WAIVER AND AMENDMENT NO. 1 TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
WAIVER
AND AMENDMENT NO. 1
THIS
WAIVER AND AMENDMENT NO. 1 (this “Agreement”) is entered into as of April 15,
2009, by and among BEST ENERGY SERVICES, INC (f/k/a HYBROOK RESOURCES CORP.), a
corporation organized under the laws of the State of Nevada (“Best”), XXX XXXXXX
DRILLING COMPANY, a corporation organized under the laws of the State of Utah
(“BBD”), and BEST WELL SERVICE, INC., a corporation organized under the laws of
the State of Kansas (“BWS”) (Best, BBD and BWS, each a “Borrower”, and
collectively “Borrowers”), the financial institutions party hereto
(collectively, the “Lenders” and individually a “Lender”) and PNC BANK, NATIONAL
ASSOCIATION (“PNC”), as agent for Lenders (PNC, in such capacity, the
“Agent”).
BACKGROUND
Borrowers,
Lenders and Agent are parties to that certain Revolving Credit, Term Loan and
Security Agreement dated as of February 14, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Loan Agreement”)
pursuant to which Agent and Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and
Lenders (x) waive certain Events of Default set forth on Schedule 1 attached
hereto that have occurred and are continuing (the “Existing Defaults”) and (y)
amend certain provisions of the Loan Agreement as hereafter provided, and Agent
and Lenders are willing to do so on the terms and conditions hereafter set
forth.
NOW, THEREFORE, in consideration of any
loan or advance or grant of credit heretofore or hereafter made to or for the
account of Borrowers by Agent or Lenders, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. All
capitalized terms not otherwise defined or amended herein shall have the
meanings given to them in the Loan Agreement.
2. Waiver. Subject
to the satisfaction of Section 4 below, Agent and Lenders hereby waive the
Existing Defaults. Notwithstanding the foregoing, the waiver of the
Existing Defaults set forth above does not establish a course of conduct between
Borrowers, Agent and Lenders and the Borrowers hereby agree that Agent and
Lenders are not obligated to waive any future Events of Default under the Loan
Agreement or the Other Documents.
3. Amendment. Subject
to the satisfaction of Section 4 below, the Loan Agreement is hereby amended as
follows:
(a) Section
1.2 of the Loan Agreement is hereby amended by (x) deleting the defined terms
“Eligible Equipment”, “Eligible Rig Fleet Equipment” and “Equipment Advance
Rate” and (y) amending the following defined terms to read in their entirety as
set forth below:
“Advance Rates” shall
mean, collectively, the Receivables Advance Rate and the Cash Collateral Advance
Rate.
“Alternate Base Rate”
shall mean, for any day, a rate per annum equal to the higher of (i) the Base
Rate in effect on such day, (ii) the Federal Funds Open Rate in effect on such
day plus 1/2 of
1% and (iii) the Daily LIBOR Rate plus
1%. For purposes of this definition, “Daily LIBOR Rate”
shall mean, for any day, the rate per annum determined by Agent by dividing (x)
the Published Rate by (y) a number equal to 1.00 minus the percentage prescribed
by the Federal Reserve for determining the maximum reserve requirements with
respect to any eurocurrency funding by banks on such day. For the
purposes of this definition, “Published Rate” shall
mean the rate of interest published each Business Day in The Wall Street Journal
“Money Rates” listing under the caption “London Interbank Offered Rates” for a
one month period (or, if no such rate is published therein for any reason, then
the Published Rate shall be the eurodollar rate for a one month period as
published in another publication determined by Agent).
“EBITDA” shall mean
for any period the sum of (i) Earnings Before Interest and Taxes for such period
plus (ii)
depreciation expenses for such period, plus (iii)
amortization expenses for such period, plus (iv) the extent
deducted in the calculation of net income, other non-cash charges.
“Excess Cash Flow” for
any fiscal period shall mean EBITDA of Borrowers on a Consolidated Basis for
such fiscal period minus Unfinanced
Capital Expenditures made by Borrowers on a Consolidated Basis during such
fiscal period minus taxes actually
paid by Borrowers on a Consolidated Basis during such fiscal period minus payments of
principal of the Term Loan and interest on indebtedness for borrowed
money.
