HERE TO SERVE MISSOURI WASTE DIVISION, LLC CREDIT AGREEMENT DATED AS OF APRIL 30, 2014 COMERICA BANK

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)  

direct general obligations of the United States of America or obligations the payment of principal of and interest on which is unconditionally guaranteed by the United States of America;

(b)  

obligations of a state of the United States, the District of Columbia or any possession of the United States, or any political subdivision thereof, which are described in Section 103(a) of the Internal Revenue Code and are graded in any of the highest three (3) major grades as determined by at least one nationally recognized statistical rating organization; or secured, as to payments of principal and interest, by a letter of credit provided by a financial institution or insurance provided by a bond insurance company which in each case is itself or its debt is rated in one of the highest three (3) major grades as determined by at least one nationally recognized statistical rating organization;

(c)  

banker’s acceptances, commercial accounts, demand deposit accounts, money market accounts, certificates of deposit, or depository receipts issued by or maintained with any bank, trust company, savings and loan association, savings bank or other financial institution whose deposits are insured by the Federal Deposit Insurance Corporation and whose reported capital and surplus equal at least $250,000,000, provided that such minimum capital and surplus requirement shall not apply to demand deposit accounts maintained by Borrower or any of the Subsidiaries in the ordinary course of business;

(d)  

commercial paper rated at the time of purchase within the two highest classifications established by not less than two nationally recognized statistical rating organizations, and which matures within 270 days after the date of issue;

(e)  

secured repurchase agreements against obligations itemized in clause (a) above, and executed by a bank or trust company or by members of the association of primary dealers or other recognized dealers in United States government securities, the market value of which must be maintained at levels at least equal to the amounts advanced; and

(f)  

any fund or other pooling arrangement which exclusively purchases and holds the items listed in (a) through (e) above.

(a)  

Liens for taxes not yet delinquent or which are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of such Person in conformity with GAAP;

(b)  

carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s Liens or other like Liens arising in the ordinary course of business which secure obligations that are not overdue for a period of more than 30 days or are being contested in good faith by appropriate proceedings, provided that (i) in the case of any such contest, enforcement of such Liens has been suspended and (ii) appropriate reserves have been made on the books of such Person as may be required by GAAP, consistently applied, therefor;

(c)  

Liens arising in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits and similar statutory obligations which are not overdue for a period of more than 30 days or are being contested in good faith by appropriate proceedings diligently pursued, provided that in the case of any such contest (i) any proceedings commenced for the enforcement of such Liens shall have been duly suspended; and (ii) such provision for the payment of such liens has been made on the books of such Person as may be required by GAAP, consistently applied

(d)  

(i) Liens incurred in the ordinary course of business to secure the performance of statutory obligations arising in connection with progress payments or advance payments due under contracts with the United States government or any agency thereof entered into in the ordinary course of business and (ii) Liens incurred or deposits made in the ordinary course of business to secure the performance of statutory obligations (not otherwise permitted under subsection (c) of this definition), bids, leases, fee and expense arrangements with trustees and fiscal agents, trade contracts, surety and appeal bonds, performance bonds and other similar obligations (exclusive of obligations incurred in connection with the borrowing of money, any lease-purchase arrangements or the payment of the deferred purchase price of property), provided that full provision for the payment of all such obligations set forth in clauses (i) and (ii) has been made on the books of such Person as may be required by GAAP, consistently applied;

(e)  

Liens arising in connection with any condemnation or eminent domain proceeding affecting real property which is not otherwise a Default or Event of Default under this Agreement;

(f)  

any interest or title of a lessor under any lease entered into by any Loan Party in the ordinary course of business;

(g)  

minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, or any interest of any lessor or sublessor under any lease permitted hereunder which, in each case, does not materially interfere with the business of such Person;

(h)  

any provision in the invoicing or sale documentation of any supplier of a Loan Party which provides for retention of title to an asset by the supplier or transferor, provided that such Loan Party does not finance the acquisition of such asset on retention of title terms and such Lien is not perfected;

(i)  

Liens described in attached Schedule 8.5 and continuations or renewals of such Liens, provided that such continuations or renewals do not extend to any additional property or assets of any Loan Party or secure any additional obligations, other than as set forth in Schedule 8.5 and that any Debt secured by such Liens satisfies the requirements of Section 8.1(b) hereof;

