase Price
Shares
”), shall be issued to Seller at
Closing.
(iv) The
Purchase Price shall be allocated in accordance with
Schedule
2.2(iv)
. After the Closing, the Parties shall make
consistent use of the allocation, fair market value and useful
lives specified in
Schedule 2.2(iv)
for all Tax
purposes and in all filings, declarations and reports with the IRS
in respect thereof, including the reports required to be filed
under Section 1060 of the Code. In any proceeding related to the
determination of any Tax, neither Buyer nor Seller shall contend or
represent that such allocation is not a correct
allocation.
2.3
Closing Date
. Unless Buyer and
Seller otherwise agree, the purchase and sale of the Membership
Interests will take place by facsimile transmission or by
electronic mail in PDF format of all required documents (with the
original executed documents to be delivered by overnight courier)
to the offices of Richard J. Dreger, located at 11660 Alpharetta
Highway, Building 700, Suite 730, Roswell, Georgia 30076, and will
occur within five Business Days after satisfaction of the required
conditions as set forth in this Agreement (“
Closing Date
” or
“
Closing
”). At Closing,
all of Seller’s right, title and interest in and to the
Membership Interests and in any such right, title or interest that
Seller may have or had with respect to the Businesses will be
transferred and conveyed to Buyer free and clear of all
Liens.
2.4
Payment
of Current Seller Liabilities; Retained Liabilities
.
Schedule 2.4
(to be
updated immediately prior to Closing) lists (i) the amount of
the aggregate Indebtedness of the Companies outstanding on the
Closing Date, all of which is to be paid at the Closing together
with all prepayment penalties and costs incurred or to be incurred
in connection with the repayment of any such Indebtedness; (ii) the
aggregate amount of all undischarged judgments against the
Companies; (iii) the aggregate amount of all obligations secured by
Tax Liens against the Companies as of the Closing Date;
(iv) the total of the aggregate mortgage debt secured by, and
the judgment Liens encumbering, and the federal Tax Liens filed
against, any of the Assets, including the Properties as of the
Closing Date, (v) any obligation of the Companies as of the Closing
Date to reimburse or advance amounts to any officer, director,
manager, employee or agent of the Companies, (vi) all Accounts
Payable for goods or services received by or performed for the
benefit of the Companies entirely prior to the Closing Date, and
(vii) the amount of any and all accrued obligations of the
Companies as of the Closing Date pursuant to: any employment,
severance, retention or termination agreement or Contract to which
any Company is a party, any bonus program or plan of any Company,
all Employee Benefit Plans of the Companies and all other employee
benefit plans and other employee benefits with respect to employees
of any Company, and any Company obligation relating to payroll,
vacation, sick leave, workers’ compensation, unemployment
benefits, pension benefits, employee stock option or profit-sharing
plans, health care plans or benefits or any other employee plans or
benefits of any kind for the current or former employees of the
Companies (subsections (i)-(vii) collectively, “
Current Seller
Liabilities
” and each a “
Current Seller
Liability
”); (viii) any Liability arising out of or
relating to services performed by the Companies in connection with
the Businesses entirely before the Closing Date; (ix) any Liability
under any Company Contract that arises after the Closing Date out
of or relating to any Breach or other action that occurred entirely
before the Closing Date; (x) any Liability under any Excluded
Contract; (xi) any Liability for (A) any Taxes relating to or
arising as a result of the operation of the Businesses prior to the
Closing Date, and (B) any Tax Liability of Seller that will arise
as a result of the sale of the Membership Interests pursuant to
this Agreement; (xii) (A) any Liability arising out of or relating
to any Company employee grievance arising out of or relating to
events or actions that occurred entirely before Closing, and (B)
any Liability to indemnify, reimburse or advance amounts to any
officer, director, member, manager, employee or agent of the
Companies arising out of or relating to events or actions that
occurred entirely before Closing; (xiii) any Liability arising out
of any Current Litigation Matters; and (xiv) any Liability of
Seller or the Companies based upon Seller’s acts occurring
after the Closing Date (collectively, subsections (viii) –
(xiv) the “
Retained
Liabilities
”).
Schedule 2.4
, when delivered
and updated at Closing by the Parties, will include wire transfer
instructions for creditors holding Indebtedness and any other
Current Seller Liabilities, and attached to
Schedule 2.4
will be pay-off
letters or instructions from such creditors or other payees. On or
prior to the Closing, Seller will pay all Current Seller
Liabilities not previously discharged by Seller by deduction from
the Purchase Price the amounts listed on
Schedule 2.4
and pursuant to
the pay-off letters or instructions from such creditors attached to
Schedule 2.4
.
Following the Closing, Seller will promptly obtain and file all
applicable Lien discharges for any Lien encumbering any Asset from
all applicable creditors and deliver copies of such filings to
Buyer. All Current Seller Liabilities and Retained Liabilities
shall remain the exclusive responsibility of Seller and will be
assigned to, retained, paid, performed and discharged exclusively
by Seller and will not be retained by the Companies nor assumed or
acquired by, or conveyed or transferred to, Buyer or any Related
Person of Buyer.
2.5
Closing
Obligations
.
(a)
Deliveries by Seller
. At the
Closing, Seller will deliver to Buyer: (i) the various
certificates, instruments, and documents referred to in
Section
6.1
.
(b)
Deliveries by Buyer
. At the
Closing, Buyer will deliver to Seller: (i) the various
certificates, instruments, and documents referred to in
Section 6.2
; and
(ii) the applicable consideration specified in
Section 2.2
.
2.6
Working Capital Adjustmen
ts.
The Cash Purchase Price shall be adjusted by the “Working
Capital Adjustment”, which shall be determined as
follows:
(i) Increased
by the following amounts:
A.
Prepaid items
representing the expenses incurred by the Companies in the Ordinary
Course of Business prior to the Closing Date for services to be
performed or goods to be received, in whole or in part, after the
Closing Date, as set forth on
Schedule 2.6(i)(A)
.
B.
Outstanding
Accounts Receivable of the Companies as of the Closing Date, which
are set forth on
Schedule
2.6(i)(B)
. For the purposes of calculating the Estimated
Working Capital Adjustment, the outstanding Accounts Receivable of
the Companies as of the Closing Date shall be based upon the
following aging categories and amounts:
(1)
95% of the Accounts
Receivables outstanding for 30 days or less as of the Closing
Date;
(2)
70% of the Accounts
Receivables outstanding for more 30 days but less than 60 days as
of the Closing Date; and
(3)
25% of the Accounts
Receivables outstanding for more 60 days but less than 90 days as
of the Closing Date.
Notwithstanding the
foregoing calculation method with respect to the Estimated Working
Capital Adjustment, for the purposes of calculating the Final
Working Capital Determination and the Final Statement, the value of
the outstanding Accounts Receivable of the Companies as of the
Closing Date shall equal the amounts actually collected within 90
days after the Closing Date with respect to the specific Accounts
Receivable set forth on
Schedule
2.6(i)(B)
.
(ii) Decreased
by the following amounts:
A.
The amount of any
deferred revenue or prepaid income for services to be performed in
connection with the Ordinary Course of Business of the Companies on
or after the Closing Date as described on
Schedule
2.6(ii)(A)
.
B.
The amounts set
forth on
Schedule
2.6(ii)(B)
which constitute the remaining amounts to be paid
on or after the Closing Date for the current terms of the equipment
leases described on
Schedule
2.6(ii)(B)
.
Five
(5) business days prior to the Closing, Seller shall have delivered
to Buyer the estimated Working Capital Adjustment (the
“
Estimated Working
Capital Adjustment
”), which shall be attached to this
Agreement as
Schedule
2.6
used for determining the preliminary amount of the
Working Capital Adjustment paid to Seller at Closing.
Within
ninety (90) calendar days after the Closing Date, Buyer shall
prepare and deliver to Seller: (i) a balance sheet as of the
Closing Date (the “
Closing Date Balance
Sheet
”), and (ii) a statement reflecting Buyer’s
determination of the Working Capital Adjustment as of the Closing
Date (the “
Final
Working Capital Determination
”) and the calculation
thereof (the “
Final
Statement
”). Buyer shall provide Seller with access to
copies of all work papers and other relevant documents to verify
the entries contained in the Closing Date Balance Sheet and the
Final Statement. Seller shall have a period of thirty (30) calendar
days after delivery of the Closing Date Balance Sheet and the Final
Statement to review them and make any written objections Seller may
have in writing to Buyer. If written objections to the Closing Date
Balance Sheet and Final Statement are delivered to Buyer within
such thirty (30) day period, then Buyer and Seller shall attempt to
resolve the matter or matters in dispute. If no written objections
are made by Seller within such thirty (30) day period, the Final
Net Working Capital Determination shall be deemed accepted by
Seller and the Purchase Price shall be adjusted by the amount of
the Working Capital Adjustment pursuant to the Final
Statement.
If
disputes with Final Working Capital Determination cannot be
resolved by Buyer and Seller within thirty (30) calendar days after
the delivery of Seller’s objections to the Closing Date
Balance Sheet or the Final Statement, then the specific matters in
dispute (the “
Disputed Amounts
”), along
with each party’s written calculation of the Final Working
Capital Determination, the Closing Date Balance Sheet, the Final
Statement, Seller’s written objections, and all work papers
related thereto (the “
Determination Materials
”)
shall be submitted to an independent certified accounting firm (the
“
Accounting
Arbitrator
”) with an office in Richmond, Virginia
mutually agreed to by the Parties. The Accounting Arbitrator shall
review the Determination Materials and shall determine, in
accordance with this paragraph, the Final Working Capital
Determination (and any adjustment, if any, shall only be based upon
the Disputed Amounts), which may not be outside the range comprised
of the parties Final Working Capital Determinations, and which
shall be final, binding and non-appealable. Within five (5)
calendar days after delivery of such opinion to Buyer and Seller,
the Purchase Price shall be adjusted by the amount of the Final
Working Capital Determination by the Accounting Arbitrator. All
fees and other costs charged by the Accounting Arbitrator shall be
borne based upon the percentage that the amount actually contested
but not awarded to Seller or Buyer, respectively, bears to the
aggregate amount actually contested by Seller and
Buyer.
If the
Final Net Working Capital Determination is less than the Estimated
Working Capital Adjustment, Seller shall pay the amount of such
shortfall to Purchaser within ten (10) days of the deemed
acceptance of the Final Net Working Capital Determination or the
receipt of the Final Working Capital Determination from the
Accounting Arbitrator, as the case may be. If the Final Net Working
Capital Determination is greater than the Estimated Working Capital
Adjustment, Purchaser shall pay Seller the amount of such
difference within ten (10) days of the deemed acceptance of the
Final Net Working Capital Determination or the receipt of the Final
Working Capital Determination from the Accounting Arbitrator, as
the case may be. The parties shall make any deliveries or payment
required by this Section 2.6 within ten (10) days after (i) any
undisputed portion of the Final Net Working Capital Determination
is deemed accepted by Seller, and (ii) for the Disputed Amounts,
the determination of the Final Working Capital Determination. Any
payments made pursuant to this paragraph shall be treated for all
purposes as an adjustment to the Purchase Price.
In the
event any amount from any of the Accounts Receivable set forth on
Schedule
2.6(i)(B)
is not actually collected by the Companies within
90 days after the Closing Date (and the failure of such collection
is taken into account in connection with the Final Working Capital
Determination) but is subsequently collected by the Companies, the
Companies shall pay such amount to Seller within 5 Business Days of
receipt thereof. The Companies shall bill and send invoices with
respect to all Accounts Receivable set forth on
Schedule
2.6(i)(B)
in the ordinary course consistent with the past
practice of the Companies but shall have no further duties to
collect such Accounts Receivable. All amounts collected by the
Companies from any customer or affiliate of a customer owing
amounts related to any of the Accounts Receivable set forth on
Schedule
2.6(i)(B)
shall apply to the oldest outstanding invoices of
such customer or its affiliate first.
2.7
Closing Costs;
Expenses
.
(a)
Seller agrees to
pay all documentary stamp tax or other transfer taxes relating to
the transfer of the Membership Interests to Buyer. Seller shall be
solely responsible for all State or Federal income Taxes or similar
Taxes imposed on Seller as a result of the Contemplated
Transactions. Seller acknowledges and agrees that neither the Buyer
nor the Companies shall have a duty or obligation to pay any Taxes
attributable to Seller as a result of the purchase and sale of the
Membership Interests.
(b)
Each Party shall be
solely responsible for any legal or accounting fees, brokerage or
finders’ fees or agents’ commissions or other similar
payments incurred by or agreed to by such Party in connection with
the execution and delivery of this Agreement or the completion of
the Contemplated Transactions.
(c)
Property taxes,
transaction privilege taxes and periodic fees, if any, related to
the ownership or operation of the Property, Assets or the Business
(but not State or Federal income taxes) and all other applicable
taxes and assessments related to the Assets, Businesses and
Properties will be prorated; provided, however, that if the rate
and/or amount of the taxes for the year of the Closing are not
available on the Closing Date, such taxes will be prorated based
upon the prior tax year’s assessment. Seller will be
responsible for all such taxes attributable to the Assets, Business
and Property through the Closing Date and Buyer will be responsible
for all such taxes attributable to the Assets from and after the
Closing Date. If Buyer undertakes any dispute, protest or request
for reassessment with respect to all or any portion of taxes for
the tax year in which the Closing occurs, or any previous year, any
refund relating to any previous year will be the property of
Seller, and any refund relating to the tax year in which the
Closing occurs (reduced by the out-of-pocket costs incurred in
regard to such dispute, protest or request for reassessment) will
be prorated between Seller and Buyer as of the Closing
Date.
(d)
Payroll
obligations, including salaries and payroll taxes will be prorated
at Closing.
SECTION
3
REPRESENTATIONS AND
WARRANTIES CONCERNING
PURCHASE AND SALE
OF THE MEMBERSHIP INTERESTS OF THE COMPANIES
3.1
Representations and Warranties of
Seller
. In order to induce Buyer to enter into this
Agreement and consummate the Contemplated Transactions, Seller
represents and warrants to Buyer as follows:
(a)
Organization of Seller
. Seller
is a limited liability company duly organized, validly existing,
and in good standing under the laws of the State of Delaware.
Seller is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such
qualification is required, except those jurisdictions where the
failure to qualify would not have a Material Adverse
Effect.
(b)
Authorization of Transaction
.
Seller has full power and legal capacity to execute and deliver
this Agreement, and all other agreements and written instruments to
which Seller is a party as contemplated hereby, and to perform its
obligations hereunder and thereunder. This Agreement, and such
other agreements and written instruments, constitute the valid and
legally binding obligations of Seller, enforceable in accordance
with their terms and conditions, except as enforcement thereof may
be limited by applicable Insolvency Laws. The execution, delivery,
and performance of this Agreement and all other agreements
contemplated hereby have been duly authorized by Seller. Seller has
all right, power and capacity to execute and deliver this
Agreement, and all other agreements, documents and written
instruments to be executed by Seller in connection with the
Contemplated Transactions, and to perform its obligations under
this Agreement and all such other agreements, documents and written
instruments.
(c)
No Conflict with Restrictions; No
Default
. Except as set forth on
Schedule
3.1(c)
, neither the execution, delivery, and performance of
this Agreement nor Seller’s performance of and compliance
with the terms and provisions contemplated hereby (i) will conflict
with, violate, or result in a Breach of any of the terms,
covenants, conditions, or provisions of any Legal Requirements in
effect on the date hereof applicable to, or any Order, Consent or
Governmental Authorization of any Governmental Body directed to, or
binding on Seller, (ii) will conflict with, violate, result in a
Breach of, or constitute a default under any of the terms,
conditions, or provisions of any agreement or instrument to which,
Seller is a party or by which Seller is or may be bound or to which
any of their properties or assets is subject, (iii) will conflict
with, violate, result in a Breach of, constitute a default under
(whether with notice or lapse of time or both), accelerate or
permit the acceleration of the performance required by, give to
others any material interests or rights, or require any Consent
under any indenture, mortgage, lease agreement, or instrument to
which either Seller is a party or by which Seller or Seller’s
property or assets is or may be bound, or (iv) will result in the
creation or imposition of any Lien upon any of the Properties or
Assets of the Companies, or upon the Membership Interests, or cause
Buyer (or any Related Person thereof) or the Companies to become
subject to, or to become liable for the payment of, any
Tax.
(d)
Consents; Governmental
Authorizations
. Except as set forth on
Schedule
3.1(d)
, Seller is not required to give any notice to, or
obtain any Consent from, any Person in connection with the
execution and delivery of this Agreement or the consummation of any
of the Contemplated Transactions. Any registration, declaration, or
filing with, or Consent, or Governmental Authorization or Order by
any Governmental Body that is required in connection with the valid
execution, delivery, acceptance, and performance by Seller under
this Agreement or the consummation by Seller of any transaction
contemplated hereby will be completed, made, or obtained on or
before the Closing Date.
(e)
Litigation
. Except as set forth
in
Schedule
3.1(e)
, there are no Proceedings pending or, to the
Knowledge of Seller and the Companies, threatened against or
affecting Seller or any of their properties, assets, rights, or
businesses in any court or before or by any Governmental Body that
could, if adversely determined (or, in the case of an
investigation, could lead to any Proceeding that could, if
adversely determined), reasonably be expected to materially impair
Seller’s ability to perform its obligations under this
Agreement or to have a Material Adverse Effect on the Companies;
and Seller has not received any currently effective notice of any
default, and Seller is not in default, under any applicable Order
of any Governmental Body that could reasonably be expected to
impair Seller’s ability to perform its obligations under this
Agreement or to have a Material Adverse Effect on the
Companies.
(f)
Brokers’ Fees
. Seller has
no obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the Contemplated
Transactions.
(g)
Membership Interests
. As of the
Closing Date, Seller will hold of record and will own beneficially
all of the issued and outstanding Membership Interests of the
Companies as described in
Section 4.2
, free and clear of
any restrictions on transfer (other than any restrictions under the
Securities Act and state securities laws), Taxes, Liens, options,
warrants, purchase rights, contracts, commitments, equities,
claims, and demands. Seller is not a party to any option, warrant,
purchase right, or other Contract or commitment that could require
Seller to sell, transfer, or otherwise dispose of any Membership
Interests or other equity interests of the Companies (other than
this Agreement). Seller is not a party to any voting trust, proxy,
or other agreement or understanding with respect to the voting of
any of the Membership Interests of the Companies. At Closing, upon
payment of the Purchase Price as herein provided pursuant to
Section 2.2
, good
and valid title to the Membership Interests described in
Section 4.2
will
pass to Buyer, free and clear of all Liens, restrictions on
transfer (other than any restrictions under the Securities Act and
state securities laws), Taxes, options, warrants, purchase rights,
contracts, commitments, equities, claims, and demands.
(h)
Exempt Transaction
. Assuming
the accuracy of the representations and warranties of Buyer set
forth in
Section
3.2
, the sale and exchange of the Membership Interests of
the Companies as contemplated herein will be exempt from the
registration requirements of the Securities Act, and will be exempt
from registration and qualification under the registration or
qualification requirements of all applicable state securities laws.
Seller has not taken and will not take any action that would cause
the loss of any such exemption. Assuming the accuracy of the
representations and warranties of Buyer set forth in
Section 3.2
, the sale and
exchange of the Membership Interests of the Companies as
contemplated herein will comply with all applicable Legal
Requirements.
3.2
Representations and Warranties of
Buyer
. Buyer represents and warrants to Seller that the
statements contained in this
Section 3.2
are correct and
complete:
(a)
Organization of Buyer
. Buyer is
a corporation duly organized, validly existing, and in good
standing under the laws of the State of New York. Buyer is duly
authorized to conduct business and is in good standing under the
laws of each jurisdiction where such qualification is required,
except those jurisdictions where the failure to qualify would not
have a Material Adverse Effect.
(b)
Authorization of Transaction
.
Buyer has full power and authority to execute and deliver this
Agreement, and all other agreements and written instruments to
which Buyer is a party as contemplated hereby, and to perform its
obligations hereunder and thereunder. This Agreement, and such
other agreements and written instruments, constitutes the valid and
legally binding obligation of Buyer, enforceable in accordance with
its terms and conditions, except as enforcement thereof may be
limited by applicable Insolvency Laws. The execution, delivery, and
performance of this Agreement and all other agreements contemplated
hereby have been duly authorized by Buyer. Buyer has all right,
power and capacity to execute and deliver this Agreement, and all
other agreements, documents and written instruments to be executed
by Buyer in connection with the Contemplated Transactions, and to
perform its obligations under this Agreement and all such other
agreements, documents and written instruments.
(c)
Notices and Consents
. Except as
set forth on
Schedule
3.2(c)
, Buyer is not required to give any notice to, or
obtain any Consent from, any Person in connection with the
execution and delivery of this Agreement or the consummation of any
of the Contemplated Transactions.
(d)
Litigation
. There are no
Proceedings pending or, to the Knowledge of Buyer, threatened
against or affecting Buyer or any of its properties, assets,
rights, or businesses in any court or before or by any Governmental
Body that could, if adversely determined (or, in the case of an
investigation, could lead to any Proceeding that could, if
adversely determined), reasonably be expected to materially impair
Buyer’s ability to perform its obligations under this
Agreement; and Buyer has not received any currently effective
written notice of any default, and Buyer is not in default, under
any applicable Order of any Governmental Body that could reasonably
be expected to impair Buyer’s ability to perform its
obligations under this Agreement.
(e)
Taxes
and Tax Returns
. Except as shown on Schedule 3.2(e), each of
Buyer and its subsidiaries has duly and timely filed (including all
applicable extensions) all material Tax returns required to be
filed by it on or before the Effective Date (all such returns being
accurate and complete in all material respects), has paid all Taxes
shown thereon as arising and has duly paid or made provision for
the payment of all Taxes that have been incurred or are due or
claimed to be due from it by federal, state, foreign or local
taxing authorities other than Taxes that are not yet delinquent or
are being contested in good faith, have not been finally determined
and have been adequately reserved against. Except as shown on
Schedule 3.2(e), there are no material disputes pending, or claims
asserted, for Taxes or assessments upon Buyer or any of its
subsidiaries for which Buyer does not have reserves that are
adequate under GAAP.
(f)
Environmental
Liability
. Except as disclosed in the SEC Documents, there
are no legal, administrative, arbitral or other Proceedings,
claims, actions, causes of action, orders, assessments (including
penalty assessments) or notices of any kind with respect to any
environmental, health or safety matters or any private or
governmental environmental, health or safety investigations or
remediation activities of any nature seeking to impose, or that are
reasonably likely to result in, any liability or obligation of
Buyer or any of its subsidiaries arising under common law or under
any local, state or federal environmental, health or safety
statute, regulation or ordinance, including CERCLA, pending or, to
Buyer’s Knowledge, threatened against Buyer or any of its
subsidiaries. To the Knowledge of Buyer, there is no reasonable
basis for, or circumstances that are reasonably likely to give rise
to, any such proceeding, claim, action, investigation or
remediation by any governmental entity or any third party that
would give rise to any liability or obligation on the part of Buyer
or any of its subsidiaries. Neither Buyer nor any of its
subsidiaries is subject to any agreement, order, judgment, decree,
letter or memorandum by or with any governmental entity or third
party imposing any liability or obligation with respect to any of
the foregoing.