“Federal Funds Open
Rate” for any day shall mean the rate per annum (based on a year of 360
days and actual days elapsed) which is the daily federal funds open rate as
quoted by ICAP North America, Inc. (or any successor) as set forth on the
Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other
substitute Bloomberg Screen that displays such rate), or as set forth on such
other recognized electronic source used for the purpose of displaying such rate
as selected by PNC (an “Alternate Source”) (or if such rate for such day does
not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any
Alternate Source, or if there shall at any time, for any reason, no longer exist
a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a
comparable replacement rate determined by the PNC at such time (which
determination shall be conclusive absent manifest error); provided however, that
if such day is not a Business Day, the Federal Funds Open Rate for such day
shall be the “open” rate on the immediately preceding Business
Day. If and when the Federal Funds Open Rate changes, the rate of
interest with respect to any advance to which the Federal Funds Open Rate
applies will change automatically without notice to the Borrowers, effective on
the date of any such change.
“Maximum Revolving Advance
Amount” shall mean $4,000,000.
“Revolving Interest
Rate” shall mean an interest rate per annum equal to (a) the sum of the
Alternate Base Rate plus two and one-half
of one percent (2.50%) with respect to Domestic Rate Loans and (b) the sum of
(x) the greater of (i) the Eurodollar Rate or (ii) two percent (2.0%) plus (y) three and
three-quarters of one percent (3.75%) with respect to Eurodollar Rate
Loans.
“Term Loan Rate” shall
mean an interest rate per annum equal to (a) the sum of the Alternate Base Rate
plus two and
one-half of one percent (2.50%) with respect to Domestic Rate Loans and (b) the
sum of (x) the greater of (i) the Eurodollar Rate or (ii) two percent (2.0%)
plus (y) three
and three-quarters of one percent (3.75%) with respect to Eurodollar Rate
Loans.
(b) Section
1.2 of the Loan Agreement is hereby amended by inserting the following defined
terms in appropriate alphabetical order:
“Amendment No. 1”
shall mean Waiver and Amendment No. 1 to Revolving Credit, Term Loan and
Security Agreement dated as of April 15, 2009, by and between Borrowers, Lenders
and Agent.
“Amendment No. 1 Closing
Reserve” shall mean $500,000 less all proceeds
received by Best from a Permitted Offering after the Amendment No. 1 Effective
Date and utilized to repay Revolving Advances.
“Amendment No. 1 Effective
Date” shall mean the date the Agent has determined the Conditions of
Effectiveness in Section 4 of Amendment No. 1 have been satisfied.
“Permitted Offering”
shall mean the issuance by Best of Equity Interests or unsecured Indebtedness
convertible into Equity Interests of Best, in either case, on terms and
conditions satisfactory to Agent in its sole discretion.
(c) Section
2.1(a) of the Loan Agreement is amended to read in its entirety as set forth
below:
“(a) Amount of Revolving
Advances. Subject to the terms and conditions set forth in
this Agreement, including Section 2.1(b), each Lender, severally and not
jointly, will make Revolving Advances to Borrowers in aggregate amounts
outstanding at any time equal to such Lender’s Commitment Percentage of the
lesser of (x) the Maximum Revolving Advance Amount less the aggregate
Maximum Undrawn Amount of all outstanding Letters of Credit or (y) an amount
equal to the sum of:
(i) up
to 85%, subject to the provisions of Section 2.1(b) hereof (“Receivables Advance
Rate”), of Eligible Receivables, plus
(ii) up
to 100%, subject to the provisions of Section 2.1(b) hereof (the “Cash Collateral Advance
Rate”), of the Cash Collateral Deposit, minus
(iii) the
aggregate Maximum Undrawn Amount of all outstanding Letters of Credit, minus
(iv) such
reserves as Agent may reasonably deem proper and necessary from time to time in
Agent’s reasonable credit judgment, including, without limitation, the Amendment
No. 1 Closing Reserve.
The
amount derived from the sum of (x) Sections 2.1(a)(y)(i) and (ii) minus (y)
Section 2.1 (a)(y)(iv) at any time and from time to time shall be referred to as
the “Formula Amount”. The Revolving Advances shall be evidenced by
one or more secured promissory notes (collectively, the “Revolving Credit
Note”) substantially in the form attached hereto as Exhibit
2.1(a).”