(j)  

Liens and security interests securing Debt permitted by Section 8.1(c) provided that (i) such Liens are created upon fixed or capital assets acquired, constructed or improved by the Borrower after the date of this Agreement (including by virtue of a Capitalized Lease); (ii) any such Lien or security interest is created solely for the purpose of securing indebtedness representing, or incurred to finance, the cost of the acquisition, construction, improvement or leasing of the item of property subject thereto; and (iii) the principal amount of the Debt or Capitalized Lease secured by such Lien does not exceed 100% of the fair value of the property at the time it was acquired; and

(k)  

continuations or renewals of Liens that are permitted under subsections (a)-(j) hereof, provided such continuations or renewals do not violate the specific time periods set forth in subsections (b) and (c) and provided further that such Liens do not extend to any additional property or assets of any Loan Party or secure any additional obligations of any Loan Party.

    TERM LOAN

(a)  

on the proposed date of such Advance, after giving effect to all Advances, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 3, shall not exceed the then applicable Revolving Credit Commitment;

(b)  

a Request for Advance, once delivered to Bank, shall not be revocable by the Borrower;

(c)  

each request for advance shall constitute a certification by Borrower, as of the date thereof:

(i)  

both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;

(ii)  

all conditions to Advances have been satisfied, and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);

(iii)  

there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);

(iv)  

the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and

(v)  

the execution of such request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of any Loan Party.

(a)  

on the proposed date of such Advance, after giving effect to all Advances, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 3.A, shall not exceed the then applicable Capex Credit Commitment;

(b)  

a Request for Advance, once delivered to Bank, shall not be revocable by the Borrower;

(c)  

each request for advance shall constitute a certification by Borrower, as of the date thereof:

(i)  

both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;

(ii)  

all conditions to Advances have been satisfied, and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);

(iii)  

there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);

(iv)  

the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and

(v)  

the execution of such request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of any Loan Party.

(d)  

the principal amount of each Advance under the Capex Credit Note used to purchase machinery and equipment shall not exceed ninety percent (90%) of the invoice cost (excluding installation and delivery expense, import fees and other soft costs) of new machinery and equipment purchased by the Borrower or any Subsidiary of the Borrower with the proceeds of such Advance and the principal amount of each Advance under the Capex Credit Note used to fund improvements to property shall not exceed ninety percent (90%) of the cost of such improvements.  Advances under the Capex Credit Note shall be used solely to fund the purchase price of new machinery and equipment and to fund improvements to property used by the Borrower or its Subsidiaries.  Machinery and equipment financed with the proceeds of Advances under this Section 3A must be acceptable to Bank in the exercise of its reasonable credit judgment.

(a)  

this Agreement; and

(b)  

the Notes.

(a)  

the Security Agreement;

(b)  

the Pledge Agreement;

(c)  

the Subordination Agreement from Holdings;

(d)  

the Assignment;

(e)  

the Guaranty from Holdings and its Subsidiaries;

(f)  

the Guaranty from the Individual Guarantor;

(g)  

financing statements required or requested by Bank to perfect all security interests to be conferred upon Bank under any Loan Document and to accord Bank a perfected first priority security position under the Uniform Commercial Code (subject only to the Liens permitted by Section 8.5);

(h)  

certified copies of uniform commercial code requests for information, or a similar search report certified by a party reasonably acceptable to Bank, dated a date reasonably near to the Effective Date, listing all effective financing statements which name the Borrower or Subsidiary (under their present names or under any previous names, trade names or d/b/a’s used within five (5) years prior to the date hereof, such names being listed in their entirety on Schedule 5.2A hereof) as debtors and which are filed in the jurisdictions in which filings are to be made pursuant to the Loan Documents, together with (i) copies of such financing statements, and (ii) executed Uniform Commercial Code (Form UCC-3) Termination Statements, if any, necessary to release all Liens and other rights of any Person in any Collateral described in the Loan Documents previously granted by any Person (other than Liens permitted by Section 8.5); and

(i)  

Such other documents or agreements of security and appropriate assurances of validity, perfection of Liens for the benefit of Bank and first priority of Liens for the benefit of Bank as Bank may reasonably request at any time.