(g)
Brokers’
Fees
. Buyer has no obligation to pay any fees or commissions
to any broker, finder, or agent with respect to the Contemplated
Transactions.
(h)
Purchase
for Investment
. Buyer is acquiring the Membership Interests
for investment and not with a view to distributing all or any part
thereof in any transaction which would constitute a
“distribution” within the meaning of the Securities
Act. Buyer acknowledges that the Membership Interests have not been
registered under the Securities Act.
(i)
Investor
Qualifications
. Buyer: (i) has such knowledge and experience
in financial and business matters that it is capable of evaluating
the merits and risks of its investment in the Membership Interests;
(ii) is able to bear the complete loss of its investment in the
Membership Interests; (iii) has had the opportunity to ask
questions of the Seller and each of the Companies and their
management concerning the terms and conditions of the Membership
Interests, the business of each of the Companies, the
Companies’ ownership and use of their respective assets,
estimates and judgments utilized and relied upon by the Companies
in preparing their financial statements; (iv) has had the
opportunity to obtain additional information about each of the
Companies and its business and all of Buyer’s questions have
been answered to its satisfaction; and (v) is otherwise an
“accredited investor” as such term is defined in Rule
501 promulgated under the Securities Act.
(j)
Capitalization
.
The authorized capital stock of Buyer consists of 75,000,000 shares
of common stock, par value $0.025 per share, of which 6,438,112
shares were issued and outstanding as of the Effective Date. The
Purchase Price Shares have been duly authorized and when issued and
delivered to Seller at the Closing, will be validly issued, fully
paid and non-assessable. All of the Purchase Price Shares to be
issued to Seller in accordance with this Agreement will be issued
and delivered by Buyer in compliance with all applicable state and
federal laws concerning the issuance of securities and none of the
Purchase Price Shares will be issued in violation of the preemptive
rights of any shareholder of Buyer.
(k)
Preemptive
Rights
. Except as disclosed in the SEC Documents (as
hereinafter defined), there are no preemptive or similar rights on
the part of any holders of any class of securities of Buyer. Except
as disclosed in the SEC Documents, other than this Agreement, no
subscriptions, options, warrants, conversion or other rights,
agreements, commitments, arrangements or understandings of any kind
obligating Buyer, any of its subsidiaries or any other affiliate of
the foregoing, contingently or otherwise, to issue or sell, or
cause to be issued or sold, any shares of capital stock of any
class of Buyer, or any securities convertible into or exchangeable
for any such shares, are outstanding, and no authorization therefor
has been given. There are no outstanding contractual or other
rights or obligations to or of Buyer, any of its subsidiaries or
any affiliate of the foregoing to repurchase, redeem or otherwise
acquire any outstanding shares of other equity interests of
Buyer.
(l)
SEC
Documents
. Buyer has timely filed with the U.S. Securities
and Exchange Commission (the “
Commission
”) all forms,
reports and other documents required to be filed by it under the
Securities and Exchange Act of 1934, as amended (the
“
Exchange
Act
”) or the Securities Act of 1933, as amended (the
“
Securities
Act
”) (as such documents have been amended through the
date hereof, collectively, the “
SEC Documents
”). The SEC
Documents, including without limitation any financial statements or
schedules included therein, at the time filed, complied in all
material respects with the applicable requirements of the Exchange
Act and the Securities Act, as the case may be. The consolidated
financial statements of Buyer included in the SEC Documents comply
in all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission with
respect thereto, have been prepared in accordance with GAAP applied
on a consistent basis during the periods involved (except as may be
indicated in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q of the Commission) and fairly
present (subject, in the case of the unaudited statements, to
normal, recurring audit adjustments and for the absence of
footnotes) the consolidated financial position of Buyer and its
consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flow for the
periods than ended.
(m)
Market for Common
Stock
. The stock of Buyer is quoted on the OTC Markets under
the symbol “MRDN.” Buyer has not, in the twelve (12)
months preceding the date hereof, received notice from any trading
market on which shares of the common stock of Buyer (the
“
Common
Stock
”) are or have been listed or quoted to the
effect that Buyer is not in compliance with the listing or
maintenance requirements of such trading market. Buyer is in
compliance in all material respects with all such listing and
maintenance requirements and the consummation of the transactions
contemplated by this Agreement do not violate any rules or
regulations of a trading market on which shares of the Common Stock
of Buyer are or have been listed.
(n)
Enforcement Actions or
Proceedings
. Except for normal examinations conducted by a
governmental or regulatory agency in the ordinary course of the
business of Buyer and its subsidiaries, or as disclosed in the SEC
Documents, no governmental or regulatory agency has pending any
Proceeding, enforcement action or, to the Knowledge of Buyer,
investigation into the business, disclosures or operations of Buyer
or its subsidiaries.
(o)
Accuracy of SEC
Documents
. At the time filed or furnished (and, in the case
of registration statements and proxy statements, on the dates of
effectiveness and the dates of the relevant meetings,
respectively), each SEC Document filed by the Buyer did not contain
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances
in which they were made, not misleading, except that information as
of a later date (but before the date of this Agreement) shall be
deemed to modify information as of an earlier date.
(p)
Financial
Statements
. Neither Buyer nor any of its subsidiaries has
any liabilities, obligations or commitments of a type required to
be reflected on a balance sheet prepared in accordance with GAAP,
except (i) those liabilities that are reflected or reserved against
in the financial statements of the Buyer included in the SEC
Documents, or (ii) liabilities incurred in the Ordinary Course of
Business consistent with past practice since the date of the last
of such financial statements.
SECTION
4
REPRESENTATIONS AND
WARRANTIES CONCERNING THE COMPANIES
Seller
represents and warrants to Buyer that the statements contained in
this
Section 4
are
true, correct and complete as of the Effective Date and as of the
Closing Date, except as set forth in the disclosure schedule
delivered by Seller to Buyer on the date hereof (the
“
Disclosure
Schedule
”). The Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs
contained in this
Section
4.
4.1
Organization, Qualification, and
Power
. Each of the Companies is a limited liability company
duly organized and validly existing under the laws of the
Commonwealth of Virginia. Each of the Companies is duly authorized
to conduct business and is in good standing under the laws of each
jurisdiction where such qualification is required, except those
jurisdictions where the failure to qualify would not have a
Material Adverse Effect. The Companies all have full power and
authority and all licenses, Consents, permits, Approvals, and
authorizations necessary to carry on the Business in which each
Company is engaged and to own or lease, as applicable, and use the
Property owned and used by each Company.
Schedule 4.1
lists the members, managers, directors and officers of the
Companies. Seller has delivered to Buyer correct and complete
copies of the Organizational Documents of the Companies (as amended
to date). The Companies do not maintain minute books and the
Membership Interests of the Companies are not certificated. None of
the Companies is in default under or in violation of any provision
of its Organizational Documents.
4.2
Capitalization
. Seller is the
record owner of and has good and valid title to the Membership
Interests. The Membership Interests constitute 100% of the total
issued and outstanding membership interests in each Company. All of
the issued and outstanding Membership Interests of the Companies
have been duly authorized, are validly issued, fully paid, and
non-assessable. Except as set forth on
Schedule
4.2
, the Membership Interests of the Companies are held of
record by the Seller free and clear of any restriction on transfer,
Taxes, Liens, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands (except restrictions
under the Securities Act and state securities laws). Except as set
forth on
Schedule
4.2
, no other Person has any right, title or interest in or
to the Membership Interests or any other equity interest of the
Companies. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could
require any of the Companies to issue, sell, or otherwise cause to
become outstanding any of its membership interests or any other
equity interest or other security. There are no outstanding or
authorized appreciation, phantom stock, profit participation, or
similar rights with respect to the Companies. There are no voting
trusts, proxies, or other agreements or understandings with respect
to the voting of the Membership Interests or units of the
Companies.
Schedule 4.2
contains and complete and accurate capitalization of the Companies
and the respective ownership of the Membership Interests by the
Seller. The Seller is the sole member of the
Companies.
4.3
No
Conflict; Consents.
(a)
Except as set forth
on
Schedule
4.3(a)
, neither the execution and delivery of this Agreement
by Seller, nor the consummation or performance of any of the
Contemplated Transactions will, directly or indirectly (with or
without notice or lapse of time): (i) Breach or otherwise conflict
with any provision of the Organizational Documents of the
Companies, or contravene any resolution adopted by the officers,
managers, or members of the Companies; (ii) Breach or otherwise
conflict with any Legal Requirement or Order to which the Companies
may be subject or give any Governmental Body or other Person the
right to challenge the Contemplated Transactions or to exercise any
remedy or obtain any relief under any Legal Requirement or any
Order to which the Companies may be subject; (iii) Breach or
otherwise conflict with or result in a violation or Breach of any
of the terms or requirements of, or give any Governmental Body the
right to revoke, withdraw, suspend, cancel, terminate or modify,
any Governmental Authorization that is held or being applied for by
or on behalf of the Companies or that otherwise relates to the
Companies or their Assets, including the Properties, or the
Businesses of the Companies; (iv) cause Buyer (or any Related
Person thereof) to become subject to, or to become liable for the
payment of, any Tax; (v) Breach or otherwise conflict with any
provision of, or give any Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or
performance of, or payment under, or to cancel, terminate or
modify, any contract or agreement to which the Companies are a
party or by which the Companies are bound; or (vi) result in the
imposition or creation of any Lien on any of the Companies’
Businesses, or Assets, including the Properties
.
(b)
Except as set forth
on
Schedule
4.3(b)
, the Companies are not required to give any notice
to, or obtain any Consent from, any Person in connection with the
execution and delivery of this Agreement or the consummation of any
of the Contemplated Transactions, including any Consent required in
order to preserve and maintain all Governmental Authorizations
required for the ownership and continued operation of the Business
of the Companies either before or after Closing and the
consummation of the Contemplated Transactions. Any registration,
declaration, or filing with, or Consent, or Governmental
Authorization or Order by, any Governmental Body with respect to
the Companies that is required in connection with the consummation
of the Contemplated Transactions has been or will be completed,
made, or obtained on or before the Closing Date.
4.4
Brokers’ Fees
. The
Companies have no obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the Contemplated
Transactions.
4.5
Books and Records
. The books of
and records of the Companies as well as all books of account,
financial statements and other financial records of each of the
Companies, all of which have been made available to Buyer, are
complete and correct in all material respects, represent actual,
bona fide transactions and have been maintained in accordance with
sound business practices and GAAP.
4.6
Title to Assets
. Each of the
Companies has good and marketable title to, or a valid leasehold
interest in, all of the Assets, free and clear of all
Liens,
except for those
items set forth on
Schedule
4.6
. Except as set forth in
Schedule
4.6
, the Assets are not leased, Seller has not granted to
any Person the right to use, operate or own the Assets owned by the
Companies or any portion thereof. There are no outstanding options,
rights of first offer or rights of first refusal to purchase any of
the Assets owned by any Company, or any portion thereof, or
interest therein. The Assets of the Companies constitute all the
Assets, tangible and intangible, of any nature whatsoever,
necessary to operate the Businesses in the manner presently
operated by the Companies and include all of the operating assets
of the Companies.
4.7
Description of Assets
. Other
than the right to recover damages in the Adenauer Litigation (as
hereinafter defined), the assets of the Companies constitute
only
(a) the
Properties, (b) the Company Contracts, (c) the Permits, Approvals,
Consents, Governmental Authorizations, licenses and other permits
and approvals obtained to date by the Seller or that will be
obtained by Seller prior to Closing to conduct the Businesses of
the Companies and to own or lease, operate, construct and develop
the Lunenburg Landfill, the Petersburg Landfill, the Transfer
Station and the Hauling Company Business, including all right,
title and interest thereto, (d) all data, documentation, books and
records related to the Lunenburg Landfill, the Petersburg Landfill,
the Transfer Station and the Hauling Company Business, or the
ownership or lease, operation, construction or development thereof,
or used or useful in the permitting, siting, ownership or lease,
construction, operation and development of the Lunenburg Landfill,
the Petersburg Landfill, the Transfer Station and the Hauling
Company Business, including research and engineering reports and
drawings, permit records, title reports and policies, surveys
relating to the Properties, correspondence and all other similar
documents and records, including all right, title and interest
thereto, (e) all Intangible Personal Property, (f) all Tangible
Personal Property, and (g) the Intellectual Property Assets
(collectively, the “
Assets
”). Complete and
correct copies of all material documentation related to the Assets
have been made available or provided to Buyer. The Companies own no
other assets.
4.8
Tangible Personal Property
. All
Tangible Personal Property owned or leased by the Companies as of
the Effective Date is and will be as of Closing in the possession
of the Companies, except for any Tangible Personal Property sold or
transferred in the Ordinary Course of Business between the
Effective Date and the Closing Date. The condition of the Assets of
the Companies collectively is sufficient to operate the Businesses
in the manner presently operated by the Companies and will be
collectively in substantially similar condition as of Closing as
when they are inspected by Buyer during the Inspection Period,
ordinary wear and tear excepted.
4.9
Subsidiaries
. Except as
disclosed on
Schedule
4.9
, none of the Companies own, and no Company has any right
to acquire, directly or indirectly, any outstanding capital stock
of, or other equity interests in, any Person.
4.10
No Adverse Change
. Since the
Most Recent Fiscal Month End (as defined below):
(a)
there has not been
any Material Adverse Change, and, to the Knowledge of Seller, there
has been no event, occurrence or development that could reasonably
be expected to have a Material Adverse Change;
(b)
except for the
Company Contracts and except as set forth on
Schedule
4.10(b)
, none of the Companies have entered into any
agreement, Contract, lease, or license (or series of related
agreements, contracts, leases, and licenses) outside the Ordinary
Course of Business;
(c)
except as set forth
on
Schedule
4.10(c)
, to the Knowledge of Seller, no party (including the
Companies) has accelerated, terminated, modified, given rise to a
notice of default, or cancelled any agreement, Contract, lease,
Permit, Governmental Authorization, or license (or series of
related agreements, contracts, leases, and licenses) to which the
Companies are a party or by which they is bound or which materially
affect the Companies and their Assets and Businesses;
(d)
except as set forth
on
Schedule
4.10(d)
, none of the Companies have granted any Liens upon
any of its Assets, tangible or intangible;
(e)
except as set forth
on
Schedule
4.10(e)
, none of the Companies have made any capital
expenditure (or series of related capital expenditures) outside the
Ordinary Course of Business;
(f)
none of the
Companies have made any capital investment in, any loan to, or any
acquisition of the securities or assets of, any other Person (or
series of related capital investments, loans, and acquisitions) or
have issued any note, bond, or other debt security or created,
incurred, assumed, or guaranteed any indebtedness for borrowed
money or capitalized lease obligation;
(g)
none of the
Companies have sold, leased, transferred, or assigned any of its
Assets, outside the Ordinary Course of Business;
(h)
(i) there has been
no acceleration of Accounts Receivable, (ii) any agreement to the
delay or postponement of the payment of accounts payable or other
obligations of the Companies, or (iii) change in any material
respect in the Companies’ practices in connection with the
payment of accounts payable in respect of purchases from
suppliers;
(i)
none of the
Companies have cancelled, compromised, waived, or released any
right or claim (or series of related rights and claims) or suffered
any extraordinary loss;
(j)
none of the
Companies have transferred, assigned, or granted any license or
sublicense of any rights under or with respect to any Intellectual
Property Assets;
(k)
except as set forth
on
Schedule
4.10(k)
, there has been no change made or authorized in the
Organizational Documents of the Companies;
(l)
none of the
Companies have issued, sold, pledged or otherwise disposed of any
of its equity interests, or granted any options, warrants, or other
rights to purchase or obtain (including upon conversion, exchange,
or exercise) any of equity interests or securities;
(m)
none of the
Companies has declared, set aside, or paid any dividend or made any
distribution with respect to its equity interests (whether in cash
or in kind) or redeemed, purchased, or otherwise acquired any of
its equity interests;
(n)
except as set forth
on
Schedule
4.10(n)
, none of the Companies have experienced any material
damage, destruction, or loss (whether or not covered by insurance)
to its property and Assets, including any Property or any
Business;
(o)
except as set forth
on
Schedule
4.10(o)
, none of the Companies have made any loan to, or
entered into any other transaction with, any of its members,
managers, officers, directors, or employees;
(p)
none of the
Companies have entered into any employment Contract, severance or
other benefit agreement, consulting agreement or collective
bargaining agreement, written or oral, or modified the terms of any
existing such Contract or agreement;
(q)
none of the
Companies have granted any increase in the base compensation of any
of its officers, directors, members, managers or employees outside
the Ordinary Course of Business;
(r)
none of the
Companies have adopted, amended, modified, or terminated any bonus,
profit sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any of its members, managers,
officers, directors and employees (or taken any such action with
respect to any other Employee Benefit Plan);
(s)
none of the
Companies have made any other change in employment terms for any of
its directors, officers, members, managers and employees outside
the Ordinary Course of Business;
(t)
none of the
Companies have made or pledged to make any charitable or other
capital contribution;
(u)
neither Seller nor
the Companies have received any written notice from any
Governmental Body or any other Person regarding the ability of the
Companies own or operate the Businesses or the Assets, or the
intention of any Governmental Body to challenge or oppose the
Buyer’s ownership or operation of the Businesses or the
Assets;
(v)
except as set forth
on
Schedule
4.10(v)
, none of the Companies have discharged, in whole or
in part, a material obligation or Lien outside the Ordinary Course
of Business;
(w)
except as set forth
on
Schedule
4.10(w)
, there has been no written indication by any
customer or supplier of the Businesses of an intention to
discontinue or change the terms of its relationship with the
Companies or the Businesses;
(x)
none of the
Companies have disclosed any Confidential Information except
pursuant to a non-disclosure or similar agreement governing such
disclosure;
(y)
there has been no
change in the accounting methods, principles or practices for
financial accounting with respect to the Companies (except for
those changes required by the Companies’ independent auditors
to comply with GAAP) or for IRS reporting purposes;
(z)
neither the Seller
nor any of the Companies has committed to do any of the foregoing;
and
(aa)
there
has not been any other material occurrence, event, incident,
action, or transaction outside the Ordinary Course of Business
involving the Companies.
4.11
Undisclosed Liabilities; Financial
Statements; Accounts Receivable
.
(a)
Except as
specifically disclosed on
Schedule
4.11(a)
, the Companies have no liabilities, obligations or
commitments of a type required to be reflected on a balance sheet
prepared in accordance with GAAP, except (i) those which are
adequately reflected or reserved against in the Most Recent
Financial Statements as of the Most Recent Fiscal Month End, and
(ii) those which have been incurred in the Ordinary Course of
Business since the Most Recent Fiscal Month End and which are not
material in amount.
(b)
Schedule
4.11(b)
contains copies of the following financial
statements (collectively, the “
Financial Statements
”):
(a) audited balance sheets and statements of income, changes in
members’ equity, and cash flow as of and for the fiscal years
ended December 31, 2015 (the “
Most Recent Fiscal Year
End
”) for the Companies; and (b) unaudited balance
sheets and statements of income, changes in stockholders’
equity, and cash flow (the “
Most Recent Financial
Statements
”) as of and for the nine (9) months ended
September 30, 2016 (the “
Most Recent Fiscal Month
End
”), for the Companies. In addition, on or before
Closing, Sellers will provide Buyer with the Closing Statement in
accordance with Section
6.1(j).
The Financial
Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout the
periods covered thereby, present fairly in accordance with GAAP the
financial condition of the Companies as of such dates and the
results of operations of the Companies for such periods, are
correct and complete in all material respects, and are consistent
with the books and records of the Companies (which books and
records are correct and complete in all material respects);
provided
,
however
, that the
Most Recent Financial Statements are subject to normal year-end
adjustments (which will not be material individually or in the
aggregate) and lack footnotes and other presentation
items.
(c)
Schedule
4.11(c)
to this Agreement sets forth a list of the Accounts
Receivable as of the date hereof.
4.12
Permits
.
(a)
Schedule
4.12(a)
contains (i) a complete and accurate list of all
material Permits, licenses, Consents, Governmental Authorizations
and Approvals owned by the Companies that are necessary or required
to own, construct, operate and develop the Businesses, the Assets
and the Properties (collectively, the “
Permits
”).
Schedule
4.12(a)
also contains a complete and accurate list of all
Permits, Governmental Authorizations, Consents, licenses, and
Approvals for which the Companies or Seller have made application
with respect to the ownership, operation, construction, and
development of the Businesses and the Properties where such
application is still pending as of the Effective Date and at
Closing. The Companies have not received any written notice from
any Governmental Body of rejection of any such application or any
notice that any such application is being considered for rejection.
Each Permit is valid and in full force and effect. The Permits
listed or required to be listed in
Schedule
4.12(a)
collectively constitute all of the material Permits
necessary or required to permit the Companies to lawfully conduct
and operate each Business on each Property in accordance with all
Legal Requirements. The Companies are in material compliance with
all of the terms and requirements of each Permit listed or required
to be listed in
Schedule
4.12(a)
.
(b)
Seller has
delivered or made available, or has caused to be delivered or made
available, to Buyer (or its Representatives) copies of (i) all
Permits and Approvals and applications therefor referred to above
in this
Section
4.12
, and (ii) all other written correspondence between
Seller or the Companies (or their Representatives) and the
applicable Governmental Bodies in connection with such Permits and
applications therefor since January 1, 2013.
(c)
Except as set forth
in
Schedule
4.12(c)
, to the Knowledge of Seller, no event has occurred
or circumstance exists that could reasonably be expected to (A)
constitute or result in a material violation of or a material
failure to comply with any material term or material requirement of
any Permit listed or required to be listed in
Schedule
4.12(a)
, or (B) result in the revocation, withdrawal,
suspension, cancellation or termination of, or any modification to,
any Permit or Approval.
(d)
Except as set forth
in
Schedule
4.12(d)
, neither Seller nor the Companies have received any
notice from any Governmental Body or any other Person regarding (A)
any actual, alleged, possible or potential violation of or failure
to comply with any term or requirement of any Permit or (B) any
actual, proposed, possible or potential revocation, withdrawal,
suspension, cancellation, termination of or modification to any
Permit; and
(e)
All applications
required to have been filed for the renewal of the Governmental
Authorizations listed or required to be listed in
Schedule
4.12(a)
have been duly filed on a timely basis with the
appropriate Governmental Bodies, and all other filings required to
have been made with respect to such Permits have been duly made on
a timely basis with the appropriate Governmental
Bodies.
4.13
Governmental
Authorizations
.
