CREDIT AGREEMENT
BY AND AMONG
LASALLE NATIONAL BANK, AS AGENT
THE LENDERS SIGNATORY OR PARTIES HERETO
AND
CONTINENTAL WASTE INDUSTRIES, INC.
AND ITS SUBSIDIARIES
________________________________________
March 28, 1995
________________________________________
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.............................................. 2
SECTION 2. CREDIT FACILITY.......................................... 16
Section 2.A. Revolving Loans and Revolving Notes................ 16
2.A.1. Revolving Loans.................................... 16
2.A.2. Revolving Note..................................... 17
Section 2.B. Letters of Credit.................................. 17
SECTION 3. GENERAL PROVISIONS APPLICABLE TO ALL LOANS............... 21
Section 3.A. Applicable Interest Rates.......................... 21
Section 3.B. Minimum and Maximum Borrowing Amounts.............. 23
Section 3.C. Borrowing Procedures............................... 23
Section 3.D. Interest Periods................................... 26
Section 3.E. Maturity of LIBOR Loans............................ 26
Section 3.F. Prepayments........................................ 26
Section 3.G. Default Rate....................................... 27
Section 3.H. Notes.............................................. 27
Section 3.I. Commitment Terminations............................ 28
Section 3.J. Funding Indemnity.................................. 28
Section 3.K. Change in Circumstances, Etc....................... 29
SECTION 4. FEES AND EXTENSIONS...................................... 31
Section 4.A. Commitment Fee..................................... 31
Section 4.B. Closing Fee........................................ 32
Section 4.C. Agent's Fees....................................... 32
Section 4.D. Letter of Credit Fees.............................. 32
Section 4.E. Transaction Charges................................ 32
SECTION 5. PLACE AND APPLICATION OF PAYMENTS........................ 32
Section 5.A. Place and Application of Payments.................. 32
SECTION 6. CONDITIONS PRECEDENT........................................... 33
Section 6.A. Delivery of Documents as Conditions Precedent...... 33
6.A.1. Agreement.......................................... 33
6.A.2. Note............................................... 33
6.A.3. Stock Pledge Agreement............................. 33
6.A.4. Environmental Indemnity Agreement.................. 33
6.A.5. Security Agreement................................. 33
6.A.6. Financing Statements............................... 34
6.A.7. UCC and Other Search Results....................... 34
6.A.8. Evidence of Insurance.............................. 34
6.A.9. Certificates of Incorporation...................... 34
6.A.10. Good Standing...................................... 34
6.A.11. Secretary's Certificates........................... 34
6.A.12. Opinion............................................ 34
6.A.13. Environmental Data................................. 35
6.A.14. Waivers............................................ 35
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6.A.15. Officer's Certificates............................. 35
6.A.16. Mortgages.......................................... 35
6.A.17. Leasehold Mortgages................................ 35
6.A.18. Surveys............................................ 35
6.A.19. Title Policies..................................... 35
6.A.20. [Intentionally Omitted]............................ 36
6.A.21. Estoppel Certificate............................... 36
6.A.22. Landlord's Lien Waiver............................. 36
6.A.23. Leases............................................. 36
6.A.24. Pay-Off Letters.................................... 36
6.A.25. Other Documents.................................... 36
Section 6.B. Fees............................................... 36
Section 6.C. Conditions Precedent............................... 36
6.C.1. Materially Adverse Effect.......................... 36
6.C.2. Representations and Warranties..................... 36
6.C.3. Covenants.......................................... 37
6.C.4. Event of Default................................... 37
6.C.5. Commitment......................................... 37
6.C.6. No Violations...................................... 37
6.C.7. Notes; Notice of Borrowing......................... 37
Section 6.D. Letters of Credit.................................. 37
Section 6.E. Additional Conditions Precedent to Certain Loans... 37
SECTION 7. REPRESENTATIONS AND WARRANTIES........................... 38
Section 7.A. Corporate Existence and Related Matters............ 38
Section 7.B. Corporate Authority................................ 38
Section 7.C. Consents, Approvals, etc........................... 39
Section 7.D. Binding Effect and Enforceability.................. 39
Section 7.E. Default of Debt, Licenses, Permits, Orders and Other
Agreements......................................... 39
Section 7.F. Financial Condition and Litigation................. 40
Section 7.G. Title and Liens.................................... 40
Section 7.H. Employee Plans..................................... 41
Section 7.I. Taxes.............................................. 41
Section 7.J. Compliance with Laws............................... 41
Section 7.K. Corporate Structure and Affiliates................. 41
Section 7.L. Corporate Names.................................... 42
Section 7.M. Solvency........................................... 42
Section 7.N. Margin Regulations................................. 42
Section 7.O. Indebtedness to Affiliates......................... 42
Section 7.P. Acts of God........................................ 42
Section 7.Q. Labor Controversies................................ 42
Section 7.R. Collateral, etc.................................... 42
Section 7.S. Intellectual Property.............................. 43
Section 7.T. Accuracy of Information............................ 44
SECTION 8. COVENANTS................................................ 44
Section 8.A. Affirmative Covenants.............................. 44
8.A.1. Financial Covenants................................ 44
8.A.2. Financial Information and Reporting................ 45
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8.A.3. Corporate Existence and Conduct of Business........ 48
8.A.4. Taxes and Laws..................................... 48
8.A.5. Inspection......................................... 48
8.A.6. Agent And Lender Costs............................. 48
8.A.7. Employee Plans..................................... 49
8.A.8. Use of Proceeds of Loans........................... 49
8.A.9. Financial Assurance................................ 50
8.A.10. [Intentionally Omitted]............................ 50
8.A.11. Environmental Engineering Report................... 50
8.A.12. Environmental Matters.............................. 50
8.A.13. Collateral Agreements; New Subsidiaries............ 50
8.A.14. Interest Rate Contracts............................ 51
8.A.15. Certain Post-Closing Items......................... 51
8.A.16. Maintenance of Insurance........................... 52
8.A.17. Victory Waste Incorporated; G.E.M. Environmental
Management......................................... 52
8.A.18. Permits............................................ 52
Section 8.B. Negative Covenants................................. 53
8.B.1. Liens.............................................. 53
8.B.2. Debt and Capital Expenditures...................... 53
8.B.3. Fiscal Year, Name Changes, Mergers and
Acquisitions....................................... 53
8.B.4. Redemptions, Dividends and Payments Under
Subordinated Debt.................................. 55
8.B.5. Transactions with Affiliates....................... 55
8.B.6. Capital Structure.................................. 55
8.B.7. Change in Nature of Business....................... 55
8.B.8. Transfer of Assets................................. 55
8.B.9. Prepayment or Modification of Debt................. 55
8.B.10. False Statements................................... 56
8.B.11. Inconsistent or Restrictive Agreements............. 56
8.B.12. Foreign Assets..................................... 56
8.B.13. Investments........................................ 56
SECTION 9. EVENTS OF DEFAULT........................................ 56
Section 9.A. Obligations........................................ 56
Section 9.B. Breach or Default Under Loan Documents............. 56
Section 9.C. Representation and Warranties...................... 57
Section 9.D. Judgments.......................................... 57
Section 9.E. Insolvency and Related Proceedings................. 57
Section 9.F. Other Material Agreements.......................... 57
Section 9.G. State Action....................................... 58
Section 9.H. ERISA Matters...................................... 58
Section 9.I. Tax Liens.......................................... 58
Section 9.J. Failure of Lien.................................... 58
Section 9.K. [Intentionally Omitted]............................ 59
Section 9.L. Environmental Remediation Costs.................... 59
Section 9.M. Operating Permits and Licenses..................... 59
Section 9.N. Change in Control of CWI........................... 59
Section 9.O. Material Adverse Change............................ 59
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SECTION 10. RIGHTS AND REMEDIES...................................... 59
Section 10.A. Termination of Commitment and Acceleration......... 59
Section 10.B. Rights of Secured Creditor......................... 60
Section 10.C. Entry Upon Premises and Access to Information...... 60
Section 10.D. Sale or Other Disposition of Collateral by Agent... 61
Section 10.E. Collection of Receivables.......................... 61
Section 10.F. Rescission......................................... 62
Section 10.G. Application of Payments............................ 62
Section 10.H. Letters of Credit.................................. 63
SECTION 11. AGENCY PROVISIONS........................................ 64
Section 11.A. Appointment........................................ 64
Section 11.B. Nature of Duties................................... 64
Section 11.C. [Intentionally Omitted] ........................... 65
Section 11.D. Distribution and Apportionment of Payments. ....... 65
Section 11.E. Rights, Exculpation, Etc........................... 65
Section 11.F. Reliance........................................... 66
Section 11.G. Indemnification.................................... 66
Section 11.H. Agent Individually................................. 67
Section 11.I. Successor Agent; Resignation of Agent; Removal
Agent.............................................. 67
Section 11.J. Agency Provisions Relating to Collateral........... 68
Section 11.K. Actions Against Collateral......................... 69
SECTION 12. MISCELLANEOUS............................................ 69
Section 12.A. Assignments and Participation...................... 69
Section 12.B. Ratable Sharing.................................... 72
Section 12.C. Withholding Taxes.................................. 72
Section 12.D. Amendment and Waivers.............................. 74
Section 12.E. Merger and Integration Clause...................... 75
Section 12.F. Applicable Law..................................... 75
Section 12.G. Severability....................................... 75
Section 12.H. Section Headings................................... 75
Section 12.I. Binding Effect..................................... 75
Section 12.J. Notices............................................ 75
Section 12.K. Counterparts....................................... 76
Section 12.L. Indemnification.................................... 76
Section 12.M. Independence of Covenants.......................... 77
Section 12.N. Marshalling; Recourse to Security;
Payments Set Aside................................. 77
Section 12.O. Limitation of Liability............................ 77
Section 12.P. Consent to Jurisdiction and Waiver of
Jury Trial and Personal Service.................... 78
Section 12.Q. Nature of Borrowers' Obligations................... 78
Section 12.R. Mutual Guaranty and Subordination by
Borrowers.......................................... 78
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EXHIBITS
Exhibit A. Form of Promissory Note
Exhibit B. Form of Application for Letter of Credit
Exhibit C. Stock Pledge Agreement
Exhibit D. Environmental Indemnity Agreement
Exhibit E. Security Agreement
Exhibit F. Opinion of Xxxxxxx & Xxxxxxxx
Exhibit G. Form of Mortgage
Exhibit H. Form of Leasehold Mortgage
Exhibit I. New Subsidiary Certificate
Exhibit J. Joinder and Assumption Agreement
Exhibit K. New Subsidiary Officers' Certificate
Exhibit L. Assignment and Acceptance Agreement
Exhibit M. Form of Compliance Certificate
Exhibit N. Form of Borrowing Notice
SCHEDULES
Schedule 6.A.6. UCC financing statement filing offices
Schedule 6.A.7. Offices searched for UCC financing statements, judgments
and tax liens
Schedule 6.A.14 Holders of Permitted Liens on Equipment, from which
waivers or consents to be obtained
Schedule 7.A. Corporate organizational, ownership and related matters
for Borrowers
Schedule 7.C. Required Third Party Consents
Schedule 7.F. Pending or threatened litigation and government
proceedings
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Schedule 7.G. Existing Liens (which are included as
Permitted Liens)
Schedule 7.H. Employee Plans
Schedule 7.R. Owned and Leased Real Properties, and Amount of Title
Insurance on Each
Schedule 7.S. Intellectual Property Rights
Schedule 8.B.2. Existing Debt (permitted to be maintained by Borrowers)
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CREDIT AGREEMENT
This Credit Agreement is made as of March 28, 1995 by and among LaSalle
National Bank, a national banking association with its principal offices located
in Chicago, Illinois, as agent for the Lenders hereunder (the "AGENT"),
various financial institutions which are, or may become, signatories or parties
hereto (individually, a "LENDER" and collectively, the "LENDERS"), and
Continental Waste Industries, Inc., a Delaware corporation ("CWI"), together
with its Subsidiaries, which currently consist of Xxxxxx Brothers, Inc., a
Tennessee corporation, Xxxxxx Brothers Waste, Inc., a Tennessee corporation,
Berrien County Landfill, Inc., a Michigan corporation, Bluegrass Recycling &
Transfer Company, a Kentucky corporation, Commercial Waste Disposal, Inc., a
Kentucky corporation, Xxxxxxxxx Waste, Inc., a Tennessee corporation, CWI of
Illinois, Inc., an Illinois corporation, CWI of Missouri, Inc., a Missouri
corporation, CWI Venture, Inc., a New Jersey corporation, FLL, Inc., a Michigan
corporation, G.E.M. Environmental Management Inc., a Delaware corporation, Gila
Bend Regional Landfill, Inc., an Arizona corporation, Greenfield Environmental
Development Corp., a Delaware corporation, Jamax Corporation, an Indiana
corporation, Karat Corp., a New Jersey corporation, Midwest Material Management,
Inc. an Indiana corporation, Northwest Tennessee Disposal Corporation, a
Tennessee corporation, Prichard Landfill Corporation, a West Virginia
corporation, Xxxxx Hollow Landfill Corp., a West Virginia corporation, Sanifill,
Inc., a Tennessee corporation, Southern Illinois Regional Landfill, Inc., an
Illinois corporation, South Trans, Inc., a New Jersey corporation, Springfield
Environmental, Inc., a Delaware corporation, Springfield Environmental, Inc., an
Indiana corporation, Triple G Landfills, Inc., an Indiana corporation, United
Refuse Co., Inc., an Indiana corporation, Victory Environmental Services, Inc.,
a Delaware corporation, Victory Waste Incorporated, a California corporation,
WPP Continental de Costa Rica S.A., a Costa Rican corporation and WPP Services,
Inc., an Ohio corporation (individually, CWI and any of said other corporations
may be referred to herein as a "BORROWER," and collectively are sometimes
referred to as the "BORROWERS").
WITNESSETH:
WHEREAS, FLL of Delaware, Inc. (formerly a wholly-owned subsidiary of CWI
which was merged with and into FLL, Inc. on March 21, 1995) and LaSalle National
Bank (sometimes referred to herein as "LASALLE") have previously entered into
that certain Amended and Restated Loan Agreement dated June 30, 1994, as amended
by a First Amendment and Waiver to Amended and Restated Loan Agreement dated
September 2, 1994 and a Second Amendment to Amended and Restated Loan Agreement
dated December 31, 1994 pursuant to which FLL of Delaware, Inc. obtained certain
term and revolving loans from LaSalle (collectively, the "ORIGINAL
AGREEMENT");
WHEREAS, FLL, Inc. has entered into a Loan Agreement with LaSalle dated
May 18, 1992, as amended (the "FLL LOAN AGREEMENT") pursuant to which FLL
obtained certain loans from LaSalle;
WHEREAS, LaSalle further has issued two irrevocable letters of credit in
favor of the Tennessee Department of Environment and Conservation for the
account of Northwest Tennessee Disposal Corporation in the amounts of $402,587
and $366,265 (the "EXISTING LETTERS OF CREDIT") (the Original Agreement, the
FLL Loan Agreement and the Existing Letters of Credit and the documents related
to or referenced therein being referred to as the "PRIOR DOCUMENTS");
WHEREAS, the parties to and/or bound by the Prior Documents wish to
consolidate and amend and restate the Prior Documents in their entirety in order
to provide for certain changes in circumstances and to provide certain
additional funds to Borrowers on the terms set forth herein;
WHEREAS, certain financial covenants of the Borrowers hereinafter set
forth relate to the financial condition and results of CWI and its Subsidiaries,
such covenants being used herein because the Subsidiaries are Affiliates of CWI,
and the financial condition and results of CWI and its Subsidiaries are a
material inducement to the Lenders' willingness to enter into this Credit
Agreement and extend the financial accommodations referred to herein;
WHEREAS, each Subsidiary of CWI acknowledges that it is benefited by the
extension of the financial accommodations provided for herein by the Lenders;
and
WHEREAS, as a condition for extending such financial accommodations, the
Lenders require that CWI and each Subsidiary enter into this Credit Agreement
establishing the terms and conditions thereof;
NOW THEREFORE, for and in consideration of the foregoing premises and the
mutual agreements contained herein, the parties hereto, intending to be legally
bound, do hereby agree as follows:
SECTION 1. DEFINITIONS.
Section 1.A. In addition to the terms that are elsewhere defined
herein, when used herein, the following terms have the meanings as set forth
below:
"ACCOUNTS," "ACCOUNT DEBTOR," "CHATTEL PAPER," "DOCUMENTS,"
"EQUIPMENT," "FIXTURES," "GENERAL INTANGIBLES," "GOODS,"
"INSTRUMENTS," and "INVENTORY" shall have the meanings assigned to the
respective terms in the Security Agreement.
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"ACT" means the Tennessee Solid Waste Disposal Act, TCA Section 00-00-000
ET SEQ., and/or the Tennessee Solid Waste Management Act, TCA Section 00-00-000
ET SEQ., and all rules and regulations promulgated thereunder or pursuant
thereto, all as at any time amended.
"ADJUSTED LIBOR" is defined in Section 3.A hereof.
"AFFILIATE" of any Person means any other Person that directly or
indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with such Person and includes, without limitation, each
shareholder, director and any Subsidiaries of such Person. For purposes of this
definition, "control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
For purposes of this Agreement, all Subsidiaries of CWI are Affiliates of CWI.
"AGREEMENT" means, collectively, this Credit Agreement, together with
any and all exhibits, appendices, schedules and amendments hereto and
modifications, renewals, extensions, restatements and substitutions thereof and
therefor.
"XXXXXX" means Xxxxxx X. Xxxxxx, who is the President and Chief
Executive Officer of CWI as of the date hereof.
"APPLICABLE L/C MARGIN," for purposes of determining the Letter of
Credit fees due from the Borrowers under Section 4.D hereof, means initially
2.0% (the "NORMAL L/C MARGIN"), provided however that the Normal L/C Margin
shall be subject to quarterly adjustment based on the following:
LEVERAGE RATIO APPLICABLE L/C MARGIN
Less than 1.25 to 1 1.0%
1.25 to 1 through 1.75 to 1 1.5%
Greater than 1.75 to 1.0 2.0%
"APPLICABLE LIBOR MARGIN," for purposes of determining the interest rate
on a LIBOR Loan, means initially 3.0% (the "NORMAL LIBOR MARGIN"), provided
however that the Normal LIBOR Margin shall be subject to quarterly adjustment
based on the following:
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LEVERAGE RATIO APPLICABLE LIBOR MARGIN
Less than 1.25 to 1 2.0%
1.25 to 1.0 through 1.75 to 1 2.5%
Greater than 1.75 to 1.0 3.0%
"APPLICABLE MARGIN," for purposes of determining the interest rate on a
Prime Rate Loan, means initially 1.0% (the "NORMAL MARGIN"), provided however
that the Normal Margin shall be subject to quarterly adjustment based on the
following:
LEVERAGE RATIO APPLICABLE MARGIN
Less than 1.25 to 1 0%
1.25 to 1 through 1.75 to 1 0.5%
Greater than 1.75 to 1.0 1.0%
"APPLICATIONS" is as defined in Section 2.B.(d) hereof.
"AUTHORIZED OFFICER" means one or more officers of the Borrowers duly
authorized (and so certified to the Agent by the corporate Secretary of the
Borrower(s) involved pursuant to a certificate of authority and incumbency from
time to time satisfactory to the Agent), acting alone, to request Loans and/or
the issuance of Letters of Credit hereunder and execute and deliver documents,
instruments, agreements, reports, statements and certificates in connection
herewith.
"BORROWING" means the total of Loans of a single type made by one or
more Lenders to the Borrowers on a single date and for a single Interest Period.
Borrowings of Loans are made ratably from each of the Lenders according to their
Commitments.
"BORROWING NOTICE" means the request of any of the Borrowers for
Revolving Loans as further described in Section 3.C hereof.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which banks are authorized or required to be closed in Chicago, Illinois, and
with respect to LIBOR Loans, a day on which dealings in United States Dollars
may be carried on by the Agent or the Reference Bank in the London interbank
eurodollar market.
"CALCULATION PERIOD" is as defined and included in the definition of
Historical Pro Forma Interest Coverage Ratio.
"CAPITAL EXPENDITURES" means all payments, expenditures and the
obligations incurred by a Person for the purchase, creation,
4
improvement, replacement, substitution, addition, renovation or lease of a fixed
or capital asset with a useful life of more than one year and which are required
to be classified or accounted for as a capital asset or capital lease on the
balance sheet or statement of operations of such Person, as determined in
accordance with GAAP, including equipment which is purchased simultaneously with
the trade-in of existing equipment owned by such Person to the extent of the
gross amount of the purchase price of such purchased equipment less the book
value of the equipment being traded in at such time, but excluding (a)
expenditures made in connection with the replacement or restoration of assets,
to the extent such replacement or restoration is financed out of (i) insurance
proceeds paid on account of the loss of or damage to the assets so replaced or
restored or (ii) awards or compensation arising from the taking by condemnation
or eminent domain of the assets so replaced, (b) any portion of capital lease
obligations that is not required to be capitalized on such Person's balance
sheet, and (c) interest capitalized during construction.
"CLOSING DATE" means the later of the date hereof or the date on which
all of the conditions precedent to the Loans set forth in Section 6 hereof have
been fully satisfied.
"CLOSING FEE" is defined at Section 4.B hereof.
"COLLATERAL" means all "Collateral" (or other property which is
subjected to a Lien in the relevant operative document) as defined in the
Security Agreement, the Stock Pledge Agreement, the Mortgages or the Leasehold
Mortgages (all as amended or supplemented), and shall also include any and all
other property, tangible and intangible, on or in which a Lien has been granted
to the Agent, for its benefit and the ratable benefit of the Lenders, pursuant
to any other Loan Documents.
"COMMITMENT" is defined at Section 2.A.1 hereof.
"CONSOLIDATED" means the consolidation of accounts in accordance with
GAAP, including principles of consolidation.
"CONSOLIDATED NET INCOME" means, for any period, the net income of CWI
and its Consolidated Subsidiaries for such period, before the payment of
dividends on all capital stock, determined in accordance with GAAP.
"CONTINGENT LIABILITY" or "CONTINGENT LIABILITIES" means any
agreement, undertaking or arrangement by which any Person (i) guarantees,
endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a
creditor against loss) the debt, obligation or other liability of
5
any other Person (other than by endorsement of instruments in the course of
collection), or (ii) guarantees the payment of dividends or other distributions
upon the shares of any other Person, or (iii) undertakes or agrees (contingently
or otherwise) (a) to purchase, repurchase, or otherwise acquire any Debt,
obligation or liability or any security therefor, or (b) to provide funds for
the payment or discharge thereof (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or (c) to maintain solvency,
assets, level of income or other financial condition, or (d) to make payment
other than for values received. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth herein) be
deemed to be the outstanding principal amount (or maximum permitted principal
amount, if larger) of the debt, obligation or other liability guaranteed or
supported thereby.
"DEBT" of any Person means all items of indebtedness, obligation or
liability of any kind or nature, whether matured or unmatured, liquidated or
unliquidated, direct or contingent, joint or several, of such Person, including
without limitation and without duplication: Contingent Liabilities of such
Person; any indebtedness secured by a Lien on or payable out of the proceeds or
production from any property of such Person regardless of whether such
indebtedness has been assumed by such Person; obligations representing the
deferred purchase price of property; obligations which are evidenced by notes,
acceptances, or other instruments; capitalized lease obligations; and
obligations in respect of letters of credit.
"DEFAULT" means any event which, with the giving of notice or the
passage of time or both, would constitute, become or mature into an Event of
Default.
"DEFAULT RATE" is as defined at Section 3.G hereof.
"EBITDA" means, for any period, on a Consolidated basis for the
Borrowers, the sum for such period of (a) Consolidated Net Income, PLUS (b)
depreciation and amortization expense deducted in the determination of such
Consolidated Net Income, PLUS (c) Interest Expense deducted in the
determination of such Consolidated Net Income, PLUS (d) federal and state
income taxes as determined in accordance with GAAP and deducted in the
determination of such Consolidated Net Income, and MINUS (e) any items of gain
which are extraordinary items as defined in GAAP to the extent reflected in the
determination of such Consolidated Net Income.
"EMPLOYEE PLAN" means any pension, retirement, disability, medical,
dental or other health plan, life insurance or other death benefit plan, profit
sharing, deferred compensation, stock option, bonus or other incentive plan,
vacation benefit plan,
6
severance plan, or other employee benefit plan or arrangement, including,
without limitation, those pension, profit-sharing and retirement plans of the
Group described from time to time in the Financial Statements and any pension
plan, welfare plan, Defined Benefit Pension Plans (as defined in ERISA) or any
multi-employer plan, maintained or administered by any of the Borrowers or any
Affiliate of any of the Borrowers, to which the Borrowers or any Affiliate of
the Borrowers is a party or may have any liability or by which any of the
Borrowers or any Affiliate is bound.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means that certain Environmental
Indemnity Agreement of even date herewith in favor of the Agent, for its benefit
and the benefit of the Lenders, executed by the Borrowers, as amended or
supplemented.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations issued
thereunder or in connection therewith.