(a)  

The Bank shall have received executed copies of the Transaction Documents in effect on the Effective Date, certified by an officer of Borrower as being true, correct and complete. The Transaction Documents shall be in form and substance reasonably satisfactory to the Bank and each of the Transaction Documents shall have been duly authorized, executed and delivered by each of the parties thereto and shall be in full force and effect.

(b)  

The Bank shall have received a certification from Borrower that no term or provision of the Transaction Documents shall have been modified, and that no material condition to consummation of the Acquisition shall have been waived, in either case in a manner detrimental to the Loan Parties or the Bank by any of the parties thereto.

(c)  

The Bank shall have received such evidence as reasonably requested by Bank that the Acquisition has been, or substantially contemporaneously herewith, will be consummated substantially in accordance with the terms of the Transaction Documents, and that each of the Persons party thereto are in material compliance therewith, to the extent applicable.

(a)  

No Default or Event of Default shall exist as of the date of the Advance; and

(b)  

Each of the representations and warranties contained in this Agreement and in each of the other Loan Documents shall be true and correct in all material respects as of the date of the Advance (as the case may be) as if made on and as of such date (other than any representation or warranty that expressly speaks only as of a different date).

(b)  

The real property described in Schedule 6.3(b) hereof constitutes all of the real property owned or leased (including all warehouse locations) by the Loan Parties on the Effective Date;

(c)  

On the Effective Date, the Loan Parties will own or have a valid leasehold interest in all assets necessary for the continued operation of Borrower’s and its Subsidiaries’ business in substantially the same manner as immediately prior to the Effective Date;

(d)  

Each Loan Party shall own or have a valid leasehold interest in all real property or other assets necessary for its continued operations and no material condemnation, eminent domain or expropriation action has been commenced, or, to the best knowledge of the Borrower, threatened;

(e)  

There are no security interests, Liens, mortgages, or other encumbrances on and no financing statements on file with respect to any of the assets owned by the Loan Parties, except for the Liens permitted pursuant to Section 8.5 of this Agreement;

(f)  

There are no defaults by any party under any real property lease agreement which, either singly or in the aggregate, could reasonably be expected to have a Material Adverse Effect; each real property lease agreement is the valid and binding obligation of the Persons party thereto; and

(g)  

All real property leases (and all amendments thereto) of the Loan Parties in effect on the Effective Date shall have been delivered to Bank prior to the date hereof.

(a)  

all facilities and property owned or leased by the Loan Parties are in compliance with all Environmental Laws;

(b)  

Borrower has not received notice from any Person alleging that the Loan Parties or the facilities and property owned or leased by the Loan Parties are in violation of any Environmental Law;

(c)  

Borrower has no knowledge of and has not received any written request for information or any written notice that any Loan Party is a potentially responsible party under any Environmental Law; and

(d)  

Borrower has no knowledge of any conditions at, on or under any property now or previously owned or leased by the Loan Parties which, with the passage of time, or the giving of notice or both, would give rise to liability of the Loan Parties under any Environmental Law.

(a)  

As of the Effective Date, Borrower has furnished Bank with true, correct and complete copies of all Transaction Documents.  Borrower, and to Borrower’s knowledge, each other party to the Transaction Documents, has taken all necessary action to authorize the execution, delivery and performance of each Transaction Document to which such Person is a party.

(b)  

Each Loan Party has complied with all applicable federal, state and local laws, ordinances, codes, rules, regulations and guidelines (including consent decrees and administrative orders) relating to the consummation of the Acquisition and all other transactions contemplated by the Transaction Documents, except to the extent that failure to comply therewith could not reasonably be expected to have a Material Adverse Effect, and all applicable waiting periods with respect to the transactions contemplated by the Transaction Documents have expired without any action being taken by any governmental authority which restrains, prevents or imposes material adverse conditions upon the consummation of such transactions.

(c)  

The execution, delivery and performance of the Transaction Documents, and the consummation of the transactions contemplated thereby, are not in contravention of the terms of any indenture, agreement, instrument or undertaking, or any judgment, order or decree, to which such Loan Party is a party or by which it or its properties are bound, or, to Borrower’s knowledge, to which any other party to the Transaction Documents is a party or by which any such party is bound, except, in each case, where such contravention could not reasonably be expected to have a Material Adverse Effect.

