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

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.

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.

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. 

2.5 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.

2.7 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.

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.

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), there 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.

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.

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.

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:

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.

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, prevents 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.

(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.

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:

(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,

(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;

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;

(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;

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.

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:

(b) To Seller:

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.

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.

(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.