"EURODOLLAR RESERVE PERCENTAGE" is defined in Section 3.A hereof.
"EVENT OF DEFAULT" means an event or occurrence described in Section 9
of this Agreement.
"EXPIRATION DATE" is defined at Section 2.A.1 hereof.
"FEDERAL FUNDS RATE" means the rate for that day set forth opposite the
caption "Federal Fund (Effective)" in the daily statistical release designated
as "Composite 3:30 p.m. Quotations for U.S. Government Securities," or any
successor publication, published by the Federal Reserve Bank of New York or, if
such publication shall be suspended or terminated, the arithmetic average of the
rates quoted to the Agent as the prevailing rates per annum (rounded upward, if
necessary, to the next higher 1/100 of 1%) bid at approximately 10:00 a.m.
(Chicago time) (or as soon thereafter as is practicable) on such day by two or
more New York or Chicago Federal funds dealers of recognized standing selected
by the Agent for the purchase at face value of Federal funds in the secondary
market in an amount comparable to the principal amount owed for which such rate
is being determined.
"FINANCIAL ASSURANCE" means the financial assurance (whether in the form
of a bond, letter of credit, cash or otherwise) required pursuant to any Law,
including Chapter 1200-1-7-.03 of the Solid Waste Processing and Disposal
Regulations of the Act.
"FINANCIAL STATEMENTS" means all of the balance sheets, statements of
income and retained earnings and statements of cash flow or changes in financial
position of the Borrowers for each Fiscal Year or each month or quarter thereof
which have been delivered to the Agent on or prior to the date hereof and which
7
are to be delivered to the Agent pursuant to Section 8.A.2 of this Agreement.
"FISCAL YEAR" means the fiscal year of CWI and its Subsidiaries ending
on December 31 for each year.
"GAAP" means generally accepted accounting principles, applied on a
basis consistent with prior periods; provided, however, that GAAP with respect
to any interim financial statements or reports shall be deemed subject to
year-end adjustments and footnotes made in accordance with GAAP.
"HISTORICAL PRO FORMA INTEREST COVERAGE" means, for any twelve month
period ending as at the end of the calendar quarter preceding the month in which
a Borrower proposes to make an acquisition which is permitted under Section
8.B.3 hereof (the "CALCULATION PERIOD"), the ratio of Pro Forma EBITDA to Pro
Forma Interest Expense.
"INTELLECTUAL PROPERTY RIGHTS" means all patents and patent
applications, trademarks, copyrights, trade names, trade dress, trade secrets,
service marks, trademarks and service xxxx registrations and applications,
registrations and renewals thereof, confidential research development and
commercial information, know-how and other proprietary information, together
with any licenses of and license agreements pertaining to any of the foregoing,
all rights corresponding to the foregoing and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto, together in each case with
the goodwill of the business connected with the use of and symbolized by each
such trademark and service xxxx.
"INTEREST EXPENSE" means, with respect to any Person, for any period,
the aggregate interest expense, net of interest income, for such period
(including, without duplication, all commissions, discounts, and other fees and
charges owed with respect to letters of credit, the portion of any capitalized
lease obligations allocable to interest expense, and capitalized interest)
determined in accordance with GAAP (but in any event excluding interest on tax
assessments to the extent such interest is included in deferred taxes).
"INTEREST PERIOD" is defined at Section 3.D hereof.
"INTEREST RATE CONTRACT" means interest rate protection, swap, or collar
agreements, and other similar agreements or arrangements designed to provide
protection against fluctuations in interest rates, pursuant to which any of the
Borrowers has obligations to any Lender that may require payment in the future
by any such Borrowers.
8
"LANDFILLS" means any landfills owned by any of the Borrowers.
"LAWS" means all ordinances, statutes, rules, regulations, codes,
orders, injunctions, writs or decrees of any government, whether federal, state,
municipal or local, of any political subdivision or agency thereof, or of any
court, board or similar entity established by any of the foregoing.
"L/C REFINANCING BORROWING" is defined at Section 3.C hereof.
"LEASEHOLD MORTGAGES" is as defined at Section 6.A.17 hereof.
"LEASEHOLDS" means all of the right, title and interest of any Borrower
in, to and under any leases, licenses or other agreements, granting rights to a
Borrower to enter, occupy or use real property.
"LETTER OF CREDIT" is defined in Section 2.A.1 hereof.
"LETTER OF CREDIT UTILIZATION" means, as of any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may be available for drawing under all Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Letters of Credit honored by the
Agent and not theretofore reimbursed by the Borrowers.
"LEVERAGE RATIO" is defined at Section 8.A.1.
"LIBOR" is defined in Section 3.A hereof.
"LIBOR LOAN" means a Loan bearing interest at the rate specified in
Section 3.A(b) hereof.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
collateral assignment, lien (statutory or otherwise'), charge or encumbrance of
any kind or nature whatsoever, any deposit or preferential arrangement of any
kind or nature whatsoever, including, without limitation, any conditional sale
or other title retention agreement, or any financing lease involving
substantially the same economic effect as any of the foregoing.
"LOAN" means a Revolving Loan and "LOANS" means the Revolving Loans,
collectively and in the aggregate.
"LOAN DOCUMENTS" means, collectively, any Application, Interest Rate
Contract hereafter entered into, and all of those documents set forth and
described in Section 6 hereof, as
9
amended, modified, supplemented or restated from time to time, and any
facilities or agreements in replacement thereof.
"MARGIN STOCK" means "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
"MATERIALLY ADVERSE EFFECT" means, relative to any occurrence, event,
condition or circumstance, or any change therein, of whatever nature (including
any adverse determination in any litigation, arbitration, or governmental
investigation or proceeding), a materially adverse effect on: (i) the assets of
or the business, revenues, financial condition, operations or prospects of the
Borrowers taken as a whole; or (ii) the ability of the Borrowers, taken as a
whole, to timely or fully perform any of the payment or other material
obligations involving any of their Debt.
"MONIES" means (i) all cash at any time on deposit with or held by the
Agent or any other bank or institution for the account of any Borrower, (ii) all
accounts of any of the Borrowers with the Agent or any other bank or
institution, (iii) all investments and reinvestments of amounts from time to
time credited to such accounts, and (iv) all interest, dividends, distributions
and other proceeds payable on or with respect to such investments and
reinvestments and such accounts.
"MORTGAGES" and "MORTGAGED PROPERTIES" are as defined in Section
6.A.16 hereof.
"NET WORTH" means, at any time, the total of Stockholders' Equity and
Subordinated Debt.
"NOTE(s)" means the Revolving Note(s).
"OBLIGATIONS" means each and every promise, agreement, covenant, debt
and all other liabilities, obligations and indebtedness of any of the Borrowers,
their successors or assigns, to the Lenders or any Lender or the Agent, whether
primary, secondary, contingent, direct, or indirect, howsoever incurred,
created, arising or evidenced, whether presently or hereafter existing,
evidenced, arising or becoming due, which such promise, agreement, covenant,
debt, liabilities, obligations or indebtedness arises from or in connection with
the Loans or under this Agreement, the Notes, the Applications, the Letters of
Credit (including reimbursement obligations with respect thereto), any Interest
Rate Contract or any other Loan Documents, or any refinancings, substitutions,
extensions, renewals, replacements and modifications for or of the foregoing, or
the enforcement by the Agent or the Lenders of their rights and remedies under
any or all of the foregoing (including all costs, expenses and reasonable
attorneys' and paralegals' fees and expenses incurred by the Agent or the
Lenders).
10
"PERMITTED INVESTMENTS" means (i) cash, (ii) readily marketable
securities issued or guaranteed by the government of the United States of
America or any agency thereof having a maturity at the time of issuance of not
exceeding one year, (iii) commercial paper rated at least A-1 by Standard &
Poor's Corporation or P-1 by Xxxxx'x Investors Service, Inc., having a maturity
at the time of issuance not exceeding one year, and money market funds invested
in short-term securities rated at least as provided in the preceding clause,
(iv) certificates of deposit of or demand or time deposits with or repurchase
agreements of any commercial bank which is organized under the laws of the
United States of America or any state thereof and has capital and surplus of in
excess of $100,000,000, and demand deposits or local operating accounts with the
Lenders or any other financial institutions acceptable to the Agent, (v)
property used in the ordinary course of business, the purchase of which does not
otherwise violate or cause or result in a violation of any provision hereof,
(vi) current assets arising from the sale of goods and services in the ordinary
course of business, (vii) loans or advances to employees in the ordinary course
of business, and loans to officers not in excess of $200,000 at any time
outstanding, (viii) unsecured intercompany loans or advances to or among the
Borrowers, which do not otherwise violate or cause or result in a violation of
any provision hereof, (ix) existing investments in existing Subsidiaries of CWI
and (x) acquisitions permitted under Section 8.B.3 hereof.
"PERMITTED LIENS" means any Liens (i) provided for hereunder or under
the Loan Documents in favor of the Agent; (ii) for taxes or assessments not yet
due and payable; (iii) of vendors incurred in the ordinary course of business,
payment with respect to which is not then due and payable; (iv) which arise out
of pledges or deposits under any Laws relating to workers' compensation,
unemployment insurance, old age pensions or other social security or retirement
benefits; (v) which are being contested in good faith by appropriate and lawful
proceedings, so long as levy and execution thereon have been and continue to be
stayed and which do not materially impair or adversely affect the value or use
of the assets and properties of any Borrower or the operation or condition of
the business of any Borrower; (vi) for current taxes not yet due and payable
with respect to the Mortgaged Properties, zoning restrictions, easements,
licenses, reservations, restrictions on the use of the Mortgaged Properties or
minor irregularities incident thereto which do not impair the value thereof for
the purpose of which they are used; (vii) which are existing on Equipment and/or
Fixtures of any Borrower and are set forth on SCHEDULE 7.G hereto, PROVIDED,
HOWEVER, that the Debt secured by existing Liens on Equipment and/or Fixtures
shall not be increased and such Debt shall not be secured by any Equipment
and/or Fixtures other than that securing such Debt as of the date hereof; (viii)
which are purchase money security interests on
11
Equipment and/or Fixtures (exclusive of any such Liens referred to in
subparagraph (vii) above) securing the deferred purchase price thereof within
the limitations of and as may be permitted under Section 8.B.2(a)(viii)
hereinafter; PROVIDED, HOWEVER, that any such Lien shall attach only to the
Equipment and/or Fixture financed by the holder of such Lien; (ix) on cash
collateralizing Financial Assurance not to exceed the amount of such Financial
Assurance; (x) which are existing on Accounts of any Borrower and are set forth
on SCHEDULE 7.G hereto; or (xi) with respect to the property of any new
Subsidiary of any of the Borrowers which becomes a Subsidiary after the date
hereof, so long as such Liens are either incurred in connection with an
acquisition by the Borrowers permitted under Section 8.B.3 hereof or were in
existence prior to such acquisition.
"PERSON" means any individual, sole proprietorship, joint venture,
partnership, association, unincorporated organization, joint-stock company or
association, trust, corporation, entity, institution or government body (or
agency or political subdivision thereof).
"PLEDGED SHARES" means the shares of common and preferred stock of each
of the Subsidiaries owned directly by CWI and the shares of common and preferred
stock of the Subsidiaries owned directly by CWI Ventures, Inc., WPP Services,
Inc., Karat Corp., FLL, Inc., Victory Waste Incorporated, G.E.M. Environmental
Management, Inc., and Greenfield Environmental Development Corp., all of which
are pledged to the Agent, for its benefit and the ratable benefit of the
Lenders, pursuant to the Stock Pledge and Security Agreement of even date
herewith among the Agent, CWI and the other Pledgors ("PLEDGORS") referred to
therein (the "STOCK PLEDGE AGREEMENT").
"PRIME RATE" means the rate of interest announced or referred to by the
Agent from time to time as its prime rate for interest rate determinations, with
each change in such Prime Rate to take effect on the same day such change is
announced by the Agent. The use of the term "Prime Rate" herein or in any Note
is not intended nor does it imply that said rate of interest is a preferred rate
of interest or one which is offered by the Agent to its most creditworthy
customers.
"PRIME RATE LOAN" means a Loan bearing interest at the rate specified in
Section 3.A(a) hereof.
"PRO FORMA EBITDA" means, for any Calculation Period, EBITDA for the
Borrowers and, or including, any Subsidiaries of the Borrowers acquired during
the Calculation Period and/or to be acquired and with respect to which the
calculation of Historical Pro Forma Interest Coverage Ratio is being made,
determined in accordance with GAAP and calculated as if all such acquired and to
be acquired Subsidiaries had been owned by the Borrowers
12
throughout the Calculation Period (with such calculation, to the extent
involving EBITDA of such Subsidiaries, being made by reference to such
Subsidiaries' audited financial statements as such may be adjusted by agreement
between the Agent and CWI), provided that excluded from the determination and
calculation shall be: (i) that portion of EBITDA derived from landfill
operations the remaining permitted or useful life of which is less than two
years after the Termination Date; and (ii) that portion of EBITDA which is
derived from all Subsidiaries that are not wholly-owned by CWI (other than
Victory Waste Incorporated and G.E.M. Environmental Management Inc.) and, in the
aggregate, is in excess of 10% of the total of the Pro Forma EBITDA that would
have resulted had such exclusion not been made.
"PRO FORMA INTEREST EXPENSE" means, for any Calculation Period,
annualized Interest Expense on existing Debt of the Borrowers and all of their
Subsidiaries PLUS annualized Interest Expense on Debt to be outstanding,
incurred or assumed by any of the Borrowers or their Subsidiaries in connection
with the acquisition with respect to which the calculation of Historical Pro
Forma Interest Coverage Ratio is being made. In determining the amount of
Interest Expense in the course of the calculation of Pro Forma Interest Expense:
(i) with respect to any Debt being considered which was not outstanding during
the entire period included in the Calculation Period, interest on such Debt for
such period during the Calculation Period shall be computed by assuming that
such Debt was in existence from and at the beginning of the Calculation Period;
and (ii) if the terms of the Debt referred to in the preceding clause (i) are
such that interest thereon for such prior period of time would have been
calculated at a varying rate per annum, a formula rate, or a fixed rate per
annum based on a varying index, then for the purpose of making such
determination of Interest Expense, interest on such Debt for such prior period
shall be computed by assuming that the rate of interest which would have been in
effect during such prior period was the rate of interest in effect on the
calculation date involved.
"REFERENCE BANK" means ABN/AMRO Bank, N.V.
"REFUNDING BORROWING" is defined in Section 3.C(d) hereof.
"REQUIRED LENDERS" means as of the date of determination thereof, those
Lenders holding at least 66-2/3% the Commitments or, in the event that no
Commitments are outstanding hereunder, those Lenders holding at least 66-2/3% in
aggregate principal amount of the Loans outstanding hereunder.
"RESTRICTED PAYMENTS" means (i) any dividend payment or other
distribution, direct or indirect, of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of capital stock
of any Borrower which is not a
13
wholly-owned Subsidiary of CWI, or (ii) any exchange, conversion, repurchase,
purchase, redemption, retirement, sinking fund or other similar acquisition for
value, direct or indirect, of any shares of any class of capital stock of any
Borrower or any warrants, rights or options to acquire any such shares, now or
hereafter outstanding, or (iii) any payment or repayment of principal of,
premium (if any), or interest on any Subordinated Debt, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to any Subordinated Debt, unless permitted by the terms of the document or
instrument pursuant to which said Subordinated Debt is created and which have
been approved by the Agent.
"SEC" means the Securities and Exchange Commission.
"SECURITY AGREEMENT" means that certain Security Agreement of the
Borrowers in favor of the Agent, for its benefit and the ratable benefit of the
Lenders, of even date herewith, as the same may be amended or supplemented.
"STATED AMOUNT" of each Letter of Credit means the total amount of the
Letter of Credit available for drawing thereunder.
"STOCK PLEDGE AGREEMENT" is as defined and included in the definition
of Pledged Shares.
"STOCKHOLDERS' EQUITY" means the sum of the capital stock, additional
paid-in-capital and retained earnings (after deducting treasury stock) as
determined in accordance with GAAP.
"SUBORDINATED DEBT" means Debt for money borrowed by any Borrower if,
but only to the extent that, the payment and, if permitted hereunder, any
collateral therefor is and remains at all times subordinated to the Obligations
and the collateral and other security therefor, on terms and conditions
satisfactory to the Agent.
"SUBSIDIARY" with respect to any Person means any corporation or other
business entity of which more than fifty percent (50%) of the outstanding common
stock or other ownership interests is owned, directly or indirectly, by such
Person.
"TANGIBLE NET WORTH" means Stockholders' Equity PLUS Subordinated
Debt, LESS all intangible assets (treated as such in accordance with GAAP),
including: all investments in unconsolidated subsidiaries; unamortized debt
discount and deferred charges; goodwill; patents, trade names, trademarks,
copyrights, franchises; customer lists; unamortized restrictive covenants;
unamortized organization expenses and administrative costs; deposits; loans and
advances to Affiliates, stockholders, directors, officers, employees or
relatives of the foregoing;
14
land options; and the excess of cost of shares acquired over book value of
related assets.
"TDHE" means the Tennessee Department of Health and Environment, or any
successor department or agency.
"TERMINATION DATE" means March 28, 1998.
"UCC" means the version of the Uniform Commercial Code as enacted in
Illinois, as amended from time to time.
"XXXXXX" means Xxxxxx X. Xxxxxx, the Chairman and Chief Operating
Officer of CWI as of the date hereof.
"WORKING CAPITAL RATIO" means the ratio of current assets to current
liabilities (excluding current maturities of long-term Debt), as such amounts
would be determined in accordance with GAAP, and in any event excluding from
current assets any intangible and other assets excluded in determining Tangible
Net Worth.
Section 1.B. Any accounting terms used but not otherwise defined
herein shall have their customary meanings as defined in, pursuant to, or in
accordance with GAAP. All other terms used but not otherwise defined herein
shall have the meanings provided by the UCC to the extent said terms are used or
defined therein.
Section 1.C. Unless otherwise defined or the context otherwise
requires, terms for which meanings are provided in this Agreement shall have
such meanings when used in the other Loan Documents.
Section 1.D. In this Agreement and each other Loan Document, unless a
clear contrary intention appears: (i) the singular number includes the plural
number, and VICE VERSA; (ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually; (iii)
reference to any gender includes each other gender; (iv) references to any
agreement (including this Agreement and the SCHEDULES, APPENDICES AND EXHIBITS
hereto), 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 and, if applicable, the terms hereof and reference to any promissory
note includes any promissory note which is an extension or renewal thereof or a
substitute or replacement therefor; (v) unless the context indicates otherwise,
reference to any Article, Section, Appendix, Schedule or Exhibit means such
Article or Section hereof or Schedule, Appendix or Exhibit hereto; (vi)
"hereunder," "hereof," "hereto" and words of similar import shall be deemed
references
15
to this Agreement as a whole and not to any particular Article, Section or other
provision hereof; (vii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description preceding
such term; and (viii) relative to the determination of any period of time,
"from" means "from and including" and "to" and "through" means "to but
excluding."
Section 1.E. If, after the date of this Agreement, there shall occur any
change in GAAP from those used in the preparation of the Borrowers' audited
financial statements for the Fiscal Year ending December 31, 1993, and such
change shall result in a change in the method of calculation of any financial
covenant, standard or term found in this Agreement, either CWI or the Required
Lenders may by notice to the Lenders and CWI, respectively, require that the
Lenders and the Borrowers negotiate in good faith to amend such covenant,
standard or term so as equitably to reflect such change in GAAP, with the
desired result being that the criteria for evaluating the financial condition of
the Borrowers shall be the same as if such change had not been made.
SECTION 2. CREDIT FACILITY.
Section 2.A. REVOLVING LOANS AND REVOLVING NOTES. Subject to the
terms and conditions of this Agreement, the Lenders agree to lend to the
Borrowers the Revolving Loans as provided in this Section.
2.A.1. REVOLVING LOANS. Subject to the terms and conditions of
this Agreement, the Lenders agree to lend to the Borrowers from time to time
until the earlier of the Termination Date or the occurrence of either a Default
or an Event of Default hereunder (the earlier of such date being hereinafter
referred to as the "EXPIRATION DATE"), such sums, in a minimum amount(s) as
set forth in Section 3.B hereof, as Borrowers may request from time to time by a
Borrowing Notice pursuant to Section 3.C hereof; provided, however, that the
aggregate principal amount of all loans outstanding under this Section 2.A.1
(individually, a "REVOLVING LOAN" or "LOAN" or, collectively, the
"REVOLVING LOANS" or "LOANS") plus the Stated Amount of all letters of
credit issued pursuant to Section 2.B hereof (the "LETTERS OF CREDIT") at any
one time shall not exceed Forty-Five Million Dollars ($45,000,000) (such amount
hereinafter referred to as the "COMMITMENT" and/or cumulatively for all
Lenders as the or their "COMMITMENTS"). Each Borrowing of Loans shall be made
ratably from the Lenders in proportion to their respective Commitments. Subject
to the terms and conditions hereof, the Borrowers may borrow or repay and
reborrow hereunder, from the date hereof until the Expiration Date, either the
full amount of the Commitments or any lesser sum in the minimum amounts referred
to herein. If, at any time, the Loans plus the Stated Amount of
16
outstanding Letters of Credit exceed the Commitment, the Borrowers shall
immediately notify the Agent of the existence of and pay to the Agent the amount
of such excess. The maximum amount of the Commitment of each Lender, which is
also the maximum amount of Loans which each Lender agrees to extend to the
Borrowers, shall be as set forth opposite its name on the applicable signature
page hereof (subject to any reductions thereof pursuant to the terms hereof).
For all purposes of this Agreement, where a determination of the unused or
available amount of the Commitment is necessary, the Loans and the Letter of
Credit Utilization shall be deemed to utilize the Commitments. The obligations
of the Lenders hereunder are several and not joint and no Lender shall under any
circumstances be obligated to extend credit hereunder in excess of its
Commitment.
2.A.2. REVOLVING NOTE. In order to evidence the Loans, at the time
of the making of the initial Loan, the Borrowers will execute and deliver a
promissory note(s) payable to the order of each Lender in the principal amount
of its Commitment, substantially in the form of EXHIBIT A hereto, with
appropriate insertions (together with any and all amendments, modifications,
supplements, substitutions, renewals, extensions and restatements, thereof and
therefor, whether individually or collectively, the "REVOLVING NOTE" or
"NOTE" or the "REVOLVING NOTES" or "NOTES"). The Loans and the Notes
shall mature on the Termination Date and shall bear and pay interest as set
forth in Section 3 hereof.
Section 2.B. LETTERS OF CREDIT.
(a) GENERAL TERMS. Subject to all of the terms and conditions hereof,
the Commitment may be availed of in the form of Letters of Credit, provided that
the aggregate outstanding amount of Letter of Credit Utilization by the
Borrowers hereunder shall in no event exceed the lesser of (aa) the unused
amount of the Commitments or (bb) $5,000,000. The Letters of Credit shall be
issued by the Agent, but each Lender shall be obligated to reimburse the Agent
for a PRO RATA share of the amount of each draft drawn thereunder and,
accordingly, each Letter of Credit shall be deemed to utilize the Commitments of
all Lenders PRO RATA in accordance with the respective amounts thereof. For
all purposes of this Agreement, each Existing Letter of Credit shall be deemed
to be a Letter of Credit issued hereunder.
(b) TERM. Each Letter of Credit issued hereunder shall expire not
later than the Termination Date. On the Expiration Date or on such earlier date
on which the Commitments are terminated or the Notes are accelerated, the
Borrowers shall pay to the Agent an amount equal to the aggregate amount undrawn
on all the Letters of Credit which are outstanding on that date to be held as
cash collateral for the Obligations in respect of such Letters of Credit.
17
(c) GENERAL CHARACTERISTICS. Each Letter of Credit issued hereunder
shall be a standby letter of credit, shall be payable in U.S. dollars, shall
conform to the general requirements of the Agent for the issuance of standby
letters of credit as to form and substance, shall be a letter of credit which
the Agent may lawfully issue, and shall be issued for the account of the
Borrowers.