(d)  

No Loan Party has granted a collateral assignment of, or a security interest over the Transaction Documents and no Loan Party has sold, transferred or assigned any Transaction Document to any Person.

(e)  

No Transaction Document to which any Loan Party is a party has been modified, amended, altered or changed in any manner except in compliance with Section 8.11 of this Agreement, and there are no unwaived defaults existing under the Transaction Documents by any Loan Party that is a party thereto, or, to the best of the knowledge of any Loan Party, by any other party thereto.

(a)  

as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of Borrower (or, in the case of the 2013 fiscal year, 150 days after the end of such fiscal year), a copy of the audited Consolidated financial statements of Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related audited statements of income, accumulated earnings, and cash flows for such fiscal year and underlying assumptions, setting forth in each case in comparative form the figures for the previous fiscal year, certified as being prepared in accordance with GAAP and fairly stated in all material respects by a nationally recognized certified public accounting firm reasonably satisfactory to Bank;

(b)  

as soon as available, but in any event within thirty five (35) days after the end of each month, Borrower prepared unaudited Consolidated financial statements of Borrower and its Consolidated Subsidiaries as at the end of such month, the related unaudited statements of income and cash flows of Borrower and its Consolidated Subsidiaries for the portion of the fiscal year through the end of such month, setting forth in each case in comparative form the figures for the corresponding periods in the previous year and certified by the Borrower as being fairly stated in all material respects;

(c)  

within forty five (45) days after and as of the end of each fiscal quarter, a Covenant Compliance Report as of the end of the applicable period executed by an authorized officer of the Borrower;

(d)  

as soon as available, but in any event within thirty five (35) days after the end of each fiscal quarter, internally prepared unaudited Consolidated and Consolidating financial statements of Holdings and its Consolidated Subsidiaries as at the end of such fiscal quarter, the related unaudited statements of income and cash flows of Holdings and its Consolidated Subsidiaries for the portion of the fiscal year through the end of such fiscal quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous year and certified by the Holdings as being fairly stated in all material respects;

(e)  

on or before April 1 of each year, a personal financial statement for the Individual Guarantor in form and detail applicable to Bank and certified by him as to accuracy and completeness and within ten (10) days of filing, a copy of the Individual Guarantor’s federal income tax return, together with all schedules;

(f)  

within thirty (30) days after the end of each fiscal year, financial projections for Borrower and its Consolidated Subsidiaries for the upcoming fiscal year in form reasonably satisfactory to Bank;

(g)  

such information as required by the terms and conditions of any Loan Documents;

(h)  

such additional schedules, certificates and reports respecting all or any of the Collateral, the items or amounts received by any Loan Party in full or partial payment thereof (for the sales as permitted hereunder), and any goods (the sale or lease of which shall have given rise to any of the Collateral) possession of which has been obtained by any Loan Party, all to such extent as Bank may reasonably request. Any such schedule, certificate or report shall be certified as accurate in all material respects (except as to any projections contained in such schedule, certificate or report which shall be certified as reasonable in all material respects taking into account all facts and information known or reasonably available to the Borrower) by a duly authorized officer of Borrower and shall be in such form and detail as Bank may reasonably specify;

(i)  

promptly, and in form to be reasonably satisfactory to Bank, such other information as Bank may reasonably request from time to time.

(b)  

Promptly notify Bank of any litigation or other proceeding before any court or administrative agency that arises, or to the knowledge of the officers of the Borrower is threatened against any Loan Party after the Effective Date, the outcome of which could reasonably be expected to have a Material Adverse Effect.

(c)  

Provide Bank with copies and/or verbal notice (if verbal notice is only notice given) of all notices of default or event of default under any real property lease, or any agreement with a supplier or customer which, in any case, is material to any Loan Party, concurrently with delivery or promptly after receipt thereof.

(d)  

Written notice to Bank (i) of all new jurisdictions in which any Loan Party has become qualified in order to transact business promptly after such qualification has occurred, (ii) not less than ten (10) Business Days prior to the proposed effectiveness thereof, of the acquisition or creation of new Subsidiaries, and (iii) not less than ten (10) Business Days prior to the proposed effectiveness thereof, of any material change in the authorized and issued equity interests of any Loan Party or the creation of any joint venture or any other material amendment to any Loan Party’s charter, by-laws or other organizational documents, such notice in each case to identify the applicable jurisdictions, capital structures or amendments, as applicable.