(d) Section
2.4 of the Loan Agreement is hereby amended to read in its entirety as set forth
below:
“2.4. Term
Loan. Each Lender, severally and not jointly, as of the date
of the consummation of the Second Acquisitions, had made to Borrowers a Term
Loan in the sum equal to such Lender’s Commitment Percentage
of $5,850,000 (the “Initial Term Loan”), of which $4,485,000 is
outstanding on the Amendment No. 1 Effective Date. On the Amendment
No. 1 Effective Date, $14,785,000 of Revolving Advances outstanding on such date
shall be converted into a term loan, and consolidated with and into the Initial
Term Loan, automatically and without the requirement for any further action by
any Person, so that after giving effect to such conversion the aggregate
principal amount of the Term Loan shall be $19,270,000. The Term Loan
shall be, with respect to principal, payable monthly commencing on May 1, 2009,
and on the first day of each month thereafter, as follows: (a) $98,500 per
month, from the Amendment Xx. 0 Xxxxxxxxx Xxxx xxxxxxx Xxxxxxxx 00, 0000, (x)
$125,000 per month, from January 1, 2010 through December 31, 2010, and (c)
$150,000 per month thereafter, with the balance payable upon expiration of the
Term, subject to acceleration upon the occurrence of an Event of Default under
this Agreement or termination of this Agreement. The Term Loan shall
be evidenced by one or more secured promissory notes (collectively, the “Term
Note”) in substantially the form attached hereto as Exhibit
2.4.”
(e) Section
2.21(b) of the Loan Agreement is hereby amended to read in its entirety as set
forth below:
“(b) Borrowers
shall prepay the outstanding amount of the Advances in an amount equal to 25% of
Excess Cash Flow for each fiscal year commencing on or after January 1, 2008,
payable upon delivery of the financial statements to Agent referred to in and
required by Section 9.7 for such fiscal year but in any event not later than
ninety (90) days after the end of each such fiscal year, which amount shall be
applied to outstanding principal installments of the Term Loan in inverse order
of maturity. In the event that the financial statement is not so
delivered, then a calculation based upon estimated amounts shall be made by
Agent upon which calculation Borrowers shall make the prepayment required by
this Section 2.21(b), subject to adjustment when the financial statement is
delivered to Agent as required hereby. The calculation made by Agent
shall not be deemed a waiver of any rights Agent or Lenders may have as a result
of the failure by Borrowers to deliver such financial statement.
(f) Section
2.21(c) is hereby amended by deleting the last sentence thereof.
(g) Section
3.3(b) of the Loan Agreement is hereby amended by deleting the text “one quarter
of one percent (0.25%)” contained therein and inserting the text “three-eighths
of one percent (0.375%)” in lieu thereof.
(h) Section
3.3 of the Loan Agreement is hereby further amended by inserting the following
new sub-clause (c) at the end thereof:
“(c) Amendment No. 1
Fee. Upon the execution of this Agreement, each Lender shall
have earned its ratable share of a fee equal to $125,000, which fee shall be due
and payable (x) $25,000 on the Amendment No. 1 Effective Date, and (y)
thereafter, in three equal installments of $33,333.34, on the thirtieth (30th),
sixtieth (60th) and
ninetieth (90th) day
following the Amendment No. 1 Effective Date, provided that at the
election of the Agent, such fee shall become immediately due and payable upon
the occurrence and during the continuance of any Event of Default.”