(d) APPLICATIONS; REIMBURSEMENT. At the time any Borrower requests
any Letter of Credit to be issued (or prior to the first issuance of a Letter of
Credit, in the case of a continuing application), an Authorized Officer shall
execute and deliver to the Agent an application for such Letter of Credit in the
form customarily prescribed by the Agent for a Letter of Credit of the type
requested (the "APPLICATIONS"). The terms, conditions and provisions of all
Applications are incorporated herein by reference and made a part hereof,
provided that if there is a direct and irreconcilable conflict between the
terms, conditions and/or provisions of an Application and the specific
provisions of this Agreement, this Agreement shall be controlling. A copy of
the current form of Application customarily prescribed by the Agent is attached
as EXHIBIT B hereto. Subject to the other provisions of this Section 2.B, the
Borrowers' obligation to reimburse the Agent for drawings under a Letter of
Credit shall be absolute, unconditional and irrevocable under any and all
circumstances and governed by the Application for such Letter of Credit, except
that in any event the Borrowers' reimbursement for a drawing shall be made to
the Agent by no later than the same Business Day which is the date when such
drawing was paid. In the event that the Agent is not reimbursed by such time
for the amount of any draft drawn under a Letter of Credit issued hereunder, the
obligation of the Borrowers to reimburse it for the amount of such draft so paid
by the Agent shall bear interest (which the Borrowers hereby promise to pay)
from and after the date such draft was paid until such reimbursement is made at
the rate per annum determined by adding the Default Rate to the rate of interest
for Prime Rate Loans as from time to time in effect. Anything contained in the
Applications to the contrary notwithstanding, the Borrowers shall pay fees in
connection with Letters of Credit as set forth in Sections 4.D and 4.E hereof.
Subject to the conditions contained in Section 6.C., the Borrowers may satisfy
their reimbursement obligations with respect to drawings under Letters of Credit
by borrowing Prime Rate Loans hereunder in accordance with Section 3.C.
(e) CHANGE IN LAW. If the Agent or any Lender shall determine in good
faith that any change in any applicable law, regulation or guideline (including,
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) or any new law, regulation or guideline, or any interpretation
of any of the foregoing by any governmental authority charged with the
administration thereof or any central
18
bank or other fiscal, monetary of other authority having jurisdiction over such
Lender (whether or not having the force of law) shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirements against the Letters of Credit, or the Agent's or
such Lender's or any Borrower's liability with respect thereto; or
(ii) impose on the Agent or such Lender any penalty with respect to
the foregoing or any other condition regarding this Agreement, the
Applications or the Letters of Credit;
and the Agent or such Lender shall determine in good faith that the result of
any of the foregoing is to increase the cost (whether by incurring a cost or
adding to a cost) to the Agent or such Lender of issuing, maintaining or
participating in the Letters of Credit hereunder, then the Agent or such Lender
shall use its best efforts to give the Borrowers prompt notice thereof and the
Borrowers shall pay on demand to the Agent or such Lender from time to time as
specified by the Agent or such Lender such additional amounts as the Agent or
such Lender shall reasonably determine are sufficient to compensate and
indemnify it (computed commencing on the effective date of any event mentioned
herein) for such increased cost. If the Agent or a Lender makes such a claim
for compensation, it shall provide to the Borrowers a certificate setting forth
such increased costs as a result of any event mentioned herein and such
certificate shall be PRIMA FACIE evidence as to the amount thereof.
(f) PARTICIPATION IN LETTERS OF CREDIT. Each Lender shall participate
on a PRO RATA basis in the Letters of Credit issued by the Agent, which
participation shall automatically arise upon the issuance of each Letter of
Credit. Each Lender unconditionally agrees that in the event the Borrowers do
not reimburse the Agent by the time such reimbursement is due (as set forth in
subsection (d) above) for the amount paid by the Agent on any draft presented
under a Letter of Credit, then in that event such Lender shall pay to the Agent
that portion of the amount of each draft so paid by the Agent which is equal to
the same percentage of the amount so paid as the percentage which its Commitment
bears to the aggregate of the Commitments and in return such Lender shall
automatically receive an equivalent percentage participation in the rights of
the Agent to obtain reimbursement from the Borrowers for the amount of such
draft, together with interest thereon as provided for herein. In the event that
any Lender fails to honor its obligation to reimburse the Agent for its PRO
RATA share of the amount of any such draft, then in that event (i) each other
Lender shall pay to the Agent its PRO RATA share of the payment due the
Agent from the defaulting Lender (provided that no Lender shall be required to
19
make such payment to the extent that the payment, when taken together with the
amount outstanding to such Lender under the Revolving Credit, would exceed such
Lender's Commitment), (ii) the defaulting Lender shall have no right to
participate in any recoveries from the Borrowers in respect of such draft and
(iii) all amounts to which the defaulting Lender would otherwise be entitled
under the terms of this Agreement shall first be applied to reimbursing the
Lenders for their respective PRO RATA shares of the defaulting Lender's
portion of the draft, together with interest thereon at the rate provided for in
subsection (d) above. Upon reimbursement to other Lenders pursuant to clause
(iii) above of the amount advanced by them to the Agent in respect of the
defaulting Lender's share of the draft, together with interest thereon, the
defaulting Lender shall thereupon be entitled to its participation in the
Agent's rights of recovery against the Borrowers in respect of the draft paid by
the Agent.
(g) ABSOLUTE NATURE OF OBLIGATIONS. The obligation of Borrowers to
reimburse the Agent, and of Lenders to make payments to Agent with respect to
Letters of Credit, shall be irrevocable and shall not be subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) Any lack of validity or enforceability of this Agreement, any
Letter of Credit or any of the other Loan Documents;
(ii) The existence of any claim, setoff, defense or other right
which any Borrower may have at any time against a beneficiary named in a
Letter of Credit or any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the Agent, any Lender or any
other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between any Borrower and the
beneficiary named in any Letter of Credit);
(iii) Any draft, certificate or any other document presented under
a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) The surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(v) Payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or
20
other document which does not comply with the terms of such Letter of
Credit; provided, that such payment does not constitute gross negligence
or willful misconduct of the Agent; or
(vi) Any other circumstance or happening whatsoever which would
give rise to a defense against payment or is similar to any of the
foregoing.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO ALL LOANS.
Section 3.A. APPLICABLE INTEREST RATES. The Borrowers may elect
that each Borrowing of Loans be made by means of a Prime Rate Loan or a LIBOR
Loan; provided, however, that there shall not be more than five Borrowings of
Libor Loans outstanding at any time.
(a) PRIME RATE LOANS. Each Prime Rate Loan made by the Lenders shall
bear interest (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan is made
until maturity (whether by acceleration or otherwise) at a rate per annum equal
to the higher of
(i) the Prime Rate from time to time in effect plus the Applicable
Margin, or
(ii) one percent (1%) over the Federal Funds Rate from time to time
in effect plus the Applicable Margin,
with such interest to be payable on the last day of each calendar quarter and at
maturity (whether by acceleration or otherwise), commencing March 31, 1995.
(b) LIBOR LOANS. Each LIBOR Loan made by the Lenders shall bear
interest (computed on the basis of a year of 360 days and actual days elapsed)
on the unpaid principal amount thereof from the date such Loan is made until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
sum of the Applicable LIBOR Margin plus the Adjusted LIBOR, payable on the last
day of the applicable Interest Period and at maturity (whether by acceleration
or otherwise), and, if the applicable Interest Period is longer than three
months, on each day occurring every three months after the date such Loan is
made.
"ADJUSTED LIBOR" means, for any Borrowing of LIBOR Loans, a rate per
annum determined in accordance with the following formula:
LIBOR
------------------------------------
Adjusted LIBOR = 100% - Eurodollar Reserve Percentage
21
"LIBOR" means, for an Interest Period for a Borrowing of LIBOR Loans,
the rate of interest per annum (rounded upwards, if necessary, to nearest 1/100
of 1%) at which deposits in U.S. dollars in immediately available funds are
offered by the Agent or the Reference Bank at approximately 11:00 a.m. (London,
England time) two (2) Business Days before the beginning of such Interest Period
by prime banks in the interbank eurodollar market for a period equal to such
Interest Period and in an amount equal or comparable to the principal amount of
the LIBOR Loan scheduled to be made by the Lenders as part of such Borrowing.
"EURODOLLAR RESERVE PERCENTAGE" means, for any Borrowing of LIBOR Loans,
the daily average for the applicable Interest Period of the maximum rate at
which reserves (including, without limitation, any supplemental, marginal and
emergency reserves) are imposed during such Interest Period by the Board of
Governors of the Federal Reserve System (or any successor) under Regulation D on
"eurocurrency liabilities," as defined in such Board's Regulation D, (or in
respect of any other category of liabilities that includes deposits by reference
to which the interest rate on LIBOR Loans is determined or any category of
extension of credit or other assets that include loans by non-United States
offices of any Lender to United States residents) subject to any amendments of
such reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the LIBOR
Loans shall be deemed to be "eurocurrency liabilities" as defined in Regulation
D.
(c) MARGIN AND RATE DETERMINATIONS. The Agent shall determine each
interest rate applicable to the Loans hereunder, and its determination thereof
shall be conclusive and binding except in the case of manifest error. Not later
than fifteen (15) days after the Agent's receipt of the quarterly financial
statements required by Section 8.A.2 hereof for a given fiscal quarter and
(unless the Required Lenders in their sole discretion do not so require) a
letter from the Borrowers requesting a change in the Applicable Margin,
Applicable L/C Margin and Applicable LIBOR Margin (collectively, the
"MARGINS"), accompanied by a certificate signed by the chief financial officer
of CWI computing the Leverage Ratio as of the close of the most recently
completed calendar quarter, the Agent shall determine whether such financial
information indicates such a change in the Leverage Ratio as would justify a
change in the Margins and shall then notify the Borrowers and the Lenders of
such determination and of any change in the Margins resulting therefrom. Any
change in the Margins shall be effective retroactively as of the close of the
most recently completed calendar quarter (with any additional payment or refund
of interest or Letter of Credit fees to be made within two (2) Business Days
after the date the Agent so notifies the Borrowers and Lenders of such change)
and with such new Margins to continue
22
in effect until the effectiveness of the next redetermination thereof. Any
determination by the Agent of the Leverage Ratio shall be conclusive and binding
upon the Borrowers provided that it has been made reasonably and in good faith.
If the Borrowers fail to timely submit the quarterly financial statements,
letter and certificate referred to above, the Margins as of the close of the
most recently completed calendar quarter shall be, respectively, the Normal L/C
Margin, the Normal LIBOR Margin, and the Normal Margin.
Section 3.B. MINIMUM AND MAXIMUM BORROWING AMOUNTS. Each Borrowing
of Prime Rate Loans (other than an L/C Refinancing Borrowing) shall be in an
amount not less than $250,000 or any larger amount that is an integral multiple
of $25,000. Each Borrowing of LIBOR Loans shall be in an amount not less than
$1,000,000, or any larger amount that is an integral multiple of $100,000.
Section 3.C. BORROWING PROCEDURES.
(a) NOTICE TO THE AGENT. The Borrowers shall give telephonic or
telecopy notice to the Agent in the form attached hereto as EXHIBIT N (the
"BORROWING NOTICE") (which notice shall be irrevocable once given and, if by
telephone, shall be promptly confirmed in writing) by no later than 10:00 a.m.
(Chicago time) (i) on the date at least three (3) Business Days prior to the
date of each requested Borrowing of LIBOR Loans and (ii) on the date of any
requested Borrowing of Prime Rate Loans. Each such notice shall specify the
date of the requested Borrowing (which shall be a Business Day), the amount of
the requested Borrowing, the type of Loans to comprise such Borrowing and, if
such Borrowing is to be comprised of LIBOR Loans, the Interest Period applicable
thereto. The Borrowers agree that the Agent may rely on any such telephonic or
telecopy notice given by any person the Agent in good faith believes is an
Authorized Officer without the necessity of independent investigation and in the
event any notice by such means conflicts with the written confirmation, such
notice shall govern if the Agent has acted in reliance thereon.
(b) NOTICE TO THE LENDERS. The Agent shall give prompt telephonic,
telex or telecopy notice to each of the Lenders of any Borrowing Notice received
pursuant to Section 3.C(a) above and, if such notice requests the Lenders to
make LIBOR Loans, the Agent shall give notice to the Borrowers and each of the
Lenders by like means of the interest rate applicable thereto promptly after the
Agent has made such determination. The Agent shall promptly confirm in writing
(including by telex or telecopy) any such notice provided by telephone, but the
failure to provide such confirmation shall not affect the obligations of the
Borrowers and the Lenders under this Agreement.
23
(c) BORROWERS' FAILURE TO NOTIFY. In the event the Borrowers fail to
give notice pursuant to Section 3.C(a) above of the reborrowing of the principal
amount of any maturing Borrowing or of a Borrowing to refinance a reimbursement
obligation with respect to a Letter of Credit (an "L/C REFINANCING BORROWING")
and has not notified the Agent by 10:00 a.m. (Chicago time) on the day such
Borrowing matures or such reimbursement obligation becomes due that it intends
to repay such Borrowing or such reimbursement obligation with funds not borrowed
hereunder, the Borrowers shall be deemed to have requested a Borrowing of Prime
Rate Loans on such day in the amount of the maturing Borrowing or of the
reimbursement obligation then due, in each case subject to Section 6.C hereof,
which new Borrowing shall be applied to pay, as the case may be, the maturing
Borrowing or reimbursement obligation then due.
(d) DISBURSEMENT OF LOANS. Not later than 12:00 noon (Chicago time)
on the date of any Borrowing (a "FUNDING DATE") of LIBOR Loans or Prime Rate
Loans, each Lender shall make available its Loan in funds immediately available
in Chicago, Illinois at the principal office of the Agent, except to the extent
such Borrowing is either a reborrowing, in whole or in part, of the principal
amount of a maturing Borrowing of Loans (a "REFUNDING BORROWING") or an L/C
Refinancing Borrowing, in which case each Lender shall record the Loan made by
it as a part of such Refunding Borrowing or L/C Refinancing Borrowing, as the
case may be, on its books or records or on a schedule to the appropriate Note,
as provided in Section 3.H(b) hereof, and shall effect the repayment, in whole
or in part, as appropriate, of its maturing Loan or reimbursement obligation
through the proceeds of such new Loan. Subject to Section 6 hereof, the Agent
shall make the proceeds of each Borrowing available to the Borrowers at the
Agent's principal office in Chicago, Illinois.
Unless the Agent shall have been notified by a Lender (no later than
5:00 p.m. (Chicago time) on the Business Day preceding the date of a requested
Borrowing of LIBOR Loans and no later than 12:00 noon (Chicago time) on the date
of a requested Borrowing of Prime Rate Loans), that such Lender does not intend
to make available to the Agent such Lender's PRO RATA share of Borrowings as
aforesaid, the Agent may assume that such Lender has made such amount available
to the Agent and the Agent, in its sole discretion, may but need not make
available to the Borrowers a corresponding amount. If such corresponding amount
is not in fact made available to the Agent by such Lender on or prior to a
Funding Date, such Lender agrees to pay and Borrowers agree to repay the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to Borrowers until the
date such amount is paid or repaid to the Agent, at (i) in the case of such
Lender, the Federal Funds Rate (together with such other compensatory amounts as
may be required to be paid by such Lender
24
to the Agent pursuant to the rules for Interbank Compensation of the Council on
International Banking or the Clearinghouse Compensation Committee, as the case
may be, as in effect from time to time), and (ii) in the case of the Borrowers,
the interest rate applicable at the time to the Borrowing made on such Funding
Date. If such Lender shall pay to the Agent such corresponding amount, such
amount so paid shall constitute such Lender's PRO RATA share of such
Borrowing, and if both such Lender and the Borrowers shall have paid and repaid,
respectively, such corresponding amount, the Agent shall promptly return to the
Borrowers such corresponding amount in same day funds. Nothing in this Section
shall be deemed to relieve any Lender of its obligation hereunder to make its
PRO RATA share of Loans on the requested date of Borrowing, nor shall any
Lender be responsible for the failure of any other Lender to perform its
obligations to make any Loan hereunder, and the Commitment of any Lender shall
not be increased or decreased as a result of the failure by any other Lender to
performs its obligation to make a Loan. In the event that, at any time when no
Event of Default exists hereunder, and the applicable conditions for funding set
forth hereunder have been satisfied, a Lender for any reason fails or refuses to
fund its PRO RATA share of a Loan (the funded portion of such Loan being
hereinafter referred to as a "NON PRO RATA LOAN" and such Lender being
hereinafter referred to as a "DEFAULTING LENDER"), then, until such time as
such Defaulting Lender has funded its portion of the Loan which was previously a
Non Pro Rata Loan, or all other Lenders have received payment in full (whether
by repayment or prepayment) of the principal and interest due in respect of such
Non Pro Rata Loan, all of the Obligations owing to such Defaulting Lender
hereunder shall be subordinated in right of payment, as provided in the
following sentence, to the prior payment in full of all principal, interest and
fees in respect of all Non Pro Rata Loans in which the Defaulting Lender has not
funded its PRO RATA share (such principal, interest and fees being referred
to as "SENIOR LOANS"). All amounts paid by Borrowers and otherwise due to be
applied to the obligations owing to the Defaulting Lender pursuant to the terms
hereof shall be distributed by Agent to the other Lenders in accordance with
their respective PRO RATA shares (recalculated for purposes hereof to
exclude the Defaulting Lender's Commitment), until all Senior Loans have been
paid in full. This provision governs only the relationship among Agent, the
Defaulting Lender, and the other Lenders; nothing hereunder shall limit the
obligation of Borrowers to repay all Loans in accordance with the terms of this
Agreement. Notwithstanding anything in this Agreement to the contrary, the
provisions of this section shall apply and be effective regardless of whether an
Event of Default occurs and is then continuing, and notwithstanding any
instruction of Borrowers as to its desired application of payments. In
addition, no unused commitment fee shall accrue in favor of, or be payable to,
such Defaulting
25
Lender from the date of such failure to fund until such failure has been cured.
Section 3.D. INTEREST PERIODS. As provided in Section 3.C hereof,
at the time of each request for the Borrowing of LIBOR Loans hereunder the
Borrowers shall select an Interest Period applicable to such Loans from among
the available options. The term "INTEREST PERIOD" means the period commencing
on the date a Borrowing of LIBOR Loans is made and ending on the date, as the
Borrowers may select, 1, 2, 3 or 6 months thereafter; PROVIDED, HOWEVER,
that:
(a) the Borrowers may not select an Interest Period that extends beyond
the Termination Date;
(b) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall be
extended to the next succeeding Business Day, provided that, if such extension
would cause the last day of such Interest Period to occur in the following
calendar month, the last day of such Interest Period shall be the immediately
preceding Business Day; and
(c) for purposes of determining the Interest Period for a Borrowing of
LIBOR Loans, a month means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month;
PROVIDED, HOWEVER, that if there is no numerically corresponding day in the
month in which such an Interest Period is to end or if such an Interest Period
begins on the last Business Day of a calendar month, then such Interest Period
shall end on the last Business Day of the calendar month in which such Interest
Period is to end.
Section 3.E. MATURITY OF LIBOR LOANS. Each LIBOR Loan shall mature
and become due and payable by the Borrowers on the last day of the Interest
Period applicable thereto.
Section 3.F. PREPAYMENTS.
(a) GENERALLY. The Borrowers shall have the privilege of prepaying
without premium or penalty and in whole or in part (but, if in part, then: (i)
in an amount not less than $250,000 and in integral multiples of $25,000 in the
case of Prime Rate Loans, and in an amount not less than $1,000,000 and in
integral multiples of $100,000 in the case of LIBOR Loans and (ii) in an amount
such that the minimum amount required for a Borrowing pursuant to Section 3.B
hereof remains outstanding) on any Business Day upon prior notice to the Agent
which must be received by the Agent (which shall advise each Lender thereof
promptly thereafter) by no later than 10:00 a.m. (Chicago time) on the date of
such prepayment in the case of Prime Rate Loans and by no later than 10:00 a.m.
(Chicago time) on the date three
26
Business Days in advance of the date of such prepayment in the case of LIBOR
Loans, such prepayment to be made by the payment of the principal amount to be
prepaid and, in the case of LIBOR Loans, any compensation required by Section
3.J hereof. Partial prepayments of any outstanding type of Loan shall be
applied to the various Borrowings thereof in the inverse order of their
maturity.
(b) REBORROWINGS. Any amount paid or prepaid on the Loans before the
Expiration Date may, subject to the terms and conditions of this Agreement, be
borrowed, repaid and borrowed again.
Section 3.G. DEFAULT RATE. If any payment of principal on any Loan
or other monetary Obligation is not made when due (whether by acceleration or
otherwise), such Loan or other monetary Obligation shall bear interest, after as
well as before judgment (computed on the basis of a year of 360 days and actual
days elapsed) from the date such payment was due until paid in full, payable on
demand, at a rate per annum (the "DEFAULT RATE") equal to:
(a) with respect to any Prime Rate Loan, the sum of three percent (3%)
PLUS the Prime Rate from time to time in effect; and
(b) with respect to any LIBOR Loan, the sum of two percent (2%) PLUS
the rate of interest in effect thereon at the time of such default until the end
of the Interest Period applicable thereto and, thereafter, at a rate per annum
equal to the sum of three percent (3%) PLUS the Prime Rate from time to time
in effect; and
(c) with respect to other monetary Obligations for which a Default Rate
is not otherwise specified, the sum of three percent (3%) PLUS the Prime Rate
from time to time in effect.
Section 3.H. NOTES.
(a) Each Loan made to the Borrowers by a Lender shall be evidenced by a
promissory note of the Borrowers, dated the date hereof, payable to the order of
each Lender in the principal amount of its Commitment, and otherwise be in the
form of EXHIBIT A hereto.
(b) Each Lender shall record on its books or records or on a schedule to
the appropriate Note the amount of each Loan made by it to the Borrowers, the
Interest Period thereof, all payments of principal and interest and the
principal balance from time to time outstanding thereon, in respect of any LIBOR
Loan, the interest rate applicable thereto, and, in respect of any Loan, the
type of such Loan; provided that prior to the transfer of any Note all such
amounts shall be recorded on a schedule to such
27
Note. The record thereof, whether shown on such books or records of a Lender or
on a schedule to any Note, shall be PRIMA FACIE evidence as to all such
amounts; PROVIDED, HOWEVER, that the failure of any Lender to record any of
the foregoing or any error in any such record shall not limit or otherwise
affect the obligation of the Borrowers to repay all Loans made hereunder
together with accrued interest thereon. At the request of any Lender and upon
such Lender tendering to the Borrowers the Note to be replaced, the Borrowers
shall furnish a new Note to such Lender to replace any outstanding Note and at
such time the first notation appearing on a schedule on the reverse side of, or
attached to, such Note shall set forth the aggregate unpaid principal amount of
all Loans, if any, then outstanding thereon.
Section 3.I. COMMITMENT TERMINATIONS. The Borrowers shall have the
right at any time and from time to time, upon prior written notice to the Agent,
to terminate without premium or penalty, in whole or in part, the Commitments,
each such termination (whether in whole or in part) to be effective as of the
close of the calendar quarter specified in such notice (provided such effective
date occurs no earlier than thirty (30) Business Days after such notice) and
each partial termination to be in an amount not less than $5,000,000 or any
larger amount that is an integral multiple of $1,000,000 and to reduce ratably
the respective Commitments of each Lender; provided that the Commitments may not
be reduced to an amount less than the aggregate principal amount of Loans and
Letter of Credit Utilization then outstanding. Any termination of Commitments
pursuant to this Section 3.I may not be reinstated.
Section 3.J. FUNDING INDEMNITY. In the event any Lender shall
incur any loss, cost or expense (including, without limitation, any loss of
profit, and any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund or
maintain any LIBOR Loan or the relending or reinvesting of such deposits or
amounts paid or prepaid to such Lender) as a result of:
(a) any payment (including prepayment) of a LIBOR Loan on a date other
than the last day of its Interest Period for any reason, whether before or after
default, and whether or not such payment is required by any provisions of this
Agreement, or
(b) any failure (because of a failure to meet the conditions of Section
6 or otherwise) by the Borrower to borrow a LIBOR Loan on the date specified in
a notice given pursuant to Section 3.C hereof,
then, upon the demand of such Lender, the Borrowers shall pay to such Lender
such amount as will reimburse such Lender for such loss, cost or expense. If
any Lender makes such a claim for
28
compensation, it shall provide to the Borrowers, with a copy to the Agent, a
certificate executed by an officer of such Lender setting forth the amount of
such loss, cost or expense in reasonable detail (including an explanation of the
basis for and the computation of such loss, cost or expense) and the amounts
shown on such certificate shall be deemed rebuttably presumptive evidence of the
correctness thereof.
Section 3.K. CHANGE IN CIRCUMSTANCES, ETC.
(a) CHANGE OF LAW. Notwithstanding any other provisions of this
Agreement or any Note, if at any time after the date hereof any change in
applicable Law or in the interpretation thereof makes it unlawful for any Lender
to make or continue to maintain LIBOR Loans or to give effect to its obligations
as contemplated hereby, such Lender shall promptly give notice thereof to the
Borrowers, with a copy to the Agent, and such Lender's obligations to make or
maintain LIBOR Loans under this Agreement shall terminate until it is no longer
unlawful for such Lender to make or maintain LIBOR Loans. The Borrowers shall
prepay on demand the outstanding principal amount of any such affected LIBOR
Loans, together with all interest accrued thereon and all other amounts then due
and payable to such Lender under this Agreement; provided, however, subject to
all of the terms and conditions of this Agreement, the Borrowers may then elect
to borrow the principal amount of the affected LIBOR Loan from such Lender by
means of a Prime Rate Loan from such Lender that shall not be made ratably by
the Lenders but only from such affected Lender.