(a)  

the termination of a Pension Plan pursuant to Subtitle C of Title IV of ERISA or otherwise;

(b)  

the appointment of a trustee by a United States District Court to administer a Pension Plan;

(c)  

the commencement by the PBGC, or any successor thereto, of any proceeding to terminate a Pension Plan;

(d)  

the failure of a Pension Plan to satisfy the minimum funding requirements for any plan year as established in Section 412 of the Internal Revenue Code of 1986, as amended;

(e)  

the withdrawal of any Loan Party from a “multi-employer” plan, as so defined in Section 4001(a)(3) of ERISA; or

(f)  

a Reportable Event.

(b)  

Promptly notify Bank and provide copies upon receipt of all written claims, complaints, notices or inquiries received by any Loan Party of a material nature relating to its facilities and properties or compliance with Environmental Laws, and shall promptly cure all violations of or noncompliance with all Environmental Laws to the extent that such violations could reasonably be likely to have a Material Adverse Effect and shall diligently undertake to have dismissed with prejudice to the satisfaction of Bank any actions and proceedings relating to compliance with Environmental Laws to which any Loan Party is named a party, other than such actions or proceedings being contested in good faith and with the establishment of a reasonable reserve;

(c)  

To the extent necessary to materially comply with Environmental Laws, remediate or monitor contamination arising from a release or disposal of Hazardous Material; and

(d)  

Provide such information and certifications which Bank may reasonably request from time to time to evidence compliance with this Section 7.11.

(b)  

with respect to any warehouse where assets of the Loan Parties are held, the applicable Loan Party shall use its best efforts to deliver an executed bailee’s waiver for such location, unless such waiver is necessary for perfection of Bank’s Lien over such assets, in which case delivery of such waiver is required.

(a)  

the Indebtedness;

(b)  

any Debt as described in attached Schedule 8.1 and any renewals or refinancings of such Debt in amounts not exceeding the scheduled amounts (less any required amortization according to the terms thereof or other payments made reducing the principal amount of such Debt) on substantially the same or better terms as in effect on the Effective Date and otherwise in compliance with this Agreement, provided that no Default or Event of Default has occurred and is continuing, both before and after giving effect to the incurrence, renewal or refinancing thereof;

(c)  

indebtedness incurred in connection with the acquisition, construction or improvement of fixed or capital assets (whether pursuant to a loan or a Capitalized Lease) in an aggregate amount not exceeding $250,000 at any time outstanding, and any renewals or refinancing of such Debt, on substantially the same as or better terms as in effect on the date of incurrence of such Debt and otherwise in compliance with this Agreement, provided that no Default or Event of Default has occurred and is continuing, both before and after giving effect to the incurrence, renewal or refinancing thereof;

(d)  

Intercompany Loans subject to the requirements of Section 8.8;

(e)  

Debt in respect of Hedging Transactions;

(f)  

Subordinated Debt existing as of the Effective Date; and

(g)  

Guarantee Obligations to the extent permitted under Section 8.3 hereof.

(a)  

leases or sales of inventory leased or sold in the ordinary course of its business;

(b)  

sales or other dispositions of obsolete, damaged or worn out property, property no longer useful or useable in the conduct of any Loan Party’s business or property from closed locations or offices;

(c)  

transfers of assets (i) to the Borrower or any Subsidiary Guarantor from another Loan Party, provided that each Loan Party which receives assets as permitted hereunder takes such actions as may be necessary to ensure the perfection and priority of Bank’s Lien over such transferred assets as further specified by this Agreement, or (ii) expressly permitted by Sections 8.5, 8.6 or 8.8;

(d)  

leases or subleases to third parties of real property owned in fee or leased by any Loan Party or a disposition or assignment as lessor of a lease of real property or a non-exclusive license of intellectual property, in each case in the ordinary course of business;

(e)  

(i) mergers or consolidations of any Subsidiary of Borrower with or into Borrower (so long as the Borrower shall be the continuing or surviving entity); and (ii) mergers or consolidations of any Subsidiary of Borrower with or into any Subsidiary Guarantor, so long as such Subsidiary Guarantor shall be the continuing or surviving entity; provided, however, that at the time of each such merger or consolidation under sub-clauses (i) through (ii) of this clause (e), both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or result therefrom and notice of such merger or consolidation is provided at least fifteen (15) Business Days prior to its consummation;