(i) Section
6.5(a) is hereby amended to read in its entirety as set forth
below:
“(a) Fixed Charge Coverage
Ratio. Cause to be maintained as of the end of each fiscal
quarter set forth below, for the twelve month period ending on the last day of
such fiscal quarter, a Fixed Charge Coverage Ratio of not less than the ratio
set forth in the table below for such period:
|
Fiscal
Quarter Ending:
|
Minimum
Fixed Charge Coverage Ratio:
|
|
March
31, 2009
|
No
Test
|
|
June
30, 2009
|
No
Test
|
|
September
30, 2009
|
No
Test
|
|
December
31, 2009
|
No
Test
|
|
March
31, 2010
|
1.05
to 1.0
|
|
June
30, 2010
|
1.10
to 1.0
|
|
September
30, 2010
|
1.15
to 1.0
|
|
December
31, 2010
|
1.20
to 1.0
|
|
March
31, 2011 and each fiscal quarter ending thereafter
|
1.25
to 1.0
|
(j) Section
6.5(b) is hereby amended to read in its entirety as set forth
below:
“(b) Minimum
EBITDA. Maintain as of the end of each fiscal quarter set
forth below, for the period ending on the last day of such fiscal quarter,
EBITDA of Borrowers on a Consolidated Basis of at least the amount set forth
opposite such fiscal quarter:
|
Fiscal
Quarter Ending:
|
Minimum
EBITDA
|
|
Three
month period ending March 31, 2009
|
$216,000
|
|
Six
month period ending June 30, 2009
|
$902,000
|
|
Nine
month period ending September 30, 2009
|
$1,744,000
|
|
Twelve
month period ending December 31, 2009
|
$2,385,000
|
(k) Section
6.5 of the Loan Agreement is hereby further amended by inserting the following
new sub-clause (c) at the end thereof:
“(c) Minimum Rig
Utilization. Cause to be maintained as of the end of each
fiscal quarter set forth below, for the three-month period then ending, Minimum
Rig Utilization for BWS of not less than the percentage set forth in the table
below opposite such fiscal quarter:
|
Fiscal
Quarter Ending:
|
Minimum
Rig Utilization:
|
|
March
31, 2009
|
25%
|
|
June
30, 2009
|
30%
|
|
September
30, 2009
|
34%
|
|
December
31, 2009
|
34%
|
|
March
31, 2010
|
48%
|
|
June
30, 2010
|
54%
|
|
September
30, 2010
|
58%
|
|
December
31, 2010
|
58%
|
|
March
31, 2011 and each fiscal quarter ending thereafter
|
58%
|
(l) Article
VI of Loan Agreement is hereby amended by inserting the following new Section
6.12 at the end of thereof:
“6.12 Conditions Subsequent to
Amendment No. 1.
(a) On
or prior to May 29, 2009, Best shall have granted to Agent (or its designee) a
common stock warrant, exercisable for 250,000 shares of common stock of Best,
such warrant to be in form and substance (and on terms) satisfactory to Agent,
including, without limitation, that it shall be exercisable for five (5) years
at $0.50/share, have a cashless exercise option and contain such registration
rights as are acceptable to Agent.
(b) On
or prior to May 15, 2009, Borrowers shall have (i) delivered to Agent all
certificates of title for all vehicles constituting Collateral that were not
delivered on or prior to the Amendment No. 1 Effective Date, (ii) executed such
lien entry forms related thereto as Agent may request and (iii) remitted to
Agent (or its counsel) all fees and taxes necessary to transfer such titles into
the name of a Borrower (if such titles are not already issued in the name of a
Borrower) and record Agent’s Lien on such titles.
(m) Section
7.7 of the Loan Agreement is hereby amended to read in its entirety as set forth
below:
“7.7 Dividends. Declare,
pay or make any dividend or distribution on any shares of the common stock or
preferred stock of any Borrower (other than dividends or distributions payable
in its stock, or split-ups or reclassifications of its stock) or apply any of
its funds, property or assets to the purchase, redemption or other retirement of
any common or preferred stock, or of any options to purchase or acquire any such
shares of common or preferred stock of any Borrower; provided that
Borrowers (other than Best) shall be permitted to make payments to Best, to pay
professional fees, franchise taxes and other Ordinary Course of Business
operating expenses (excluding salaries and other employee compensation) incurred
by Best solely in its capacity as parent corporation of Borrowers; provided, however, that after
giving effect to the payment of such dividends there shall not exist any Event
of Default or Default.”
(n) Section
7.8 of the Loan Agreement is hereby amended by (x) deleting the word “and”
appearing at the end of sub-clause (vi) of said Section and (y) inserting the
following text immediately preceding the period at the end of said
Section:
“; and
(viii) unsecured Indebtedness incurred in connection with a Permitted Offering,
so long as terms and conditions thereof are satisfactory to Agent in its sole
and absolute discretion”.
(o) Section
9.7 of the Loan Agreement is hereby amended by inserting the text “(other than
for the fiscal year of Borrowers ending December 31, 2008, which shall be
furnished by April 30, 2009)” immediately following the text “Furnish Agent
within ninety (90) days after the end of each fiscal year of Borrowers”
appearing in said Section.