(a)
Schedule
4.13(a)
contains a complete and accurate list of each
Governmental Authorization (including document title or name,
issuing authority and identifying number) held by the Companies or
the Seller that relates to the Companies, the Assets, including the
Properties, or the Businesses. Seller has delivered or made
available to Buyer a true and complete copy of all such
Governmental Authorizations. Each Governmental Authorization listed
or required to be listed on
Schedule
4.13(a)
is valid and in full force and effect. The Companies
are in material compliance with all of the terms and requirements
of each Governmental Authorization identified or required to be
identified on
Schedule
4.13(a
)
. To
the Knowledge of Seller, no event has occurred or circumstance
exists that could reasonably be expected to (a) constitute or
result in a material violation of or a material failure to comply
with any term or requirement of any Governmental Authorization
listed or required to be listed on
Schedule
4.13(a)
, or (b) result in the revocation, withdrawal,
suspension, cancellation or termination of, or any modification to,
any Governmental Authorization listed or required to be listed on
Schedule
4.13(a)
.
(b)
Except as set forth
in
Schedule
4.13(b)
, neither the Companies nor the Seller have received
within four (4) years prior to the Most Recent Fiscal Year
End, any notice from any Governmental Body or any other Person
regarding (i) any actual, alleged, possible or potential violation
of or failure to comply with any term or requirement of any
Governmental Authorization relating to any Company, any Business or
the Assets, including any Property, or (ii) any actual, proposed,
possible or potential revocation, withdrawal, suspension,
cancellation, termination of or modification to any Governmental
Authorization relating to the Companies, the Businesses or the
Assets, including the Properties. Any registration, declaration, or
filing with, or Consent, or other Governmental Authorization or
order by, any Governmental Body that is required in connection with
the valid execution, delivery, acceptance, and performance by
Seller and the Companies under this Agreement, or the consummation
by Seller of any Contemplated transaction under this Agreement, has
been or will be completed, made, or obtained on or before the
Closing Date.
(c)
All applications
required to have been filed for the renewal of the Governmental
Authorizations listed or required to be listed on
Schedule
4.13(a)
have been duly filed on a timely basis with the
appropriate Governmental Bodies, and all other filings required to
have been made with respect to such Governmental Authorizations
have been duly made on a timely basis with the appropriate
Governmental Bodies.
(d)
The Governmental
Authorizations listed or required to be listed on
Schedule
4.13(a)
collectively constitute all of the Governmental
Authorizations necessary to permit the Companies to lawfully own,
lease, operate, construct and develop each Business on each
Property and to otherwise operate and conduct the Businesses in the
manner in which the Companies are currently conducted. Such
Governmental Authorizations also collectively constitute all of the
Governmental Authorizations necessary to permit the Companies to
own, lease, occupy, operate, improve, develop and use the Assets,
including the Properties, and the Businesses in the manner in which
the Companies currently own occupy, operate, improve, develop and
use the Assets, including the Properties and operate the
Businesses, and are valid and in full force and
effect.
4.14
Compliance
With Legal Requirements.
(a)
Except as set forth
in
Schedule
4.14
: (i) to the Knowledge of Seller, the Companies are, and
at all times have been, in material compliance with each Legal
Requirement that is or was applicable to it or to the conduct or
operation of the Businesses or the ownership or use of any of their
Assets, including the Properties; (ii) to the Knowledge of Seller,
no event has occurred or circumstance exists that (with or without
notice or lapse of time) (A) may constitute or result in a
violation by any Company of, or a failure on the part of any
Company to comply with, any material Legal Requirement, or (B) may
give rise to any obligation on the part of any Company to
undertake, or to bear all or any portion of the cost of, any
Remedial Action of any nature; and (iii) neither the Seller nor the
Companies have received any notice from any Governmental Body or
any other Person regarding (A) any actual, alleged, possible or
potential violation of, or failure to comply with, any Legal
Requirement, or (B) any actual, alleged, possible or potential
obligation on the part of the Company to undertake, or to bear all
or any portion of the cost of, any Remedial Action of any
nature.
4.15
Tax Matters
.
(a)
From the date of
its organization, each Company has been taxed and treated as a
partnership under the Code and relevant state law for federal
and/or state income tax purposes.
(b)
Each Company has
filed all Tax Returns that it was required to file under applicable
Legal Requirements and regulations. Except as described on
Schedule
4.15(b)
, all such Tax Returns were correct and complete in
all respects and have been prepared in substantial compliance with
all applicable laws and regulations. All Taxes due and owing by the
Companies (whether or not shown on any Tax Return) have been paid.
No Company is currently the beneficiary of any extension of time
within which to file any Tax Return. No claim has ever been made by
an authority in a jurisdiction where no Company files Tax Returns
that any Company is or may be subject to taxation by that
jurisdiction. There are no Liens for Taxes (other than Taxes not
yet due and payable) upon any of the Assets of the Companies. As of
the Closing Date, each Company will have paid all Taxes (other than
Taxes not yet due and payable) and with respect to any Taxes that
are not yet due and payable as of the Closing Date, each Company
has adequately reserved for such Taxes, except as described on
Schedule
4.15(b)
.
(c)
Each Company has
withheld and paid all Taxes required to have been withheld and paid
in connection with any amounts paid or owing to any employee,
independent contractor, creditor, member, or other third
party.
(d)
Neither Seller, nor
any member, manager, director or officer (or employee responsible
for Tax matters) of the Companies, expects any authority to assess
any additional Taxes for any period for which Tax Returns have been
filed. Except as shown on
Schedule
4.15(d)
, no foreign, federal, state, or local tax audits or
administrative or judicial Tax proceedings are pending or being
conducted with respect to any Company. No Company has received from
any foreign, federal, state, or local taxing authority (including
jurisdictions where such Company has filed Tax Returns) any (i)
notice indicating an intent to open an audit or other review, (ii)
request for information related to Tax matters, or (iii) notice of
deficiency or proposed adjustment for any amount of Tax proposed,
asserted, or assessed by any taxing authority against such
Company.
(e)
Schedule
4.15(e)
lists all federal, state, local, and foreign income
Tax Returns filed with respect to each Company for taxable periods
ended on or after December 31, 2013, indicates those Tax Returns
that have been audited, and indicates those Tax Returns that
currently are the subject of audit. Seller has delivered to Buyer
correct and complete copies of all federal income Tax Returns,
examination reports, and statements of deficiencies assessed
against or agreed to by each Company filed or received since the
formation of each Company.
(f)
No Company has
waived any statute of limitations in respect of Taxes or agreed to
any extension of time with respect to a Tax assessment or
deficiency.
(g)
Schedule
4.15(g)
sets forth the tax basis of each Company in its
depreciable assets as of December 31, 2015, the most recent
practicable date, as well as on an estimated pro forma basis
immediately prior to the Closing (without giving effect to the
consummation of the Contemplated Transactions).
(h)
Except as set forth
on
Schedule
4.15(h)
, the unpaid Taxes of each Company, if any (i) did
not, as of the most recent fiscal month end of each Company, exceed
the reserve for Tax Liability (rather than any reserve for deferred
Taxes established to reflect timing differences between book and
Tax income) set forth on the face of the most recent balance sheet
of each Company, and (ii) do not exceed that reserve as adjusted
for the passage of time through the Closing Date in accordance with
the past custom and practice of each Company in filing its Tax
Returns. Since the date of the most recent balance sheet of each
Company, no Company has incurred any liability for Taxes arising
from extraordinary gains or losses, as that term is used in GAAP,
outside the Ordinary Course of Business consistent with past custom
and practice.
(i)
No Company will be
required to include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or portion
thereof) ending after the Closing Date as a result of any: (i)
change in method of accounting for a taxable period ending on or
prior to the Closing Date, (ii) “closing agreement” as
described in Code Section 7121 (or any corresponding or similar
provision of state, local or foreign income Tax law) executed on or
prior to the Closing Date, (iii) installment sale or open
transaction disposition made on or prior to the Closing Date, or
(iv) prepaid amount received on or prior to the Closing
Date.
4.16
Condition of the
Properties
.
(i)
To the Knowledge of
Seller, there are no structural deficiencies or latent or patent
defects affecting any of the Improvements on any Property and, to
the Knowledge of Seller, there are no facts or conditions affecting
any of the Improvements which would, individually or in the
aggregate, reasonably be expected to interfere in any material
respect with the use or occupancy of the Improvements or any
portion thereof as they are currently being used by the
Companies.
(ii)
There is no
condemnation, expropriation or other proceeding in eminent domain,
pending or, to the Knowledge of Seller, threatened, affecting any
of the Properties or any portion thereof or interest therein.
Except as shown on
Schedule
4.16(i)
, there is no injunction, decree, order, writ or
judgment outstanding, nor any claims, litigation, administrative
actions or similar proceedings, pending or, to the Knowledge of
Seller, threatened, relating to the ownership, lease, use or
occupancy of each Property or any portion thereof.
(iii)
To the Knowledge of
Seller, the operation of the Lunenburg Landfill does not violate
the current zoning for the Lunenburg Property. The Petersburg
Property is currently zoned (i) “Ordinance 09-ORD-57”
under Article 37, Municipal Solid Waste Landfill Uses, of the
Petersburg Zoning Ordinance (Landfill); and (ii) “M-2”
Heavy Industrial District under Article 37, Municipal Solid Waste
Landfill Uses, of the Petersburg Zoning Ordinance (350 Industrial
Drive and 2053 North Factory Lane). To the Knowledge of Seller, the
operation of the Transfer Station does not violate the current
zoning for the Transfer Station Property. To the Knowledge of
Seller, the operation of the Hauling Company does not violate the
current zoning for the Hauling Company Property. To the Knowledge
of Seller, there is no pending or anticipated change in any zoning
or land use laws applicable to the Properties that will materially
impair the development, construction, operation or use of any
Property or any portion thereof as a municipal solid waste
landfill, a municipal solid waste transfer station, or a Hauling
Company Business, or otherwise as each Property is currently being
used. The Seller has not received any notice of violation of any
building, zoning, comprehensive planning, subdivision, health and
safety and other land use laws, regulations, ordinances and rules
affecting the Properties. To the Knowledge of Seller, the
Properties are in compliance with all Legal Requirements, including
all applicable building, zoning, comprehensive planning,
subdivision, health and safety and other land use laws,
regulations, ordinances and rules affecting the Properties
(collectively, the “
Real Property Laws
”),
and, to the Knowledge of Seller, the current use, operation and
occupancy of the Properties, including the use, occupancy and
operation of the Businesses, does not violate any Real Property
Laws. The Seller has not received any written notice of violation
of any Real Property Law.
(iv)
All water,
oil, gas, electrical, telecommunications, sewer, storm and waste
water systems and other utility services or systems for each
Property which have been installed are operational.
(v)
All material
Governmental Authorizations, Approvals, Consents and Permits which
are required or appropriate to use or occupy the Properties by the
Companies and for the Companies to own, operate, construct and
develop the Businesses on the Properties have been issued and are
in full force and effect. Except as shown on
Schedule
4.16(v)
, Seller has not received any notice from any
Governmental Body or other entity having jurisdiction over the
Properties threatening a current or prospective suspension,
revocation, modification or cancellation of any Governmental
Authorization, Consent, Approval or Permit and, to the Knowledge of
Seller, there is no basis for the issuance of any such notice or
the taking of any such action.
(vi)
Other than as set
forth on
Schedule
4.l6(viii)
, to the Knowledge of Seller, there are no leases
affecting any Property and, to the Knowledge of Seller, the
Properties are not subject to any outstanding agreement of sale,
option, or other right of any third party to acquire any interest
therein, except this Agreement. Other than as set forth on
Schedule
4.l6(vi)
, none of the Seller or the Companies is a party to
any Contract or any other agreement which will affect the
Properties, the Companies and/or Buyer from and after the Closing,
including, but not limited to any maintenance, repair, service,
pest control or supply, management, employment, equipment,
equipment rental, or any other agreements used in connection with
the Properties.
(vii)
To the Knowledge of
Seller, each Property has legal access to a public right-of-way.
None of the Seller or the Companies is a party to any easements,
rights of way, reservations of gas, timber, mineral rights, leases
or other Liens which do not appear in the Public Records of City of
Petersburg, Virginia or the County of Lunenburg, Virginia. Seller
shall not grant, convey, dispose of, sell, encumber, assign or
transfer any interest in any Property, including but not limited to
any contract, option, lease, easement, or other agreement granting
any interest whatsoever in the Properties, without the prior
written consent of Buyer. Except as set forth in
Schedule
4.16(vii)
, the Companies hold fee simple title to the
Properties.
(viii)
Schedule
4.16(viii)
lists each Real Property Lease to which any
Company is a party. Each Real Property Lease is legal, valid,
binding, enforceable and in full force and effect. Except as set
forth on
Schedule
4.16(viii),
the Contemplated Transactions do not require the
Consent of any other party to such Real Property Lease, will not
result in a Breach of or default under such Real Property Lease,
and will not otherwise cause such Real Property Lease to cease to
be legal, valid, binding, enforceable and in full force and effect
on identical terms following the Closing. The possession and quiet
enjoyment of the any Property under any Real Property Lease has not
been disturbed and there are no currently unresolved disputes with
respect to such Real Property Lease. Neither the Companies, nor, to
the Knowledge of Seller, any other party to such Real Property
Lease, is in Breach or default under the Real Property Lease, and,
to the Knowledge of Seller, no event has occurred or circumstance
exists which, with the delivery of notice, the passage of time or
both, would constitute such a Breach or default, or permit the
termination, modification or acceleration of rent under such Real
Property Lease. No security deposit or portion thereof deposited
with respect to such Real Property Lease has been applied in
respect of a breach or default under such Real Property Lease which
has not been redeposited in full. No Company owes, or will owe in
the future, any brokerage commissions or finder’s fees with
respect to such Real Property Lease. Except as shown on
Schedule
4.16(viii)
, the other party to each Real Property Lease is
not an affiliate of, and otherwise does not have any economic
interest in Seller or its respective Related Persons. Except as
shown on
Schedule
4.16(viii)
, neither Seller nor any Company has subleased,
licensed or otherwise granted any Person the right to use or occupy
any Property or any portion thereof. Except as shown on
Schedule
4.16(viii)
, neither Seller no any Company has collaterally
assigned or granted any other security interest in any Property
subject to a Real Property Lease or any interest therein. Except as
shown on
Schedule
4.16(viii)
, there are no Liens or other encumbrances on the
estate or interest created by any Real Property Lease.
4.17
Conveyance of Entire Interest In the
Companies
. At Closing, all of Seller’s right, title
and interest in and to the Membership Interests will be transferred
and conveyed to Buyer free and clear of all Liens.
4.18
Contracts
.
(a)
The only Contracts
to which any Company is a party are described in
Schedule
4.18(a)
(“
Company Contracts
”), and
correct and complete copies of all such Contracts have been made
available or provided to Buyer.
(b)
The Seller does not
have and may not acquire any rights under any Company Contract, and
Seller does not have and will not become subject to any obligation
under any Company Contract, that relates to the Businesses of the
Companies.
(c)
Except as set forth
on
Schedule
4.18(c)
,
(i) the
Company Contracts are legal, valid, binding, enforceable, and in
full force and effect (except as enforcement thereof may be limited
by applicable Insolvency Laws), and will continue to be legal,
valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the Contemplated
Transactions; (ii) each Company is, and at all times has been, in
material compliance with all applicable terms and requirements of
the Company Contracts; (iii) to the Knowledge of Seller, no event
has occurred or circumstance exists that (with or without notice or
lapse of time) will contravene, conflict with or result in a Breach
of, or give the Companies or other Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity
or performance of, or payment under, or to cancel, terminate or
modify, the Company Contracts; (iv) to the Knowledge of Seller, no
party to the Company Contracts has threatened to terminate its
business relationship with the Companies for any reason; and (v)
neither Seller or any Company has given to or received from any
other Person any notice regarding the actual, alleged, possible or
potential Breach of any Company Contract.
(d)
Except as set forth
on
Schedule
4.18(d)
,
t
here are no
renegotiations of, attempts to renegotiate or outstanding rights to
renegotiate any material amounts paid or payable to the Companies
under the Company Contracts Outside the Ordinary Course of Business
with any Person having the contractual or statutory right to demand
or require such renegotiation and no such Person has made written
demand for such renegotiation.
(e)
Each Company
Contract relating to the sale or provision of services by the
Companies has been entered into in the Ordinary Course of Business
of any Company and has been entered into without the commission of
any act alone or in concert with any other Person, or any
consideration having been paid or promised, that is or would be in
violation of any Legal Requirement.
4.19
Powers of Attorney
. There are
no outstanding powers of attorney executed on behalf of the
Companies.
4.20
Litigation
. Except as set forth
in
Schedule
4.20
(which lists pending or threatened Proceedings, all of
which are referred to as “
Current Litigation
Matters
”), there is no pending or, to the Knowledge of
Seller, threatened Proceeding: (i) by or against the Companies;
(ii) that could reasonably be expected to have a Material Adverse
Affect on the Business of, or any of the Assets owned or used by,
the Companies or (iii) that challenges, or that may have the effect
of preventing, delaying, making illegal or otherwise interfering
with, any of the Contemplated Transactions, the Businesses or the
Assets, or the ownership, construction, development, or operation
of any of the Properties as either a municipal solid waste
landfill, municipal solid waste transfer station or Hauling Company
Business by the Companies. To the Knowledge of Seller, no event has
occurred or circumstance exists that is reasonably likely to give
rise to or serve as a Basis for the commencement of any such
Proceeding. Except as set forth in
Schedule
4.20
, (i) there is no Order to which the Companies, their
Businesses or any of the Assets is subject or that in any way
relates to or could reasonably be expected to affect the Companies,
the Businesses or the Assets, or the ownership, construction,
development, or operation of the Properties as either a municipal
solid waste landfill, municipal solid waste transfer station or
Hauling Company Business by the Companies; and (ii) no officer,
director, member, manager, agent or employee of the Companies is
subject to any Order that prohibits such officer, director member,
manager, agent or employee from engaging in or continuing any
conduct, activity or practice relating to the Businesses of the
Companies. Except as set forth on
Schedule
4.20
,
(i) each of
Seller and the Companies are, and at all times have been, in
compliance with all of the terms and requirements of any Order,
(ii) to the Knowledge of Seller, no event has occurred or
circumstance exists that is reasonably likely to constitute or
result in (with or without notice or lapse of time) a violation of
or failure to comply with any term or requirement of any such
Order, and (iii) neither Seller nor the Companies has received any
notice from any Governmental Body or any other Person regarding any
actual, alleged, possible or potential violation of, or failure to
comply with, any term or requirement of any such
Order.
4.21
Employees
.
Schedule
4.21
sets forth for all employees of the Companies: the (i)
name, (ii) job title, (iii) date of hiring or engagement, (iv) date
of commencement of employment or engagement, (v) current or
deferred compensation paid or payable, (vi) sick and vacation leave
that is accrued but unused, (vii) service credited for purposes of
vesting and eligibility to participate under any Employee Benefit
Plan, or any other employee benefit plan and (viii) details of any
material disciplinary problems within the past two (2) years. No
retired employees of the Companies, or their dependents, are
receiving benefits or are scheduled to receive benefits in the
future from the Companies. To the Knowledge of Seller, no officer,
director, agent, manager, employee, consultant, or independent
contractor of the Companies is bound by any Contract that purports
to limit the ability of such officer, director, manager, agent,
employee, consultant, or independent contractor (a) to engage in or
continue or perform any conduct, activity, duties or practice
relating to the Businesses of the Companies or (b) to assign to the
Companies or to any other Person any rights to any invention,
improvement, or discovery used in the Businesses. To the Knowledge
of Seller, no former or current officer, director, member, manager,
agent, employee, consultant, or independent contractor of the
Companies is a party to, or is otherwise bound by, any Contract
that in any way adversely affected, affects, or will affect the
ability of the Companies to conduct the Businesses as currently
carried on by the Companies. Except as set forth on
Schedule
4.22
, all salaries, wages and other compensation and
benefits payable to each officer, director, agent, manager,
employee, consultant, or independent contractor of the Companies
has been accrued and paid by the Companies when due for all periods
through the Closing Date, or will have been paid by the Companies
when due for all periods through the Closing Date. Except as set
forth in
Schedule
4.21
, the employment of each employee who is employed by
each Company can be terminated by the Companies upon not more than
fourteen (14) days’ notice without severance, penalty or
premium, other than payment of accrued salaries, wages and vacation
benefits. Neither Seller nor any Company has violated the Worker
Adjustment and Retraining Notification Act (the “
WARN Act
”) or any similar
state or local Legal Requirement. Robert W. Guidry, Charles A.
Wilcox, Timothy L. Webb, and A. Jeffrey Kraus are the only
employees or individuals actively engaged in the fundamental
operations of the Companies who own any interest in
Guarantor.
4.22
Labor
Disputes; Compliance.
(a)
Except as set forth
on
Schedule
4.22
, each Company has complied in all respects at all times
with all Legal Requirements, including all Occupational Safety and
Health Laws, relating to employment practices, terms and conditions
of employment, equal employment opportunity, nondiscrimination,
immigration, wages, hours, benefits, payment of social security and
similar Taxes, collective bargaining and other requirements under
applicable Legal Requirements. The Companies are not liable for the
payment of any Taxes, including any social security and similar
Taxes, fines, penalties, interest, back wages, front pay,
liquidated or compensatory damages, exemplary damages or other
amounts, however designated, for failure to comply with any of the
foregoing Legal Requirements.
(b)
The Companies have
not been, and are not now, a party to any collective bargaining
agreement or other labor Contract. There has not been, there is not
presently pending or existing, and to The Knowledge of Seller,
there is not threatened, any strike, slowdown, picketing, work
stoppage or employee grievance process involving the Companies.
Except as set forth on
Schedule
4.22
, to the Knowledge of Seller, no event has occurred or
circumstance exists that could provide the Basis for any work
stoppage or other labor dispute. Except as set forth on
Schedule
4.22
, there has not been, there is not presently pending or
existing, and, to the Knowledge of Seller, there is not overtly
threatened any Proceeding, charge, grievance proceeding or other
claim against or affecting the Companies (or any director, officer,
manager, member or employee thereof) relating to the actual or
alleged violation of any Legal Requirement pertaining to labor
relations or employment matters, including any charge or complaint
filed by an employee or union with the National Labor Relations
Board, the Equal Employment Opportunity Commission or any
comparable Governmental Body, and there is no organizational
activity or other labor dispute against or affecting the Companies
or the Businesses. There is no organizational activity or other
labor dispute against or affecting the Businesses or the Companies
and no application or petition for an election of or for
certification of a collective bargaining agent is pending. No
grievance or arbitration Proceeding exists that might have a
Material Adverse Effect upon the Companies or the conduct of the
Businesses. Except as set forth on
Schedule
4.22
, neither the Companies nor the Seller have been served
notice of, and Seller and the Companies do not otherwise have
Knowledge of, any grievance or arbitration Proceeding by any
employee of the Companies that might have an adverse effect upon
the Companies, the Assets or the conduct of the Businesses. Since
January 1, 2013, there has been no charge of discrimination filed
against or, to the Knowledge of Seller, threatened against the
Companies with the Equal Employment Opportunity Commission or
similar Governmental Body. There is no lockout by the Companies of
any employees of the Companies, and no such action is contemplated
by Seller or the Companies.