(b) UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN, OR INADEQUACY
OF, LIBOR. If on or prior to the first day of any Interest Period for any
Borrowing of LIBOR Loans:
(i) the Agent advises the Borrowers that deposits in United States
Dollars (in the applicable amounts) are not being offered to it or the Reference
Bank in the interbank eurodollar market, for such Interest Period, or
(ii) Lenders having 50% or more of the aggregate amount of the
Commitments advise the Agent that LIBOR as determined by the Agent will not
adequately and fairly reflect the cost to such Lenders of funding their LIBOR
Loans for such Interest Period,
then the Agent shall forthwith give notice thereof to the Borrowers and the
Lenders, whereupon until the Agent notifies the Borrowers that the circumstances
giving rise to such suspension no longer exist, the obligation of the Lenders to
make LIBOR Loans shall be suspended.
(c) INCREASED COST AND REDUCED RETURN.
29
(1) If on or after the date hereof, the adoption of any applicable
Law, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender to any tax, duty or other
charge with respect to the LIBOR Loans, its Notes or its obligation
to make LIBOR Loans, or shall change the basis of taxation of
payments of any Lender of the principal of or interest on its LIBOR
Loans or any other amounts due under this Agreement in respect of
its LIBOR Loans or its obligation to make LIBOR Loans (except for
changes in the rate of tax on the overall net income of such Lender
imposed by the jurisdiction in which such Lender's principal
executive office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposition or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding with respect to any
LIBOR Loans any such requirement included in an applicable
Eurodollar Reserve Percentage) against assets of, deposits with or
for the account of, or credit extended by, any Lender or shall
impose on any Lender or on the interbank market any other condition
affecting its LIBOR Loans, its Notes or its obligation to make LIBOR
Loans;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by such Lender under this Agreement or under its Notes
with respect thereto, by an amount deemed by such Lender to be material, then,
within fifteen (15) days after demand by such Lender (with a copy to the Agent),
the Borrowers shall be obligated to pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction
(computed commencing on the effective date of any event mentioned herein). Each
Lender agrees to use its best efforts to give the Borrowers notice of the
occurrence of any event mentioned herein.
(2) If any Lender shall determine that the adoption after the date
hereof of any applicable Law regarding capital adequacy, or any change in any
existing Law, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
30
interpretation or administration thereof, or compliance by such Lender (or any
of its branches or any corporation controlling such Lender (or any of its
branches or any corporation controlling such Lender) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's or such corporation's
capital, as the case may be, as a consequence of such Lender's obligations
hereunder or for the credit which is the subject matter hereof to a level below
that which such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to liquidity and capital adequacy) by an
amount deemed by such lender to be material, then from time to time, within
fifteen (15) days after demand by such Lender, the Borrowers shall pay to the
Lender such additional amount or amounts reasonably determined by such Lender as
will compensate such Lender for the reduction.
(d) LENDING OFFICES. Each Lender may, at its option, elect to make
its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "LENDING OFFICE") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a notice to the Borrowers and
the Agent.
(e) DISCRETION OF LENDER AS TO MANNER OF FUNDING. Notwithstanding any
other provision of this Agreement, each Lender shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if each Lender had actually funded and
maintained each LIBOR Loan through the purchase of deposits in the relevant
market having a maturity corresponding to such Loan's Interest Period and
bearing an interest rate equal to LIBOR, for such Interest Period.
SECTION 4. FEES AND EXTENSIONS.
Section 4.A. COMMITMENT FEE. The Borrowers shall pay to the Agent
for the ratable account of the Lenders a commitment fee at the rate of one-half
of one percent (0.5%) per annum (computed on the basis of a year of 360 days and
the actual number of days elapsed) on the average daily unused amount of the
Commitment hereunder. For purposes of this Section 4.A, Letter of Credit
Utilization shall constitute a usage of the Commitment for purposes of computing
the commitment fee payable hereunder. Such commitment fee is payable in arrears
on the last day of each March, June, September and December occurring after the
date hereof (commencing March 31, 1995) and on the Expiration Date,
31
unless the Commitment terminates in whole on an earlier date, in which event the
fees for the period to the date of such termination in whole shall be paid on
the date of such termination.
Section 4.B. CLOSING FEE. The Borrowers shall pay to the Agent on
the Closing Date such fees as shall be agreed to and set forth in a letter
agreement among the Agent and the Borrowers of even date herewith (the "CLOSING
FEE").
Section 4.C. AGENT'S FEES. The Borrowers shall from time to time
pay the Agent for its own use and benefit such fees as the Borrowers and the
Agent have mutually agreed upon.
Section 4.D. LETTER OF CREDIT FEES. On the last day of each March,
June, September and December occurring after the date hereof (commencing March
31, 1995) and on the Expiration Date, the Borrowers shall pay to the Agent for
the ratable account of the Lenders a fee at the rate equal to the Applicable L/C
Margin per annum (computed on the basis of a year of 360 days and the actual
number of days elapsed) on the average daily Stated Amount under Letters of
Credit outstanding during the calendar quarter ending on such date.
Section 4.E. TRANSACTION CHARGES. The Borrowers shall pay to the
Agent for its own account such issuing and processing fees and charges as the
Agent from time to time customarily imposes in connection with the issuance,
amendment, cancellation, negotiation and payment of letters of credit and drafts
drawn thereunder, such fees to be paid in accord with the standard and customary
practices of the Agent.
SECTION 5. PLACE AND APPLICATION OF PAYMENTS.
Section 5.A. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans, reimbursement obligations with respect
to Letters of Credit and all payments of fees and all other amounts payable
under this Agreement shall be made to the Agent no later than 12:00 Noon
(Chicago time) at the principal office of the Agent in Chicago, Illinois (or
such other location in the State of Illinois as the Agent may designate to the
Borrowers) for the benefit of the Lenders. Any payments received after such
time shall be deemed to have been received by the Agent on the next Business
Day. All such payments shall be made in lawful money of the United States of
America, in immediately available funds at the place of payment, without setoff
or counterclaim. The Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest on Loans,
reimbursement obligations with respect to Letters of Credit or fees ratably to
the Lenders and like funds relating to the payment of any other amount payable
to any Lender to such Lender, in each case to be applied in accordance with the
32
terms of this Agreement. Alternatively, at its sole discretion, the Agent may
charge against or debit any deposit account or other Monies of any Borrower on
deposit with or in possession of the Agent (except any Monies of any Borrower at
any time on deposit with the Agent collateralizing any Letters of Credit issued
by the Agent on behalf of the Borrowers as Financial Assurance to TDHE), all or
any part of any amount due hereunder or under the Notes. The Agent's right from
time to time after the occurrence or happening of an Event of Default hereunder
(which has not been cured or waived in a writing signed by the Agent) to set off
indebtedness owing by Borrowers to the Agent against any Borrower's Monies,
deposits, credits, accounts or other property now or at any time in the
possession or control of the Agent, except as provided herein, is hereby
acknowledged and agreed to by the Borrowers.
SECTION 6. CONDITIONS PRECEDENT.
Notwithstanding any other provisions of this Agreement, the Lenders, at
their sole option and in their sole discretion, need not make any Loans to the
Borrowers or issue any Letter of Credit for the account of the Borrowers, unless
the conditions precedent described below are fulfilled:
Section 6.A. DELIVERY OF DOCUMENTS AS CONDITIONS PRECEDENT. The
delivery of each of the following documents, each of which shall be
satisfactory to the Agent in substance and form, by on or behalf of the
Borrowers to the Agent shall constitute separate and distinct conditions
precedent to the effectiveness of this Agreement and the making of any Loans or
issuance of any Letters of Credit:
6.A.1. AGREEMENT. A copy of this Agreement duly executed by
Borrowers.
6.A.2. NOTE. The Notes dated as of the Closing Date duly executed
by the Borrowers and payable to the respective Lenders.
6.A.3. STOCK PLEDGE AGREEMENT. The Stock Pledge Agreement in the
form of EXHIBIT C hereto duly executed by CWI and the other Pledgors, together
with the stock certificates for the Pledged Shares and duly executed stock
powers or assignments endorsed in blank.
6.A.4. ENVIRONMENTAL INDEMNITY AGREEMENT. An Environmental
Indemnity Agreement in the form attached hereto as EXHIBIT D duly executed by
the Borrowers.
6.A.5. SECURITY AGREEMENT. A Security Agreement in the form
attached hereto as EXHIBIT E duly executed by the Borrowers.
33
6.A.6. FINANCING STATEMENTS. UCC-1 financing statements executed
by the Borrowers for filing with the offices indicated on SCHEDULE 6.A.6
hereto, and such other financing statements or fixture filings as the Agent
may request from the Borrowers from time to time.
6.A.7. UCC AND OTHER SEARCH RESULTS. Satisfactory Uniform
Commercial Code financing statement, judgment and tax lien search results of the
Borrowers from or of the offices indicated on SCHEDULE 6.A.7 hereto, and from
such other offices or governmental agencies or bodies as the Agent, in its sole
discretion, may request from time to time, indicating that any financing
statements previously filed by the Agent or described above have been duly and
properly filed and recorded giving the Agent first priority perfected liens and
security interests on and in the Collateral of the Borrowers, except by reason
of Permitted Liens, and that there are no other lienors or creditors claiming
any interest in the Collateral of the Borrowers, except holders of Permitted
Liens.
6.A.8. EVIDENCE OF INSURANCE. Within 15 days of the date hereof,
evidence that the Borrowers have insurance as required by Section 8.A.16,
including property, casualty and liability insurance satisfactory to the Agent,
together with: (i) loss payable endorsements naming the Agent for the benefit
of the Lenders as loss payee with respect to property and casualty insurance
covering Collateral; and (ii) certificate(s) of insurance(s) and binder(s)
naming the Agent and the Lenders as additional insureds with respect to
liability insurance.
6.A.9. CERTIFICATES OF INCORPORATION. Certificates of
Incorporation, and each and every amendment thereto, of each Borrower, certified
of recent date by the Secretary of State or appropriate government official in
each State or country in which each such Borrower is incorporated.
6.A.10. GOOD STANDING. Certificate of the appropriate Secretary of
State or government official of recent date, as to the good standing of each
Borrower in the State or country of its incorporation and where it is qualified
to do business.
6.A.11. SECRETARY'S CERTIFICATES. Certificate of Secretary of each
Borrower as to (i) resolutions authorizing entry into, execution, delivery and
performance of its obligations under this Agreement and related Loan Documents
to which it is a party, (ii) the incumbency and signatures of the officers
authorized to execute on its behalf the Loan Documents to which it is a party,
(iii) its Certificate of Incorporation, and (iv) its bylaws.
6.A.12. OPINION. The satisfactory opinion letter of Xxxxxxx &
Xxxxxxxx, counsel for the Borrowers, in the form
34
attached hereto as EXHIBIT F, dated as of the date hereof and addressed to the
Agent.
6.A.13. ENVIRONMENTAL DATA. All environmental data, information and
reports concerning the Mortgaged Properties, the Leaseholds or any other
property which the Agent may request.
6.A.14. WAIVERS. Such waivers or consents from holders of Permitted
Liens on Equipment as are necessary and are satisfactory to the Agent in order
for the Borrowers to grant to the Agent a second lien on such Equipment without
violating, breaching or defaulting on the security agreement or other terms of
the Debt secured by the Permitted Lien on such Equipment, such holders being as
identified on SCHEDULE 6.A.14 hereto.
6.A.15. OFFICER'S CERTIFICATES. A certificate of the President of
CWI certifying: (i) that the conditions herein insofar as they relate to the
Borrowers have been satisfied, (ii) as to the truth of the representations and
warranties herein contained, and (iii) that no Materially Adverse Effect has
occurred since December 31, 1994.
6.A.16. MORTGAGES. Mortgages and/or deeds of trust (the
"MORTGAGES") in substantially the form of EXHIBIT G hereto executed by the
appropriate Borrower in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, covering each of the properties identified in SCHEDULE
7.R hereto (the "MORTGAGED PROPERTIES").
6.A.17. LEASEHOLD MORTGAGES. Leasehold Mortgages and/or deeds of
trust (the "LEASEHOLD MORTGAGES") in substantially the form of EXHIBIT H
hereto executed by the appropriate Borrower in favor of the Agent, for its
benefit and the ratable benefit of the Lenders, covering such Borrower's
Leaseholds identified in SCHEDULE 7.R hereto.
6.A.18. SURVEYS. Current surveys of the Mortgaged Properties and
the Leaseholds, which shall contain flood plain certifications, shall be
prepared in accordance with the Minimum Standard Detail Requirement for Land and
Title Surveys as adopted by the American Land Title Association and the American
Congress on Surveying and Mapping, and shall be prepared and certified to the
Agent and title company by a licensed surveyor or engineer.
6.A.19. TITLE POLICIES. With respect to each Mortgaged Property and
Leasehold, an ALTA Loan Policy - 1970 (Amended 10/17/70) (or other form
acceptable to the Agent) title insurance policy or binder issued by a title
insurance company satisfactory to the Agent, in the respective amounts set forth
in SCHEDULE 7.R. hereto, insuring or undertaking to insure, in the case of a
binder, that the relevant Mortgage or Leasehold Mortgage relating thereto
creates and constitutes a valid first Lien against such
35
Mortgaged Property or Leasehold in favor of the Agent, subject to no exceptions
other than those acceptable to the Agent, with such endorsements and affirmative
insurance (including comprehensive endorsement no. 1, survey, revolving credit,
contiguity - if applicable, usury, doing business, standard form variable rate,
restrictions - where applicable, encroachment - where applicable, and broad form
zoning) as the Agent may reasonably request; and, if requested by the Agent,
copies of all documents referred to in the title insurance policies and binders.
6.A.20. [Intentionally Omitted]
6.A.21. ESTOPPEL CERTIFICATE. An estoppel certificate substantially
in the form of EXHIBIT H duly executed by each landlord of the Leaseholds.
6.A.22. LANDLORD'S LIEN WAIVER. A Landlord's Lien Waiver and
Agreement duly executed by each landlord of the Leaseholds.
6.A.23. LEASES. Certified copies of all leases (including ground
leases) and other material contracts affecting the Leaseholds.
6.A.24. PAY-OFF LETTERS. Pay-off letters from the holders of all
Debt to be paid or refinanced with Loan proceeds.
6.A.25. OTHER DOCUMENTS. In form and substance satisfactory to the
Agent, any other documents which the Agent may reasonably request from or to be
delivered by the Borrowers from time to time to effect the intent of this
Agreement and the Loan Documents.
Section 6.B. FEES. All fees referred to in Section 4 hereof which
are then due shall have been paid to the Agent on the Closing Date.
Section 6.C. CONDITIONS PRECEDENT. The following conditions are
conditions precedent to the obligation of the Agent and the Lenders to make or
disburse any Loan or issue any Letter of Credit hereunder at any time requested
by the Borrowers, and each request by any Borrower for a Loan or Letter of
Credit hereunder shall be deemed to constitute each Borrower's representation
and warranty to the Agent and the Lenders that, as of the dates of such request
and on which such Loan is disbursed or Letter of Credit issued, these conditions
have been satisfied:
6.C.1. MATERIALLY ADVERSE EFFECT. No Materially Adverse Effect
shall have occurred, as determined by the Agent in its sole and complete
discretion, since the date hereof.
6.C.2. REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Section 7 hereof and
36
in each Loan Document to which any Borrower is a party shall be true and
correct.
6.C.3. COVENANTS. The affirmative and negative covenants set forth
herein (including, without limitation, those covenants set forth in Section 8
hereof) and in any other Loan Documents to which any Borrower is a party, are
not being breached and are inviolate.
6.C.4. EVENT OF DEFAULT. No Default or Event of Default shall have
occurred and then be continuing or would occur as a result of making such Loan
or issuing such Letter of Credit.
6.C.5. COMMITMENT. After giving effect to the Loan or Letter of
Credit, the aggregate principal amount of all Loans and Letter of Credit
Utilization outstanding hereunder shall not exceed the Commitment.
6.C.6. NO VIOLATIONS. Such Loan or Letter of Credit shall not
violate any order, judgment or decree of any court or other authority or any
provision of Law applicable to any Lender (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System) as then in
effect, provided that if any such circumstances affects fewer than all the
Lenders then the unaffected Lenders shall not be relieved of their obligations
to make a Loan as part of a Refunding Borrowing.
6.C.7. NOTES; NOTICE OF BORROWING. The Agent shall have received
for each Lender the Notes of the Borrowers and the notice required by Section
3.C hereof.
Section 6.D. LETTERS OF CREDIT. As a further condition to the
issuance of each Letter of Credit, the Agent shall have received a duly
completed and executed Application therefor.
Section 6.E. ADDITIONAL CONDITIONS PRECEDENT TO CERTAIN LOANS;
DEVELOPMENT PERMITS. In addition to the other conditions precedent set forth
in this Section, the following condition shall have been fulfilled by the
Borrowers to the satisfaction of the Agent as an additional condition precedent
to the making of any Loans the proceeds of which are to be used for the purpose
of financing development of landfill cells at any Landfill:
(i) the Agent shall have received copies of all construction or other
permits necessary for the development involved.
37
SECTION 7. REPRESENTATIONS AND WARRANTIES.
As further inducement to the Agent and the Lenders to enter into this
Agreement and make the Loans and issue Letters of Credit hereunder, the
Borrowers jointly and severally represent and warrant, as of the date hereof,
and as of the date of each disbursement of each of the Loans and the date of
issuance of each Letter of Credit, the following, which shall survive the
execution and delivery of this Agreement, the Notes and the Loan Documents and
until all of the Obligations have been paid, satisfied or discharged in full,
regardless of any investigation by the Agent or Lenders of the Borrowers'
financial condition or assets:
Section 7.A. CORPORATE EXISTENCE AND RELATED MATTERS. Each
Borrower is a corporation duly organized, validly existing and in good standing
under the Laws of the State or country of its incorporation and is duly
qualified to do and transact business and is in good standing as a foreign
corporation in each and every state or country in which the conduct of its
business or the location of its properties requires such qualification and the
failure to so qualify would have a Materially Adverse Effect. SCHEDULE 7.A
attached hereto lists each Borrower and its relationship to CWI. As of the date
hereof, the only Subsidiaries of CWI are designated in SCHEDULE 7.A hereto and
are Borrowers hereunder. SCHEDULE 7.A hereto correctly sets forth, as to each
such Subsidiary, whether or not it is a Consolidated Subsidiary, the
jurisdiction of its incorporation, the percentage of issued and outstanding
shares of each class of its capital stock owned by CWI and the Subsidiaries and,
if such percentage is not 100%, a description of each class of its authorized
capital stock and the number of shares of each class issued and outstanding.
All of the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and outstanding and fully paid and nonassessable and all such
shares indicated in SCHEDULE 7.A as owned by CWI or a Subsidiary are owned,
beneficially and of record, by CWI or such Subsidiary, free of any Lien.
SCHEDULE 7.A contains all assumed or business names utilized by each Borrower,
the jurisdiction of incorporation of each Borrower, and all jurisdictions where
each Borrower is qualified to do business. The information in SCHEDULE 7.A
hereto is true and complete.
Section 7.B. CORPORATE AUTHORITY. Each Borrower has all corporate
power and authority to own its property and assets and to carry on and engage in
its business as it is presently being conducted, and has all licenses, permits,
franchises, consents, approvals and authorizations required in connection with
the foregoing. The execution, issuance, delivery, and performance of all
documents in connection with this Agreement, the Notes and the Loan Documents to
which any Borrower is a party or signatory and the incurrence and performance of
the Obligations hereunder
38
and thereunder (i) are within the corporate power and authority of each
Borrower, (ii) have been duly and properly authorized by all necessary
corporate, director, shareholder and any other action of the Borrowers, and
(iii) have not resulted in and will not result in:
(a) the creation or imposition of any Lien of any nature whatsoever
(except in favor of the Agent) upon any Borrower's property or assets; or
(b) the violation or contravention of, the occurrence of a default,
event of default or event, which with the passage of time or giving of notice or
both, would constitute, mature into or become a default or event of default
under, (1) any term or provision of a Borrower's Certificate of Incorporation or
bylaws, (2) any licenses, permits, franchises, consents, approvals or
authorizations referred to above, (3) any certificates of authority to do or
transact business, (4) any applicable order of any court or government or
administrative agency, or (5) any material contract, agreement (including any
loan or credit agreement or agreement with the holders of any Borrower's
preferred stock), mortgage, indenture, instrument, judgment or Laws to which any
Borrower is a party or signatory or by which it is bound.
Section 7.C. CONSENTS, APPROVALS, ETC. No consent, approval or
authorization or order of, or filing, registration or qualification with, any
Person (governmental, regulatory, or otherwise) is required to be obtained or
effected by any Borrower in connection with the execution, issuance, delivery
and performance of all documents in connection with this Agreement, the Notes
and the Loan Documents to which any Borrower is a party or signatory or the
incurrence or performance of the Obligations or, if so required, has been duly
obtained or effected before the date hereof and are indicated on SCHEDULE 7.C
hereto.
Section 7.D. BINDING EFFECT AND ENFORCEABILITY. Upon delivery
hereof and thereof, this Agreement, the Notes and the Loan Documents to which
any Borrower is a party or signatory will be its respective legal, valid and
binding obligations enforceable in accordance with their respective terms and
provisions (except as limited by bankruptcy, insolvency or other laws or
equitable principles of general application relating to the enforcement of
creditors' rights generally) and, on the date of said delivery, none of the
Borrowers will be in violation or contravention of, and no Default or Event of
Default will exist under, any of the foregoing.
Section 7.E. DEFAULT OF DEBT, LICENSES, PERMITS, ORDERS AND OTHER
AGREEMENTS. No Borrower is in breach or default of (in any material respect),
and no event of default or event, which with the passage of time or giving of
notice or both, would
39
constitute, mature into or become a default or event of default, has occurred
and is continuing with respect to (i) any Debt of any kind or nature, (ii) any
license, permit, franchise, approval, consent or authorization referred to in
Section 7.B above, (iii) any order of any court or governmental or
administrative agency, or (iv) any agreement to which it is a party, which
breach or default might have a Materially Adverse Effect.
Section 7.F. FINANCIAL CONDITION AND LITIGATION. The Financial
Statements of the Borrowers delivered to the Agent (including, without
limitation, the audited balance sheet or statement of operation and statement of
income for the Borrowers for the year-ended December 31, 1993), have been
prepared in accordance with GAAP, are true and correct in all material respects
and fairly present the financial condition of the Borrowers as at the dates
thereof and results of operations for the periods covered thereby. Since the
ending date of the period covered by the most recent Financial Statements dated
November 30, 1994, delivered to the Agent and received thereby, no Materially
Adverse Effect has occurred and no dividends on or redemptions of any of the
Borrowers' common or preferred stock have been made, except for the redemption
of all of CWI's theretofore outstanding preferred stock. Except as disclosed to
the Agent on the most recent Financial Statements dated November 30, 1994,
delivered to the Agent and received thereby: (i) the Borrowers have no Debt,
except as permitted hereunder, or liabilities, contingent or otherwise; and (ii)
except as disclosed on SCHEDULE 7.F, no proceedings, suits, orders, claims,
investigations, or other actions are pending before any court or governmental
authority or, to the best knowledge of Borrowers after due inquiry, threatened
against any Borrower that are not fully covered by insurance. With respect to
any representation and warranty which is deemed to be made after the date hereof
by the Borrowers, the Financial Statements which as of such date shall most
recently have been furnished by the Borrowers to the Agent and Lenders for
purposes of or in connection with this Agreement shall have been prepared in
accordance with GAAP, shall be true and correct in all material respects, and
shall fairly present the financial condition of the Borrowers as of the dates
thereof and results of operations for the periods covered thereby.
Section 7.G. TITLE AND LIENS. Each Borrower has good and
marketable title to all of its property and assets, including all such property
and assets listed on the most recent Financial Statements, the Mortgaged
Properties, and the Collateral (except as thereafter disposed of in accordance
with and as permitted by the Security Agreement) and, except as set forth on
SCHEDULE 7.G, the Collateral (including without limitation, the Mortgaged
Properties) is not subject to any liens, claims, security interests, mortgages,
pledges, charges or other encumbrance of
40
any Person, except the Agent and holders of the Permitted Liens. The Borrowers
have obtained such waivers or consents from holders of Permitted Liens on
certain Equipment as are necessary and are satisfactory to the Agent in order to
grant to the Agent a second lien on such Equipment without violating, breaching
or defaulting the security agreement or any terms of the Debt secured by the
Permitted Lien on such Equipment.
Section 7.H. EMPLOYEE PLANS. All of the Borrowers' Employee Plans
are listed on SCHEDULE 7.H hereto and are in material compliance with all
provisions of ERISA and meet the minimum funding standards of Section 302 of
ERISA where applicable. No withdrawal liability has been incurred under any
such Employee Plans. No Prohibited Transaction or Reportable Event, as defined
in ERISA, has occurred with respect to any such Employee Plans. No proceedings
have been instituted to terminate or appoint a trustee to administer any such
Employee Plans.