(p) Section
9.16 of the Loan Agreement is hereby amended to read in its entirety as set
forth below:
“9.16. Appraisals. Borrowers
shall provide to Agent, at Borrowers’ expense, a full appraisal of the orderly
liquidation value of all of Borrower’s Rig Fleet Equipment and other Equipment
by Superior Asset Appraisals, or another firm acceptable to Agent in its sole
discretion (each an “OLV Appraisal”), the form, scope and results of which shall
be satisfactory to Agent in its sole discretion, (a) if Agent, in its sole
discretion deems appropriate and so directs, semi-annually, or (b) at any time
and frequency during an Event of Default. Agent shall have the right
to conduct additional appraisals at its own expense from time to time, with
access to the Collateral provided by and other cooperation from
Borrowers. The initial OLV Appraisal is attached as Exhibit
9.16.”
(q) Section
13.1 of the Loan Agreement is hereby amended to read in its entirety as set
forth below:
“13.1. Term. This
Agreement, which shall inure to the benefit of and shall be binding upon the
respective successors and permitted assigns of each Borrower, Agent and each
Lender, shall become effective on the date hereof and shall continue in full
force and effect until March 31, 2011 (the “Term”) unless sooner terminated as
herein provided. Borrowers may terminate this Agreement at any time
upon forty-five (45) days’ prior written notice upon payment in full of the
Obligations. In the event the Obligations are prepaid in full prior
to the last day of the Term (the date of such prepayment hereinafter referred to
as the “Early Termination Date”), Borrowers shall pay to Agent for the benefit
of Lenders an early termination fee in an amount equal to (x) $500,000, if the
Early Termination Date occurs on or after the Closing Date to and including
December 31, 2009, (y) $250,000, if the Early Termination Date occurs on or
after January 1, 2010 to and including September 30, 2010, and (z) $0
thereafter.”
(r) Exhibit
2.4 to the Loan Agreement is amended and restated to be in the form of Exhibit A
to this Agreement.
4. Conditions of
Effectiveness. This Agreement shall become effective when
Agent shall have received:
(a) four
(4) copies of this Agreement executed by the Required Lenders and each
Borrower;
(b) an
amended and restated Term Note, in substantially the form of Exhibit A to this
Agreement;
(c) the
portion of the amendment fee due and payable under Section 3.3(c) on the
Amendment No. 1 Effective Date, which may be charged to Borrowers’ Account as a
Revolving Advance; and
(d) such
other certificates, instruments, documents, agreements and opinions of counsel
as may be required by Agent or its counsel, each of which shall be in form and
substance satisfactory to Agent and its counsel.
5. Representations, Warranties
and Covenants. Each Borrower hereby represents, warrants and
covenants as follows:
(a) This
Agreement and the Loan Agreement constitute legal, valid and binding obligations
of such Borrower and are enforceable against such Borrower in accordance with
their respective terms.
(b) Upon
the effectiveness of this Agreement, each Borrower hereby reaffirms all
covenants, representations and warranties made in the Loan Agreement to the
extent the same are not amended or waived hereby and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Agreement.
(c) The
execution, delivery and performance of this Agreement and all other documents in
connection therewith has been duly authorized by all necessary corporate action,
and does not contravene, violate or cause the breach of any agreement, judgment,
order, law or regulation applicable to any Borrower.
(d) No
Event of Default or Default has occurred and is continuing or would exist after
giving effect to this Agreement (and the waiver of the Existing
Defaults).
(e) No
Borrower has any defense, counterclaim or offset with respect to the Loan
Agreement or the Obligations.
6. Effect on the Loan
Agreement.
(a) Upon
the effectiveness of this Agreement, each reference in the Loan Agreement to
“this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall
mean and be a reference to the Loan Agreement as amended
hereby. Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed. This Agreement shall constitute an “Other
Document” for all purposes under the Loan Agreement.
(b) Except
as expressly provided herein, the execution, delivery and effectiveness of this
Agreement shall not operate as a waiver of any right, power or remedy of Agent
or any Lender, nor constitute a waiver of any provision of the Loan Agreement,
or any other documents, instruments or agreements executed and/or delivered
under or in connection therewith.