4.23
Employee Benefits.
Schedule
4.23
sets forth each Employee Benefit Plan pursuant to which
any employee or former employee is entitled to benefits that the
Companies maintain, to which the Companies contribute, or have any
obligation to contribute.
Schedule
4.23
also sets forth each Employee Welfare Benefit Plan (as
defined by ERISA) which the Companies maintain, contribute to or
have an obligation to contribute to for providing health or life
insurance or other welfare-type benefits for current or future
retired or terminated directors, officers or employees (or any
spouse or other dependent thereof) of the Companies other than in
accordance with COBRA.
4.24
Guaranties
. Except as set forth
on
Schedule
4.24
, the Companies are not a guarantor and are not
otherwise liable for any obligation (including Indebtedness) of any
other Person.
4.25
Environmental
Matters.
(a)
Except as disclosed
on
Schedule
4.25
, (i) the Companies have not treated, stored, disposed
of, arranged for or permitted the disposal of, transported,
handled, manufactured, distributed, or released any substance,
including without limitation any Hazardous Material, or owned or
operated any property or facility (and no such property or facility
is contaminated by any such substance) so as to give rise to any
current or future Liabilities, including any Liability for fines,
penalties, response costs, corrective action costs, personal
injury, property damage, natural resources damages or
attorney’s fees, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“
CERCLA
”), the Solid Waste
Disposal Act, as amended (“
SWDA
”) or any other
Environmental Laws; (ii) the Properties do not now contain any
underground storage tanks; (iii) neither this Agreement nor the
consummation of the Contemplated Transactions will result in any
obligations for site investigation or cleanup, or notification to
or consent of government agencies or third parties, pursuant to any
of the so-called “transaction-triggered” or
“responsible property transfer” Environmental Laws; and
(iv) the Companies have not assumed, including without limitation
any obligation for corrective or Remedial Action, any obligation of
any other Person relating to Environmental Laws.
(b)
Except as disclosed
on
Schedule
4.25
(b) to the Knowledge of Seller, (i) each Company has
complied in all material respects, and is presently in compliance
in all material respects, with all applicable Environmental Laws
pertaining to the ownership and operation of the Assets, the
Properties and the Businesses, and (ii) neither Seller nor the
Companies have received any communication alleging that they are
not in compliance with any Environmental Law. Except as disclosed
on
Schedule
4.25
(b), there
are no pending or, to the Knowledge of Seller, threatened
Proceedings of any nature resulting from any Environmental, Health
and Safety Liabilities or arising under or pursuant to any
Environmental Law with respect to or affecting the Companies, the
Businesses, the Properties or any of the Assets of the Companies.
Except as disclosed on
Schedule
4.25
(b)
, to
the Knowledge of Seller, no Property contains wetlands, vegetation,
animal species or significant historic/archaeological sites which
are subject to special regulations or limitations under any Legal
Requirement. To the Knowledge of Seller, no unacceptable material
has deposited or buried on or under the Properties in violation of
any Permit, Governmental Authorization or Legal Requirement, no
toxic wastes or Hazardous Materials have been deposited, disposed
of, stored, generated or released on or from the Properties, and
there are no cemeteries, grave sites or other burial sites located
on the Properties.
4.26
Certain Business Relationships with
the Company
. Except as disclosed on
Schedule
4.26
, neither Seller, nor their Related Persons, nor the
officers, directors, managers, members and employees of the
Companies have been involved in any business arrangement or
relationship with the Companies within the past twelve (12) months,
and neither Seller, nor their Related Persons, nor the officers,
directors, employees, members, managers, directors and officers of
the Companies owns any asset, tangible or intangible, which is used
in the Business of the Companies. Neither the Companies nor its
Related Persons, their respective officers, employees, members,
managers, directors and officers of the Companies nor any Seller
nor any Related Person of any of them owns, or has owned, of record
or as a beneficial owner, an equity interest or any other financial
or profit interest in any Person that has (a) had business dealings
or a material financial interest in any transaction with the
Companies other than business dealings or transactions disclosed in
Schedule
4.26
, each of which has been conducted in the Ordinary
Course of Business with the Companies at substantially prevailing
market prices and on substantially prevailing market terms or (b)
engaged in competition with the Companies with respect to any line
of the products or services of the Companies in any market
presently served by the Companies. Except as set forth
in
Schedule
4.26
, neither the Companies nor its Related Persons, their
respective officers, employees, members, managers, directors and
officers of the Companies, nor the Seller nor any Related Person of
any of them is a party to any Contract with, or has any claim or
right against, the Companies.
4.27
Intellectual Property
.
Schedule
4.27
contains a complete and accurate list and summary of
all Intellectual Property owned or possessed by the Companies, or
which the Companies have the right to use pursuant to a valid and
enforceable, written license, sublicense, agreement, or permission
(collectively and together with the Intangible Personal Property,
the “
Intellectual
Property Assets
”). Such Intellectual Property Assets
constitute all of the Intellectual Property necessary for the
operation of the Businesses of the Companies as presently
conducted. To the Knowledge of Seller, the Intellectual Property
Assets do not infringe on the intellectual property rights of any
Person. The Companies are the owner or licensee of all right, title
and interest in and to each of the Intellectual Property Assets,
free and clear of all Liens. The Companies have the right to use
all of the Intellectual Property Assets without payment to any
third party. Each Company owns or has the right to use pursuant to
ownership, license, sublicense, agreement, permission or free and
unrestricted availability to general public all of the Intellectual
Property Assets used by such Company. To the Knowledge of Seller,
the Companies have not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any
Intellectual Property rights of third parties, and neither Seller,
nor the Companies, or their respective members, managers, directors
and officers and employees has ever received any written charge,
complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim
that the Companies must license or refrain from using any
intellectual property rights of any third party). To the Knowledge
of Seller, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any
proprietary intellectual property rights of the
Companies.
4.28
Insurance
.
Schedule
4.28
sets forth the following
information with respect to each insurance policy (including
policies providing property, casualty, liability, and
workers’ compensation coverage and bond and surety
arrangements) to which the Companies have been a party, a named
insured, or otherwise the beneficiary of coverage at any time
within the past five (5) years (“
Insurance Policies
” and
“
Insurance
Policies
”): (a) the name, address, and telephone
number of the agent; (b) the name of the insurer, the name of the
policyholder, and the name of each covered insured; and (c) the
policy number and the period of coverage. Such Insurance Policies
constitute policies of insurance of the type and in the amounts
customarily carried by Persons conducting businesses or assets
similar to the Businesses and Assets of the Companies. True,
correct and complete copies of the Insurance Policies have been
made available or furnished to Buyer. With respect to each such
Insurance Policy: (i) the Insurance Policy is in full force and
effect; (ii) the Insurance Policy will continue to be in full force
and effect on identical terms following the consummation of the
Contemplated Transactions; (iii) the Companies are not in Breach or
default (including with respect to the payment of premiums or the
giving of notices), and, to the Knowledge of Seller, no event has
occurred which, with notice or the lapse of time, would constitute
such a Breach or default, or permit termination, modification, or
acceleration, under the Insurance Policy; and (iv) to the Knowledge
of Seller, no party to any Insurance Policy has repudiated any
provision thereof. All premiums due and payable on any of Insurance
Policies or renewals thereof have been paid or will be paid timely
through the Closing Date. Neither Seller nor the Companies have
received any notice of cancellation or non-renewal of any Insurance
Policy nor, to the Knowledge of Seller, is the termination of any
such policies threatened. Neither Seller nor the Companies have
received any notice of cancellation or non-renewal of any Insurance
Policy nor, to the Knowledge of the Seller, is the termination of
any such Insurance Policies threatened. Neither the Seller nor the
Companies have received any notice from the insurer denying
coverage or reserving rights with respect to a material claim
currently pending under any Insurance Policy or with respect to any
Insurance Policy in general. The Companies have not incurred any
material loss, damage, expense or obligation that was or would be
covered by any Insurance Policy for which it has not properly
asserted a claim under any Insurance Policy and which has been paid
in an amount equal to the full claim made or pending. The Companies
have been covered during the past four (4) years by insurance
in scope and amount customary and reasonable for the Businesses in
which it has engaged.
Schedule
4.28
describes any self-insurance arrangements affecting the
Companies.
4.29
Corrupt Practices
. Except in
compliance with all Legal Requirements, neither the Seller, the
Companies, nor any of their Related Persons, or each of their
respective officers, directors, employees or agents, have, directly
or indirectly, ever made, offered or agreed to offer anything of
value to (a) any employees, Representatives or agents of any
customers of Seller or the Companies for the purpose of attracting
business to Seller or the Companies or (b) any domestic
governmental official, political party or candidate for government
office or any of their employees, Representatives or
agents.
4.30
Disposal Agreements
. Except as
disclosed on
Schedule
4.30
, the Companies are not a party to, nor are they bound
by, any Contract, undertaking, obligation, responsibility or other
agreement which requires any solid waste (of any class) collected
by any Company to be deposited in any landfill or transferred
through any transfer station or other disposal facility, or
requires any Company to deposit any such solid waste at the
Properties or mandates the terms and conditions pursuant to which
the Companies will accept any such solid waste at the Properties.
Except as disclosed on
Schedule
4.30
, the Companies are not bound by any disposal contract,
put or pay contract or other agreement or undertaking which after
Closing will restrict the Companies in any way from depositing,
transferring or delivering any solid waste to the Properties or any
other solid waste disposal, processing or transfer facility
selected by the Companies.
4.31
Solvency
. Neither Seller nor
the Companies are Insolvent and neither the Seller nor any Company
has committed an act of bankruptcy, proposed a compromise or
arrangement to its creditors generally, had any petition in
bankruptcy filed against it, filed a petition or undertaken any
action or proceeding to be declared bankrupt, to liquidate its
assets or to be dissolved. The Contemplated Transactions will not
cause the Companies to become Insolvent or to be unable to satisfy
and pay their respective debts and obligations generally as they
come due.
4.32
Exclusivity of Representations and
Warranties
. Buyer is not aware of any facts and/or
circumstances that would make any of the representations and
warranties of Seller contained in this Agreement untrue or
misleading. In entering into this Agreement, Buyer has relied
solely upon its own investigation and analysis and the
representations and warranties of Seller contained in this
Agreement, and Buyer acknowledges that, other than as set forth in
this Agreement, neither Seller or any of its directors, officers,
employees, Affiliated Groups, members, agents or representatives
makes or has made any representation or warranty, either express or
implied, (x) as to the accuracy or completeness of any of the
information provided or made available to Buyer or any of its
agents, representatives, lenders or Affiliated Groups prior to the
execution of this Agreement or (y) with respect to any projections,
forecasts, estimates, plans or budgets of future revenues, expenses
or expenditures, future results of operations (or any component
thereof), future cash flows (or any component thereof) or future
financial condition (or any component thereof) of the Company
heretofore or hereafter delivered to or made available to Buyer or
any of their respective agents, representatives, lenders or
Affiliated Groups. Neither Seller nor any of its directors,
officers, employees, Affiliated Groups, members, agents or
representatives has made, and shall not be deemed to have made, any
representations or warranties in the materials relating to the
business, assets or liabilities of the Companies made available to
Buyer, and no statement contained in any such materials or made in
any such presentation shall be deemed a representation or warranty
hereunder or otherwise or deemed to be relied upon by Buyer in
executing, delivering and performing this Agreement and the
transactions contemplated hereby. It is understood that any cost
estimates, projections or other predictions, any data, any
financial information or any memoranda or offering materials or
presentations, including but not limited to, any offering
memorandum or similar materials made available to Buyer and its
Representatives are not and shall not be deemed to be or to include
representations or warranties of Seller, and are not and shall not
be deemed to be relied upon by Buyer in executing, delivering and
performing this Agreement and the transactions contemplated
hereby.
SECTION
5
COVENANTS
5.1
General
. The Parties will
cooperate reasonably with each other and with their respective
Representatives in connection with any steps required to be taken
as part of their respective obligations under this Agreement, and
will (a) furnish upon reasonable request to each other such further
information, (b) execute and deliver to each other such other
documents, and (c) do such other acts and things, all as any other
Party may reasonably request for the purpose of carrying out the
intent of this Agreement and the Contemplated Transactions. In case
at any time after the Closing any further action is necessary or
desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other
Party reasonably may request, all at the sole cost and expense of
the requesting Party (unless the requesting Party is entitled to
indemnification therefor under
Section 7
or
Section 8
, or unless such cost
or expense is the obligation of the non-requesting Party under this
Agreement). Seller acknowledges and agrees that, from and after the
Closing, Buyer will be entitled to possession of all documents,
books, records (including Tax records), Permits, Governmental
Authorizations, certificates of title, agreements, Company
Contracts, Organizational Documents, financial data and all other
documents of any sort relating to the Companies (all of the
forgoing, the “
Company
Documents
”).
5.2
Inspection Period
. Buyer shall
have an inspection period beginning on the Effective Date and
ending January 31, 2017 (the “
Inspection Period
”).
Buyer shall have the Inspection Period within which to physically
inspect the Assets, including the Properties, and the Company
Documents and to conduct its due diligence with respect to the
Assets, including the Properties, the Businesses and the Companies.
Buyer and Buyer’s officers, directors, employees,
consultants, agents and attorneys and other authorized
representatives, shall have the right to reasonable access to the
Assets, the Properties and Company Documents and to all records of
Seller and the Companies related thereto, including without
limitation title information, property information, surveys,
maintenance records, environmental assessment reports, engineering
reports and any other information of the Companies, the Businesses
and the Assets, at reasonable times during the Inspection Period,
without unreasonably interfering with the operation of the
Business, for the purpose of inspecting the Assets, including the
Properties, and the Businesses, and conducting all studies, tests,
inspections and measurements of all kinds as deemed necessary by
Buyer, reviewing the books and records of Seller and the Companies
concerning the Companies, the Businesses and the Assets, including
the Properties, and otherwise conducting its due diligence review
of the Companies, the Businesses, and the Assets, including the
Properties. Seller shall cooperate with and assist Buyer in making
such inspections and reviews and in obtaining copies of any
documentation related to the Companies, the Businesses, and the
Assets and Properties, including the review and inspection of any
and all Permits, Approvals, Consents, licenses, Governmental
Authorizations and other permits and approvals necessary or
required for the Companies to own, operate, construct and develop
the Businesses and in accordance with such other applicable local,
state and federal Legal Requirements. Seller shall make available
to Buyer such of the foregoing as may be in Seller’s
possession, or the Companies’ possession, in order to
facilitate Buyer’s due diligence. Seller shall give Buyer any
authorizations which may be required by Buyer in order to gain
access to records or other information pertaining to the Companies,
the Assets, including the Properties, and the Businesses, or the
use thereof maintained by any third party, Governmental Body or
organizations. Buyer and Seller shall mutually agree, prior to the
expiration of the Inspection Period, on any Company Contract that
Buyer does not wish for any Company to continue to be a party
thereto and be bound thereby (“
Excluded Contracts
”) and
the parties shall execute an amendment to this Agreement to include
a
Schedule 5.2
setting forth all Excluded Contracts.
If
Buyer or its agents, employees, consultants and contractors shall
in any material manner cause any damage or alteration to the
Assets, including the Properties in conducting any testing or other
due diligence investigation of Assets, including the Properties,
Buyer shall, at its sole cost and expense, promptly and fully
repair and restore any such damage or alteration caused by Buyer or
its agents, employees, consultants and contractors to the condition
same was in immediately prior to the commencement of Buyer’s
testing or due diligence of the Assets, including the Properties.
If the parties do not proceed with the Closing, Buyer shall
promptly return to Seller all written material pertaining to or
reflecting any information provided to Buyer by Seller or
Seller’s agents and will not retain any copies, extracts or
other reproductions in whole or in part of such written material,
and all documents, memoranda, notes and other writings whatsoever
prepared by Buyer or its advisors based on the information provided
to Buyer by Seller or Seller’s agents shall be destroyed.
Prior to Closing and following the termination of this Agreement if
Closing does not occur, Buyer agrees not to disclose to any third
party any non-public information provided to Buyer by Seller or
generated by Buyer through its inspections, except to Buyer’s
agents, contractors, accountants, engineers, consultants, attorneys
or lenders, to the extent necessary for the purposes of this
transaction, or as may be required by law or by court order. Buyer
agrees to indemnify Seller and the Companies, together with
Seller’s Affiliated Group, and the successors, assigns,
employees, officers, directors, trustees, shareholders, attorneys,
representatives and agents of Seller and the Companies
(collectively, the “
Seller Indemnified
Parties
”) against and to defend and hold the Seller
Indemnified Parties harmless from and against all costs, claims,
injuries, damages, liabilities, accidents, losses arising out of,
caused by or created in connection with (i) death, personal injury,
and/or property damage resulting from Buyer’s and its
agents’ and representatives’ entry upon, or inspections
or tests of, the Properties, or (ii) mechanic’s liens or
claims that may be filed against the Properties and/or adjacent
land by contractors, subcontractors or materialmen performing such
work for Buyer, other than as may be caused by the negligence or
willful misconduct of Seller.
5.3
Intentionally
Omitted
.
5.4
Transition
. Seller and its
Related Persons will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor,
vendor, customer, supplier, or other business associate of the
Companies from maintaining the same business relationships with the
Companies after the Closing as it maintained with the Companies or
Seller prior to the Closing. The Parties will cooperate to provide
each other with reasonable information systems support to permit a
smooth transfer of business operations between the Parties. In such
regard, Seller will provide Buyer with all information and systems
support in connection with the operation of the Companies and the
Businesses. Such assistance shall include electronic, computer and
other system assistance. Seller will refer all customer inquiries
relating to the Businesses of the Companies to Buyer from and after
the Closing.
5.5
Confidentiality
.
(a)
Seller hereby
acknowledges and agrees that, through its ownership or operation of
the Companies, it has occupied positions of trust and confidence
with respect to the Companies and the Businesses up to the date
hereof and has had access to, and has become familiar with, the
confidential and non-public information of the Companies and the
Businesses any and all other confidential or proprietary
information concerning the affairs or conduct of the Companies and
the Businesses prior to the date hereof, whether prepared by or on
behalf of the Seller or the Companies (collectively, the
“
Confidential
Information
”).
(b)
Seller hereby
acknowledges and agrees that the protection of the Confidential
Information of the Companies is necessary to protect and preserve
the value of the Companies and the Businesses and Assets of the
Companies, and that without such protection, Buyer would not have
entered into this Agreement and consummated the Contemplated
Transactions. Accordingly, subject to the provisions of
Section 5.5(c)
,
Seller hereby covenants and agrees, for itself, its Representatives
and Related Persons and its and their successors and permitted
assigns, that, without the prior written Consent of Buyer (which
Consent will be at the Buyer’s absolute discretion to give or
withhold), Seller will not, nor will Seller cause or permit any of
its Representatives or Related Persons to, at any time on or after
the Closing Date, directly or indirectly, disclose to any Person or
use for its own account or benefit or for the account or benefit of
any other Person any Confidential Information.
(c)
The provisions of
Section 5.5(b)
will
not apply to any Confidential Information (i) that the Seller can
demonstrate with documentary evidence is generally known to, and
available for use by, the public other than as a result of the
Breach of this Agreement or, to the Knowledge of Seller, any other
agreement pursuant to which any Person (including Seller or any
Representative or Related Person thereof) owes any duty of
confidentiality to the other Party or previously owed any duty of
confidentiality to Buyer; (ii) that is required to be disclosed
pursuant to Legal Requirement or an Order, or (iii) that the Seller
can reasonably determine is necessary to be disclosed to a
Representative of Seller in order for Seller to perform its
covenants and obligations, or to enforce its rights against Buyer,
under this Agreement or any related agreement (and then only to the
extent necessary to perform such covenants and obligations or to
enforce such rights). If Seller (including any Representative or
Related Person thereof) becomes compelled by a Legal Requirement or
any order to disclose any Confidential Information, Seller will
provide Buyer with prompt written notice of such requirement so
that Buyer may seek a protective order or other remedy in respect
of such compelled disclosure. If such a protective order or other
remedy is not obtained by or is not available to Buyer, then Seller
will use reasonable efforts to ensure that only the minimum portion
of such Confidential Information that is legally required to be
disclosed is so disclosed, and Seller will use all reasonable
efforts to obtain assurances that confidential treatment will be
given to such Confidential Information. Seller acknowledge its
responsibility to ensure that its Representatives and agents who
are given, or now have, access to the Confidential Information will
comply with the terms of this
Section 5.5
. Seller shall be
liable for any Breach of this Agreement caused by its
Representatives and agents.
5.6
Injunctive Relief
. The Parties
acknowledge and agree that (a) each of the provisions of
Sections 5.1, 5.4, 5.5,
5.8, 5.9
, and
5.10
are reasonable and
necessary to protect the legitimate business interests of the
Parties and their Related Persons, (b) any violation of any such
covenant contained in
Sections 5.1, 5.4, 5.5, 5.8,
5.9
, and
5.10
would result in
irreparable injury to the Parties and their Related Persons, the
exact amount of which would be difficult, if not impossible, to
ascertain or estimate, and (c) the remedies at law for any such
violation would not be reasonable or adequate compensation to the
Parties and their Related Persons for such a violation.
Accordingly, notwithstanding any other provision of this Agreement,
if either Party, directly or indirectly, violates any of its
covenants or obligations under
Sections 5.1, 5.4, 5.5, 5.8,
5.9
, or
5.10
then, in addition to any other remedy which may be available to the
other Party or any Related Person thereof, at law or in equity, the
Parties and their Related Persons will be entitled to seek
injunctive relief against the other Party, without posting bond or
other security, and without the necessity of proving actual or
threatened injury or damage.
5.7
Employees
. Subject to any
employment agreements with employees of the Companies set forth in
Schedule
5.7
, Buyer shall, in its sole and absolute discretion,
determine those employees that the Companies shall retain after
Closing. Buyer shall be under no obligation to cause the Companies
to retain any such employees on any terms or conditions other than
such terms or conditions determined by Buyer, or to continue
employment benefits or compensation other than as determined in the
sole discretion of Buyer. Any employment will be at base salary or
wage rates determined in the sole and absolute discretion of Buyer.
The provision of any other compensation or employee benefits,
including, without limitation, bonuses, commissions, health
benefits or compensation plans, will be at Buyer’s sole
discretion.