(f)  

dispositions of cash or Cash Equivalents in the ordinary course of business;

(g)  

the settlement, discount or compromise of receivables in connection with the collection thereof, provided that such settlement, discount or compromise shall be in the ordinary course of such Loan Party’s business and pursuant to customary and reasonable industry practices;

(h)  

(i) provided no Default or Event of Default has occurred and is continuing at the time of such sale (both before and after giving effect to such Asset Sale), Asset Sales in which the sales price is at least the fair market value of the assets sold and the aggregate amount of such Asset Sales (as determined on the basis of the gross sales price of such Asset Sales) is less than $250,000 in any fiscal year, and (ii) other Asset Sales approved in writing by Bank.

(a)  

for the benefit of Bank; and

(b)  

the Permitted Liens.

(a)  

investments of surplus cash in Cash Equivalents;

(b)  

sales on open account and in the ordinary course of business;

(c)  

deposits made in the ordinary course of business in order to obtain goods or services in an aggregate amount not to exceed $50,000 at any one time;

(d)  

Intercompany Loans or Intercompany Investments made by the Borrower to or in any Subsidiary Guarantor or by any Subsidiary Guarantor to the Borrower;

(e)  

Hedging Transactions;

(f)  

the investments listed on the attached Schedule 8.8;

(g)  

investments consisting of loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business and not to exceed $50,000 in the aggregate at any one time outstanding; and

(h)  

investments consisting of (i) prepaid expenses, (ii) negotiable instruments held for collection, (iii) lease, utility, workers’ compensation, performance and other similar deposits (iv) insurance claim receivables and (v) stock, obligations and securities received in satisfaction of judgments, foreclosure of Liens or settlement of debts (whether pursuant to a plan of reorganization or similar arrangement or otherwise), provided, however, for those investments described in (iv) and (v) hereof, a first priority security interest is granted over such investments for the benefit of Bank.

(a)  

non-payment when due of (i) the principal or interest on the Indebtedness under this Agreement, or (ii) any fees or other amounts payable by any Loan Party hereunder or under any other Loan Document, and in the case of interest payments or the amounts specified by clause (ii) hereof, continuance thereof for three (3) Business Days;

(b)  

default in the observance or performance of any of the conditions, covenants or agreements set forth in Sections 7 or Section 8 in its entirety;

(c)  

default in the observance or performance of any of the other conditions, covenants or agreements set forth herein, and continuance thereof for a period of thirty (30) days after notice or when a senior officer of any Loan Party obtains knowledge thereof;

(d)  

any representation or warranty made by any Loan Party herein or in any Loan Document proves untrue in any material adverse respect when made or deemed made;

(e)  

default in the observance or performance of any of the conditions, covenants or agreements of any Loan Party set forth in any Loan Document or in any other agreement or instrument related to or connected with this Agreement or the Indebtedness and continuance for a period of thirty (30) days;

(f)  

default in the payment of any other obligations of any Loan Party for borrowed money in an aggregate amount in excess of $50,000 individually or in the aggregate when due (whether by acceleration or otherwise) and continuance thereof beyond any applicable period of cure, or in the observance or performance of any conditions, covenants or agreements related or given with respect to any obligations for borrowed money in an aggregate amount in excess of $50,000 individually or in the aggregate which continues beyond any applicable period of cure and which is sufficient to permit the holder thereof to accelerate the maturity of such obligations;

(g)  

judgments (not covered by insurance from a solvent insurer who is defending such action without reservation of rights) for the payment of money in excess of the sum of $50,000 in the aggregate shall be rendered against any Loan Party and such judgments shall remain unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of thirty (30) consecutive days from the date of its entry or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce such judgment;

(h)  

the occurrence of any event, which is determined by the PBGC to constitute grounds for termination by the PBGC of any Pension Plan or for the appointment of a trustee (in the case of a Pension Plan, by the appropriate United States District Court) to administer such plan, and such event is not corrected and such determination is not revoked within sixty (60) days after notice thereof has been given to the plan administrator or any Loan Party; or the institution of proceedings by the PBGC to terminate any such Pension Plan or to appoint a trustee to administer such plan; or the appointment of a trustee (in the case of a Pension Plan by the appropriate United States District Court) to administer any such Pension Plan;