Section 7.I. TAXES. The Borrowers have filed all federal, state
and local tax returns and reports required by Law, have paid all taxes,
assessments, penalties, interest and any other governmental charges which are or
were due and payable, have made adequate provision for the payment of all taxes,
assessments, penalties, interest and other governmental charges which are
accruing but are not yet due and payable, and have no knowledge and are not
aware of any deficiency or additional assessment which may have or has arisen in
connection of the foregoing.
Section 7.J. COMPLIANCE WITH LAWS.
(a) Each Borrower hereby makes each and every representation and
warranty contained in the Environmental Indemnity Agreement, which is
incorporated herein by this reference as if set forth herein in full. Except as
otherwise represented or provided in the Environmental Indemnity Agreement, each
Borrower has complied in all material respects with all Laws applicable to it or
to the conduct of its business, noncompliance with which could have a Materially
Adverse Effect.
(b) Except for that certain consent agreement and order between the TDHE
and Northwest Tennessee Disposal Corporation accepted by the TDHE on May 18,
1992, in Case No. 92-0158 (Permit No. SNL 66-101D143 Ext), to the best of
Borrowers' knowledge, no federal, state or local authorities have proposed any
limitations in any ordinance, county waste management plan or contract with any
Borrower on the intake of out-of-state or out-of-county solid waste other than
limitations on the aggregate intake of all solid wastes.
Section 7.K. CORPORATE STRUCTURE AND AFFILIATES. CWI has no
Subsidiaries and no Affiliates, other than the other Borrowers
41
identified on SCHEDULE 7.A hereto, and directors and shareholders of the
Borrowers.
Section 7.L. CORPORATE NAMES. Each Borrower has no assumed
corporate names and is not doing business under any corporate name, other than
as identified on SCHEDULE 7.A hereto.
Section 7.M. SOLVENCY. Each Borrower (i) is solvent and will not
be rendered insolvent by the incurrence of the Obligations, by the execution of
this Agreement, the Notes, and any other Loan Documents to which it is a party
or signatory, or by any transactions contemplated hereunder or thereunder, (ii)
is able to pay its debts as they come due and does not intend to incur, or
believe that it will incur, debts beyond its ability to pay such debts as they
mature or come due, (iii) has capital sufficient to carry on its business and
any business in which it intends or is about to engage, and (iv) owns property
and assets having a value in excess of its liabilities and debts.
Section 7.N. MARGIN REGULATIONS. No Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System). No part of the proceeds of any of the Loans
made hereunder will be used to purchase or carry any Margin Stock, to reduce or
retire any indebtedness originally incurred to purchase or carry any Margin
Stock, to extend credit to others for the purpose of purchasing or carrying any
such Margin Stock, or for any other purpose which might cause any of the Loans
to be considered purpose credit within the meaning of Regulation G, T, U or X of
the Board of Governors of the Federal Reserve Board.
Section 7.O. INDEBTEDNESS TO AFFILIATES. Other than intercompany
loans between and among the Borrowers, there are no outstanding loans from any
Affiliate to any Borrower.
Section 7.P. ACTS OF GOD. Neither the business nor properties of
any Borrower are affected by any fire, explosion, accident, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or of political
unrest, or potential expropriation, or other casualty (whether or not covered by
insurance) which could have a Materially Adverse Effect.
Section 7.Q. LABOR CONTROVERSIES. There are no labor controversies
pending or, to the knowledge of any Borrower, threatened against any Borrower,
which if adversely determined could have a Materially Adverse Effect.
Section 7.R. COLLATERAL, ETC. No Borrower owns any real property,
or leases any real property as lessee, except as set forth in SCHEDULE 7.R
hereto, which contains a complete and accurate description, by owner and
location (by street address)
42
of all such owned and leased properties. With respect to each Leasehold:
(i) The Borrower identified in the Lease has a valid and
indefeasible leasehold interest in the Leasehold, free and clear of all Liens
except Permitted Liens; and
(ii) Each Lease is a valid and subsisting lease in full force and
effect in accordance with the terms thereof, the Borrower identified in the
Lease is in possession of the Leasehold, and no material default by any Borrower
exists under any Lease.
One or more of the Borrowers are the record and/or beneficial owners
of all presently existing Collateral, in each case free and clear of all Liens
except Permitted Liens. The provisions of the Loan Documents are effective to
create, in favor of the Agent, for its benefit and the ratable benefit of the
Lenders, legal, valid and enforceable Liens in all right, title and interest of
the Borrowers in any and all of the Collateral described therein, securing the
Obligations from time to time outstanding, and upon all filings and recordings
being duly made in the locations referred to in the applicable Loan Documents or
the taking of possession of the Collateral by the Agent in accordance with the
provisions of such Loan Documents, each of such Loan Documents shall constitute,
as of and after the Closing Date, a fully perfected first priority Lien in all
right, title and interest of the respective Borrowers in such Collateral
superior in right to any Liens, existing or future, which the Borrowers or any
creditors thereof or purchasers (other than purchasers of inventory in the
ordinary course of business and purchasers of assets the sale of which is
permitted hereunder or under the applicable Loan Document) therefrom, or any
other Person, may have against such Collateral or interests therein, except to
the extent, if any, otherwise resulting from a Permitted Lien.
Section 7.S. INTELLECTUAL PROPERTY. Each Borrower has the legal
right to all Intellectual Property Rights that are necessary for the conduct of
its business. All Intellectual Property Rights (other than trade secrets,
confidential research development and commercial information and know-how) of
the Borrowers are set forth on SCHEDULE 7.S hereto. With respect to all
Intellectual Property Rights: (i) one or more of the Borrowers is the sole and
exclusive owner of the entire and unencumbered right, title and interest in and
to thereof; (ii) the Borrowers have no knowledge of the existence of any
Intellectual Property Rights held by any other Person that would preclude any
Borrower from using its Intellectual Property Rights in the conduct of its
business; (iii) no claim has been made, and the Borrowers have no knowledge of
any claim that is likely to be made, that the use by any Borrower of any of its
Intellectual
43
Property Rights does or may violate the rights of any Person; and (iv) each
Intellectual Property Right of all Borrowers has not been adjudged invalid or
unenforceable and is valid and enforceable, and there are no prior or other uses
thereof which to the Borrower's best knowledge could lead to any such
Intellectual Property Right becoming invalid or unenforceable.
Section 7.T. ACCURACY OF INFORMATION. All factual information
heretofore, or contemporaneously furnished by or on behalf of the Borrowers in
writing to the Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby, and all other such factual
information hereafter furnished by or on behalf of the Borrowers to the Agent or
any Lender will be, true and accurate in every material respect on the date as
of which such information is dated, or certified, and such information is not,
or shall not be, as the case may be, incomplete by omitting to state any
material fact necessary to make such information not misleading. To the best
knowledge of the Borrowers there is no fact which has a Materially Adverse
Effect or in the future may (so far as any Borrower may now foresee), have a
Materially Adverse Effect, which has not been set forth herein or in written
materials, certificates or statements furnished to the Agent prior to the date
hereof.
SECTION 8. COVENANTS.
The Borrowers hereby covenant and agree with the Agent and the Lenders
that, until the Obligations have been satisfied and discharged in full, the
Borrowers will comply and/or cause compliance with the following covenants,
unless the Required Lenders shall give their prior written consent to the
contrary:
Section 8.A. AFFIRMATIVE COVENANTS.
8.A.1. FINANCIAL COVENANTS. The Borrowers shall maintain
compliance with the following financial covenants at all times during the
periods indicated below, as determined from the Borrowers' quarterly and annual
Consolidated Financial Statements, as appropriate:
(a) The Borrowers' Consolidated Working Capital Ratio, as determined as
of the end of each quarter of CWI's Fiscal Year, shall not be less than 1.75 to
1 at any time.
(b) The Borrowers' ratio of total Consolidated Debt (less Subordinated
Debt) to Consolidated Tangible Net Worth, (referred to herein as the "LEVERAGE
Ratio"), as determined as of the end of each quarter of CWI's Fiscal Year for
the period of the four fiscal quarters then ending, shall not be greater than
the following ratios at any time during the following periods:
44
RATIO PERIOD
3.25 to 1.0 From March 31, 1995 to, and including, December
31, 1995;
3.00 to 1.0 From January 1, 1996 to, and including, December
31, 1996;
2.75 to 1.0 From January 1, 1997, and at all times thereafter.
(c) The Borrowers' Consolidated ratio of (a) EBITDA to (b) Interest
Expense, as determined as of the end of each quarter of CWI's Fiscal Year for
the period of the four fiscal quarters then ending, shall at all times exceed
5.0 to 1.0.
(d) The Borrowers' Consolidated Net Income shall not be less than $0
for: (i) any two consecutive fiscal quarters; or (ii) any Fiscal Year.
8.A.2. FINANCIAL INFORMATION AND REPORTING. Each Borrower shall
keep and cause to be kept proper books and records in which full and true
entries will be made, in accordance with GAAP, of all dealings or transactions
relating to its business and affairs, and the Borrowers shall cause to be
furnished to the Agent and each Lender:
(i) As soon as practicable, and in any event, within thirty
(30) days after the end of each month, all of the Borrowers' internally
prepared consolidated and consolidating balance sheets or statements of
position as at such date and statements of income and retained earnings
and of cash flow or changes in financial position for the period from the
beginning of the current Fiscal Year to the end of such month, all in
reasonable detail and certified by CWI's president or chief financial
officer as fairly presenting the financial condition and operations of the
Borrowers as of and for the period then ending and being accurate in all
material respects and having been prepared in accordance with GAAP;
(ii) As soon as practicable and, in any event, within
forty-five (45) days after the end of each quarter of each Fiscal Year,
all of the Borrowers' consolidated and consolidating statements of income
and retained earnings and of cash flows or changes in financial position
through the quarter then ended and a consolidated and consolidating
balance sheet or statement of position of the Borrowers as of the end of
such quarter, all in reasonable detail and certified by CWI's president or
chief financial officer as fairly presenting the financial condition and
operations of the Borrowers as of and for the period then ending and being
45
accurate in all material respects and having been prepared in accordance
with GAAP;
(iii) As soon as practicable and, in any event, within ninety
(90) days after the end of each Fiscal Year, all of the Borrowers' audited
consolidated statements of income and retained earnings and of cash flows
or changes in financial position through the Fiscal Year then ended and a
consolidated balance sheet or statement of position of the Borrowers as of
the end of such Fiscal Year, in each case with comparable information at
the close of and for the prior Fiscal Year, all in reasonable detail,
containing no qualifications unacceptable to the Required Lenders and
audited by an independent certified public accountant selected by the
Borrowers and acceptable to the Agent and prepared in accordance with
GAAP;
(iv) Together with the Financial Statements for each quarter
of each Fiscal Year, (a) a certificate in the form attached hereto as
EXHIBIT M executed by the chief financial officer of CWI certifying to
the Agent and the Lenders that the Borrowers are in compliance with each
of the financial covenants set forth in Sections 8.A.1 and 8.B.3 hereof
and setting forth in detail satisfactory to the Agent the calculations and
computations showing such compliance, and (b) a certificate executed by
the president or chief financial officer of CWI stating whether any
Default or Event of Default currently exists and is continuing and what
action, if any, the Borrowers are taking or propose to take with respect
thereto;
(v) [Intentionally Omitted].
(vi) When and as so furnished, such other financial
information concerning the Borrowers, their business, financial condition
or assets as may be furnished to the holders of any of the Borrowers'
common or preferred stock (including all financial statements, reports and
proxy statements), or as the Agent may reasonably request from time to
time; and, promptly upon the filing thereof, all registration statements
and annual, quarterly, monthly or other regular reports which any Borrower
files with the SEC;
(vii) Such notices and information as and when required under
the Environmental Indemnity Agreement;
(viii) Promptly upon discovery thereof, notice of any action,
suit, arbitration, investigation, administrative or other proceeding
instituted, commenced or threatened against or affecting any Borrower
which may reasonably be expected to cause the Borrowers to incur or be
liable for claims, damages and/or costs of any kind (including, without
46
limitation, attorneys' fees, expert witness fees and court, judgment,
settlement and compliance or remedial costs), aggregating in excess of
$250,000;
(ix) As soon as practicable and, in any event, within 90 days after
the end of each Fiscal Year, a certificate from the chief financial
officer of CWI certifying as to solid waste intake at the Landfills for
the Fiscal Year then ended, and calculating the remaining airspace at the
Landfills available for solid waste disposal;
(x) Immediately upon any Borrower's becoming aware thereof,
notice of any proposed Laws, or amendments thereto, including Laws
proposed by the State of Tennessee or of Obion County, Tennessee or any
town, municipality or community therein, which would restrict or prohibit
any Borrower from bringing out-of-state or out-of-county waste to any of
the Landfills;
(xi) Notice of the occurrence or existence of any Default or
Event of Default immediately upon any Borrower's becoming aware thereof;
and promptly upon discovery thereof, notice of any development, financial
or otherwise, which might have a Materially Adverse Effect;
(xii) Upon request of the Agent from time to time, any
information concerning the Borrowers' compliance with any and all
environmental laws, rules or regulations;
(xiii) Immediately upon any Borrower becoming aware thereof,
notice of any violation or breach by any Borrower of the terms of, or any
revocation or suspension or threatened revocation or suspension of, any
license or permit of a Borrower;
(xiv) Notice of the cancellation or expiration of any bond,
letter of credit or similar instrument issued as Financial Assurance and
the terms of any replacement or renewal bond, letter of credit or similar
instrument if not issued by the Agent;
(xv) Within 15 days of the end of each quarter of each Fiscal
Year, a certificate of the president of CWI that the Borrowers are in
compliance in all material respects with all Environmental Laws (as
defined in the Environmental Indemnity Agreement);
(xvi) Within 30 days of the end of each Fiscal Year, a
certificate of the President of CWI certifying that all Landfills are in
compliance in all material respects with all applicable requirements,
including all Environmental Laws;
47
(xvii) Within 30 days after the end of each six-month period,
regardless of whether any new Subsidiary has been acquired during such
period, a New Subsidiary Certificate substantially in the form of EXHIBIT
I hereto;
(xviii) Within 60 days of the end of each Fiscal Year, updated
annual financial projections for the ensuing Fiscal Year.
8.A.3. CORPORATE EXISTENCE AND CONDUCT OF BUSINESS. Each Borrower
will maintain and preserve its corporate existence, good standing, certificates
of authority, licenses, permits, franchises, patents, trademarks, trade names,
service marks, copyrights, leases and all other contracts and rights necessary
or desirable to continue its operations and business on a profitable basis and
will generally continue the same line of business as that being presently
conducted.
8.A.4. TAXES AND LAWS. The Borrowers will pay when due, all taxes,
assessments, charges and levies imposed on a Borrower or any of its property or
assets or which it is required to withhold and pay out and will comply in all
material respects with all applicable present and future Laws applicable to any
Borrower or any of its property or assets, unless a Borrower is contesting in
good faith, by an appropriate proceeding, the validity, amount, imposition or
applicability of the above while maintaining reserves therefor which are
appropriate and adequate as determined in accordance with GAAP, and such contest
does not have or cause a Materially Adverse Effect.
8.A.5. INSPECTION. Upon the Agent's request, the Borrowers will
allow the Agent or any Lender, and any of their officers, employees or agents,
to visit, during normal business hours, for inspection and review, any of the
Borrowers' premises and will make available and furnish to the Agent and any
Lender the Borrowers' books and records and such financial information
concerning the Borrowers' property or assets, business, affairs, operations or
financial condition as reasonably requested by the Agent or any Lender; provided
that, if no Default or Event of Default exists, Agent or Lenders will give
Borrower 48 hours notice prior to any such visit.
8.A.6. AGENT AND LENDER COSTS. The Borrowers shall pay upon
demand, all reasonable out-of-pocket fees, costs and expenses (including those
of outside counsel, auditors, appraisers, accountants, insurance and
environmental advisors, title companies, surveyors, and other consultants and
agents) incurred or paid by the Agent in connection with the preparation,
negotiation, documentation, administration, amendment, modification, waiver,
interpretation, collection or enforcement of this Agreement, the Notes, or any
other Loan Documents and the credit and security therefor. In addition, the
Borrowers shall
48
pay upon demand all such costs and expenses of the Agent and the Lenders in
connection with any Default or Event of Default by the Borrowers hereunder, or
in connection with the collection or enforcement of any of the terms hereof or
of the other Loan Documents and the credit and security therefor, or any
"work-out," refinancing or restructuring of the credit arrangement set forth
herein. The Borrowers agree to indemnify the Agent and each Lender, their
successors and assigns, and their respective officers, directors and employees,
from and hold each of them harmless against (i) any transfer taxes, documentary
taxes and any other taxes, penalties, assessments or charges made by any
governmental authority by reason of the execution, delivery and performance of
the Loan Documents and any security therefor, and (ii) any and all losses,
claims, damages, liabilities and expenses, including all expenses of litigation
or preparation therefor, which any of them may incur or which may be asserted
against any of them in connection with or arising out of the direct or indirect
application of the proceeds of Loans or drawings under Letters of Credit. The
obligations under this Section 8.A.6 shall survive repayment of the Loans and
expirations of the Letters of Credit and the assignment of any rights hereunder.
8.A.7. EMPLOYEE PLANS. The Borrowers shall (i) keep in full force
and effect any and all Employee Plans which are presently in existence or may,
from time to time, come into existence under ERISA, and not withdraw from any
such Employee Plans, unless such withdrawal can be effected or such Employee
Plans can be terminated without material liability to any Group Member; (ii)
make contributions to all of such Employee Plans in a timely manner and in a
sufficient amount to comply with the requirements of ERISA, including the
minimum funding standards of Section 302 of ERISA; (iii) comply with all
material requirements of ERISA which relate to such Employee Plans; (iv) notify
the Agent immediately upon receipt of any notice concerning the imposition of
any withdrawal liability or of the institution of any proceeding or other action
which may result in the termination of any such Employee Plans or the
appointment of a trustee to administer such Employee Plans; and (v) promptly
advise the Agent of the occurrence of any Reportable Event or Prohibited
Transaction, as defined in ERISA, with respect to any such Employee Plans.
8.A.8. USE OF PROCEEDS OF LOANS. The Borrowers shall use the
proceeds of the Loans as follows: to refinance existing indebtedness of the
Borrowers, including all indebtedness to the Agent; to refinance other
indebtedness of the Borrowers; to fund acquisitions of waste hauling companies
and/or Landfills and/or related businesses; to finance capital expenditures; and
for other general corporate purposes consistent with this Agreement.
49
8.A.9. FINANCIAL ASSURANCE. The Borrowers shall timely comply or
cause compliance with the requirements of the Act or any other Law concerning
Financial Assurance. If any funds are drawn on any Financial Assurance at any
time, the Borrowers shall promptly notify the Agent in writing of the amount of
and the reason for the draw. The Borrowers shall not maintain more in Financial
Assurance than is required pursuant to the Act or any Law at any time. At the
earliest available opportunity under the Act or other Law, the Borrowers shall
request that the amount of Financial Assurance be reduced if and as permitted
under the Act, or such other Law.
8.A.10. [Intentionally Omitted].
8.A.11. ENVIRONMENTAL ENGINEERING REPORT. Within 60 days of the
date hereof, the Borrowers shall have obtained, at its own cost and expense, and
delivered to the Agent an environmental engineering report, certified to the
Agent, prepared by an environmental engineering firm selected by the Borrowers
and acceptable to the Agent, which acceptance may not be unreasonably withheld,
calculating in such detail as the Agent may reasonably require the remaining
airspace at the Landfills available for solid waste disposal.
8.A.12. ENVIRONMENTAL MATTERS. The covenants and agreements of the
Borrowers set forth in the Environmental Indemnity Agreement are hereby
incorporated herein in full by this reference.
8.A.13. COLLATERAL AGREEMENTS; NEW SUBSIDIARIES. The Borrowers
shall, with reasonable promptness and diligence (i) pledge or cause to be
pledged to the Agent, through execution of the Addendum attached to the Stock
Pledge Agreement and delivery of the stock certificates and other matters
referred to therein, 100% of the stock (or other ownership interest) of any
Person (a "NEW SUBSIDIARY") hereafter acquired/formed by any Borrower; and
(ii) cause each said party listed in (i) above to execute an agreement of
joinder and assumption (a "JOINDER AGREEMENT(S)") in the form of EXHIBIT J
hereto pursuant to which it will become a Borrower under this Agreement and the
Notes and a Debtor under the Security Agreement and, if applicable, execute a
new Mortgage or Leasehold Mortgage, and to execute such other documents and take
such other action as may be necessary or appropriate to grant to the Agent, for
its benefit and the ratable benefit of the Lenders, a first priority perfected
security interest in the Collateral covered by such Loan Documents. In
addition, any such New Subsidiary shall deliver to the Agent: an executed
Officer's Certificate substantially in the form attached as EXHIBIT K hereto;
organizational documents as specified in Section 6.A.9 and 6.A.10; an executed
secretary's certificate as described in Section 6.A.11; executed financing
statements for each state in which Collateral owned by a New Subsidiary is
located; surveys,
50
title policies, appraisals, Mortgages and/or Leasehold Mortgages, and other
documents which the Agent may reasonably request, with respect to all real
property owned or leased by any New Subsidiary; and such other documents,
instruments or agreements as the Agent may reasonably request. In addition, any
Borrower which hereafter acquires or leases any real property shall, prior to or
contemporaneously therewith, furnish to the Agent all documentation of the type
described in Section 6.A in reference to the Mortgages and/or the Leaseholds.
8.A.14. INTEREST RATE CONTRACTS. The Borrowers shall execute all
documents and take such other action as may be necessary and appropriate to
include all of its obligations to the Agent or Lenders under any Interest Rate
Contract as obligations which are secured by the Collateral. Nothing herein
shall obligate the Agent or Borrowers to enter into any Interest Rate Contract.
8.A.15. CERTAIN POST-CLOSING ITEMS. Within 45 days of the date
hereof, the Borrowers shall have completed the following to the satisfaction of
the Lenders:
1. Execute and deliver to Lenders a Mortgage substantially in the form
of EXHIBIT G hereto on the C&D Landfill (Volunteer Environmental
Landfill) owned by Sanifill, Inc. and located in the state of
Tennessee, along with a Survey and Title Policy in the forms
described in Sections 6.A.18 and 6.A.19 hereof, along with such
other related documents as Lenders shall request.
2. Obtain a federal tax identification number for Berrien County
Landfill, Inc., and pay any and all outstanding federal and state
tax liabilities owing by Berrien County Landfill, Inc.
3. Deliver to Lenders a current Survey in the form described in Section
6.A.18 hereof on all Mortgaged Properties except the Forest Lawn
Landfill and the Xxxx, Tennessee landfill.
4. Execute and deliver to the Lenders a Mortgage substantially in the
form of EXHIBIT G hereto, along with a Survey and Title Policy in
the forms described at Sections 6.A.18 and 6.A.19 hereof with
respect to the "Xxx Xxxx" landfill in Terre Haute, Indiana, along
with such other related documents as Lenders shall request.
5. Deliver to the Lenders a Title Policy in the form described at
Section 6.A.19 hereof with respect to the United Refuse landfill in
Fort Xxxxx, Indiana, along
51
with such other related documents as Lenders shall request.
6. Deliver to the Lenders a Leasehold Mortgage substantially in the
form of Exhibit H hereof executed by Xxxxxx Brothers Waste, Inc.
covering such Borrower's Leasehold in Paris, Tennessee, along with
such other related documents as Lenders shall request, including but
not limited to a Landlord Lien Waiver and Estoppel Certificate.
7. Resolve to the satisfaction of Lenders all real property and other
related issues discussed in letters dated March 16, 1995, March 22,
1995 and March 23, 1995 from Lord, Bissell & Brook to CWI.
8.A.16. MAINTENANCE OF INSURANCE. The Borrowers shall maintain
insurance with financially sound and respectable insurance companies or
associations in such companies or associations in such amounts and covering such
casualties and risks as are customary in accordance with prudent business
practice in the case of companies engaged in the same or a similar business and
similarly situated, which insurance may provide for reasonable deductibility
from coverage thereof. The Borrowers will, upon request, furnish to the Agent
at reasonable intervals a certificate of an Authorized Officer setting forth the
nature an extent of all insurance maintained by the Borrowers. The Borrowers
shall retain all incidents of ownership of the insurance maintained pursuant
hereto and shall not borrow upon or otherwise impair their rights to receive the
proceeds of such insurance.
8.A.17. VICTORY WASTE INCORPORATED; G.E.M. ENVIRONMENTAL MANAGEMENT.
Within 90 days of the date hereof, CWI shall obtain 100% of the outstanding
common stock of Victory Waste Incorporated, and CWI and/or Victory Waste
Incorporated shall obtain 100% of the outstanding common stock of G.E.M.