5.8
Public Announcements
. The
Parties will keep the existence of this Agreement, the terms and
conditions hereof and the Contemplated Transactions confidential,
and the Parties will not, nor will they cause or permit any Related
Person or Representative to, make any public announcement in
respect of this Agreement or the Contemplated Transactions without
the prior written Consent of the other Party, which Consent may be
given or withheld in any Party’s sole discretion; provided,
however that the foregoing confidentiality and non-disclosure
obligations will not apply to: (1) Buyer if at Closing, if Buyer
determines to issue a press release announcing the fact of the
acquisition of the Companies, and (2) the Parties to the extent
that (a) disclosure of such information is reasonably necessary to
consummate the Contemplated Transactions, (b) disclosure of such
information is required pursuant to Legal Requirement (including
the Securities Exchange Act of 1934, as amended, and the rules of
any national stock exchange or automated dealer quotation system)
or an Order, (c) disclosure of such information is reasonably
necessary for the Parties to enforce their rights under this
Agreement, or (d) such information is already in the public domain
other than as a result of a breach of this
Section 5.8
or
Section 5.5
or any other
confidentiality or non-disclosure obligation owed to a Party by any
Person (including the other Party). To the extent that any public
announcement of this Agreement, any of the provisions hereof or the
Contemplated Transactions is required of the Parties by Legal
Requirement or Order, the Parties will cooperate reasonably with
respect to reaching agreement on the contents and timing of such
announcement. Prior to any public announcement of this Agreement or
the consummation of the transactions contemplated hereby, Robert W.
Guidry shall reasonably approve the contents and timing of such
announcement. Any Consent required from Seller pursuant to this
Section 5.8
or
Section 5.5
shall
require the Consent of Robert W. Guidry.
5.9
Use of Name
. Seller hereby
agrees that from and after the Closing Date, Seller and its Related
Persons shall not, directly or indirectly, use the name “The
CFS Group,” “The CFS Group Disposal &
Recycling,” “RWG5,” or any derivation or
variation thereof in any manner. Seller also hereby agrees that
from and after the Closing Date, Seller and its Related Persons
shall not, directly or indirectly, use the trade name/s
“Container First Services”, “CFS”,
“Tri-City Regional Landfill”, “TCR”,
“Petersburg Landfill”, “Disposal & Recycling
Services of Lunenburg”, “Lunenburg Landfill” and
“Arena Trucking”.
5.10
Pre-Closing Covenants
. The
Parties agree as follows with respect to the period between the
Effective Date and the Closing or earlier termination of this
Agreement:
(a)
Seller will not
engage, and will not cause or permit the Companies, to engage, in
any practice, take any action, or enter into any transaction
outside the Ordinary Course of Business with respect to the Assets,
including the Properties, the Businesses or the Companies. Neither
Seller nor the Companies will sell, lease, transfer or assign any
of the Membership Interests or the Assets, including the
Properties, outside the Ordinary Course of Business and will not
impose any Liens upon any of the Membership Interests or the
Assets, including the Properties. Seller will not and will not
cause or permit the Companies to, without Buyer’s prior
Consent, cancel, compromise, waive or release any right or claim
under, in or to the Membership Interests or the Assets, including
the Properties.
(b)
Seller will not,
and will not cause or permit the Companies to, without
Buyer’s prior Consent, voluntarily incur any obligation
outside the Ordinary Course of Business or enter into any material
transaction, contract, capital expenditure or commitment for which
Buyer may have responsibility or obligation after Closing outside
the Ordinary Course of Business.
(c)
Seller will, and
will cause the Companies to, keep the Assets, including the
Properties, of the Companies substantially intact and will maintain
all of the Assets, including the Properties, of the Companies in a
state of condition that complies with all Legal Requirements and is
consistent with the Ordinary Course of Business of Seller and the
Companies.
(d)
Seller will, and
will cause the Companies to, comply with all applicable Legal
Requirements of each Governmental Body having jurisdiction over the
Companies, the Properties, the Assets and the
Businesses.
(e)
Seller will not (a)
solicit, initiate, or encourage the submission of any proposal or
offer from any Person relating to the acquisition of the Membership
Interests or any portion of the Assets, including the Properties,
of the Companies (including any acquisition structured as a merger,
consolidation, or share exchange) or (b) participate in any
discussions or negotiations regarding, furnish any information with
respect to, assist or participate in, or facilitate in any other
manner any effort or attempt by any Person to do or seek any of the
foregoing. Seller will not vote the equity interests in the
Companies in favor of any such acquisition.
(f)
Seller will not
cause or permit, and will not permit the Companies to commit, any
waste of the Assets, including the Properties, of the
Companies.
(g)
Seller will not,
and will not cause or permit the Companies to, without prior
written consent of Buyer, enter into any compromise or
settlement of any litigation, including any Current Litigation,
Proceeding or investigation by any Governmental Body relating to
the Companies, the Businesses, or the Companies’ Assets,
including the Properties.
(h)
Seller will not,
and will not cause or permit the Companies to, take any action, or
knowingly omit to take any action, that would or would reasonably
be expected to result in (i) any representation or warranty of
Seller set forth in
Section 3 and 4
becoming untrue
or (ii) any of the conditions to the obligations of Seller set
forth in this Agreement not being fully satisfied. Seller will give
prompt written notice to Buyer of any material adverse development
causing any of the representations and warranties in
Sections 3
or
4
to become inaccurate or
untrue. No disclosure pursuant to this
Section 5.10(h)
, however, shall
be deemed to cure any misrepresentation, breach of warranty, or
breach of covenant.
(i)
Seller shall not
perform, nor shall it authorize or allow any of its
Representatives, officers, employees or agents to perform, any acts
or omissions to manipulate the price of Buyer’s Common
Stock.
(j)
Buyer shall not
perform, nor shall it authorize or allow any of its
representatives, officers, directors, employees, or agents, or any
of its shareholders owning more than five percent (5%) of the
outstanding stock in Buyer, to perform, any acts or omissions to
manipulate the price of Buyer’s common stock.
The
Parties will do all other acts that may be reasonably necessary or
desirable in the reasonable opinion of the Parties to consummate
the Contemplated Transactions, all without further
consideration.
5.11
Termination of this Agreement
.
The Parties may terminate this Agreement as provided
below:
(a)
Buyer and Seller
may terminate this Agreement by mutual written Consent at any time
prior to the Closing Date;
(b)
Buyer may terminate
this Agreement by giving written notice to Seller at any time prior
to the expiration of the Inspection Period if Buyer is not
satisfied, in its sole discretion, with the results of its
continuing business, legal, environmental, and accounting due
diligence regarding the Properties, the Companies, the Businesses
or any Governmental Authorization, Permit, Consent, license,
Contract, Company Contract, or any other permit or approval related
to any of the foregoing, or if the Parties fail to execute an
amendment to this Agreement setting forth the Excluded Contracts.
If such notice is given, this Agreement and all rights, duties and
obligations of Buyer and Seller hereunder, except any which
expressly survive termination, shall terminate.
If such notice is not given, this Agreement and
all rights, duties and obligations of Buyer and Seller hereunder
(including without limitation their respective obligations to close
the transaction), shall become fully binding;
provided
however,
notwithstanding
anything to the contrary herein, Buyer shall have no duty or
obligation to consummate the Contemplated Transactions until such
time as Seller has fulfilled all of its obligations set forth
in
Section
6.1
.
(c)
Buyer may terminate
this Agreement by giving written notice to Seller at any time prior
to the Closing if Buyer determines that (i) any Governmental
Authorizations, Permit, Consent, Approvals, licenses, Contracts,
Company Contracts, or any other permits or approvals contemplated
by this Agreement are not in existence, have not been obtained by
the Companies, or the Companies either do not have full right,
title and interest in and to such Governmental Authorizations,
Permits, Consents, Approvals, licenses, Contracts, Company
Contracts, or any other permits or approvals; or such Governmental
Authorizations, Permits, Approvals, Consents, licenses, Contracts,
Company Contracts, or any other permits or approvals cannot be
transferred to or issued directly to and in the name of the
Companies; and/or (ii) such Governmental Authorizations, Permits,
Approvals, Consents, licenses, Contracts, Company Contracts, or any
other permits or approvals cannot be issued, conveyed, assigned or
transferred to the Companies.
(d)
Buyer may terminate
this Agreement by giving written notice to Seller at any time prior
to the Closing (i) in the event Seller has Breached any
representation, warranty, or covenant contained in this Agreement
in any respect, Buyer has notified Seller of the Breach, and the
Breach has continued without cure for a period of ten (10) days
after the notice of Breach;
(e)
Seller may
terminate this Agreement by giving written notice to Buyer at any
time prior to the Closing (i) in the event Buyer has Breached any
representation, warranty, or covenant contained in this Agreement
in any respect, Seller has notified Buyer of the Breach, and the
Breach has continued without cure for a period of ten (10) days
after the notice of Breach; and
(f)
In the event that
Closing has not been completed by January 6, 2017, Buyer or Seller,
so long as such Party is not then in material breach of any
provision of this Agreement or has undertaken any actions or
inactions which shall have delayed the Closing, may terminate this
Agreement upon five (5) Business Days written notice to the other
Party.
If any
Party terminates this Agreement pursuant to this
Section 5.11
, all rights and
obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party (except for (i) any
liability of any Party then in Breach, (ii) the obligations of the
Parties pursuant to
Section 5.5
, and (iii) the
obligations of Buyer pursuant to
Section 5.2
).
5.12
Seller Releases
.
Save and except for any rights of Seller under this Agreement and
the other Transaction Documents (defined below), effective as of
the Closing Date, Seller, for itself, and its Related
Parties, sole member, managers, officers, directors,
successors, assigns, agents and Representatives (collectively, the
“
Seller Releasing
Parties
”), hereby finally, unconditionally,
irrevocably and absolutely fully releases, acquits, remises and
forever discharges the Companies and Buyer and any of their Related
Persons, and their respective officers, directors, members,
managers, employees, parent companies, subsidiaries, predecessors,
successors, assigns, agents and Representatives, from any and all
actions, suits, debts, sums of money, interest owed, accounts,
contribution obligations, reckonings, bonds, bills, covenants,
controversies, agreements, guaranties, promises, undertakings,
variances, trespasses, credit memoranda, charges, damages,
judgments, executions, obligations, costs, expenses, fees
(including attorneys’ fees and court costs), counterclaims,
claims, demands, causes of action and Liabilities (the
“
Seller
Claims
”) existing as of the Closing Date accruing to
Seller and the Seller Releasing Parties in any capacity whatsoever,
including, without limitation, (i) related to or resulting from all
of Seller’s and Seller Releasing Parties’ capacities
with the Companies; (ii) arising under or by virtue of the
Organizational Documents or Company Documents; (iii) relating to or
resulting from the negotiation, preparation, and consummation of
this Agreement and the Contemplated Transactions; or (iv) the
valuation of the Membership Interests or determination of the
Purchase Price, except in the case of fraud or intentional
misconduct by any of Buyer and any of its Related Persons. This
Section 5.12
shall
survive Closing.
5.13
Guaranty
. Waste Services
Industries Holdings, LLC, a Delaware limited liability company (the
“
Guarantor
”), joins in the
execution of this Agreement for the purpose of guaranteeing the
duties and obligations of Seller pursuant to this Agreement,
including without limitations the obligations of Seller pursuant to
Sections 7 and 8
of
this Agreement, in each case subject to the terms of the applicable
Section of this Agreement (collectively, the provisions of this
Section 5.13
are
referred to as the “
Guaranty
”): Without
limiting the forgoing:
(a)
The Guarantor does
hereby absolutely, unconditionally and irrevocably guarantee to
Buyer and the Companies the full payment by Seller of charges,
fees, claims, costs, expenses, damages, Adverse Consequences,
Seller Claims, Current Seller Liabilities, Current Litigation
Matters, the Retained Liabilities, and all other amounts required
to be paid by Seller under this Agreement. Guarantor’s
obligations hereunder shall be primary and not secondary and are
independent of the obligations of Seller. This
Section 5.13
shall survive
Closing and any termination or expiration of this
Agreement.
(b)
A separate action
or actions may be brought and prosecuted against Guarantor, whether
or not an action is first brought against Seller or whether Seller
shall be joined in any such action or actions. At Buyer’s
option, or any Company if applicable, Guarantor may be joined in
any action or Proceeding commenced by Buyer, or any Company,
against Seller in connection with and based upon any covenants and
obligations of this Agreement, and Guarantor hereby waives any
demand by Buyer, or the Companies, and/or prior action by Buyer, or
the Companies, of any nature whatsoever against Seller. The
Guarantor Consents to forbearance, indulgences and extensions of
time on the part of Buyer, or the Companies, being afforded by
Seller, and/or the waiver from time to time by Buyer, or the
Companies, of any right or remedy on its part as against
Seller.
(c)
This Guaranty shall
remain and continue in full force and effect, notwithstanding (i)
any alteration of this Agreement by Buyer and Seller, whether prior
or subsequent to the execution thereof; and/or (ii) any renewal,
extension, modification, amendment or assignment of this Agreement.
The Guarantor does hereby waive notice of any of the foregoing and
agrees that the liability of the Guarantor hereunder shall be based
upon the obligations set forth in this Agreement as the same may be
altered, renewed, extended, modified, amended or assigned.
Guarantor further waives all notice of the acceptance of this
Guaranty and notice of breach, default or nonperformance by Seller
of its obligations under this Agreement. The Guarantor’s
obligations hereunder shall remain fully binding although Buyer, or
any Company as applicable, may have waived one or more defaults by
Seller, extended the time of performance by Seller, released,
returned, or misapplied other collateral given later as additional
security (including other guaranties) and released Seller from the
performance of its obligations under this Agreement. This Guaranty
shall remain in full force and effect notwithstanding the
institution by or against Seller of bankruptcy, reorganization,
readjustment, receivership or insolvency proceedings of any nature,
or the disaffirmance of this Lease in any such proceedings or
otherwise.
5.14
Buyer and Seller
agree and acknowledge that the Purchase Price Shares may not be
sold or transferred unless (i) such shares are sold pursuant
to an effective registration statement under the Securities Act, or
(ii) the Buyer 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 Securities Act (or a
successor rule) (“Rule 144”) or (iv) such shares are
transferred to an “affiliate” (as defined in Rule 144)
of the Seller who agrees to sell or otherwise transfer the shares
only in accordance with this
Section 5.14
and who is an
Accredited Investor (as defined in the Securities Act). Until
such time as the Purchase Price Shares have been registered under
the Securities 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 of Buyer 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.”
The
legend set forth above shall be removed and the Buyer shall issue
to the Seller a new certificate for the Purchase Price Shares free
of any transfer legend upon the request of the Seller if the Buyer
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 the one (1) year
holding period under Rule 144 has expired, or that a public sale or
transfer of the Purchase Price Shares otherwise may be made without
registration under the Securities Act, which opinion shall be
reasonably accepted by the Buyer so that the sale or transfer is
effected. Any request as described in this paragraph shall be
accompanied by the certificate or certificates representing the
Purchase Price Shares.
For so
long after Closing as such action remains a condition to the
Seller’s ability to sell the Purchase Price Shares, Buyer
shall remain current in its periodic reports and filings under the
Exchange Act.
5.15
Seller’s Right to Pursue Certain
Litigation
.
Seller
shall have the right to pursue, on its own behalf (including suits
brought as the assignee of claims), litigation to recover damages
in the litigation matter filed in the Circuit Court for the City of
Petersburg, Virginia, Case No. CL16-207 (the
“
Adenauer
Litigation
”). At the request of Seller, Buyer will
cause the Companies to assign to Seller all causes of action to
recover damages due to the Adenauer Litigation. All expenses of any
such litigation shall be borne solely by Seller and not by the
Companies or Buyer.
SECTION
6
CONDITIONS TO
OBLIGATION TO CLOSE
6.1
Conditions to Obligation of Buyer to
Close
. The obligation of Buyer to consummate the
transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following
conditions:
(a)
The representations
and warranties of Seller set forth in
Sections 3
and
4
shall be true and correct in
all material respects at and as of the Closing Date, except to the
extent that such representations and warranties are qualified by
terms such as “material” and “Material Adverse
Effect,” in which case such representations and warranties
shall be true and correct in all respects at and as of the Closing
Date. Without limiting generality of the forgoing, all of the
Assets, including all Tangible Personal Property, shall be
collectively in substantially similar condition, use, operation and
repair as of the date of any inspection by Buyer of such Assets and
Tangible Personal Property, normal wear and tear
excepted;
(b)
Seller shall have
performed and complied with all of its covenants hereunder in all
material respects through the Closing, except to the extent that
such covenants are qualified by terms such as
“material” and “Material Adverse Effect,”
in which case Seller shall have performed and complied with all of
such covenants in all respects through the Closing;
(c)
The Companies
and/or Seller shall have procured all of the third-party Consents
specified in
Schedule
3.1(d)
and
4.3(b)
;
(d)
No action, suit, or
proceeding shall be pending or threatened before any court or
quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge
would (i) prevent consummation of any of the transactions
contemplated by this Agreement, (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following
consummation, (iii) affect adversely the right of Buyer to own the
Membership Interests and to control the Companies, or (iv) affect
adversely the right of the Companies to own their Assets, including
the Properties, and to operate their Businesses (and no such
injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(e)
There has not been
made or threatened by any Person a claim asserting that such Person
(i) is the holder of record or the beneficial owner of, or has the
right to acquire or to obtain beneficial ownership of, any
Membership Interests or other interest of the Companies, or any
other voting, equity or ownership interest, in or to the Companies,
(ii) is entitled to all or any portion of the Purchase Price
payable for the Membership Interests as contemplated by this
Agreement or (iii) is entitled to acquire any of the Assets,
including the Properties, owned by the Companies;
(f)
The Companies shall
have received, acquired and obtained all nonappealable and
unrestricted Governmental Authorizations, Consents, Permits,
Approvals, licenses, and other permits and approvals, and all
pending applications therefor or renewals thereof, required or
necessary for the ownership, construction, development and
operation of Businesses on the Properties by the Companies and
Buyer, including local zoning approval, any required special use or
conditional use permits, local approval that the operation of the
Business and the Properties is consistent with the local solid
waste management plan, if any, and all permits issued by the
Commonwealth of Virginia, Department of Environmental Quality, for
the ownership, operation, development and construction of the
Businesses on the Properties, such Consents, licenses, Governmental
Authorizations, permits and approvals to be in accordance with all
Legal Requirements and satisfactory to Buyer in its sole
discretion, with respect to airspace requirements, operating
conditions, and any other restrictions or
requirements;
(g)
Seller shall have
caused the Companies to terminate, without liability to such
Company or Buyer, all Excluded Contracts, or assign all Excluded
Contracts to Seller or any third party;
(h)
On or before the
Closing, Seller shall file for and obtain in the name of the
applicable Company all the necessary Governmental Authorizations
from any Governmental Body (collectively the “
Approvals
”) having
jurisdiction over the Properties, or the Businesses, in order for
the Permits to be issued to the Company. Seller covenants to use
good faith and due diligence to actively pursue the Approvals.
Seller shall execute any additional agent authorization
documentation and any other document, instrument or certificate
specifically required by any Governmental Body to permit the
Companies to obtain the Permits and Approvals;
(i)
Seller shall have
delivered to Buyer a certificate to the effect that each of the
conditions specified above in
Section 6.1(a)
-
(h)
is satisfied in all
respects;
(j)
Seller shall have
delivered to Buyer a Closing Statement and accompanying loan payoff
statements showing any and all Current Seller Liabilities which
such Current Seller Liabilities shall be paid and satisfied at or
before Closing in accordance with
Section 2.4
(the
“
Closing
Statement
”), and shall have delivered to Buyer the
list of all current Accounts Receivables as contemplated by
Section
4.11(c
);
(k)
Buyer shall have
received the resignations, effective as of the Closing, of each
officer, director, employee, independent contractor, manager or
member of the Companies whom Buyer shall have specified in writing
five (5) Business Days prior to Closing;
(l)
Seller, Guarantor
and certain Related Persons of Seller, including Robert W. Guidry,
Charles A. Wilcox, Timothy Webb, and Jeff Kraus shall have executed
and delivered to Buyer
a
non-competition,
non-solicitation, and confidentiality agreements that, among other
things, prevent
s
Seller, certain of its Related Persons, including Robert W. Guidry,
Charles A. Wilcox, Timothy Webb, and Jeff Kraus, and Guarantor from
competing with the Buyer and the Companies or the Businesses of the
Companies and the business of Buyer within a 100 mile radius of
each of the Properties or soliciting customers of the Companies for
a period of five (5) years following the Closing Date or from
disclosing confidential information regarding the Companies for a
period of eight (8) years from the Closing Date. Such agreements
shall be substantially in the forms attached hereto as
Schedules
6.1(l)(i), 6.1(l)(ii) and 6.1(iii) respectively
(the “
Restrictive Covenants
Agreements
”);
(m)
If applicable,
Seller shall have delivered to Buyer a non-foreign affidavit dated
as of the Closing Date, sworn under penalty of perjury and in form
and substance required under the Treasury Regulations issued
pursuant to Code Section 1445, stating that Seller is not a
“Foreign Person” as defined in Code Section
1445;
(n)
Seller shall have
delivered to Buyer (i) a copy of the articles of organization of
the Companies certified on or soon before the Closing Date by the
Clerk of the Virginia State Corporation Commission (or comparable
officer), (ii) a certificate of fact for the Companies issued on or
soon before the Closing Date by the Clerk of the Virginia State
Corporation Commission (or comparable officer) and the Secretary of
State (or comparable officer) of each jurisdiction in which the
Companies are qualified to do business, (iii) limited liability
company records of the Companies and (iv) all other Organizational
Documents;
(o)
Seller shall have
delivered to Buyer a certificate of the secretary or an assistant
secretary of the Companies, dated the Closing Date, in form and
substance reasonably satisfactory to Buyer, certifying as to (i) no
amendments to the articles of organization or other Organizational
Documents of the Companies since Effective Date; and (ii) any
resolutions of the members of the Companies relating to this
Agreement and the Contemplated Transactions;
(p)
Buyer and Robert W.
Guidry shall have executed and delivered an Employment Agreement
substantially in the form attached hereto as
Schedule
6.1(p)
(the “
Employment
Agreement
”);
(q)
Buyer shall have
received a commitment for financing in the form and substance
satisfactory to Buyer in its sole discretion;
(r)
Seller shall have
executed and delivered to Buyer an Assignment of the Membership
Interests in the form of Exhibit 6.1(r);
(s)
Seller shall have
executed and delivered to Buyer a certificate from Seller that the
representations and warranties of Seller set forth herein are true
and correct as of Closing;
(t)
Seller shall have
delivered to Buyer an executed landlord’s consent acceptable
to Buyer with respect to each lease agreement identified on
Schedule
6.1(t)
; and
(u)
all actions to be
taken by Seller in connection with Contemplated Transactions and
all certificates, opinions, instruments, and other documents
required to effect the Contemplated Transaction shall be reasonably
satisfactory in form and substance to Buyer.
Buyer
may waive any condition specified in this
Section 6.1
if it executes a
writing so stating at or prior to the Closing.
(v)
Seller shall have
delivered to Buyer a certificate of the Manager of Seller, dated
the Closing Date, in form and substance reasonably satisfactory to
Buyer, certifying as to any resolutions of the Members and Manager
of the Seller relating to this Agreement and the Contemplated
Transactions.