7. Release. The
Borrowers hereby acknowledge and agree that: (a) neither they nor any
of their Affiliates have any claim or cause of action against Agent or any
Lender (or any of Agent’s or any Lender’s Affiliates, officers, directors,
employees, attorneys, consultants or agents) and (b) Agent and each Lender have
heretofore properly performed and satisfied in a timely manner all of their
respective obligations to the Borrowers under the Loan Agreement and the Other
Documents. Notwithstanding the foregoing, Agent and each Lender wish
(and the Borrowers agree) to eliminate any possibility that any past conditions,
acts, omissions, events or circumstances would impair or otherwise adversely
affect any of Agent’s or such Lender’s rights, interests, security and/or
remedies under the Loan Agreement and the Other
Documents. Accordingly, for and in consideration of the agreements
contained in this Agreement and other good and valuable consideration, each
Borrower (for itself and its Affiliates and the successors, assigns, heirs and
representatives of each of the foregoing) (each a “Releasor” and collectively,
the “Releasors”) does hereby fully, finally, unconditionally and irrevocably
release and forever discharge Agent, each Lender and each of their respective
Affiliates, officers, directors, employees, attorneys, consultants and agents
(each a “Released Party” and collectively, the “Released Parties”) from any and
all debts, claims, obligations, damages, costs, attorneys’ fees, suits, demands,
liabilities, actions, proceedings and causes of action, in each case, whether
known or unknown, contingent or fixed, direct or indirect, and of whatever
nature or description, and whether in law or in equity, under contract, tort,
statute or otherwise, which any Releasor has heretofore had or now or hereafter
can, shall or may have against any Released Party by reason of any act, omission
or thing whatsoever done or omitted to be done on or prior to the date hereof
arising out of, connected with or related in any way to this Agreement, the Loan
Agreement or any Other Document, or any act, event or transaction related or
attendant thereto, or Agent’s or any Lender’s agreements contained therein, or
the possession, use, operation or control of any of the assets of agreements
contained therein, or the possession, use, operation or control of any of the
assets of the Borrowers, or the making of any advance, or the management of such
advance or the Collateral.
8. Governing
Law. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York (other than those conflict of law rules that would defer to the
substantive law of another jurisdiction).
9. Cost and
Expenses. Borrowers hereby agree to pay the Agent, on
demand, all costs and reasonable expenses (including reasonable attorneys’ fees
and legal expenses) incurred in connection with this Agreement and any
instruments or documents contemplated hereunder.
10. Headings. Section
headings in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose.
11. Counterparts; Facsimile
Signatures. This Agreement may be executed by the parties
hereto in one or more counterparts of the entire document or of the signature
pages hereto, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement. Any signature
received by facsimile or electronic transmission shall be deemed an original
signature hereto.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first written above.
PNC BANK,
NATIONAL ASSOCIATION,
as Lender
and as Agent
By:_______________________________
Name:
Title:
By:__________________________
Name:
Title:
XXX
XXXXXX DRILLING COMPANY
By:__________________________
Name:
Title:
BEST WELL
SERVICE, INC.
By:__________________________
Name:
Title:
[Signature
Page to Waiver and Amendment No. 1]
SCHEDULE
1
Existing
Events of Default
|
1.
|
Events
of Default under Section 10.5 of the Loan Agreement as a result of
Borrowers’ violation the financial covenant contained in Section 6.5(a) of
the Loan Agreement for the fiscal quarters ending March 31, 2008 and
December 31, 2008.
|
|
2.
|
Events
of Default under Section 10.5 of the Loan Agreement as a result of
Borrowers’ violation the financial covenant contained in Section 6.5(b) of
the Loan Agreement for the fiscal quarters ending March 31, 2008, June 30,
2008, September 30, 2008 and December 31,
2008.
|
|
3.
|
Events
of Default under Section 10.5 of the Loan Agreement as a result of
Borrowers’ failure to (i) deliver to Agent all certificates of title for
all vehicles constituting Collateral that were not delivered on or prior
to the Effective Date of the Loan Agreement, (ii) execute such lien entry
forms related thereto as Agent may have requested and (iii) remit to Agent
(or its counsel) all fees and taxes necessary to transfer such titles into
the name of a Borrower (if such titles are not already issued in the name
of a Borrower) and record Agent’s Lien on such
titles.
|