Environmental Management, Inc. CWI further shall use its best efforts to redeem
the Victory Waste Incorporated Series A-1 Preferred Stock issued and outstanding
on the date hereof, and Victory Waste Incorporated shall have outstanding no
other shares of preferred stock unless the holders thereof enter into an
Agreement with the Agent in form and substance satisfactory to the Agent.
8.A.18. PERMITS. Within 90 days of the date hereof, Borrowers
shall, in accordance with applicable laws and regulations: (i) transfer the
operating permit issued in the name of "Forest Lawn Landfill, Inc." to FLL,
Inc.; (ii) transfer the operating permit issued in the name of "Xxxxx Xxxxxx" to
Xxxxxx Brothers Waste, Inc.; and within 120 days of the date hereof, Borrowers
shall, in accordance with applicable laws and
52
regulations; (iii) transfer the operating permit issued in the name of "Tutor
Jr. Refuse Service, Inc." to CWI of Missouri, Inc.
Section 8.B. NEGATIVE COVENANTS.
8.B.1. LIENS. The Borrowers shall not create, incur, grant,
pledge, permit or suffer to exist, any Lien upon any of the Collateral or any
other property or assets of any of the Borrowers, except Permitted Liens.
8.B.2. DEBT AND CAPITAL EXPENDITURES.
(a) The Borrowers shall not, directly or indirectly, create, assume,
incur, suffer to exist, guarantee, become or be liable for or with respect to
any manner of obligations, liabilities, indebtedness or other Debt whatsoever to
any Person, except with respect to: (i) the Obligations hereunder; (ii)
Subordinated Debt up to $2,000,000; (iii) existing Debt indicated on SCHEDULE
8.B.2 hereto (to the extent such existing Debt is repaid, additional Debt may
not be incurred); (iv) current liabilities and accounts payable arising or
accruing in the ordinary course of business (other than a guaranty or
indebtedness for borrowed money, an extension of credit or deferred purchase
price of property not otherwise permitted hereunder); (v) contingent Debt for
any draws at any time made on outstanding instruments as Financial Assurance;
(vi) contingent Debt with respect to any Interest Rate Contracts with the Agent;
(vii) Debt assumed or incurred in or in connection with any merger or
acquisition permitted under Section 8.B.3; and (viii) purchase money Debt
incurred in connection with Capital Expenditures permitted under the following
paragraph.
(b) The Borrowers shall not make Capital Expenditures in excess of Eight
Million Dollars ($8,000,000) in the aggregate during any one Fiscal Year, it
being understood that the amount of any Capital Expenditures permitted to be
made during any one Fiscal Year, but not so made, shall not carry over to any
subsequent Fiscal Year.
8.B.3. FISCAL YEAR, NAME CHANGES, MERGERS AND ACQUISITIONS. No
Borrower shall (i) change its Fiscal Year or its corporate name or without prior
written notice to Agent and only after all necessary or desirable Financing
Statements have been duly and properly filed and recorded maintaining Agent's
first priority perfected liens and security interests on and in the Collateral,
adopt an assumed corporate name, (ii) consolidate or merge with any Person,
(iii) acquire any stock in, or acquire all or substantially all of the assets or
properties of, any Person, or (iv) create any Subsidiaries; PROVIDED,
HOWEVER, that notwithstanding the foregoing, and subject to the conditions set
forth below, the following are permitted: (a) any Borrower may merge with any
other Borrower, so long as CWI is the surviving
53
corporation in any merger involving it and any other Borrower, and provided also
that in any merger involving any Borrower the stock of which has been pledged to
the Agent, the Agent shall have or obtain a first priority security interest in
the stock of the surviving Borrower in such merger; (b) a Borrower may merge
with any Person other than another Borrower, so long as the Borrower is the
surviving corporation in any such merger and no Default or Event of Default
would result therefrom immediately after giving effect thereto; (c) any Borrower
may acquire stock in a New Subsidiary, or acquire all or substantially all of
the assets or properties of, any Person, or create a New Subsidiary, provided
that no Default or Event of Default would result therefrom immediately after
giving effect thereto and that the provisions of Section 8.A.13, if applicable,
are complied with; PROVIDED, FURTHER, that any transaction described in (b)
and (c) above that involves an acquisition must also meet each of the following
requirements or conditions:
(1) The Borrowers' Historical Pro Forma Interest Coverage Ratio,
considering the acquisition involved and as demonstrated to the reasonable
satisfaction of the Agent, is at least 4.00 to 1.00;
(2) The acquisition must be of a Person engaged primarily in the
nonhazardous solid waste industry;
(3) If the acquisition involves a Landfill or disposal and
treatment facility, it shall be subject to the Borrowers' standard due
diligence review, the results of which are acceptable to the Agent in its
sole discretion;
(4) The consideration for all such acquisitions cannot exceed a
total of $10,000,000 with respect to acquisitions made during any one
Fiscal Year (it being understood that any "unused" amount of the amount
permitted with respect to any one Fiscal Year shall not carry over to any
subsequent Fiscal Year), or $20,000,000 in the aggregate. For purposes of
this Section, "CONSIDERATION" means the total purchase price (including
cash expended, Debt incurred, and liabilities incurred or assumed) paid or
to be paid, but in any event does not include any portion of the purchase
price paid or payable in the form of common stock or Subordinated Debt of
CWI or out of the proceeds of any public offering of the common stock of
CWI; and
(5) If the acquisition involves consideration in excess of
$4,000,000 and involves assets or a business primarily located outside of
the United States of America, the prior written approval of the Required
Lenders (to be granted or not granted by the Required Lenders in their
sole and complete discretion) thereto must be obtained.
54
8.B.4. REDEMPTIONS, DIVIDENDS AND PAYMENTS UNDER SUBORDINATED DEBT.
Except as permitted at Section 8.A.17 hereof, no Borrower shall declare or make
any Restricted Payments; provided however, that notwithstanding the foregoing,
CWI shall be permitted to redeem the warrants for shares of common stock of CWI
issued and outstanding on the date hereof.
8.B.5. TRANSACTIONS WITH AFFILIATES. No Borrower shall enter into
any transaction with its Affiliates or any of its or its Affiliates'
shareholders, directors, officers or employees, except in the ordinary course of
business and upon fair and reasonable terms which are no less favorable to said
Borrower than those that would be available at the time of such transaction in a
comparable arm's length transaction with a Person not an Affiliate. No Borrower
shall pay any management fee to any Affiliate other than CWI.
8.B.6. CAPITAL STRUCTURE. Except as may be permitted pursuant to
Sections 8.A.17 and 8.B.4 hereto, no Borrower shall have outstanding or issue
any shares of preferred stock unless the holders thereof enter into an agreement
with the Agent in form and substance satisfactory to the Agent. No Borrower
shall make any changes in its capital structure (including the terms of its
outstanding stock), amend its certificate of incorporation or bylaws, or make
any changes in any of its business objectives, purposes or operations if such
change has a reasonable likelihood of having a Materially Adverse Effect. No
Borrower (other than CWI) shall be permitted to issue any stock other than to
another Borrower.
8.B.7. CHANGE IN NATURE OF BUSINESS. No Borrower shall engage in
any business unrelated to, or make any material change in the nature of, its
business as carried on at the date hereof.
8.B.8. TRANSFER OF ASSETS. No Borrower shall sell, assign,
transfer, lease or otherwise dispose any of its property or assets, except as
permitted under the Security Agreement or the Mortgages or Leasehold Mortgages.
8.B.9. PREPAYMENT OR MODIFICATION OF DEBT. No Borrower will (i)
prepay any Subordinated Debt or any long-term Debt owing to, or any indebtedness
for money borrowed by any Borrower from a Person other than the Lenders, or any
Debt secured by any of its assets, except Debt to the Lenders, and except for
prepayment of Debt secured by an asset if a replacement asset of equal or
greater value is purchased in connection therewith, or (ii) enter into or modify
any agreement as a result of which the terms of payment of any of the foregoing
Debt are amended or modified, except Subordinated Debt so long as such amendment
or modification does not, and will not result in any, increase in the amount of,
interest rate on, or collateral for, or any earlier payment or maturity of, the
Subordinated Debt, or
55
conflict with or breach the terms of this Agreement or any Loan Documents
hereunder or the applicable subordination agreement with the Agent therefor.
8.B.10. FALSE STATEMENTS. No Borrower will furnish the Agent or
Lenders any certificate or other document that contains any untrue statement of
material fact or that omits to state a material fact necessary to make it not
misleading in light of the circumstances under which it was furnished.
8.B.11. INCONSISTENT OR RESTRICTIVE AGREEMENTS. No Borrower shall
enter into any agreement which would violate or cause a breach of or under this
Agreement or any Loan Documents or the performance by any Borrower of any
obligation hereunder or thereunder or which prohibits or would prohibit the
creation, incurrence or assumption of any Lien upon a Borrower's property or
assets, whether now owned or hereafter acquired.
8.B.12. FOREIGN ASSETS. No more than 10% of the Borrowers'
aggregate total assets shall at any time be located outside of the United
States.
8.B.13. INVESTMENTS. The Borrowers shall not make any loan or
advance to any Person, or purchase or otherwise acquire any capital stock,
assets, obligations, or other securities of, make any capital contribution to,
or otherwise invest in or acquire any interest in any Person, or participate as
a partner or joint venturer with any other Person, except for Permitted
Investments.
SECTION 9. EVENTS OF DEFAULT.
The following events shall constitute and be deemed Events of Default
hereunder:
Section 9.A. OBLIGATIONS. Failure by the Borrowers (i) to make any
payment of principal on any Loan or Note or reimbursement of any draw under a
Letter of Credit on the date such payment Obligation is due, or (ii) to make any
payment of interest on any Loan or Note or any payment of any fee due hereunder
within 3 days after such payment Obligation is due.
Section 9.B. BREACH OR DEFAULT UNDER LOAN DOCUMENTS. (i) failure
or neglect of any Borrower to perform, keep or observe any of the covenants at
Sections 8.A.1, 8.A.2, 8.A.8, 8.A.13, 8.A.15 or 8.B hereof; or (ii) failure or
neglect of any Borrower to perform, keep or observe any of its respective other
covenants, conditions, promises or agreements contained herein or in any other
Loan Document to which it is a party or signatory and such Borrower fails to
cure the foregoing within thirty (30) days after notice from the Agent to the
Borrowers thereof; or (iii) an Event of Default occurs under any other Loan
Document;
56
or (iv) at any time any notice is given by a Borrower of the discontinuance,
invalidity or unenforceability of or such Borrower's obligations thereunder.
Section 9.C. REPRESENTATION AND WARRANTIES. Any warranty or
representation now or hereafter made by any Borrower hereunder or under any Loan
Document, is untrue or incorrect in any material respect or fails to state a
material fact necessary to make such warranty or representation not misleading
in light of the circumstances in which it was made, or any schedule,
certificate, statement, report, financial data, notice or writing furnished to
the Agent or Lenders at any time by any Borrower is untrue or incorrect in any
material respect or fails to state a material fact needed to make the foregoing
not misleading in light of the circumstances in which the foregoing were
furnished, on the date as of which the facts set forth therein are stated or
certified and such Borrower fails to cure any of the foregoing within thirty
(30) days after such Borrower should have become aware of the same.
Section 9.D. JUDGMENTS. A final and non-appealable judgment or
order, or an aggregate of final and non-appealable outstanding judgments or
orders, requiring payment in excess of Five Hundred Thousand Dollars ($500,000),
either not fully covered by insurance or the insurance for which is disputed or
contested, shall have been entered against a Borrower, and such judgments or
order(s) shall remain unsatisfied or undischarged and in effect for thirty (30)
consecutive days without a stay of enforcement or execution thereof.
Section 9.E. INSOLVENCY AND RELATED PROCEEDINGS. If any Borrower
(i) if a natural Person, dies or, if not a natural Person, is dissolved; (ii)
authorizes or makes an assignment for the benefit of creditors; (iii) generally
shall not pay its debts as they become due; (iv) shall admit in writing its
inability to pay its debts generally; or (v) shall authorize or commence
(whether by the entry of an order for relief or the appointment of a receiver,
trustee, examiner, custodian or other similar official therefor or for any
substantial part of its property) any proceeding or voluntary case under any
bankruptcy, reorganization, insolvency, dissolution, liquidation, adjustment or
arrangement of debt, receivership or similar Laws or if such proceedings are
commenced or instituted, or an order for relief or approving any petition
commencing such proceedings is entered against a Borrower and such party, by any
action or failure to act, authorize, approve, acquiesce, or consent to the
commencement or institution of such proceedings, or such proceedings are not
dismissed within thirty (30) days after the date of filing, commencement or
institution.
Section 9.F. OTHER MATERIAL AGREEMENTS. If a Borrower defaults or
a default or an event of default occurs under or in
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the performance of its obligations under any other agreement with the Agent or
the Lenders, or under any other material (exceeding $250,000) agreement,
document or instruments, whether for borrowed money or otherwise, and such
default, breach, or event of default continues beyond any applicable grace
period thereunder and the effect of which shall be to allow the holder of such
agreement, document or instrument to terminate the foregoing, or the Person to
whom such obligation is owed to cause such obligation to become due prior to its
stated maturity or otherwise accelerated.
Section 9.G. STATE ACTION. If any proceeding is instituted or
commenced by the State or country of incorporation of any Borrower, seeking a
forfeiture of the Articles of Incorporation of a Borrower and any order entered
in such proceeding shall fail to be vacated within thirty (30) days.
Section 9.H. ERISA MATTERS. If any of the following events shall
have occurred with respect to any Employee Plan and the resultant or potential
liability of the Borrowers therefor exceeds Two Hundred Fifty Thousand Dollars
($250,000): (i) a Reportable Event or Prohibited Transaction, as such terms are
defined in ERISA, shall have occurred; (ii) a trustee is appointed by any
governmental body or agency or any court to administer any Employee Plan; (iii)
any Employee Plan is involuntarily terminated, or circumstances exist which
constitute grounds entitling the Pension Benefit Guaranty Corporation to
institute proceedings to terminate any Employee Plan; or (iv) any withdrawal
liability is incurred in connection with any termination of an Employee Plan.
Section 9.I. TAX LIENS. If a notice of lien, levy or assessment
is filed or recorded with respect to all or a substantial part of the assets or
the Collateral owned by any Borrower by the United States, or any department,
agency or instrumentality thereof, or by any state, county, municipality or
other governmental agency, or any taxes or debts owing at any time or times
hereafter to any one or more of the foregoing become a lien upon a substantial
part of the Collateral, unless such notice or lien is a Permitted Lien or is
removed within ninety (90) days after filing or recording of such notice or
becoming such lien.
Section 9.J. FAILURE OF LIEN. If any Loan Document shall at any
time after its execution and delivery and for any reason (other than as a result
of any action or inaction by the Agent or the Lenders) cease (i) to create a
valid and perfected first priority Lien (except for Permitted Liens) in and to
the Collateral covered thereby; or (ii) to be in full force and effect or shall
be declared null and void, or the validity or enforceability thereof shall be
contested or any Borrower shall deny it has any further liability or obligation
under any Loan
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Document, or any Borrower shall fail to perform any of its obligations under any
Loan Document beyond any applicable grace period.
Section 9.K. [Intentionally Omitted].
Section 9.L. ENVIRONMENTAL REMEDIATION COSTS. If the Agent
receives a notification pursuant to the Environmental Indemnity Agreement of, or
any Borrower or Affiliate becomes aware of, any environmental contamination
which may reasonably be expected to cause any Borrower or Affiliate to incur or
be liable for costs of any kind aggregating in excess of a cost of $500,000.
Section 9.M. OPERATING PERMITS AND LICENSES. If any Borrower fails
to maintain any permits or licenses which are necessary and required for the
ownership, use, occupancy or operation of any Landfill, if such deficiency is
not cured within 60 days.
Section 9.N. CHANGE IN CONTROL OF CWI. If CWI shall suffer or
permit the sale, transfer of, or acquisition by any Person of fifty percent
(50%) or more of the voting stock of CWI.
Section 9.O. MATERIAL ADVERSE CHANGE. If since December 31, 1994,
there shall have occurred any condition or event which the Agent determines has
or might be reasonably expected to have a Materially Adverse Effect.
SECTION 10. RIGHTS AND REMEDIES.
Section 10.A. TERMINATION OF COMMITMENT AND ACCELERATION. Upon the
happening or occurrence of an Event of Default described in Section 9.E. above,
the Lenders' Commitment shall immediately terminate, and upon the happening or
occurrence of any other Event of Default set forth in Section 9, such Event of
Default not having been previously cured or waived in writing by the Required
Lenders, the Agent shall, if so directed by the Required Lenders, or may with
the consent of the Required Lenders, declare the Commitment terminated, if it
has not yet been terminated. Following the termination of the Commitment, the
Agent shall, if directed by the Required Lenders, or may with the consent of the
Required Lenders, accelerate the Obligations by declaring that the Obligations
are then due and payable and, thereupon, the Notes shall be and become
forthwith, due and payable without any presentment, demand, protest, notice of
any of the foregoing or other notice of any kind, all of which are hereby
expressly waived notwithstanding anything contained herein or in the Notes to
the contrary, and the Agent and the Lenders shall have all rights and remedies
now or hereafter provided by applicable Laws and without limiting the generality
of the foregoing may, at their option, also appropriate and apply toward the
payment of
59
the Notes, any indebtedness of the Agent or Lenders to the Borrowers, howsoever
created or arising, and may also exercise any and all rights and remedies
hereunder, under the Loan Documents or in and to the Collateral referred to in
the Mortgages, Leasehold Mortgages, Security Agreement and Stock Pledge
Agreement.
Section 10.B. RIGHTS OF SECURED CREDITOR. Agent and Lenders shall
have, in addition to the rights and remedies given to it under this Agreement,
the Notes and the other Loan Documents, all of the rights and remedies of a
secured party under the Uniform Commercial Code as enacted in any jurisdiction
in which any of the Collateral may be located and all rights and remedies
allowed by all applicable Laws, all of which rights and remedies shall be
cumulative and non-exclusive, to the extent permitted by said Laws. In addition
to all such rights and remedies, the sale, lease or other disposition of the
Collateral, or any part thereof, by Agent after an Event of Default may be for
cash, credit or any combination thereof, and Agent may purchase all or any part
of the Collateral at public or, if permitted by Law, private sale, and in lieu
of actual payment of such purchase price, may set-off the amount of such
purchase price against the Obligations then owing. Any sale of the Collateral
may be adjourned from time to time with or without notice. Agent may, in its
sole discretion, cause any Collateral to remain on a Borrower's premises, at the
Borrower's expense, pending sale or other disposition of such Collateral. Agent
shall have the right to conduct such sales on a Borrower's premises, at
Borrowers' expense, or elsewhere on such occasion or occasions as Agent may see
fit.
Section 10.C. ENTRY UPON PREMISES AND ACCESS TO INFORMATION. If an
Event of Default then exists, without notice, demand or legal process of any
kind, Agent may take possession of any or all of the Collateral, wherever it
might be found and for that purpose, Agent shall have the right, without
breaching the peace, to enter upon the premises of any Borrower where the
Collateral is located (or is believed to be located) without any obligation to
pay rent to any Borrower, or any other place or places under the control of any
Borrower where the Collateral is believed to be located and kept, and remove the
Collateral therefrom to the premises of Agent or any agent of Agent, for such
time as Agent may desire, in order to effectively collect or liquidate the
Collateral, and/or Agent may require any Borrower to assemble the Collateral and
make it available to Agent at a place or places to be designated by Agent. If
an Event of Default then exists, Agent shall have the right to obtain access to
any Borrower's data processing equipment, computer hardware and software
relating to the Collateral and to use all of the foregoing and the information
contained therein in any manner Agent deems appropriate which is related to the
preservation or
60
disposition of the Collateral or to the collection of the Obligations.
Section 10.D. SALE OR OTHER DISPOSITION OF COLLATERAL BY AGENT. Any
notice required to be given by Agent of a sale, lease or other disposition or
other intended action by Agent with respect to any of the Collateral which is
deposited in the United States mails, postage prepaid and duly addressed to
Borrowers at the address specified in Section 12.J, at least ten (10) Business
Days prior to such proposed action, shall constitute fair and reasonable notice
to Borrowers of any such action. The net proceeds realized by the Lenders upon
any such sale or other disposition, after deduction for the reasonable expenses
of retaking, holding, preparing for sale, selling or the like and the reasonable
attorneys' fees and legal expenses incurred by Agent or Lenders in connection
therewith, shall be applied as provided herein toward satisfaction of the
Obligations. The Lenders shall account to Borrowers for any surplus realized
upon any such sale or other disposition, and Borrowers shall remain liable for
any deficiency. The commencement of any action, legal or equitable, or the
rendering of any judgment or decree for any deficiency shall not affect Agent's
Lien on the Collateral until the Obligations are fully paid. Borrowers agree
that Agent has no obligation to preserve rights to the Collateral against any
other parties. To the extent Borrowers have the power, without violating the
terms of any agreement existing as of the Closing Date, to grant such a license,
Agent is hereby granted a license or other right to use, without charge, any
Borrower's labels, patents, production certificates, type certificates,
supplemental certificates, copyrights, rights of use of any name, trade secrets,
trade names, tradestyles, trademarks, service marks and advertising matter, or
any property of a similar nature, as it pertains to the Collateral, in
completing production of, advertising for sale and selling any Collateral.
Section 10.E. COLLECTION OF RECEIVABLES. After an Event of Default
occurs and is continuing, Agent is authorized and empowered (which authorization
and power, being coupled with an interest, is irrevocable until the last to
occur of termination of this Agreement and payment and performance in full of
all of the Obligations) in its sole and absolute discretion:
(i) To endorse in any Borrower's name and to collect any
chattel paper, checks, notes, drafts, instruments or other items of
payment tendered to or received by Agent in payment of any receivable
included in the Collateral;
(ii) To notify, either in Agent's name or any Borrower's
name, and/or to require any Borrower to notify, any account debtor or any
other Person obligated under or in respect of any receivable included in
the Collateral, of the
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fact of Agent's Lien thereon and of the collateral assignment thereof to
Agent;
(iii) To direct, either in Agent's name or any Borrower's
name, and/or to require any Borrower to direct, any account debtor or
other Person obligated under or in respect of any receivable to make
payment directly to Agent of any amounts due or to become due thereunder
or with respect thereto; and
(iv) To demand, collect, surrender, release or exchange all
or part of any receivable or any amounts due thereunder or with respect
thereto, or compromise or extend or renew for any period (whether or not
longer than the initial period) any and all sums which are now or may
hereafter become due or owing upon or with respect to any receivable
included in the Collateral, or enforce, by suit or otherwise, payment or
performance of any receivable either in Agent's own name or in the name of
any Borrower.
Under no circumstances shall Agent be under any duty to act in regard to any of
the foregoing matters. The costs relating to any of the foregoing matters,
including reasonable attorneys' fees and out-of-pocket expenses, shall be borne
solely by Borrowers whether the same are incurred by Agent or Borrowers.
Section 10.F. RESCISSION. If at any time after acceleration of the
maturity of the Loans, Borrowers shall pay all arrears of interest and all
payments on account of principal of the Loans which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by laws, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest of the Loans due and payable solely by virtue
or acceleration) shall be remedied or waived pursuant to this Agreement, then by
written notice to Borrowers, the Required Lenders may elect, in the sole
discretion of the Required Lenders, to rescind and annul the acceleration and
its consequences; but such action shall not affect any subsequent Event of
Default or Default or impair any right or remedy consequent thereon. The
provisions of the preceding sentence are intended merely to bind the Lenders to
a decision which may be made at the election of the Required Lenders; they are
not intended to benefit Borrowers and do not give Borrowers the right to require
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
Section 10.G. APPLICATION OF PAYMENTS. All monies received by the
Agent or any of the Lenders from the exercise of any rights or remedies shall,
unless otherwise required by applicable Law, be applied as follows:
62
A. First, to the payment of all reasonable expenses (to the extent not
paid by Borrowers) actually incurred by the Agent or any of the Lenders in
connection with the exercise of such rights or remedies, including all
out-of-pocket costs and expenses of collection, reasonable attorneys' fees and
court costs, all costs incurred by any one or more of the Agent or the Lenders
directly or indirectly in carrying out the terms, covenants and agreements
contained in any Loan Document, together with interest thereon as provided
therein, and all other costs and expenses described in Section 8.A.6;
B. Next, to the payment of any outstanding fees due hereunder;
C. Next, to the payment of interest then accrued and unpaid on the
Notes, ratably to each Lender in accordance with its PRO RATA share;
D. Next, to the payment of principal then owing on the Notes, ratably
to each Lender in accordance with its PRO RATA share;
E. Next, to all of the other Obligations, ratably in the proportion
which such other Obligations owed to the Agent or a Lender bears to all such
other Obligations;
F. Surplus, if any, unless a court of competent jurisdiction decrees
otherwise, to the holder(s) of any junior liens as may be required by the
provision of any applicable agreement governing Subordinated Debt and to the
Borrowers, as appropriate.