(w)
Seller shall have
delivered to Buyer a complete list of the recurring customers of
the Businesses, whether or not such recurring customers are bound
by a written contract or agreement with the Companies.
(x)
CFS Disposal shall
have obtained complete and full release from all claims asserted
against it in the Andenaur Case (as defined in Schedule 4.20) and
an order dismissing all claims against CFS Disposal endorsed by all
parties to the Andenaur Case shall have been filed with the Court
at Closing.
6.2
Conditions to Obligation of Seller to
Close
. The obligation of Seller to consummate the
transactions to be performed by them in connection with the Closing
is subject to satisfaction of the following
conditions:
(a)
the representations
and warranties of Buyer set forth in
Section 3.2
shall be true and
correct in all material respects at and as of the Closing Date,
except to the extent that such representations and warranties are
qualified by terms such as “material” and
“Material Adverse Effect,” in which case such
representations and warranties shall be true and correct in all
respects at and as of the Closing Date;
(b)
Buyer shall have
performed and complied with all of its covenants hereunder in all
material respects through the Closing, except to the extent that
such covenants are qualified by terms such as
“material” and “Material Adverse Effect,”
in which case Buyer shall have performed and complied with all of
such covenants in all respects through the Closing;
(c)
no action, suit, or
proceeding shall be pending before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (i)
prevent consummation of any of the transactions contemplated by
this Agreement or (ii) cause any of the transactions contemplated
by this Agreement to be rescinded following consummation (and no
such injunction, judgment, order, decree, ruling, or charge shall
be in effect);
(d)
Buyer shall have
delivered to Seller a certificate to the effect that each of the
conditions specified above in
Section 6.2(a)
-
(c)
is satisfied in all
respects;
(e)
Buyer shall have
executed and delivered the Restrictive Covenants
Agreement;
(f)
Buyer shall have
delivered to Seller (i) a copy of the articles of incorporation of
the Buyer certified on or soon before the Closing Date by the
Secretary of State (or comparable officer) of the State of New
York, and (ii) a certificate of good standing for Buyer issued on
or soon before the Closing Date by the Secretary of State (or
comparable officer) of the State of New York;
(g)
Buyer shall have
delivered to Seller a certificate of the secretary or an assistant
secretary of Buyer, dated the Closing Date, in form and substance
reasonably satisfactory to Seller, certifying as to any resolutions
of the Board of Directors of the Buyer relating to this Agreement
and the Contemplated Transactions;
(h)
Buyer shall have
executed and delivered to Seller a certificate from Buyer that the
representations and warranties of Buyer set forth herein are true
and correct as of Closing;
(i)
Seller shall have
been able to obtain an executed landlord’s consent and
releases of all guarantees of Seller, Seller’s Related
Persons or any other person in effect on the Effective Date with
respect to each lease agreement identified on
Schedule
6.1(t)
;
(j)
Buyer and Robert W.
Guidry shall have executed and delivered the Employment
Agreement;
(k)
Seller shall have
been able to obtain releases of all bond and similar surety
obligation guarantees of Seller, Seller’s Related Persons or
any other person in effect on the Effective Date with respect to
the Properties and the Businesses; and
(l)
all actions to be
taken by Buyer in connection with consummation of the Contemplated
Transactions and all certificates, opinions, instruments, and other
documents required to effect the Contemplated Transactions will be
reasonably satisfactory in form and substance to
Seller.
Seller
may waive any condition specified in this
Section 6.2
if Seller executes
a writing so stating at or prior to the Closing.
SECTION
7
INDEMNIFICATION
7.1
Survival
. Subject to the
provisions of this
Section
7
and
Section
8
, all representations, warranties, covenants and
obligations of the Parties contained in this Agreement and in the
agreements, instruments and other documents delivered pursuant to
this Agreement will survive the Closing and the consummation of the
Contemplated Transactions.
7.2
Indemnification by Buyer
. Buyer
hereby covenants and agrees that, to the fullest extent permitted
by Legal Requirement, it will defend, indemnify and hold harmless
Seller and its Related Persons and Representatives, and their
respective officers, directors, members, managers, employees,
agents, and Representatives, and all successors and assigns of the
foregoing (collectively, the “
Seller Indemnified
Persons
”), for, from and against any Adverse
Consequences, arising from or in connection with:
(a)
any breach of, or
any inaccuracy in, any representation or warranty made by Buyer (i)
in this Agreement, (ii) the Schedules, (iii) the certificates
delivered pursuant to
Section 6 of this Agreement
, or
(iv) any other document, writing or instrument delivered by Buyer
pursuant to
Section 6 of
this Agreement
;
(b)
any breach of, or
failure to perform or comply with, any covenant, obligation or
agreement of Buyer in this Agreement or in any other certificate,
document, writing or instrument delivered by Seller pursuant to
Section 6
of this
Agreement; or
(c)
any claim by any
Person for any brokerage or finder’s fee, commission or
similar payment based upon any agreement or understanding made, or
alleged to have been made, by any Person with Buyer in connection
with this Agreement or any of the Contemplated
Transactions.
7.3
Indemnification by
Seller
.
(a)
Seller hereby
covenants and agrees that, to the fullest extent permitted by Legal
Requirement, it will defend, indemnify and hold harmless Buyer, and
its Related Persons and Representatives, and their respective
officers, directors, members, managers, employees, agents, and
Representatives, and all successors and assigns of the foregoing
(collectively, the “
Buyer Indemnified
Persons
”), for, from and against any Adverse
Consequences arising from or in connection with:
(i) any
breach of, or any inaccuracy in, any representation or warranty
made by Seller in (A) this Agreement, (B) the Schedules, (C) the
certificates delivered pursuant to this Agreement, (D) any transfer
instrument delivered by Seller pursuant to
Section 6
of this Agreement, or
(E) any other certificate, document, writing or instrument
delivered by Seller pursuant to
Section 6
of this
Agreement;
(ii) any
breach of, or failure to perform or comply with, any covenant,
obligation or agreement of Seller in this Agreement or in any other
certificate, document, writing or instrument delivered by Seller
pursuant to
Section
6
of this Agreement;
(iii) all
Current Seller Liabilities;
(iv) all
Current Litigation Matters;
(v)
any Liability of
the Companies resulting from, caused by, or arising in connection
with the termination or assignment of any Excluded
Contract;
(vi)
any claim by any
Person for any brokerage or finder’s fee, commission or
similar payment based upon any agreement or understanding alleged
to have been made by such Person with any Seller in connection with
this Agreement or any of the Contemplated
Transactions;
(vii)
The Retained
Liabilities;
(viii)
any Indebtedness of
the Companies outstanding on the Closing Date and not reflected on
Schedule
2.4
; and,
(ix) Adverse
Consequences (including costs of cleanup, containment or other
Remedial Action) arising out of acts or negligence occurring or
conditions existing at or before Closing from or in connection
with:
(1)
any Environmental,
Health and Safety Liabilities arising out of or relating to (A) the
conduct of any activity by Seller, the Companies, or their Related
Persons, or any employee, contractor, agent or Representative
thereof, or relating to the Businesses and Assets, including the
Properties, of the Companies; or (B) any Hazardous Materials or
other contaminants that were present on the Properties or Assets at
any time on or prior to the Closing Date; or
(2)
any bodily injury
(including illness, disability or death, regardless of when such
bodily injury occurred, was incurred or manifested itself),
personal injury, property damage (including trespass, nuisance,
wrongful eviction and deprivation of the use of real property) or
other damage of or to any Person or any Asset, including the
Properties, in any way arising from or allegedly arising from (A)
any Hazardous Activity conducted by Seller, the Companies or their
Related Persons or any employee, contractor, agent or
Representative thereof; or (B) from any Hazardous Material that was
(1) present on or before the Closing Date on or at the Properties
(or present on any other property, if such Hazardous Material
emanated from any Property and was present on any Property, on or
prior to the Closing Date) or (2) Released by Seller, the Companies
or their Related Persons, or any Person, on or at any of the
Properties or Assets at any time on or prior to the Closing
Date;
provided
,
however
, that Seller shall not
be liable to Buyer under this
Section 7.3(ix)
if (i) such
Hazardous Activity or Hazardous Material for which the indemnity
claim arises from was not present on any Property on or prior to
the Closing Date; and (ii) that Buyer did not materially
contribute, directly or indirectly, to the presence of such
Hazardous Activity or Hazardous Material on any Property. For
purposes of this Section 7.3(viii) only, the burden and expense in
obtaining the proof necessary to show the Hazardous Activity or
Hazardous Material was present on any Property on or prior to the
Closing Date shall be borne by the Buyer.
Buyer,
either directly or through the Companies, will be entitled to
control any Remedial Action, any Proceeding relating to a claim
that any Environmental Law has been violated and any other
Proceeding with respect to which indemnity may be sought under this
Section
7.3(viii)
.
7.4
Time
Limitations.
(a)
Subject to the
limitations and other provisions of this Agreement, a Buyer
Indemnified Person may only assert a claim for indemnification
under
Section 7.3
during the applicable period of time (the “
Buyer Claims Period
”)
specified as follows:
(i)
with respect to any
claim arising out of (A) any breach of, or any inaccuracy in, any
representation or warranty contained in
Sections 3.1(a)
,
3.1(b)
,
3.1(f)
,
3.1(g)
,
4.1
,
4.2
,
4.4
or
4.6
of this Agreement, (B)
fraud, willful misrepresentation or willful misconduct, (C) any
Current Seller Liability, Retained Liability or any Indebtedness of
the Companies outstanding on the Closing Date and not reflected on
Schedule
2.4
, (D) any Liability for any Current Litigation Matter, or
(E) any Liability of the Companies resulting from, caused by, or
arising in connection with any Excluded Contracts, the Buyer Claims
Period will commence on the date of this Agreement and continue
indefinitely;
(ii)
with respect to any
claim arising out of any breach of, or any inaccuracy in, any
representation or warranty contained in
Sections 4.22
or
4.24
, the Buyer Claims Period
will commence on the date of this Agreement and continue for the
full period of all applicable statutes of limitations (giving
effect to any waiver, mitigation or extension thereof) plus 60
days; and
(iii)
with respect to any
other indemnification claim (other than any breach of, or failure
to perform or comply with, any covenant, obligation or agreement of
Seller contained in
Section 8
, which are subject
only to
Section 8
)
made under
Section
7.3
, the Buyer Claims Period will commence on the date of
this Agreement and continue until the date that is eighteen (18)
months after the Closing Date;
provided
,
however
, that with respect to
any such indemnification claim made under
Section 7.3(a)(ii)
regarding
Seller’s breach of, or failure to perform or comply with, any
obligation hereunder or under any related agreement that is
intended to survive and continue after the Closing, the Buyer
Claims Period will continue for as long as such obligation is
outstanding (other than any breach of, or failure to perform or
comply with, any covenant, obligation or agreement of Seller
contained in
Section
8
, which are subject to
Section 8
).
(b)
Subject to the
limitations and other provisions of this Agreement, a Seller
Indemnified Person may only assert a claim for indemnification
under
Section 7.2
during the applicable period of time (the “
Seller Claims Period
”)
specified as follows:
(i)
with respect to any
claim arising out of (A) any breach of, or any inaccuracy in, any
representation or warranty contained in
Sections 3.2(a)
,
3.2(b)
,
3.1(e)
,
3.2(g)
,
3.2(j)
or
3.2(k)
of this Agreement, or
(B) fraud, willful misrepresentation or willful misconduct, the
Seller Claims Period will commence on the date of this Agreement
and continue indefinitely;
(ii)
with respect to any
claim arising out of any breach of, or any inaccuracy in, any
representation or warranty contained in
Section 3.2(h),
or
3.2(i)
, the Seller Claims
Period will commence on the date of this Agreement and continue for
the full period of all applicable statutes of limitations (giving
effect to any waiver, mitigation or extension thereof) plus 60
days; and
(iii)
with respect to any
other indemnification claim (other than any breach of, or failure
to perform or comply with, any covenant, obligation or agreement of
Seller contained in
Section 8
, which are subject
only to
Section 8
)
made under
Section
7.2
, the Seller Claims Period will commence on the date of
this Agreement and continue until the date that is eighteen (18)
months after the Closing Date;
provided
,
however
, that with respect to
any such indemnification claim made under
Section 7.2(b)
regarding
Buyer’s breach of, or failure to perform or comply with, any
obligation hereunder or under any related agreement that is
intended to survive and continue after the Closing, the Seller
Claims Period will continue for as long as such obligation is
outstanding (other than any breach of, or failure to perform or
comply with, any covenant, obligation or agreement of Buyer
contained in
Section
8
, which are subject to
Section 8
).
Notwithstanding
anything to the contrary in this
Section 7.4
, if before 5:00
p.m. (eastern time) on the last day of the applicable Buyer Claims
Period or Seller Claims Period, any Party against which an
indemnification claim has been made hereunder has been properly
notified in writing of such claim for indemnity hereunder and the
basis thereof, including with reasonable supporting details for
such claim (to the extent then known), and such claim has not been
finally resolved or disposed of as of such date, then such claim
will continue to survive and will remain a basis for indemnity
hereunder until such claim is finally resolved or disposed of in
accordance with the terms of this Agreement.
7.5
Certain Limitations for Indemnity
Claims
. Neither Buyer nor Seller shall be liable for any
claim for indemnification under
Section 7.2(a)
or
Section 7.3(a)
until the
claiming party has incurred Adverse Consequences totaling Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00), whereupon
the indemnifying party shall remain liable for all Adverse
Consequences incurred by the claiming party up to and including an
amount equal to ten percent (10.0%) of the Purchase Price (the
“
Indemnification
Cap
”). The Indemnification Cap shall not apply to any
claim for Adverse Consequences relating to any of the
following:
(a)
Seller’s
breach of its representations and warranties set forth
Sections 3.1(a)
,
3.1(b)
,
3.1(f)
,
3.1(g)
,
4.1
,
4.2
,
4.4
,
4.6
,
4.22
or
4.24
;
(b)
Buyer’s
breach of its representations and warranties set forth
Sections 3.2(a)
,
3.2(b)
,
3.1(e)
,
3.2(g)
,
3.2(h)
,
3.2(i)
,
3.2(j)
or
3.2(k)
; or
(c)
Adverse
Consequences resulting from acts of fraud.
7.6
Payment of Claims
. Once an
Adverse Consequence is agreed to by the indemnifying Party or
finally adjudicated to be payable pursuant to this
Section 7
, the indemnifying
Party shall satisfy its obligations within 15 Business Days of the
date of such agreement or the date of such final, non-appealable
adjudication by wire transfer of immediately available
funds.
7.7
Third-Party
Claims
.
(a)
No later than ten
(10) Business Days after receipt by a Person entitled to indemnity
under
Section 7.2
or
7.3
(an
“
Indemnified
Person
”) of notice of the assertion of a Third-Party
Claim against it, such Indemnified Person shall give notice to the
Person obligated to indemnify under such section (an
“
Indemnifying
Person
”) of the assertion of such Third-Party Claim
and a copy of any writing by which, such Third-Party assertion is
made. Such notice by the Indemnified Person shall describe the
Third Party Claim in reasonable detail, shall include copies of all
material written evidence thereof and shall indicate the estimated
amount, if reasonably practicable, of the Adverse Consequence that
has been or may be sustained by the Indemnified Person. The failure
to notify the Indemnifying Person will only relieve the
Indemnifying Person of any liability that it may have to any
Indemnified Person to the extent that the Indemnifying Person
demonstrates that the defense of such Third-Party Claim is
materially prejudiced by the Indemnified Person’s failure to
give such notice.
(b)
If an Indemnified
Person gives notice to the Indemnifying Person pursuant to
Section 7.7(a)
of
the assertion of a Third-Party Claim, the Indemnifying Person shall
be entitled to participate in the defense of such Third-Party Claim
and, to the extent that it wishes (unless (i) the Indemnifying
Person is also a Person against whom the Third-Party Claim is made
and the Indemnified Person determines in good faith that joint
representation would be inappropriate or (ii) the Indemnifying
Person fails to provide reasonable assurance to the Indemnified
Person of its financial capacity to defend such Third-Party Claim
and provide indemnification with respect to such Third-Party
Claim), to assume the defense of such Third-Party Claim with
counsel reasonably satisfactory to the Indemnified Person
(
provided
, such
counsel has appropriate experience in the subject matter relating
to the claim). After notice from the Indemnifying Person to the
Indemnified Person of its election to assume the defense of such
Third-Party Claim, the Indemnifying Person shall not, so long as it
diligently conducts such defense, be liable to the Indemnified
Person under this
Section
7.7(b)
for any fees of other counsel or any other expenses
with respect to the defense of such Third-Party Claim, in each case
subsequently incurred by the Indemnified Person in connection with
the defense of such Third-Party Claim. If the Indemnifying Person
assumes the defense of a Third-Party Claim, no compromise or
settlement of such Third-Party Claims may be effected by the
Indemnifying Person without the Indemnified Person’s Consent
unless: (A) there is no finding or admission of any violation of
Legal Requirement or any violation of the rights of any Person; (B)
the sole relief provided is monetary damages that are paid in full
by the Indemnifying Person; and (C) the Indemnified Person shall
have no liability with respect to any compromise or settlement of
such Third-Party Claims effected without its Consent. If notice is
given to an Indemnifying Person of the assertion of any Third-Party
Claim and the Indemnifying Person does not, within ten (10) days
after the Indemnified Person’s notice is given, give notice
to the Indemnified Person of its election to assume the defense of
such Third-Party Claim, or thereafter fails to diligently prosecute
the defense of such Third-Party Claim, the Indemnifying Person will
be bound by any determination made in such Third-Party Claim or any
compromise or settlement effected by the Indemnified
Person.
(c)
Notwithstanding the
foregoing, if an Indemnified Person determines in good faith that
there is a reasonable probability that a Third-Party Claim may
adversely affect it or its Related Persons other than as a result
of monetary damages for which it would be entitled to
indemnification under this Agreement, the Indemnified Person may,
by notice to the Indemnifying Person, assume the exclusive right to
defend, compromise or settle such Third-Party Claim, but the
Indemnifying Person will not be bound by any determination of any
Third-Party Claim so defended for the purposes of this Agreement or
any compromise or settlement effected without its Consent (which
may not be unreasonably withheld).
(d)
With respect to any
Third-Party Claim subject to indemnification under this
Section 7
: (i) both
the Indemnified Person and the Indemnifying Person, as the case may
be, shall keep the other Person fully informed of the status of
such Third-Party Claim and any related Proceedings at all stages
thereof where such Person is not represented by its own counsel;
and (ii) the parties agree (each at its own expense) to render to
each other such assistance as they may reasonably require of each
other and to cooperate in good faith with each other in order to
ensure the proper and adequate defense of any Third-Party
Claim.
(e)
With respect to any
Third-Party Claim subject to indemnification under this
Section 7
, the
parties agree to cooperate in such a manner as to preserve in full
(to the extent possible) the confidentiality of all Confidential
Information and the attorney-client and work-product privileges. In
connection therewith, each Party agrees that: (i) it will use its
best efforts, in respect of any Third-Party Claim in which it has
assumed or participated in the defense, to avoid production of
Confidential Information (consistent with applicable law and rules
of procedure); and (ii) all communications between any Party hereto
and counsel responsible for or participating in the defense of any
Third-Party Claim shall, to the extent possible, be made so as to
preserve any applicable attorney-client or work-product
privilege.
7.8
Tax Claims.
Notwithstanding any
other provision of this Agreement, the control of any claim,
assertion, event or proceeding in respect of Taxes (including, but
not limited to, any such claim in respect of a breach of the
representations and warranties in
Section 3.2(e)
or
4.15
hereof or any breach or
violation of or failure to fully perform any covenant, agreement,
undertaking or obligation in
Section 8
hereof) shall be
governed exclusively by
Section 8
hereof.
7.9
Tax Treatment of Indemnification
Payments
. All indemnification payments made under this
Agreement shall be treated by the Parties as an adjustment to the
Purchase Price for Tax purposes, unless otherwise required by Legal
Requirement.
7.10
Mitigation
. Each of the Parties
hereto agrees to take all reasonable steps to mitigate their
respective Adverse Consequences upon and after becoming aware of
any event or condition which could reasonably be expected to give
rise to any Adverse Consequences that are indemnifiable
hereunder.
7.11
Subrogation
. Upon making any
payment to the Indemnified Person for any indemnification claim
pursuant to
Section
7
, the Indemnifying Person shall be subrogated, to the
extent of such payment, to any rights which the Indemnified Person
may have against any third parties with respect to the subject
matter underlying such indemnification claim and the Indemnified
Person shall assign any such rights to the Indemnifying
Person.
7.12
Escrow
. In order to provide a
ready fund for the payment to Buyer of amount(s) due from Seller
pursuant to this
Section
7
, the parties hereto hereby agree that $600,000 of the
Purchase Price (the “Escrow Amount”) described in
Section 2.2(i) shall be placed in escrow at Closing with a national
or state bank with trust powers to be mutually agreed upon by Buyer
and the Seller prior to Closing (the “
Escrow Agent
”), which
escrow shall be subject to the terms and conditions substantially
in the form of the escrow agreement attached hereto and made a part
hereof as
Exhibit
7.12
(the “
Escrow Agreement
”). One
Hundred Thousand and no/100ths Dollars ($100,000.00) of the Escrow
Amount (the “Litigation Escrow”) shall be held by the
Escrow Agent and used solely for the purpose of (i) defending
against or prosecuting any of the Current Litigation Matters,
including payment of attorneys’ fees or other expenses of
litigation, or (ii) settling any Current Litigation matter or
paying any judgment which may arise under the Current Litigation
Matters as more particularly described in the Escrow Agreement.
Upon the final resolution of all Current Litigation Matters, any
remaining funds making up the Litigation Escrow, if any, shall be
promptly paid to Seller in accordance with the terms of the Escrow
Agreement.
7.13
Exclusive Remedies
. Subject to
Section 5.6
and
Section 9.11
the
Parties acknowledge and agree that their sole and exclusive remedy
with respect to any and all claims (other than claims arising from
fraud on the part of a Party hereto in connection with the
transactions contemplated by this Agreement) for any breach of any
representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this
Agreement, shall be pursuant to the indemnification provisions set
forth in this
Section
7
and in
Section
8
. In furtherance of the foregoing, each Party hereby
waives, to the fullest extent permitted under law, any and all
rights, claims and causes of action for any breach of any
representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this
Agreement it may have against the other Parties hereto and their
Affiliated Groups and each of their respective Representatives
arising under or based upon any Legal Requirement, except pursuant
to the indemnification provisions set forth in this
Section 7
and in
Section 8
. Nothing in this
Section 7.13
shall
limit any Person’s right to seek and obtain any equitable
relief to which any Person shall be entitled or to seek any remedy
on account of any Party’s fraud.