(i)  

the occurrence of a Change of Control or if the Individual Guarantor shall die;

(j)  

any Loan Party shall be dissolved or liquidated (or any judgment, order or decree therefor shall be entered); or if a creditors’ committee shall have been appointed for the business of the any Loan Party; or if any Loan Party shall have made a general assignment for the benefit of creditors or shall have been adjudicated bankrupt and if not an adjudication based on a filing by a Loan Party it shall not have been dismissed within sixty (60) days, or shall have filed a voluntary petition in bankruptcy or for reorganization or to effect a plan or arrangement with creditors or shall fail to pay or shall admit in writing its inability or refusal to pay, its debts generally as such debts become due in the ordinary course of business (except as contested in good faith and for which adequate reserves are made in such party’s financial statements); or shall file an answer to a creditor’s petition or other petition filed against it, admitting the material allegations thereof for an adjudication in bankruptcy or for reorganization; or shall have applied for or permitted the appointment of a receiver or trustee or custodian for any of its property or assets; or such receiver, trustee or custodian shall have been appointed for any of its property or assets (otherwise than upon application or consent of any Loan Party) and shall not have been removed within sixty (60) days; or if an order shall be entered approving any petition for reorganization of any Loan Party and shall not have been reversed or dismissed within sixty (60) days; or any Loan Party shall take any action (corporate or other) authorizing or in furtherance any of the actions described above in this subsection;

(k)  

any material provision of any Loan Document shall at any time for any reason cease to be valid, binding and enforceable against any Loan Party or any other Person party to a Loan Document (other than in accordance with the terms thereof) or, (ii) the validity, binding effect or enforceability thereof shall be contested by any Loan Party or any other Person party to a Loan Document, or (iii) any Loan Party or any other Person party to a Loan Document, shall deny that it has any or further liability or obligation under any Loan Document, or any such Loan Document shall be terminated (other than in accordance with the terms thereof), invalidated, revoked or set aside or in any way cease to give or provide to Bank the benefits purported to be created thereby;

(l)  

any Loan Party shall fail to maintain in full force and effect any federal, state or local license, permit or operating right material to the operation of its business; or

(m)  

any Loan Party is enjoined, restrained, or in any way prevented by court order or by any governmental authority from continuing to conduct all or any material part of its business affairs for more than thirty (30) days;

(b)  

Any payment of the Indebtedness made by mail will be deemed tendered and received only upon actual receipt by Bank at the address designated for such payment, whether or not Bank has authorized payment by mail or any other manner, and shall not be deemed to have been made in a timely manner unless received on the date due for such payment, time being of the essence. Borrower expressly assumes all risks of loss or liability resulting from non-delivery or delay of delivery of any item of payment transmitted by mail or in any other manner. Acceptance by Bank of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and the failure to pay the entire amount then due shall be and continue to be a Default or an Event of Default, and at any time thereafter and until the entire amount then due has been paid, Bank shall be entitled to exercise any and all rights conferred upon it herein upon the occurrence of a Default or an Event of Default. Upon the occurrence and during the continuance of an Event of Default, Borrower waives the right to direct the application of any and all payments at any time or times hereafter received by Bank from or on behalf of such Borrower. Upon the occurrence and during the continuance of an Event of Default, Borrower agrees that Bank shall have the continuing exclusive right to apply and to reapply any and all payments received at any time or times hereafter against the Indebtedness in such manner as Bank may deem advisable, notwithstanding any entry by Bank upon any of its books and records. Borrower expressly agrees that to the extent that Bank receives any payment or benefit and such payment or benefit, or any part thereof, is subsequently invalidated, declared to be fraudulent or preferential, set aside or is required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or benefit, the Indebtedness or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment or benefit had not been made and, further, any such repayment by Bank, to the extent that Bank did not directly receive a corresponding cash payment, shall be added to and be additional Indebtedness payable upon demand by Bank.

1.

Here To Serve – Missouri Waste Division, LLC --- 13524 Northwest Industrial Drive, Bridgeton, MO 63044 AND 13500 Northwest Industrial Drive, Bridgeton, MO 63044

2.

Here To Serve Holding Corp --- 1111 Alderman Drive, Suite 210, Alpharetta, GA 30005

1.