Section 10.H. LETTERS OF CREDIT. When any Event of Default, other
than an Event of Default described in Section 9.E hereof has occurred and is
continuing, the Borrowers shall, upon demand of the Agent, and when any Event of
Default described in Section 9.E has occurred, the Borrowers shall, without
notice or demand from the Agent, immediately pay to the Agent the full Stated
Amount of each Letter of Credit, the Borrowers hereby agreeing to immediately
make each such payment and acknowledging and agreeing the Agent would not have
an adequate remedy at law for failure of the Borrowers to honor any such demand
and that the Agent shall have the right to require the Borrowers to specifically
perform such undertaking whether or not any draws had been made under the
Letters of Credit.
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SECTION 11. AGENCY PROVISIONS.
Section 11.A. APPOINTMENT.
(a) Each Lender hereby designates and appoints LaSalle National Agent as
Agent of such Lender under this Agreement and the Loan Documents, and each
Lender hereby irrevocably authorizes Agent to take such action on its behalf
under the provisions of this Agreement and the Loan Documents and to exercise
such powers as are set forth herein or therein, together with such other powers
as are incidental thereto. Agent agrees to act as such on the express conditions
contained in this Section 11.
(b) The provisions of this Section 11 are solely for the benefit of
Agent and Lenders, and Borrowers shall not have any rights to rely on or enforce
any of the provisions hereof (other than as expressly set forth in Section 11.H,
Section 11.I or in Section 11.C(b)). In performing its functions and duties
under this Agreement, Agent shall act solely as Agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for Borrowers.
Section 11.B. NATURE OF DUTIES. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. The duties of Agent shall be mechanical and administrative in
nature. Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender. Nothing in this Agreement or any of the
Loan Documents, expressed or implied, is intended or shall be construed to
impose upon Agent any obligation in respect of this Agreement or any of the Loan
Documents except as expressly set forth herein or therein. Each Lender
acknowledges that it has, independently and without reliance upon Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and other Loan Documents, made its own independent investigation of
the financial condition and affairs of Borrowers in connection with the making
and the continuance of the Loans and its Commitment hereunder, and made and
shall continue to make its own appraisal of the creditworthiness of Borrowers.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Agent hereunder, Agent shall not
have any duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect to
Borrowers, whether coming into its possession before the Closing Date or at any
time or times thereafter. If Agent seeks the consent or approval of the
Required Lenders to the taking or refraining from taking any action hereunder,
Agent shall send notice thereof to each Lender. Agent shall promptly
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notify each Lender at any time that the Required Lenders have instructed Agent
to act or refrain from acting pursuant hereto.
Section 11.C. [Intentionally Omitted]
Section 11.D. DISTRIBUTION AND APPORTIONMENT OF PAYMENTS. Payments
actually received by Agent for the account of Lenders shall be paid to them
promptly after receipt thereof by Agent, PROVIDED that Agent shall pay to such
Lenders interest thereon, at the lesser of (i) Federal Funds Rate and (ii) the
rate of interest applicable to such Loans, from the Business Day following
receipt of such funds by Agent until such funds are paid to such Lenders. So
long an there does not exist an Event of Default, all payments of principal and
interest in respect of outstanding Loans, all payments of the fees described in
this Agreement, and all payments in respect of any other Obligations shall be
allocated among such of Lenders as are entitled thereto, in proportion to their
respective PRO RATA shares or otherwise as provided herein. Agent shall
promptly distribute to each Lender at its primary address set forth on the
appropriate counterpart signature page hereof or on the Assignment and
Acceptance, or at such other address as a Lender may request in writing, such
funds as it may be entitled to receive, provided that Agent shall in any event
not be bound to inquire into or determine the validity, scope or priority of any
interest or entitlement of any Lender and may suspend all payments and seek
appropriate relief (including without limitation instructions from Required
Lenders or an action in the nature of interpleader) in the event of any doubt or
dispute as to any apportionment or distribution contemplated hereby. The order
of priority herein is set forth solely to determine the rights and priorities of
Lenders as among themselves and may at any time or from time to time be changed
by Lenders as they may elect, in writing, without necessity of notice to or
consent of or approval by Borrowers or any other Person.
Section 11.E. RIGHTS, EXCULPATION, ETC. Neither Agent, any
Affiliate of Agent, nor any of their respective officers, directors, employees,
agents, attorneys or consultants, shall be liable to any Lender for any action
taken or omitted by them hereunder or under any of the Loan Documents, or in
connection herewith or therewith, except that Agent shall be liable for its
gross negligence or willful misconduct in the performance of its express
obligations hereunder. Agent shall not be liable for any apportionment or
distribution of payments made by it in good faith pursuant to Section 11.D, and
if any such apportionment or distribution is subsequently determined to have
been made in error the sole recourse of any Person to whom payment was due, but
not made, shall be to recover from the recipients of such payments any payment
in excess of the amount to which they are determined to have been entitled.
Agent shall not be responsible to any Lender for any recitals, statements,
representations or
65
warranties herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement, or any of the
other Loan Documents, or any of the transactions contemplated hereby and
thereby; or for the financial condition of Borrowers. Agent shall not be
required to make any inquiry concerning or to ascertain either the performance
or observance of any of the terms, provisions or conditions of this Agreement or
any of the Loan Documents, or the financial condition of Borrowers, or the
existence or possible existence of any Default or Event of Default, or to
inspect the property of the Borrowers. Agent may at any time request
instructions from Lenders with respect to any actions or approvals which by the
terms of this Agreement or of any of the Loan Documents Agent is permitted or
required to take or to grant, and if such instructions are promptly requested,
Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents until it shall have received such instructions from Required
Lenders. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against Agent as a result of Agent acting or refraining from
acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of Required Lenders.
Section 11.F. RELIANCE. Agent shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including counsel for
Borrowers), independent public accountants and other experts selected by it.
Section 11.G. INDEMNIFICATION. To the extent that Agent is not
reimbursed and indemnified by Borrowers, Lenders will reimburse and indemnify
Agent for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against it in any way relating to or arising out of this Agreement or any of the
other Loan Documents or any action taken or omitted by Agent or under this
Agreement or any of the other Loan Documents, in proportion to each Lender's
PRO RATA share; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's gross negligence
or willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse the Agent (to the extent not reimbursed by the Borrowers) promptly
upon demand for
66
its ratable share of any out-of-pocket expenses (including reasonable attorneys'
fees) incurred by the Agent in connection with the preparation, administration,
or enforcement of or legal advice in respect of rights or responsibilities under
any Loan Document. The obligations of Lenders under this Section 11.G shall
survive the payment in full of all Obligations and the termination of this
Agreement. In the event that after payment and distribution of any amount by
Agent to Lenders, any Lender or third-party, including any Borrower, any
creditor of any Borrower or a trustee in bankruptcy, recovers from Agent any
amount found to have been wrongfully paid to Agent or disbursed by Agent to
Lenders, then Lenders, in proportion to their respective PRO RATA shares,
shall reimburse Agent for all such amounts.
Section 11.H. AGENT INDIVIDUALLY. With respect to its PRO RATA
share of the Commitments hereunder and the Loans made by it, Agent shall have
and may exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms "Lenders" or "Required Lenders" or any similar terms shall
include Agent in its individual capacity as a Lender or one of the Required
Lenders. Agent may accept deposits from, lend money to, and generally engage in
any kind of banking, trust or other business with any Borrower as if it were not
acting as Agent pursuant hereto.
Section 11.I. SUCCESSOR AGENT; RESIGNATION OF AGENT; REMOVAL AGENT.
(a) Agent may resign from the performance of all its functions and
duties hereunder at any time by giving at least thirty (30) Business Days prior
written notice to Lenders and Borrowers. Required Lenders may remove Agent at
any time by giving at least thirty (30) Business Days prior written notice to
Agent, Borrowers and all other Lenders. Such resignation or removal shall take
effect upon the acceptance by a successor Agent of appointment pursuant to
CLAUSES (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by or removal of Agent, Required
Lenders shall appoint a successor Agent with the consent of Borrowers (which may
not be unreasonably withheld).
(c) If a successor Agent shall not have been so appointed within said
thirty (30) Business Day period, the retiring or removed Agent, with the consent
of Borrowers (which may not be withheld unreasonably), shall then appoint a
successor Agent who shall serve as Agent until such time, if any, as Required
Lenders, with the consent of Borrowers, appoint a successor Agent as provided
above.
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Section 11.J. AGENCY PROVISIONS RELATING TO COLLATERAL.
(a) Each Lender authorizes and directs Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender agrees that any action
taken by Agent or Required Lenders in accordance with the provisions of this
Agreement or the Loan Documents, and the exercise by Agent or Required Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all
Lenders.
(b) Agent is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, from time to time
prior to an Event of Default, to take any action with respect to any Collateral
or Loan Documents which may be necessary to perfect and maintain perfected
Agent's Liens upon the Collateral granted pursuant to the Loan Documents.
(c) Lenders hereby irrevocably authorize Agent, at its option and in its
discretion, to release any Lien granted to or held by Agent upon any Collateral
(i) upon termination of the Commitments and payment and satisfaction of all
Obligations which have matured and which Agent has been notified in writing are
then due and payable; or (ii) constituting property being sold or disposed of if
Borrowers certify to Agent that the sale or disposition is made in compliance
with this Agreement (and Agent may rely conclusively an any such certificate,
without further inquiry); or (iii) constituting property in which no Borrower
owned an interest at the time the Lien was granted or at any time thereafter; or
(iv) if approved, authorized or ratified in writing by Agent at the direction of
all Lenders. Upon request by Agent at any time, Lenders will confirm in writing
Agent's authority to release particular types or items of Collateral pursuant to
this Section 11.J.
(d) Without in any manner limiting Agent's authority to act without any
specific or further authorization or consent by all Lenders (as set forth in
Section 11.J(b), each Lender agrees to confirm in writing, upon request by
Borrowers, the authority to release Collateral conferred upon Agent under
clauses (i) through (iv) of Section 11.J(c). So long as no Event of Default is
then continuing, upon receipt by Agent of any such written confirmation from all
Lenders of its authority to release any particular items or types of Collateral,
and in any event upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Agreement, and upon at least five (5)
Business Days prior written request by Borrowers, Agent shall (and is hereby
irrevocably authorized by Lenders to) execute such documents as may be necessary
to evidence the release of the Liens granted to Agent for the benefit of Lenders
herein or pursuant hereto upon such Collateral; PROVIDED, that (i) Agent shall
not be required to execute any such document on terms
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which, in Agent's opinion, would expose Agent to liability or create any
obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Liens upon (or obligations of
Borrowers in respect of) all interests retained by Borrowers, including without
limitation the proceeds of any sale, all of which shall continue to constitute
part of the Collateral.
(e) Agent shall have no obligation whatsoever to any Lender or to any
other Person to assure that the Collateral exists or is owned by Borrowers or is
cared for, protected or insured or has been encumbered or that the Liens granted
to Agent herein or pursuant hereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise at all or in any particular manner or under
any duty of care, disclosure or fidelity, or to continue exercising, any of the
rights, authorities and powers granted or available to Agent in this Section
11.J or in any of the Loan Documents, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto, Agent
may act in any manner it may deem appropriate, in its sole discretion, given
Agent's own interest in the Collateral as one of the Lenders and that Agent
shall have no duty or liability whatsoever to any Lender.
Section 11.K. ACTIONS AGAINST COLLATERAL. Each Lender agrees that
it will not take any action, nor institute any actions or proceedings, against
any Borrower or any other obligor hereunder with respect to exercising claims
against or rights in any Collateral without the consent of the Required Lenders.
SECTION 12. MISCELLANEOUS.
Section 12.A. ASSIGNMENTS AND PARTICIPATIONS.
(a) With the prior consent of CWI (which consent shall not be
unreasonably withheld or delayed), LaSalle National Bank may assign to one or
more banks or other financial institutions all or a portion of its rights and
obligations under this Agreement (including without limitation all or a portion
of its Commitments, the Loans owing to it, and participation in Letters of
Credit); PROVIDED, HOWEVER, that (i) each such assignment shall be of a
constant, and not a varying, percentage of LaSalle National Bank's rights and
obligations under this Agreement, (ii) unless CWI otherwise consents, the
aggregate amount of the Commitments of LaSalle National Bank being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
Five Million Dollars ($5,000,000) and shall be an integral multiple of One
Million Dollars ($1,000,000) and (iii) the parties to each such assignment shall
execute and deliver to
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Agent, for its approval and acceptance, an Assignment and Acceptance in the form
of EXHIBIT L hereto (an "ASSIGNMENT AND ACCEPTANCE"); PROVIDED, FURTHER
that any Lender, without the consent of the Agent or CWI, may assign all or part
of its rights and obligations to any Affiliate of the assigning Lender, but
shall not be permitted to make any other assignments. Upon such execution,
delivery, approval and acceptance of the Assignment and Acceptance, and upon the
effective date specified therein, (a) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (b) the Lender-assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement.
(b) By executing and delivering an Assignment and Acceptance, the
Lender-assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representation made in or in connection with this Agreement or any
other Loan Document or the execution, legality, validity, enforceability,
genuineness sufficiency or value of this Agreement or any other Loan Document or
any other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrowers or the performance or observance
by Borrowers of any of their obligations under any Loan Documents or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of Financial
Statements and such other Loan Documents and other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon Agent, such assigning Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes Agent to take such
action as Agent on its behalf and to exercise such powers under this Agreement
and the other Loan Document as are delegated to Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
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(c) Agent shall maintain at its address referred to on the counterpart
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and shall record the names and addresses of each Lender and the
Commitment of, and principal amount of the Loans owing to, such Lender from time
to time. Borrowers, Agent and Lenders may treat each Person whose name is
recorded in the records of the Agent as a Lender hereunder for all purposes of
this Agreement.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, Agent shall, if such Assignment and Acceptance
has been property completed and is in substantially the form of EXHIBIT L, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein and (iii) give prompt notice thereof to Borrowers.
(e) Each Lender may sell participations in or to all or a portion of its
rights and obligations under this Agreement (including without limitation all or
a portion of its Commitment, the Loans owing to it and participations in Letters
of Credit) to an Affiliate of such Lender, but shall not otherwise be permitted
to sell participations; PROVIDED, HOWEVER, that in connection with any such
sale to an Affiliate, (i) such Lender's obligations under this Agreement
(including without limitation its Commitment to Borrowers hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) Borrowers, Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and with regard to any and all payments to be made under this
Agreement, (iv) the holder of any such participation shall not be entitled to
voting rights under this Agreement except for voting rights with respect to the
amendment or modification of those provisions of this Agreement for which the
consent of all Lenders would be required; and (v) any party to which such a
participation has been granted shall have the benefits of Sections 3.J. and 3.K.
but shall not be entitled to receive any greater payment under either such
Section than the Lender granting such participation would have been entitled to
receive with respect to the rights transferred. No such participant shall have
any rights under this Agreement except as provided in this Section 12.A.(e).
(f) Borrowers will cooperate with Agent and Lenders in connection with
the assignment of interests under this Agreement or the sale of participations
herein.
(g) Anything in this Agreement to the contrary notwithstanding, and
without the need to comply with any of the formal or procedural requirements of
this Agreement, including Section 11.L, any Lender may at any time and from time
to time pledge and assign all or any portion of its rights under all or
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any of the Loan Documents to a Federal Reserve Agent; PROVIDED that no such
pledge or assignment shall release such Lender from its obligations thereunder.
To facilitate any such pledge or assignment, Agent shall, at the request of such
Lender, enter into a letter agreement with the Federal Reserve Agent in, or
substantially in, the form of the exhibit to Appendix C to the Federal Reserve
Agent of New York Operating Circular No. 12.
Section 12.B. RATABLE SHARING. Subject to Sections 3.C(d) and 11.D,
and unless otherwise specifically stated herein, Lenders agree among themselves
that (i) with respect to all amounts received by them which are applicable to
the payment of the Obligations, equitable adjustment will be made so that, in
effect, all such amounts will be shared among then ratably in accordance with
their PRO RATA shares, whether received by voluntary payment, by the
exercise of the right of set-off or banker's lien, by counterclaim or cross
action or by the enforcement of any or all of the Obligations or the Collateral,
(ii) if any of them shall by voluntary payment or by the exercise of any right
of counterclaim, set-off, banker's lien or otherwise, receive payment of a
proportion of the aggregate amount of the obligations held by it which is
greater than its PRO RATA share of the payments on account of the
Obligations, the one receiving such excess payment shall purchase, without
recourse or warranty, an undivided interest and participation (which it shall be
deemed to have done simultaneously upon the receipt of such payment) in such
obligations owed to the others so that all such recoveries with respect to such
Obligations shall be applied ratably in accordance with their PRO RATA
shares; PROVIDED, that if all or part of such excess payment received by the
purchasing party is thereafter recovered from it, those purchases shall be
rescinded and the purchase prices paid for such participation shall be returned
to that party to the extent necessary to adjust for such recovery, but without
interest except to the extent the purchasing party is required to pay interest
in connection with such recovery. Borrowers agree that any Lender so purchasing
a participation from another Lender pursuant to this Section 12.B may, to the
fullest extent permitted by law, exercise all its rights of payment with respect
to such participation as fully as if such Lender were the direct creditor of
Borrowers in the amount of such participation.
Section 12.C. WITHHOLDING TAXES.
(a) WITHHOLDING. Except as otherwise required by Law and subject to
Section 12.C.(b) hereof, each payment by the Borrowers under this Agreement or
the Notes or in respect of the Letters of Credit shall be made without setoff or
counterclaim and without withholding for or on account of any present or future
taxes imposed by or within the jurisdiction in which any Borrower is domiciled,
any jurisdiction from which the Borrowers make any payment hereunder, or (in
each case) any political subdivision or
72
taxing authority thereof or therein (excluding any such tax imposed on the
overall net income of any Lender or its Lending Office). If any such
withholding is so required, the Borrowers shall make the withholding, pay the
amount withheld to the appropriate governmental authority before penalties
attach thereto or interest accrues thereon and forthwith pay such additional
amount as may be necessary to ensure that the net amount actually received by
each Lender and the Agent free and clear of such taxes (including such taxes on
such additional amount) is equal to the amount which that Lender or the Agent
(as the case may be) would have received had such withholding not been made. If
the Agent or any Lender pays any amount in respect of any such taxes, penalties
or interest, the Borrowers shall reimburse the Agent or that Lender for that
payment on demand in the currency in which such payment was made. If a Borrower
pays any such taxes, penalties or interest, it shall deliver official tax
receipts evidencing that payment or certified copies thereof to the Agent on or
before the thirtieth day after payment.
(b) U.S. WITHHOLDING TAX EXEMPTIONS. Each Lender that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) shall submit to the Borrowers on or before the date the initial
Borrowing is made hereunder, duly completed and signed copies of either Form
1001 (relating to such Lender and entitling it to a complete exemption from
withholding on all amounts to be received by such Lender, including fees,
pursuant to this Agreement and the Loans) or Form 4224 (relating to all amounts
to be received by such Lender, including fees, pursuant to this Agreement and
the Loans) of the United States Internal Revenue Service. Thereafter and from
time to time, each such Lender shall submit to the Borrowers such additional
duly completed and signed copies of one or the other of such Forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be (i) notified by the Borrowers to such
Lender and (ii) required under then-current United States Law to avoid or reduce
United States withholding taxes on payments in respect of all amounts to be
received by such Lender, including fees, pursuant to this Agreement or the Loans
or the Letters of Credit. Upon the request of the Borrowers, each Lender that
is a United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrowers a certificate to the effect that it is such
a United States person.
(c) INABILITY OF LENDER TO SUBMIT FORMS. If any Lender determines, as
a result of any change in applicable Law, that it is unable to submit to the
Borrowers any form or certificate that such Lender is obligated to submit
pursuant to subsection (b) above, or that such Lender is required to withdraw or
cancel any such form or certificate previously submitted or any such form or
certificate otherwise becomes ineffective or inaccurate, such Lender shall
promptly notify the Borrowers of such fact and the
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Lender shall to that extent not be obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form or
certificate, as applicable.
(d) LENDER'S FAILURE TO SUBMIT FORMS WHEN REQUIRED. The Borrowers
shall not be required pursuant to Section 12.C.(a) hereof to pay to any Lender
any increased amount on account of taxes to the extent such increased amount
would not have been payable if the Lender had furnished a form (properly and
accurately completed in all material respects) which it was otherwise required
to furnish in accordance with the other provisions of this Section 12.C.
Section 12.D. AMENDMENT AND WAIVERS. No amendment or modification
of any provision of this Agreement shall be effective without the written
agreement of Required Lenders (after notice to all Lenders, which notice may be
oral) and Borrowers, and no termination or waiver of any provision of this
Agreement, or consent to any departure by Borrowers therefrom, shall in any
event be effective without the written concurrence of Required Lenders (after
notice to all Lenders, which notice may be oral), which Required Lenders shall
have the right to grant or withhold at their sole discretion, except that any
amendment, modification or waiver of any provision of Section 2 hereof relating
to any increase of the Commitments or any Lender's Commitment, to the principal
amount, amortization and final maturity of the Loans, to the reduction of
interest rates applicable to the Loans, to the rates at which the fees payable
to the Agent for the ratable benefit of the Lenders pursuant hereto are
determined, to the forgiveness of any amount payable or receivable under Section
2, to the definition of "Required Lenders" and "pro rata", to the level of
consent required to release Collateral, and to the provisions contained in this
Section 12.D shall be effective only if evidenced by a writing signed by or on
behalf of all Lenders, provided that notwithstanding the foregoing, the consent
or approval of a Lender will not be required if such amendment, modification or
waiver does not affect such Lender. No amendment, modification, termination or
waiver of any provision of Section 11 hereof or any other provision referring to
Agent shall be effective without the written concurrence of Agent. Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on Borrowers in
any case shall entitle Borrowers to any further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or
consent effected in accordance with this Section 12.D. shall be binding on each
assignee, transferee or recipient of Agent's or any Lender's Commitment or the
Loans at the time outstanding.
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Section 12.E. MERGER AND INTEGRATION CLAUSE. This Agreement and
the Loan Documents contain the entire agreement among the parties hereto with
respect to the subject matter hereof and specifically supersedes in its or their
entirety the Prior Documents and the commitment letter of the Agent to CWI dated
December 14, 1994, and any prior drafts thereof or proposals or letters from the
Agent with respect to the terms of credit facilities hereunder or any other
matter which is the subject matter of this Agreement or any of the Loan
Documents.
Section 12.F. APPLICABLE LAW. This Agreement, the Notes and the
other Loan Documents have been executed, issued, delivered and accepted in and
shall be deemed to have been made under and shall be governed by and construed
in accordance with the Laws of the State of Illinois.
Section 12.G. SEVERABILITY. This Agreement, the Notes and the other
Loan Documents shall be construed and interpreted in such manner as to be
effective, enforceable and valid under all applicable Laws. If any provision of
this Agreement, the Notes or the other Loan Documents shall be held invalid,
prohibited or unenforceable under any applicable Laws of any applicable
jurisdiction, such invalidity, prohibition or unenforceability shall be limited
to such provision and shall not affect or invalidate the other provisions hereof
or thereof or affect the validity or enforceability of such provision in any
other jurisdiction, and to that extent, the provisions hereof and thereof are
severable.
Section 12.H. SECTION HEADINGS. Section headings used in this
Agreement are for convenience only and shall not effect the construction or
interpretation of this Agreement.
Section 12.I. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the Agent, the Lenders and the Borrowers, and their
respective successors and assigns; provided, however, that the Borrowers have no
right to assign any of its rights or its obligations hereunder without the prior
written consent of all Lenders.
Section 12.J. NOTICES. Any notices, requests or consents required
or permitted by this Agreement shall be (i) in writing, and (ii) delivered in
person, telexed, telecopied or sent by certified or registered mail, postage
prepaid, return receipt requested, or by overnight mail or express delivery
service to the addresses of the parties hereto set forth below, unless such
address, telex number or telecopier number is changed by written notice
hereunder. Each such notice, request, consent or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified on the signature page hereof and a confirmation of
such telecopy has been received by the sender, (ii) if given by telex, when
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such telex is transmitted to the telex number specified on the signature page
hereof and the answerback is received by sender, (iii) if given by mail, five
(5) days after such communication is deposited in the mail, certified or
registered with return receipt requested, addressed as aforesaid or (iv) if
given by any other means, when delivered at the addresses specified on the
signature page hereof; PROVIDED THAT any notice given pursuant to Sections 2
and 3 hereof shall be effective only upon receipt.
Section 12.K. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, and by the different parties on different counterparts,
each of which when executed shall be deemed an original but all such
counterparts taken together shall constitute one and the same instrument.