SECTION
8
TAX
MATTERS
The
following provisions shall govern the allocation of responsibility
as between Buyer and Seller for certain tax matters following the
Closing Date
:
8.1
Tax
Indemnification
. Seller shall indemnify the Companies,
Buyer, and each Related Person of Buyer and hold them harmless from
and against, without duplication, any loss, claim, liability,
expense, or other damage attributable to (a) any breach of, or any
inaccuracy in, any representation or warranty contained in
Sections 4.15
, (b)
all Taxes (or the non-payment thereof) of the Companies for all
Taxable periods ending on or before the Closing Date and the
portion of any Straddle Period (as defined below) through the end
of the Closing Date (“
Pre-Closing Tax Period
”),
and (c) any and all Taxes of any Person (other than the Company)
imposed on the Companies as a transferee or successor, by contract
or pursuant to any law, rule, or regulation, which Taxes relate to
an event or transaction occurring before the Closing.
Notwithstanding the forgoing, Seller shall not be responsible for
indemnification of any loss, claim, liability, expense, or other
damage attributable to a filing, settlement or other action taken
by Buyer without the written Consent of Seller. Seller shall
reimburse Buyer for any Taxes of the Companies which are the
responsibility of Seller or the Companies pursuant to this
Section 8.1
within
fifteen (15) business days after payment of such Taxes by Buyer or
the applicable Company. Buyer shall indemnify Seller and hold it
harmless from and against any loss, claim, liability, expense or
other damage attributable to Buyer’s failure to timely file
complete and accurate Tax Returns pursuant to
Section 8.3
. Buyer and the
Companies shall indemnify Seller, and each Related Person of Seller
and hold them harmless from and against, without duplication, any
loss, claim, liability, expense, or other damage attributable to
(a) any breach of, or any inaccuracy in, any representation or
warranty contained in
Sections 3.2(e)
, (b) all Taxes
(or the non-payment thereof) of the Companies for all Taxable
periods ending after the Closing Date and the portion of any
Straddle Period following the Closing Date, and (c) any and all
Taxes of any Person (other than the Company) imposed on the
Companies as a transferee or successor, by contract or pursuant to
any law, rule, or regulation, which Taxes relate to an event or
transaction occurring after the Closing.
8.2
Straddle
Period
. In the case of any Taxable period that includes (but
does not end on) the Closing Date (a “
Straddle Period
”), the
amount of any Taxes based on or measured by income or receipts of
the applicable Company for the Pre-Closing Tax Period shall be
determined based on an interim closing of the books as of the close
of business on the Closing Date and the amount of other Taxes of
the applicable Company for a Straddle Period which relate to the
Pre-Closing Tax Period shall be deemed to be the amount of such Tax
for the entire Taxable period multiplied by a fraction the
numerator of which is the number of days in the Taxable period
ending on the Closing Date and the denominator of which is the
number of days in such Straddle Period.
8.3
Responsibility
for Filing Tax Returns
. Seller shall prepare or cause to be
prepared at Seller’s cost and file or cause to be filed the
income Tax Returns related to a Pre-Closing Tax Period other than a
Straddle Period, but shall provide a copy of such return to Buyer
at least ten (10) days prior to the filing deadline and give Buyer
an opportunity to provide comments with respect to such Tax
Returns. Buyer shall prepare or caused to be prepared at
Buyer’s cost and file or cause to be filed all other Tax
Returns for the Companies which are filed after the Closing Date.
With respect to Straddle Period returns, Buyer shall provide Seller
a copy in advance of the filing deadline and give Seller an
opportunity to provide comments to such return.
8.4
Cooperation
on Tax Matters
.
(a) Buyer
and its Related Persons and Seller and its Related Persons shall
cooperate fully, as and to the extent reasonably requested by the
other Party, in connection with the filing of Tax Returns pursuant
to
Section 8.3
and
any audit, litigation or other proceeding with respect to Taxes.
Such cooperation shall include the retention and (upon the other
Party’s request) the provision of records and information
which are reasonably relevant to any such audit, litigation or
other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation
of any material provided hereunder. Buyer (and Buyer shall cause
the Companies) and Seller agree (i) to retain all books and records
with respect to Tax matters pertinent to the Companies relating to
any taxable period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent
notified by Buyer or Seller, any extensions thereof) of the
respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (ii) to give
the other Party reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the
other Party so requests, Seller and Buyer shall cause the Companies
to, as the case may be, and shall allow the other Party to take
possession of such books and records.
(b) Buyer
and Seller further agree, upon request, to use their reasonable
efforts to obtain any certificate or other document from any
governmental authority or any other Person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed
(including, but not limited to, with respect to the transactions
contemplated hereby).
8.5
Time
Limitation
. Notwithstanding anything in this Agreement to
the contrary, the provisions contained in
Section 3.2(e)
,
4.15
and this
Section 8
shall survive for the
full period of all applicable statutes of limitation (giving effect
to any waiver, mitigation or extension thereof) plus 60
days.
8.6
Certain
Taxes and Fees
. Except as otherwise provided in this
Agreement, all transfer, documentary, sales, use, stamp, and
registration Taxes, and all conveyance fees, recording charges and
other fees and charges (including any penalties and interest)
incurred in connection with consummation of the transactions
contemplated by this Agreement shall be paid by Seller when due,
and Seller will, at Seller’s own expense, file all necessary
Tax Returns and other documentation with respect to all such Taxes,
fees and charges, and, if required by applicable law, Buyer will,
and will cause its Related Persons to, join in the execution of any
such Tax Returns and other documentation.
8.7
Refunds
and Tax Benefits
. Any Tax refunds that are received by Buyer
or the Companies, and any amounts credited against Tax to which the
Buyer or the Companies become entitled, that relate to Pre-Closing
Tax Periods shall be for the account of the Seller, and, so long as
no default or deficiency is then due from Seller to Buyer under
Section 7
and
Section 8
, Buyer
shall pay over to Seller any such refund or the amount of any such
credit within fifteen (15) days after receipt or entitlement
thereto.
SECTION
9
MISCELLANEOUS
9.1
Expenses
. Each of Buyer and
Seller will bear their own costs and expenses (including legal fees
and expenses) incurred in connection with this Agreement and the
Contemplated Transaction, and Seller shall also bear the costs and
expenses of the Companies (including all of their legal fees and
expenses) in connection with this Agreement and the Contemplated
Transactions. Seller shall also bear the costs and expenses
incurred solely in connection with the transfer of the Membership
Interests to Buyer, if any. Seller shall be responsible for all
federal and state income or similar taxes imposed on Seller as a
result of the Contemplated Transaction hereby.
9.2
Notices
. All notices, requests,
demands, claims and other communications permitted or required to
be given hereunder must be in writing and will be deemed duly given
and received (i) if personally delivered, when so delivered,
(ii) if mailed, three (3) Business Days after having been sent
by registered or certified mail, return receipt requested, postage
prepaid and addressed to the intended recipient as set forth below,
(iii) if sent by electronic facsimile, once transmitted to the
fax number specified below and the appropriate telephonic
confirmation is received, provided that a copy of such notice,
request, demand, claim or other communication is promptly
thereafter sent in accordance with the provisions of
clause (ii) or (v) hereof, (iv) if sent by Email, on the date
sent if sent during normal business hours of the recipient, and on
the next Business Day if sent after normal business hours of the
recipient, or (v) if sent through an overnight delivery
service in circumstances to which such service guarantees next day
delivery, the Business Day following being so sent:
(a)
To
Buyer:
Meridian Waste
Solutions, Inc.
12540
Broadwell Road, Suite 2104
Milton,
Georgia 30004
Attn:
Jeffrey Cosman
Email:
jsc@jscosinc.com
Phone:
(724) 799-4305
with a
copy (which will not constitute valid delivery to Buyer)
to:
Richard
J. Dreger, Attorney at Law, P.C.
11660
Alpharetta Highway
Building 700, Suite
730
Roswell, Georgia
30076
Attn:
Richard J. Dreger, Esq.
Email:
Rick@rdregerlaw.com
Phone:
(678) 566-6901
(b)
To
Seller:
Waste
Services Industries, LLC
c/o
LeClairRyan, A Professional Corporation
919
East Main Street
24th
Floor
Richmond, Virginia
23219
Attention: John C.
Selbach, Esquire
Email:
cwilcox@wsillc.com
Phone:
(713) 502-7270
with a
copy (which will not constitute valid delivery to Seller)
to:
LeClairRyan, A
Professional Corporation
919
East Main Street
24th
Floor
Richmond, Virginia
23219
Attention: John C.
Selbach, Esquire
Facsimile: (804)
916-7288
Email:
john.selbach@leclairryan.com
and
Peter
T. Roselle
800
East Grand Street
Elizabeth, NJ
07201
Email:
ptroselle@regional-industries.com
Phone:
(908) 436-1966
Either
Party may give any notice, request, demand, claim or other
communication hereunder using any other means (including, without
limitation, electronic mail), but no such notice, request, demand,
claim or other communication will be deemed to have been duly given
or received unless and until it actually is received by the Party
for which it is intended and the notifying Party can provide
evidence of such actual receipt. Either Party may change its
address for the receipt of notices, requests, demands, claims and
other communications hereunder by giving the other Party notice of
such change in the manner herein set forth.
9.3
Waiver
. Neither any failure nor
any delay by any Party in exercising any right, power or privilege
under this Agreement or any of the documents referred to in this
Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right,
power or privilege will preclude any other or further exercise of
such right, power or privilege or the exercise of any other right,
power or privilege. To the maximum extent permitted by Legal
Requirement: (a) no claim or right arising out of this Agreement or
any of the documents referred to in this Agreement can be
discharged by one Party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by
another Party; (b) no waiver that may be given by a Party will be
applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one Party will be deemed to be a
waiver of any obligation of that Party or of the right of the Party
giving such notice or demand to take further action without notice
or demand as provided in this Agreement or the documents referred
to in this Agreement.
9.4
Entire Agreement and
Modification
. This Agreement (including the Schedules and
Exhibits hereto and the other agreements and instruments to be
executed and delivered by the Parties pursuant to
Section 6
hereto) constitutes
the entire and final agreement among the Parties with respect to
the subject matter hereof, and supersedes and replaces all prior
agreements, understandings, commitments, communications and
representations made among the Parties, whether written or oral,
with respect to the subject matter hereof. This Agreement may not
be amended, supplemented, or otherwise modified except by a written
agreement executed by the Parties.
9.5
Assignments; Successors; No
Third-Party Rights
. No Party may assign any of its rights or
delegate or cause to be assumed any of its obligations under this
Agreement without the prior written Consent of each other Party,
except that Buyer may assign any of its rights hereunder to, and
cause all of its obligations hereunder to be assumed by, any
Related Person without the Consent of Seller;
provided
,
however
, that in the event of
such an assignment by Buyer, Buyer shall remain responsible for all
of its obligations hereunder. Subject to the preceding sentence,
this Agreement will apply to, be binding in all respects upon and
inure to the benefit of the successors and permitted assigns of the
Parties, including the Guarantors. Nothing expressed or referred to
in this Agreement will be construed to give any Person other than
the Parties any legal or equitable right, remedy or claim under or
with respect to this Agreement or any provision of this Agreement,
except such rights as will inure to a successor or permitted
assignee pursuant to this
Section 9.5
. Notwithstanding
anything to the contrary in this
Section 9.5
or otherwise, Buyer
shall at all times have all rights and remedies granted to Buyer
pursuant to
Section
5.13
and the Guarantors shall at all times be bound by the
provisions of
Section
5.13.
9.6
Severability
. If any provision
of this Agreement, or the application of any such provision to any
Person or circumstance, is held to be unenforceable or invalid by
any Governmental Body or arbitrator or under any Legal Requirement,
the Parties will negotiate an equitable adjustment to the
provisions of this Agreement with the view to effecting, to the
greatest extent possible, the original purpose, intent and
commercial effect of such provision and of this Agreement. In any
event, the invalidity of any provision of this Agreement or portion
of a provision will not affect the validity of any other provision
of this Agreement or the remaining portion of the applicable
provision.
9.7
Dates and Times
. Dates and
times set forth in this Agreement for the performance of the
Parties’ respective obligations hereunder or for the exercise
of their rights hereunder will be strictly construed, time being of
the essence of this Agreement. All provisions in this Agreement
which specify or provide a method to compute a number of days for
the performance, delivery, completion or observance by any Party of
any action, covenant, agreement, obligation or notice hereunder
will mean and refer to calendar days, unless otherwise expressly
provided. Except as expressly provided herein, the time for
performance of any obligation or taking any action under this
Agreement will be deemed to expire at 5:00 p.m. (eastern time) on
the last day of the applicable time period provided for herein. If
the date specified or computed under this Agreement for the
performance, delivery, completion or observance of a covenant,
agreement, obligation or notice by any Party, or for the occurrence
of any event provided for herein, is a day other than a Business
Day, then the date for such performance, delivery, completion,
observance or occurrence will automatically be extended to the next
Business Day following such date.
9.8
Governing Law
. This Agreement
will be governed by and construed in accordance with the internal
laws of the Commonwealth of Virginia without giving effect to any
choice or conflict of law provision or rule (whether of the
Commonwealth of Virginia or any other jurisdiction).
9.9
Dispute Resolution; Submission to
Jurisdiction; Waiver of Jury Trial
.
(a) Any
dispute or difference between or among any of the Parties arising
out of or in connection with this Agreement or the Contemplated
Transactions, including without limitation any dispute for
indemnification under
Section 7 or 8
, which such
Parties are unable to resolve themselves shall be submitted to and
resolved by arbitration before a single arbitrator, for amounts in
dispute under Two Hundred Thousand and 00/100 Dollars ($200,000.00)
and otherwise before a panel of three (3) arbitrators, which
arbitration shall be governed by and enforceable under the Federal
Arbitration Act, as supplemented or modified by the provisions of
this
Section 9.9
.
The arbitrator(s) will consider the dispute at issue in Richmond,
Virginia within one hundred twenty (120) days (or such other period
as may be acceptable to the Parties to the dispute) of the
designation of the arbitrator. The arbitrator(s) will deliver a
written award, including written findings of fact and conclusions
of law, with respect to the dispute to each of the arbitrating
Parties, who will promptly act in accordance therewith. In no event
will the arbitrator(s) have the power to award damages in
connection with any dispute in excess of actual compensatory
damages. In particular, the arbitrator(s) may not multiply actual
damages or award consequential, indirect, special or punitive
damages, including, without limitation, damages for lost profits or
loss of business opportunity. Any award of the arbitrator(s) will
be final, conclusive and binding on the arbitrating Parties;
provided, however, that any such Party may seek the vacating,
modification or correction of the arbitrator(s)’ decision or
award as provided under
Section 10
and
Section 11
of the Federal
Arbitration Act 9 U.S.C. §1-14. Any Party to an arbitration
proceeding may enforce any award rendered pursuant to the
arbitration provisions of this
Section 9.9
by bringing suit in
any court of competent jurisdiction located in the City of
Richmond, Virginia. All costs and expenses attributable to the
arbitrator(s) will be allocated between the Parties to the
arbitration in such manner as the arbitrator(s) determine to be
appropriate under the circumstances. Any Party may file a copy of
this
Section 9.9
with any arbitrator or court as written evidence of the knowing,
voluntary and bargained agreement among the Parties with respect to
the subject matter of this
Section 9.9
.
(b) SUBJECT
TO SECTION 9.9(A) ABOVE, ANY LEGAL SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER DOCUMENTS
DELIVERED IN CONNECTION WITH CLOSING OF THE CONTEMPLATED
TRANSACTIONS (THE “
TRANSACTION DOCUMENTS
”)
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE
INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
LOCATED IN THE CITY OF RICHMOND, VIRGINIA OR THE COURTS OF THE
COMMONWEALTH OF VIRGINIA LOCATED IN THE CITY OF RICHMOND, VIRGINIA,
AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF
PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH
PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE
OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY
SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY
PROCEEDING IN SUCH COURTS, OR ANY ARBITRATION PROCEEDING CONDUCTED
IN THE CITY OF RICHMOND, VIRGINIA, AND IRREVOCABLY WAIVE AND AGREE
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT OR ARBITRATION PROCEEDING
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT,
OR IN THE CITY OF RICHMOND IN THE CASE OF AN ARBITRATION
PROCEEDING, HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH
SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO
THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.9(c)
.
9.10
Execution of Agreement
. This
Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy and all of which, when
taken together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission or electronic mail in PDF
format will constitute effective execution and delivery of this
Agreement as to the Parties and may be used in lieu of the original
Agreement for all purposes. Signatures of the Parties transmitted
by facsimile or by electronic mail in PDF format will be deemed to
be their original signatures for all purposes.
9.11
Specific Performance
. Each
Party acknowledges and agrees that each Party would be damaged
irreparably in the event any provision of this Agreement is not
performed in accordance with its specific terms or otherwise is
breached, so that each Party shall be entitled to injunctive relief
to prevent breaches of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in addition to
any other remedy to which a Party may be entitled, at law or in
equity. In particular, Seller acknowledge that the Businesses of
the Companies are unique and recognize and affirm that in the event
Seller Breaches this Agreement, money damages would be inadequate
and Buyer would have no adequate remedy at law, so that Buyer shall
have the right, in addition to any other rights and remedies
existing in its favor, to enforce its rights and obligations
hereunder not only by action for damages but also by action for
specific performance, injunctive, and/or other equitable
relief.
(See
following page for execution signatures)
IN
WITNESS WHEREOF, the Parties hereto have executed this Membership
Interest Purchase Agreement as of the Effective Date, intending to
be legally bound.
MERIDIAN WASTE
SOLUTIONS, INC., a New York corporation
By:
/s/
Jeffrey S. Cosman
Name:
Jeffrey S.
Cosman
Title:
Chief Executive Officer
WASTE
SERVICES INDUSTRIES, LLC, a Delaware limited liability
company
By:
/s/ Charles A.
Wilcox
Name:
Charles A. Wilcox
Title:
President
AGREED
AND ACCEPTED AS TO SECTION 5.13:
WASTE
SERVICES INDUSTRIES HOLDINGS, LLC, a Delaware limited
liability
company
By:
/s/
Charles A. Wilcox
Name:
Charles
A.
Wilcox
Title:
Chief Executive
Officer
[Signature
Page to Membership Interest Purchase Agreement]
SCHEDULE
1.1(a)
DEFINED TERMS
“
Accounts Receivable
”
means (i) all trade and other accounts receivable and other rights
to payment from past or present customers of the Companies, and the
full benefit of all security for such accounts or rights to
payment, including all trade and other accounts receivable
representing amounts receivable in respect of services rendered to
customers of the Businesses, and (ii) any claim, remedy or other
right related to any of the foregoing.
“
Accounts Payable
” means
all trade and other accounts payable to third parties in connection
with the Business that remain unpaid.
“
Adverse Consequences
”
means all actions, suits, Proceedings, hearings, investigations,
charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement or claims, obligations, Taxes, Liens,
losses, interest, expenses (including court costs, reasonable costs
of investigation and defense and reasonable attorneys’ fees
and expenses), whether or not involving a Third-Party
Claim.
“Adverse
Consequences” shall not include any incidental, special,
exemplary, multiple (whether of income or any other financial
metric), punitive or consequential damages (including diminutions
in value or loss of profit or revenue) or any equitable equivalent
thereof or substitute therefor, except to the extent actually
awarded to a Governmental Authority or other third
party.
“
Affiliated Group
” means
any affiliated group within the meaning of Code Section 1504(a) or
any similar group defined under a similar provision of state, local
or foreign law.
“
Agreement
” has the
meaning set forth in the preface.
“
Approvals
” has the
meaning set forth in
Section 6.1(h)
.
“
Assets
” has the meaning
set forth in
Section
4.7
.
“
Basis
” means any past or
present fact, situation, circumstance, status, condition, activity,
practice, plan, occurrence, event, incident, action, failure to
act, or transaction that forms or could reasonably be expected to
form the basis for any specified consequence.
“
Breach
” means any breach
of, or any inaccuracy in, any representation or warranty or any
breach of, or failure to perform or comply with, any covenant,
obligation or agreement, in or of this Agreement or any other
Contract, agreement or instrument (whether or not related to this
Agreement), or in or of any corporate, Company or partnership
organizational document or agreement, any Governmental
Authorization, Order or Legal Requirement, or any other breach of
any written instrument, or any event which with the passing of time
or the giving of notice, or both, would constitute such a breach,
inaccuracy or failure.
“
Business
” or
“
Businesses
” has the
meaning set forth in the Background Facts.
“
Business Day
” means any
day other than a Saturday or Sunday or any other day on which banks
in the Commonwealth of Virginia are permitted or required by Legal
Requirement to be closed.
“
Buyer
” has the meaning
set forth in the preface.
“
Buyer Claims Period
” has
the meaning set forth in
Section 7.4(a).
“
Buyer Indemnified
Persons
” has the meaning set forth in
Section 7.3
.
“
CERCLA
” means the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended.
“
CFS Disposal
” has the
meaning set forth in the Background Facts.
“
CFS Group
” has the
meaning set forth in the Background Facts.
“
Closing
”
and “
Closing
Date
” has the meaning set forth in
Section 2.3
.
“
Closing Statement
” has
the meaning set forth in
Section 6.1(j)
.
“
COBRA
” means the
requirements of Part 6 of Subtitle B of Title I of ERISA and Code
Section 4980B and of any similar state law.
“
Code
” means the Internal
Revenue Code of 1986, as amended.
“
Company
” or
“
Companies
” has the
meaning set forth in the Background Facts.
“
Company Contracts
” has
the meaning set forth in
Section 4.18(a)
.
“
Company Documents
” has
the meaning set forth in
Section 5.1
.
“
Confidential Information
”
has the meaning set forth in
Section 5.5(a)
.
“
Consent
” means any
approval, consent, ratification, waiver or other
authorization.
“
Contemplated
Transactions
” means all of the transactions
contemplated by this Agreement.
“
Contract
” means any
agreement, contract, license, lease, consensual obligation, promise
or undertaking (whether written or oral and whether express or
implied), whether or not legally binding.
“
Current Litigation
Matters
” has the meaning set forth in
Section 4.20
.
“
Current Seller
Liabilities
” or “
Current Seller Liability
”
has the meaning set forth in
Section 2.4.
“
Disclosure Schedule
” has
the meaning set forth in the introductory paragraph to
Section 4
.
“
DuPont Recycle Property
”
has the meaning set forth in the Background Facts.
“
DuPont Recycling
Business
” has the meaning set forth in the Background
Facts.
“
Effective Date
” has the
meaning set forth in the preface.
“
Employee Benefit Plan
”
means all “employee benefit plans” as defined by
Section 3(3) of the Employee Retirement Income Security Act of 1974
(“
ERISA
”), all specified
fringe benefit plans as defined in Section 6039D of the Code, and
all other bonus, incentive-compensation, deferred-compensation,
profit-sharing, stock-option, stock-appreciation-right,
stock-bonus, stock-purchase, employee-stock-ownership, savings,
severance, change-in-control, supplemental-unemployment, layoff,
salary-continuation, retirement, pension, health, life-insurance,
disability, accident, group-insurance, vacation, holiday,
sick-leave, fringe-benefit or welfare plan, and any other employee
compensation or benefit plan, agreement, policy, practice,
commitment, contract or understanding (whether qualified or
nonqualified, currently effective or terminated, written or
unwritten) and any trust, escrow or other agreement related thereto
that (i) is maintained or contributed to by any Company or any
other corporation or trade or business controlled by, controlling
or under common control with Sellers (within the meaning of Section
414 of the Code or Section 4001(a)(14) or 4001(b) of ERISA)
(“
ERISA
Affiliate
”) or has been maintained or contributed to
in the last six (6) years by any Company or any ERISA Affiliate, or
with respect to which any Company or any ERISA Affiliate has or may
have any liability, and (ii) provides benefits, or describes
policies or procedures applicable to any current or former
director, officer, employee or service provider of any Company or
any ERISA Affiliate, or the dependents of any thereof, regardless
of how (or whether) liabilities for the provision of benefits are
accrued or assets are acquired or dedicated with respect to the
funding thereof.
“
Employee Welfare Benefit
Plan
” has the meaning set forth in ERISA Section
3(1).
“
Environment
”
means soil, land surface or subsurface strata, surface waters,
groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life and any other
environmental medium or natural resource.
“
Environmental, Health and Safety
Liabilities
” means any and all costs, damages, Adverse
Consequences, expenses, Liabilities and/or other responsibility
arising from or under any Environmental Law or Occupational Safety
and Health Law, including those consisting of or relating to (i)
any environmental, health or safety matter or condition (including
on-site or off-site contamination, and/or occupational safety and
health regulation of any chemical substance or product), (ii) any
fine, penalty, judgment, award, settlement, Proceeding, damages,
Adverse Consequence, loss, claim, demand or response, remedial or
inspection cost or expense arising under any Environmental Law or
Occupational Safety and Health Law, (iii) financial responsibility
under any Environmental Law or Occupational Safety and Health Law
for cleanup costs or corrective action, including any cleanup,
removal, containment or other remediation or response actions
(“
Cleanup
”) required by any
Environmental Law or Occupational Safety and Health Law (whether or
not such Cleanup has been required or requested by any Governmental
Body or any other Person) and for any natural resource damages,
and/or (iv) any other compliance, corrective or remedial measure
required under any Environmental Law or Occupational Safety and
Health Law. For purposes of this definition, the terms
“removal,” “remedial” and “response
action” include the types of activities covered by the United
States Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA).
“
Environmental Law
” means
any Legal Requirement that requires or relates to (i) advising
appropriate Governmental Bodies, employees or the public of any
intended Release, actual Release or Threat of Release of pollutants
or Hazardous Materials, violations of discharge limits or other
prohibitions and the commencement of activities, such as resource
extraction or construction, that could have significant impact on
the Environment, (ii) preventing or reducing to acceptable levels
the Release of pollutants or Hazardous Materials into the
Environment, (iii) reducing the quantities, preventing the Release
or minimizing the hazardous characteristics of wastes that are
generated, (iv) assuring that products are designed, formulated,
packaged and used so that they do not present unreasonable risks to
human health or the Environment when used or disposed of, (v)
protecting resources, species or ecological amenities, (vi)
reducing to acceptable levels the risks inherent in the
transportation of pollutants, Hazardous Materials or other
potentially harmful substances, (vii) cleaning up pollutants that
have been Released, preventing the Threat of Release or paying the
costs of such clean up or prevention, (viii) making responsible
Persons pay private parties, or groups of them, for damages done to
their health or the Environment or permitting self-appointed
representatives of the public interest to recover for injuries done
to public assets; or (ix) governing or regulating any Hazardous
Activities.
“
ERISA
” means the Employee
Retirement Income Security Act of 1974, as amended.
“
ERISA Affiliate
” means
each entity that is treated as a single employer with any Company
for purposes of Code Section 414.
“
Excluded Contracts
” has
the meaning set forth in
Section 5.2
.
“
Financial Statements
” has
the meaning set forth in
Section 4.11(a)
.
“
GAAP
” means generally
accepted accounting principles as in effect in the United States of
America, as determined by the Financial Accounting Standards Board
from time to time, applied on a consistent basis as of the date of
any application thereof.
“
Governmental
Authorization
” means any zoning approvals, permits
(including the Permits), franchise rights, rights-of-way, Consent,
license, permission, registration, permit or other right or
approval issued, granted, given or otherwise made available by or
under the authority of any Governmental Body or pursuant to any
Legal Requirement and all pending applications therefor or renewals
thereof.
“
Governmental Body
” means
any (i) nation, state, county, city, town, borough, village,
district or other jurisdiction, (ii) federal, state, county, local,
municipal, foreign or other government, (iii) governmental or
quasi-governmental authority of any nature (including any agency,
branch, department, board, commission, court, tribunal or other
entity exercising governmental or quasi-governmental powers), (iv)
body exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power, (v) Indian tribal
authority, (vi) multinational organization or body, or (vii)
official of any of the foregoing.
“
Guarantor
” has the
meaning set forth in
Section 5.13
.
“
Guaranty
” has the meaning
set forth in
Section
5.13
.
“
Hauling Company Business
”
has the meaning set forth in the Background Facts.
“
Hauling Company Property
”
has the meaning set forth in the Background Facts.
“
Hazardous Activity
”
means, with respect to any Person (including any Party or the
Companies or their Related Persons), the distribution, generation,
handling, importing, management, manufacturing, processing,
production, refinement, Release, storage, transfer, transportation,
treatment or use (including any withdrawal or other use of
groundwater) of Hazardous Material in, on, under, about or from any
Property or other facility or real property owned, leased, operated
or otherwise used by such Person or any of its contractors in
connection with the conduct of the business of such Person, or from
any other asset of such Person, into the Environment and any other
act, business, operation or thing that increases the danger, or
risk of danger, or poses an unreasonable risk of harm, to persons
or property, whether on or off the aforementioned Properties,
facilities or other real property, beyond what is authorized by any
Environmental Law relating to the business of such
Person.
“
Hazardous Material
” means
any substance or material which is or will foreseeably be regulated
by any Governmental Body, including any material or substance which
is defined as a “hazardous waste,” “hazardous
material,” “hazardous substance,”
“extremely hazardous waste,” “restricted
hazardous waste,” “toxic waste” or “toxic
substance” under any provision of Environmental Law, and
including petroleum, petroleum products, asbestos, presumed
asbestos-containing material or asbestos-containing material, urea
formaldehyde and polychlorinated biphenyls.
“
Improvements
” means all
buildings, structures, fixtures, building systems and equipment,
and all components thereof, including the roof, foundation,
load-bearing walls, and other structural elements thereof, heating,
ventilation, air conditioning, mechanical, electrical, plumbing and
other building systems, environmental control, remediation and
abatement systems, sewer, storm, and waste water systems,
irrigation and other water distribution systems, parking
facilities, fire protection, security and surveillance systems, and
telecommunications, computer, wiring, and cable installations, all
of which are included in the Properties.
“
Indebtedness
” means (a)
any indebtedness (including all accrued interest) for borrowed
money or issued in substitution for or exchange of indebtedness for
borrowed money, (b) any indebtedness evidenced by any note, bond,
debenture or other debt security, (c) any indebtedness for the
deferred purchase price of property or services with respect to any
Company is liable, contingently or otherwise, as obligor or
otherwise, (d) any commitment by which any Company assures a
creditor against loss (including, without limitation, contingent
reimbursement obligations with respect to letters of credit), (e)
any indebtedness guaranteed in any manner by any Company
(including, without limitation, guarantees in the form of an
agreement to repurchase or reimburse), (f) any obligations under
capitalized leases with respect to which any Company is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or
with respect to which obligations any Company assures a creditor
against loss, (g) any TRAC or synthetic leases; (h) any
indebtedness secured by a Lien on the Assets of any Company, (i)
any unsatisfied obligation for “withdrawal liability”
to a “Multiemployer Plan” as such terms are defined
under ERISA, (j) the deficit or negative balance, if any, in any
Company’s checking account and (k) any credit card
debt.
“
Indemnified Person
” has
the meaning set forth in
Section 7.6.
“
Indemnifying Person
” has
the meaning set forth in
Section 7.6.
“
Insolvent
” means being
unable to pay debts as they mature, or as obligations become due
and payable.
“
Insolvency Laws
” means
any bankruptcy, insolvency, reorganization, moratorium or other
similar Legal Requirement affecting the enforcement of
creditors’ rights generally, and general principles of equity
(regardless of whether enforcement is considered in a proceeding in
law or equity).
“
IRS
” means the United
States Internal Revenue Service and, to the extent relevant, the
United States Department of the Treasury.
“
Inspection Period
” has
the meaning set forth in
Section 5.2
.
“
Insurance Policies
” or
“
Insurance
Policy
” has the meaning set forth in
Section 4.28.
“
Intangible Personal
Property
” means all intangible property used or held
for use by any Company, of whatever type or description, including
(a) the business as a going concern (b) goodwill of any Company (c)
all files, records and correspondence (d) telephone numbers,
telecopy numbers (e) all rights in Internet web sites and Internet
domain names presently used by Seller or the Companies, and links;
(f) all registered and unregistered copyrights in both published
works and unpublished works, (g) the “The CFS Group”,
“The CFS Group Disposal & Recycling Services”,
“RWG5”, “Container First Services”,
“CFS”, “Tri-City Regional Landfill”,
“TCR”, “Petersburg Landfill”,
“Disposal & Recycling Services of Lunenburg”,
“Lunenburg Landfill” and “Arena Trucking”
names, all assumed fictional business names, trade names,
registered and unregistered trademarks, service marks and
applications, and (h) all know-how, trade secrets, confidential or
proprietary information, customer lists, software, technical
information, data, process technology, plans, drawings and blue
prints; and (f) all right, title and interest in and to all Company
Documents, Company Contracts, and all Permits, Governmental
Authorizations, Approvals, Consents, licenses and other permits and
approvals of the Companies.
“
Intellectual Property
Assets
” has the meaning set forth in
Section 4.27
.
“
Knowledge
”
means
(i)
when used to qualify a representation, warranty or other statement
of Buyer, the actual knowledge that management (consisting of
Buyer’s officers and directors) of the Buyer actually has
with respect to the particular fact or matter that is the subject
of such representation, warranty or other statement, and the
knowledge that the management of the Buyer could reasonably be
expected to have after having conducted a reasonable inquiry or
investigation with respect to the fact or matter that is the
subject of such representation, warranty or other
statement.
(ii)
when used to qualify a representation, warranty or other statement
of Seller or any Company, the actual knowledge Robert W. Guidry,
Charles A. Wilcox, Timothy Webb or Kim Fairbanks has with respect
to the particular fact or matter that is the subject of such
representation, warranty or other statement, and the knowledge that
such individuals could reasonably be expected to have after having
conducted a reasonable inquiry or investigation with respect to the
fact or matter that is the subject of such representation, warranty
or other statement.
“
Legal Requirement
” means
any federal, state, local, municipal, foreign, international,
multinational or other constitution, law, ordinance, principle of
common law, code, regulation, statute or treaty.
“
Liability
” means with
respect to any Person (including any Party), any Indebtedness,
liability, penalty, damage, loss, cost or expense, obligation,
claim, deficiency, or guaranty of such Person of any kind,
character or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, disputed or undisputed,
liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined,
determinable or otherwise, and whether or not the same is required
to be accrued on the financial statements of such Person, including
any liability for Taxes.
“
Lien
” means with respect
to any Person, any mortgage, right of way, easement, encroachment,
any restriction on use, servitude, pledge, lien, charge,
hypothecation, security interest, encumbrance, adverse right,
interest or claim, community or other marital property interest,
condition, equitable interest, encumbrance, license, covenant,
title defect, option, or right of first refusal or offer or similar
restriction, voting right, transfer, receipt of income or exercise
of any other attribute of ownership, except for any liens for taxes
not yet due or delinquent or being contested in good faith by
appropriate proceedings for which adequate reserves have been
established and accrued on the financial statements of such Person
in accordance with GAAP.
“
Lunenburg Landfill
” has
the meaning set forth in the Background Facts.
“
Lunenburg Property
” has
the meaning set forth in the Background Facts.
“
Material Adverse Effect
”
or “
Material Adverse
Change
” means any effect or change that would be
materially adverse to the Businesses, Assets, condition (financial
or otherwise), operating results, or operations of the Companies,
taken as a whole, including the ability for the Companies to own,
construct, operate and develop the Assets and the, the transfer or
issuance to any Company, if applicable, of any Permit, Consent,
Governmental Authorization, license or other permit or approval
contemplated by this Agreement, or on the ability of Seller
consummate timely the Contemplated Transactions (regardless of
whether or not such adverse effect or change can be or has been
cured at any time or whether Buyer has knowledge of such effect or
change on the date hereof),
provided
,
however
, that “Material
Adverse Effect” shall not include any event, occurrence,
fact, condition or change, directly or indirectly, arising out of
or attributable to: (i) general economic or political conditions;
(ii) conditions generally affecting the industries in which any of
the Companies operates; (iii) any changes in financial or
securities markets in general; (iv) acts of war (whether or not
declared), armed hostilities or terrorism, or the escalation or
worsening thereof; (v) any action required or permitted by this
Agreement, except pursuant to
Section 3.5
,
Section 4.3
and
Section 6.1
; (vi) any changes
in applicable Legal Requirements or accounting rules, including
GAAP; or (vii) the public announcement, pendency or completion of
the transactions contemplated by this Agreement;
provided further
,
however
, that any event,
occurrence, fact, condition or change referred to in clauses (i)
through (iv) immediately above shall be taken into account in
determining whether a Material Adverse Effect has occurred or could
reasonably be expected to occur to the extent that such event,
occurrence, fact, condition or change has a disproportionate effect
on any Company compared to other participants in the industries in
which such Company conducts its businesses.
“
Membership Interests
” has
the meaning set forth in
Section 2.1
.
“
Most Recent Financial
Statements
” has the meaning set forth in
Section 4.11(a)
.
“
Most Recent Fiscal Month
End
” has the meaning set forth in
Section 4.11(a)
.
“
Most Recent Fiscal Year
End
” has the meaning set forth in
Section 4.11(a)
.
“
Multiemployer Plan
” has
the meaning set forth in ERISA Section 3(37).
“
Occupational Safety and Health
Law
” means any Legal Requirement designed to provide
safe and healthful working conditions and to reduce occupational
safety and health hazards, including the Occupational Safety and
Health Act, and any program, whether governmental or private (such
as those promulgated or sponsored by industry associations and
insurance companies), designed to provide safe and healthful
working conditions.
“
Order
”
means any order, injunction, judgment, decree, ruling, assessment
or arbitration award of any Governmental Body or
arbitrator.
“
Ordinary Course of
Business
” means an action taken by a Person will be
deemed to have been taken in the ordinary course of business only
if that action (i) is consistent in nature, scope and magnitude
with the past practices of such Person and is taken in the ordinary
course of the normal, day-to-day operations of such Person, (ii)
does not require authorization by the board of directors, owners,
shareholders, interest holders, members or managers of such Person
(or by any Person or group of Persons exercising similar authority)
and does not require any other separate or special authorization of
any nature, and (iii) is similar in nature, scope and magnitude to
actions customarily taken, without any separate or special
authorization, in the ordinary course of the normal, day-to-day
operations of other Persons that are in the same line of business
as such Person).
“
Organizational Documents
”
means: (i) with respect to a corporation, the certificate or
articles of incorporation and bylaws; (ii) with respect to any
other Person any charter or similar document adopted or filed in
connection with the creation, formation or organization of a
Person; (iii) any operating agreement, partnership agreement,
shareholder agreement or similar agreement and (iv) any amendment
to any of the foregoing.
“
Party
” or
“
Parties
” has the meaning
set forth in the preface.
“
Permits
” has the meaning
set forth in
Section
4.12(a)
.
“
Person
” means an
individual, a partnership, a corporation, a limited liability
company, an association, a joint stock holding company, a trust, a
joint venture, an unincorporated organization, any other business
entity, joint venture or other entity or Governmental Body (or any
department, agency, or political subdivision thereof).
“
Petersburg Landfill
” has
the meaning set forth in the Background Facts.
“
Petersburg Property
” has
the meaning set forth in the Background Facts.
“
Pre-Closing Tax Period
”
has the meaning set forth in
Section 8.1
.
“
Proceeding
” means any
action, arbitration, audit, hearing, investigation, litigation or
suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, whether public or
private) commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Body, court, or
arbitrator.
“
Property
” or
“
Properties
” has the
meaning set forth in the Background Facts together with all
buildings, structures, Improvements, and fixtures located thereon,
including all electrical, mechanical, plumbing and other building
systems, fire protection, security and surveillance systems,
telecommunications, computer, wiring, and cable installations,
utility installations, water distribution systems, and landscaping,
together with all easements and other rights and interests
appurtenant thereto (including air, oil, gas, mineral, and water
rights together with all Permits).
“
Purchase Price
” has the
meaning set forth in
Section 2.2.
“
Real Property Laws
” has
the meaning set forth in
Section 4.16(c).
“
Real Property Lease
”
means (i) any long-term lease of land in which most of the rights
and benefits comprising ownership of the land and the Improvements
thereon or to be constructed thereon, if any, are transferred to
the tenant for the term thereof or (ii) any lease or rental
agreement pertaining to the occupancy of any improved space on any
real property.
“
Related Person
”
means:
(i)
with respect to a
particular individual: (A) each other member of such
individual’s Family; (B) any Person that is directly or
indirectly controlled by any one or more members of such
individual’s Family; (C) any Person in which members of such
individual’s Family hold (individually or in the aggregate) a
Material Interest; and (D) any Person with respect to which one or
more members of such individual’s Family serves as a
director, officer, partner, executor or trustee (or in a similar
capacity); and
(ii)
with respect to a
specified Person other than an individual: (A) any Person that
directly or indirectly controls, is directly or indirectly
controlled by or is directly or indirectly under common control
with such specified Person; (B) any Person that holds a Material
Interest in such specified Person; (C) each Person that serves as a
director or officer, partner, executor or trustee of such specified
Person (or in a similar capacity); (D) any Person in which such
specified Person holds a Material Interest; and (E) any Person with
respect to which such specified Person serves as a general partner
or a trustee (or in a similar capacity).
(iii)
For purposes of
this definition, (a) “control” (including
“controlling,” “controlled by,” and
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and shall
be construed as such term is used in the rules promulgated under
the Securities Act; (b) the “Family” of an individual
includes (i) the individual, (ii) the individual’s spouse,
(iii) any other natural person who is related to the individual or
the individual’s spouse within the second degree and (iv) any
other natural person who resides with such individual; and (c)
“Material Interest” means direct or indirect beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act of 1934)
of voting securities or other voting interests representing at
least ten percent (10%) of the outstanding voting power of a Person
or equity securities or other equity interests representing at
least ten percent (10%) of the outstanding equity securities or
equity interests in a Person.
“
Release
” means any
release, spill, emission, leaking, pumping, pouring, dumping,
emptying, injection, deposit, disposal, discharge, dispersal,
leaching or migration on or into the Environment or into or out of
any property.
“
Remedial Action
” means
all actions, including any capital expenditures, required or
voluntarily undertaken (i) to clean up, remove, treat or in any
other way address any Hazardous Material or other substance, (ii)
to prevent the Release or Threat of Release or to minimize the
further Release of any Hazardous Material or other substance so it
does not migrate or endanger or threaten to endanger public health
or welfare or the Environment, (iii) to perform pre-remedial
studies and investigations or post-remedial monitoring and care, or
(iv) to bring the Properties and the operations conducted (or to be
conducted) thereon into compliance with Environmental Laws and
environmental Governmental Authorizations.
“
Representative
” means
with respect to a particular Person, any director, officer,
manager, employee, agent, consultant, advisor, accountant,
financial advisor, legal counsel or other representative of that
Person.
“
Restrictive Covenants
Agreement
” has the meaning set forth in
Section 6.1(l)
.
“Retained
Liabilities
” has the meaning set forth in
Section 2.4
.
“
RWG5
” has the meaning set
forth in the Background Facts.
“
Securities Act
” means the
Securities Act of 1933, as amended.
“
Seller
” has the meanings
set forth in the preface.
“
Seller Claims
” has the
meaning set forth in
Section 5.12
“
Seller Claims Period
” has
the meanings set forth in
Section 7.4(b)
.
“
Seller Indemnified
Persons
” has the meaning set forth in
Section 7.2
.
“
Seller Releasing Parties
”
has the meaning set forth in
Section 5.12
.
“
Straddle Period
” has the
meaning set forth in
Section 8.2
.
“
SWDA
” has the meaning set
forth in
Section
4.25
.
“
Tangible Personal
Property
” means all tangible personal property used or
useful in the Businesses, including all machinery, equipment,
scales, compactors, containers, bailers, tools, spare parts,
furniture, office equipment, computer hardware, supplies,
materials, vehicles, trade fixtures and other items of tangible
personal property of every kind owned or leased by the Companies
(wherever located and whether or not carried on the books of the
Companies or Seller), together with any express or implied warranty
by the manufacturers or lessors of any item or component part
thereof and all maintenance records and other documents relating
thereto.
“
Tax
” means any income,
gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, property, environmental, windfall
profit, customs, vehicle, airplane, boat, vessel or other title or
registration, capital stock, franchise, employees’ income
withholding, foreign or domestic withholding, social security,
unemployment, disability, real property, personal property, sales,
use, transfer, value added, alternative, add-on minimum and other
tax, fee, assessment, levy, tariff, charge or duty of any kind
whatsoever and any interest, penalty, addition or additional amount
thereon imposed, assessed or collected by or under the authority of
any Governmental Body or payable under any tax-sharing agreement or
any other Contract, whether disputed or not and including any
obligations to indemnify or otherwise assume or succeed to the Tax
liability of any other Person.
“
Tax Return
” means any
return (including any information return), report, statement,
schedule, notice, form, declaration, claim for refund or other
document or information filed with or submitted to, or required to
be filed with or submitted to, any Governmental Body in connection
with the determination, assessment, collection or payment of any
Tax or in connection with the administration, implementation or
enforcement of or compliance with any Legal Requirement relating to
any Tax.
“
Third Party Claim
” means
any claim, issuance of any Order or the commencement of any
Proceeding by any Person who is not a Party to this Agreement,
including a Related Person of a Party, any domestic or foreign
court, or Governmental Body.
“
Threat of Release
” means
a reasonable likelihood of a Release that may require action in
order to prevent or mitigate damage to the Environment that may
result from such Release.
“
Transfer Station
” has the
meaning set forth in the Background Facts.
“
Transfer Station
Property
” has the meaning set forth in the Background
Facts.
“
WARN
” has the meaning set
forth in
Section
4.21
.