Section 12.L. INDEMNIFICATION. In addition to the agreements of the
Borrowers under the Environmental Indemnity Agreement, each Borrower hereby
indemnities, exonerates and holds free and harmless the Agent, each Lender, each
of their Affiliates and each of their officers, directors, employees, agents-and
attorneys (collectively, the "INDEMNIFIED PARTIES" or, individually, an
"INDEMNIFIED PARTY"), from and against any and all actions, causes of action,
suits, proceedings, investigations, losses, costs, liabilities, damages,
punitive damages, penalties and expenses, including reasonable attorneys' and
paralegals' fees and disbursements (the "INDEMNIFIED LIABILITIES"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to (irrespective of whether such Indemnified Party is a party to the
action for which indemnification hereunder is sought):
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance under this Agreement or any
other Loan Document or by any party thereto; or
(c) any investigation, litigation, or proceeding related to any
acquisition or proposed acquisition by any of the Borrowers of all or any
portion of the stock or all or substantially all the assets of any Person,
whether or not the Agent is party thereto and whether or not the proceeds
of any Loans are used or to be used in connection therewith; except for
any such Indemnified Liabilities arising by reason of an Indemnified
Party's gross negligence or wilful misconduct. In addition, if any
Borrower institutes any action, suit or proceeding against any of the
Indemnified Parties and such action, suit or proceeding is unsuccessful,
the Borrowers shall indemnify and hold harmless the Indemnified Parties
from and against all Indemnified
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Liabilities arising in connection with or relating to such action, suit or
proceeding. The Borrowers shall pay or reimburse the Indemnified Parties
for any Indemnified Liabilities from time to time within thirty (30) days
after demand. This Section and the agreements of the Borrowers set forth
herein shall survive the termination of this Agreement and any or all of
the Loan Documents and repayment of all of the Obligations hereunder and
thereunder. If and to the extent that the undertaking described in this
Section 12.L. is held or determined by any court of competent jurisdiction
to be unenforceable for any reason, the Borrowers hereby agree to make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable Laws.
Section 12.M. INDEPENDENCE OF COVENANTS. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of an Event of Default or Default if such action is
taken or condition exists, and if a particular action or condition is expressly
permitted under any covenant, unless expressly limited to such covenant, the
fact that it would not be permitted under the general provisions of another
covenant shall not constitute an Event of Default or Default if such action is
taken or condition exists.
Section 12.N. MARSHALLING; RECOURSE TO SECURITY; PAYMENTS SET ASIDE.
Neither any Lender nor Agent shall be under any obligation to xxxxxxxx any
assets in favor of Borrowers or any other party or against or in payment of any
or all of the Obligations. Recourse to security shall not be required at any
time. To the extent that Borrowers make a payment or payments to Agent or the
Lenders or Agent or the Lenders enforce their Liens or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement of
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or another party under any bankruptcy law, state or federal law, common
law or equitable cause, then to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor, shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.
Section 12.O. LIMITATION OF LIABILITY. To the extent permitted by
applicable Law, no claim may be made by Borrowers, any Lender or any other
Person against Agent or any Lender, or the Affiliates, directors, officers,
employees, attorneys or agents of any of them, for special, indirect,
consequential or
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punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement, or any act, omission or event occurring in connection
therewith; and Borrowers, Agent and each Lender hereby waive, release and agree
not to xxx upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
Section 12.P. CONSENT TO JURISDICTION AND WAIVER OF JURY TRIAL AND
PERSONAL SERVICE. EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN XXXX COUNTY, ILLINOIS
IN ANY ACTION, SUIT OR PROCEEDING (WHETHER IN CONTRACT OR TORT, AT LAW OR IN
EQUITY) COMMENCED THEREIN IN CONNECTION WITH OR WITH RESPECT TO THE OBLIGATIONS,
THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT
LIMITATION, ANY DEFENSES OR COUNTER CLAIMS THEREIN), AND EACH BORROWER, THE
AGENT AND THE LENDERS EACH WAIVE ANY RIGHT TO JURY TRIAL THAT THEY MAY NOW OR
HEREAFTER HAVE UNDER ANY LAWS AND ANY OBJECTION TO VENUE IN CONNECTION
THEREWITH. EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
OR PAPERS ISSUED OR SERVED IN CONNECTION WITH THE FOREGOING AND AGREES THAT
SERVICE OF SUCH PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, RETURN RECEIPT REQUESTED, DIRECTED TO THE BORROWERS AS SET
FORTH IN SECTION 12.J. ABOVE AND THE BORROWERS' REGISTERED AGENTS, IN WHICH CASE
SUCH PROCESS OR PAPERS SHALL BE DEEMED RECEIVED FIVE (5) DAYS THEREAFTER, OR BY
OVERNIGHT MAIL OR EXPRESS DELIVERY SERVICE, IN WHICH CASE SUCH PROCESS OR PAPERS
SHALL BE DEEMED RECEIVED ONE (1) DAY THEREAFTER.
Section 12.Q. NATURE OF BORROWERS' OBLIGATIONS. Each Borrower
acknowledges and agrees that the liability of each Borrower for all Obligations,
and under this Agreement and each Loan Document, is joint and several.
Section 12.R. MUTUAL GUARANTY AND SUBORDINATION BY BORROWERS.
(a) GUARANTY. Each Borrower hereby guarantees and agrees to timely
and completely pay, perform and discharge when due (whether by acceleration or
otherwise) all of the Loans made by the Lenders to, and all of the other
Obligations of, the other Borrowers to the Agent and the Lenders, their
successors and assigns, including, without limitation, all payments of interest
and principal under the Notes and all costs and expenses for which any Borrower
is liable under any of the Loan Documents. Each Borrower agrees that the
obligations and liabilities of such Borrower pursuant to this Section 12.R shall
be absolute and unconditional, and the rights and remedies of the Agent and
Lenders hereunder shall not be impaired and shall remain in full force and
effect regardless of:
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(i) the genuineness, validity, enforceability, assignment or
purported assignment of all or any part of this Agreement, the Notes, or
any other Loan Documents;
(ii) any amendment, extension, modification, release, waiver,
discharge, settlement or compromise of or with respect to the Obligations
or with respect to the Loan Documents, whether granted to a Borrower by
the Agent or Lenders or by operation of law or under any bankruptcy,
reorganization, liquidation, dissolution or similar proceedings, without
prior or other notice to or the consent of the other Borrowers;
(iii) any delay, failure, neglect, commission or omission by or on
behalf of the Agent or Lenders, without the consent of a Borrower, to
enforce, assert or exercise any of its rights, powers or remedies under
this Agreement, the Notes, or any other Loan Documents, which shall in no
event be construed as a waiver of any such rights, powers or remedies; or
(iv) the liquidation, sale or marshalling of all, or
substantially all, of the assets of any Borrower or any receivership,
insolvency, bankruptcy, reorganization, arrangement, composition,
readjustment or other similar proceeding or action involving any Borrower
or an assignment for the benefit of the creditors of any Borrower.
Each Borrower agrees that the obligations and liabilities to the Agent and
Lenders under this Section 12.R constitute a direct payment obligation and not a
guaranty of collection, such that the Agent and Lenders may, at their sole
option and discretion, proceed directly against any Borrower without proceeding
against or exercising or exhausting any of their rights or remedies against the
other Borrowers under any of the Loan Documents. Each Borrower hereby agrees
that, to the extent the Agent or any Lender receives or applies any payments to
the Obligations which are subsequently set aside for being wholly or partially
invalid, fraudulent or preferential or which are required to be repaid to any
Borrower, any party to the Loan Documents or to any estate, trustee, receiver or
any other party, whether under any state or federal bankruptcy, insolvency,
fraudulent conveyance, preference or similar law affecting creditors' rights
generally or otherwise, then, to such extent, the guaranty, liabilities and
obligations of each Borrower hereunder shall be reinstated as though such
payments had not been so received or applied.
(b) WAIVER. Each Borrower hereby waives and releases any and all
claims for and rights of subrogation, indemnification, reimbursement,
restitution, exoneration and contribution against, and any other right to
receive payment from or participate in any claim brought by any other person
against, the other Borrowers or
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any other party or person which exists or arises on account of or by reason of
any payment made or performance by a Borrower hereunder or in respect of the
Obligations, whether such claim or right is now existing or is hereafter
acquired or arising and whether arising hereunder, in equity, by operation of
law or contract or otherwise, and each Borrower agrees not to assert against the
other Borrowers or any other person or party at any time any of such claims or
rights or any other remedy of whatsoever kind or nature in favor of a Borrower
existing or arising by reason of the foregoing.
(c) SUBORDINATION. All indebtedness, liabilities and obligations of a
Borrower to the other Borrowers, or any claims or causes of action of a Borrower
against the other Borrowers, shall be and hereby are made subject to, postponed,
subordinated and junior in right of payment to the satisfaction and payment in
full of all of the Obligations of each Borrower to the Agent and Lenders arising
under this Agreement, the Notes and any other Loan Documents or in any other
manner arising or existing, and any payment by a Borrower or other distribution
of property of a Borrower to the other Borrowers in payment of any indebtedness,
liabilities or obligations (the "INTERCOMPANY DEBT") prior to satisfaction or
payment in full of the Obligations, while the Loans or Commitments therefor are
outstanding, shall be received in trust by such Borrower and promptly turned
over to the Agent, provided, however, that so long as no Event of Default has
occurred or is continuing, repayment of loans and advances in accordance with
the terms hereof by any Borrower to any other Borrower shall not be prohibited
or postponed. Each Borrower will xxxx its books and records and cause any
promissory note or other instrument evidencing the Intercompany Debt to clearly
indicate that the Intercompany Debt is subordinated hereby to the Obligations.
Each Borrower will, upon demand of the Agent, cause any Intercompany Debt not
evidenced by a promissory note or other instrument to be so evidenced and, as
security for the Obligations, endorse with recourse such notes or instruments to
the Agent and otherwise assign to the Agent any and all Intercompany Debt and
any and all security therefor. In the event any receivership, insolvency,
bankruptcy, reorganization, arrangement, composition, readjustment or other
similar proceedings are commenced or instituted by or against a Borrower, the
Obligations shall be paid in full before any Borrower shall be entitled to
receive or retain any payment or distribution in respect to the Intercompany
Debt, and, in order to implement the foregoing, (a) all payments and
distributions of any kind or character, whether in cash, property or securities
in respect of the Intercompany Debt to which a Borrower would be entitled shall
be made directly to the Agent, (b) each Borrower shall promptly file a claim or
claims, in the form required in such proceedings, for the full outstanding
amount of the Intercompany Debt, and shall use its best efforts to cause such
claim or claims to be approved and all payments and other distributions in
respect
80
thereof to be made directly to the Agent, and (c) each Borrower hereby
irrevocably agrees that the Agent may, in its sole discretion, in the name of
such Borrower or otherwise, demand, xxx for, collect, receive and receipt for
any and all such payments or distributions, and file, prove, and vote or consent
in any such proceedings with respect to, any and all claims of such Borrower
relating to the Intercompany Debt. The Borrowers will not, without the prior
written consent of the Agent, which consent shall not be unreasonably withheld
or delayed: (a) cancel, waive, forgive, transfer or assign, or subordinate any
Intercompany Debt, or security therefor, to any indebtedness other than the
Obligations; (b) attempt to accelerate, enforce or collect any Intercompany
Debt; (c) take any security for any Intercompany Debt; (d) convert any
Intercompany Debt into stock of a Borrower; or (e) commence, or join with any
other creditor in commencing, any bankruptcy, reorganization or insolvency
proceedings with respect to a Borrower.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
BORROWERS:
CONTINENTAL WASTE INDUSTRIES,
INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
Address: 00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
81
XXXXXX BROTHERS, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
XXXXXX BROTHERS WASTE, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
BERRIEN COUNTY LANDFILL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
82
BLUEGRASS RECYCLING & TRANSFER
COMPANY
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
COMMERCIAL WASTE DISPOSAL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
83
XXXXXXXXX WASTE, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
CWI OF ILLINOIS, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
CWI OF MISSOURI, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
84
CWI VENTURE, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
FLL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
85
G.E.M. ENVIRONMENTAL MANAGEMENT
INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
GILA BEND REGIONAL LANDFILL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
86
GREENFIELD ENVIRONMENTAL DEVELOPMENT
CORP.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
JAMAX CORPORATION
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
87
KARAT CORP.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
MIDWEST MATERIAL MANAGEMENT, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
00
XXXXXXXXX XXXXXXXXX DISPOSAL
CORPORATION
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
XXXXXXXX LANDFILL CORPORATION
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
89
XXXXX HOLLOW LANDFILL CORP.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
SANIFILL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
90
SOUTHERN ILLINOIS REGIONAL
LANDFILL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
SOUTH TRANS, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
91
SPRINGFIELD ENVIRONMENTAL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
SPRINGFIELD ENVIRONMENTAL, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
TRIPLE G LANDFILLS, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
92
UNITED REFUSE CO., INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
VICTORY ENVIRONMENTAL SERVICES,
INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
93
VICTORY WASTE INCORPORATED
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
WPP CONTINENTAL DE COSTA RICA S.A.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
WPP SERVICES, INC.
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: c/o Continental Waste
Industries, Inc.
00 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
000-000-0000
94
AGENT:
LASALLE NATIONAL BANK, as Agent
By:/s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
------------------------
Telex:
----------------------------
Telecopy: 000-000-0000
-------------------------
LENDERS:
Address and Amount
of Commitment:
LASALLE NATIONAL BANK
000 Xxxxx XxXxxxx Xxxxxx By:/s/ Xxxx Xxxxxx
----------------------
Xxxxxxx, Xxxxxxxx 00000 Name: Xxxx Xxxxxx
Title: First Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Lending Offices: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Prime Rate Loan: -------------------------
-------------------------
-------------------------
LIBOR Loans: -------------------------
-------------------------
-------------------------
Amount of Commitment: $______________
95
CREDIT AGREEMENT
EXHIBIT A
REVOLVING NOTE
$__________ _________, 1995
Continental Waste Industries, Inc., a Delaware corporation, together with
its Subsidiaries, which currently consist of Xxxxxx Brothers, Inc., a Tennessee
corporation, Xxxxxx Brothers Waste, Inc., a Tennessee corporation, Berrien
County Landfill, Inc., Michigan corporation, Bluegrass Recycling & Transfer
Company, a Kentucky corporation, Commercial Waste Disposal, Inc., a Kentucky
corporation, Xxxxxxxxx Waste, Inc. a Tennessee corporation, CWI of Illinois,
Inc., an Illinois corporation, CWI of Missouri, Inc., a Missouri corporation,
CWI Venture, Inc., a New Jersey corporation, FLL, Inc., a Michigan corporation,
G.E.M. Environmental Management Inc., a Delaware corporation, Gila Bend Regional
Landfill, Inc., an Arizona corporation, Greenfield Environmental Development
Corp., a Delaware corporation, Jamax Corporation, an Indiana corporation, Karat
Corp., a New Jersey corporation, Midwest Material Management, Inc., an Indiana
corporation, Northwest Tennessee Disposal Corporation, a Tennessee corporation,
Prichard Landfill Corporation, a West Virginia corporation, Xxxxx Hollow
Landfill Corp., a West Virginia corporation, Sanifill, Inc., a Tennessee
corporation, Southern Illinois Regional Landfill, Inc., an Illinois corporation,
South Trans, Inc., a New Jersey corporation, Springfield Environmental, Inc., a
Delaware corporation, Springfield Environmental, Inc., an Indiana corporation,
Triple G Landfills, Inc., an Indiana corporation, United Refuse Co., Inc., an
Indiana corporation, Victory Environmental Services, Inc., a Delaware
corporation, Victory Waste Incorporated, a California corporation, WPP
Continental de Costa Rica S.A., a Costa Rican corporation, and WPP Services,
Inc., an Ohio corporation (individually, any of said corporations may be
referred to herein as a "MAKER," and collectively are sometimes referred to as
the "MAKERS"), for value received, hereby jointly and severally promise to pay
to the order of LaSalle National Bank (the "BANK"), on the Expiration Date (as
defined in the Credit Agreement), the principal sum of
__________________________ ($__________), or, if less, the aggregate unpaid
principal amount of all Revolving Loans made to the Makers by the Bank pursuant
to the Credit Agreement referenced below. This Note shall bear interest
(computed on the basis of a 360 day year) on any and all principal amounts
remaining unpaid
hereunder from time to time, from the date hereof until maturity, at a
fluctuating interest rate per annum determined in accordance with
Section 3 of the Credit Agreement. Interest hereunder shall be payable in
arrears at the times set forth at Section 3 of the Credit Agreement. Any amount
of interest or principal hereof which is not paid when due, whether at maturity,
by acceleration or otherwise, shall bear interest payable on demand at a
fluctuating annual interest rate equal at all times to the applicable Default
Rate. If, at any time, the applicable interest rate hereunder is deemed by any
competent court of law, governmental agency, board, commission or tribunal, to
exceed the maximum rate of interest permitted by applicable law, then, for such
time as the applicable interest rate hereunder would be deemed excessive, such
interest rate shall be suspended and this Note shall bear interest at the
maximum rate permissible under such applicable law, but thereafter, the former
applicable interest rate hereunder shall be reinstated.
This Note may be prepaid in whole or in part at any time or from time to
time in accordance with the terms of the Credit Agreement. All payments
hereunder shall be applied first to interest on the unpaid balance at the rate
herein specified or referred to and then to principal. All payments of
principal and interest on this Note shall be payable in lawful money of the
United States of America at the offices of LaSalle National Bank located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
holder of this Note may designate in writing to the undersigned. Except as
otherwise set forth in the Credit Agreement, if any payment of principal or
interest hereunder shall become due on a Saturday, Sunday or business holiday
under the laws of the State of Illinois or the United States of America, such
payments shall be made on the next succeeding business day and such extension
shall be included in computing any interest in respect of such payment.
This Note is the or one of the Revolving Notes referred to in, and
evidences certain indebtedness incurred by the Makers to the Bank under, that
certain Credit Agreement dated __________, 1995, among the Bank, LaSalle
National Bank as Agent, and the Makers (together with any amendments,
extensions, modifications, renewals, restatements and substitutions thereof and
therefor, being referred to herein, collectively, as the "CREDIT AGREEMENT"),
to which reference is hereby made for a statement of the terms and conditions
under which the due date of this Note or any payment
-2-
thereon may be accelerated. The holder of this Note is entitled to all of the
benefits and security provided in said Credit Agreement, and the Loan Documents
referred to therein. The Makers jointly and severally agree to pay all costs of
collection and all reasonable attorneys' fees paid or incurred in enforcing any
of the Bank's rights hereunder, under the Credit Agreement, or under any Loan
Documents referred to therein promptly on demand of the Bank.
The principal amount of this Note evidences the maximum aggregate
principal amount of all Revolving Loans available to the Makers from the Bank
pursuant to the Credit Agreement. Notwithstanding the stated principal amount
of this Note, the Makers' liability hereunder at any time hereafter shall be
limited to the aggregate of the then unpaid principal amount of all Revolving
Loans made by the Bank to or for the account of the Makers pursuant to the
Credit Agreement, together with accrued interest thereon, and all other costs
and expenses as provided in the Credit Agreement. In determining the Makers'
liability to the Bank hereunder, the books and records of the Bank shall
establish a rebuttable presumption of such liability.
EXCEPT TO THE EXTENT PROVIDED IN THE CREDIT AGREEMENT, THE MAKERS HEREBY
WAIVE DEMAND, PRESENTMENT, PROTEST, NOTICE OF PROTEST, NOTICE OF DISHONOR OR
DEFAULT AND ANY OTHER NOTICE OR DEMAND OF WHATSOEVER KIND OR NATURE IN
CONNECTION WITH THIS NOTE AND THE LOANS EVIDENCED HEREBY. THE MAKERS HEREBY
CONSENT TO THE JURISDICTION OF ANY FEDERAL, STATE OR LOCAL COURT LOCATED WITHIN
XXXX COUNTY, ILLINOIS AND WAIVE ANY RIGHT TO TRIAL BY JURY AND ANY OBJECTION TO
VENUE WITH RESPECT TO ANY ACTION INSTITUTED HEREUNDER OR UNDER THE CREDIT
AGREEMENT. THE MAKERS HEREBY FURTHER WAIVE PERSONAL SERVICE OF ANY PROCESS OR
PAPERS TO BE SERVED IN ANY SUCH ACTION AND AGREE THAT ANY SUCH SERVICE MAY BE
MADE BY MAILING SUCH PROCESS OR PAPERS, POSTAGE PREPAID AND ADDRESSED TO BOTH
THE MAKERS AT THE ADDRESS SET FORTH BELOW AND TO THE MAKERS' REGISTERED AGENTS,
BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN WHICH CASE SUCH
PROCESS OR PAPERS SHALL BE DEEMED RECEIVED FIVE (5) DAYS THEREAFTER, OR BY
OVERNIGHT MAIL OR EXPRESS DELIVERY SERVICE, IN WHICH CASE SUCH PROCESS OR PAPERS
SHALL BE DEEMED RECEIVED ONE (1) DAY THEREAFTER.
-3-
MAKERS:
CONTINENTAL WASTE INDUSTRIES,
INC., a Delaware corporation
MAILING ADDRESS:
00 Xxxxxx Xxxxxx By:__________________________
Xxxxx 000 Xxxx:________________________
Xxxxx, XX 00000 Title:_______________________
XXXXXX BROTHERS, INC.,
a Tennessee corporation
c/o Continental Waste By:_________________________
Industries Inc. Name:_______________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Xxx: _______________________
Xxxxx, XX 00000
XXXXXX BROTHERS WASTE, INC.,
a Tennessee corporation
c/o Continental Waste By:_________________________
Industries Inc. Name:_______________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:________________________
Xxxxx, XX 00000
-4-
MAILING ADDRESS:
BERRIEN COUNTY LANDFILL, INC.,
a Michigan corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
BLUEGRASS RECYCLING & TRANSFER
COMPANY, a Kentucky corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
COMMERCIAL WASTE DISPOSAL, INC.,
a Kentucky corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
XXXXXXXXX WASTE INC., a Tennessee
corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
CWI OF ILLINOIS, INC.,
an Illinois corporation
-5-
MAILING ADDRESS:
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
CWI OF MISSOURI, INC.,
a Missouri corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
CWI VENTURE, INC.,
a New Jersey corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
FLL, INC.,
a Michigan corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
G.E.M. ENVIRONMENTAL MANAGEMENT INC.,
a Delaware corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
-6-
MAILING ADDRESS:
GILA BEND REGIONAL LANDFILL,
INC.,an Arizona corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
GREENFIELD ENVIRONMENTAL
DEVELOPMENT CORP.,
a Delaware corporation
c/o Continental Waste By:___________________________
Industries Inc. Name__________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
JAMAX CORPORATION, an Indiana
corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
KARAT CORP., a New Jersey
corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
MIDWEST MATERIAL MANAGEMENT,
INC., an Indiana corporation
-7-
MAILING ADDRESS:
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07060
NORTHWEST TENNESSEE DISPOSAL
CORPORATION, a Tennessee corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
PRICHARD LANDFILL CORPORATION,
a West Virginia corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
SANIFILL, INC., a Tennessee
corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
-8-
MAILING ADDRESS:
XXXXX HOLLOW LANDFILL CORP.,
a West Virginia corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07066
SOUTHERN ILLINOIS REGIONAL LANDFILL,
INC., an Illinois corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07066
SOUTH TRANS, INC.,
a New Jersey corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07066
SPRINGFIELD ENVIRONMENTAL, INC.,
a Delaware corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
-9-
MAILING ADDRESS:
SPRINGFIELD ENVIRONMENTAL, INC.,
an Indiana corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
TRIPLE G LANDFILLS, INC.,
an Indiana corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07066
UNITED REFUSE CO., INC.,
an Indiana corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Clark, NJ 07066
VICTORY ENVIRONMENTAL SERVICES,
INC., a Delaware corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
-10-
MAILING ADDRESS:
VICTORY WASTE INCORPORATED,
a California corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
WPP CONTINENTAL de COSTA RICA
S.A., a Costa Rican corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
WPP SERVICES, INC.,
an Ohio corporation
c/o Continental Waste By:___________________________
Industries Inc. Name:_________________________
00 Xxxxxx Xxxxxx, Xxxxx 000 Its:__________________________
Xxxxx, XX 00000
-11-
EXHIBIT B
LaSalle National Bank
-----------------------------------------------------------------------------
International Banking LASALLE BANKS
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
Date ---------------
APPLICATION FOR STANDBY Applicant's Phone # ---------------
LETTER OF CREDIT Contact Person ---------------
L/C No. ---------------
(For Bank Use Only)
=============================================================================
Please issue an Irrevocable Standby Letter of Credit substantially as set
forth below:
=============================================================================
Advising Bank, if any Applicant (name and address)
-----------------------------------------------------------------------------
Beneficiary (name and address) Amount (USD unless otherwise indicated)
---------------------------------------
Expiry date
--------------------------------------
Presentation for Payment: Drafts must
be drawn and presented with accompanying
documentation at your principal Chicago
office on or before the expiry date,
unless otherwise indicated below.
-----------------------------------------------------------------------------
Deliver the L/C to Beneficiary by: [ ]Mail [ ]Cable [ ]Other ___________
-----------------------------------------------------------------------------
Available by draft(s) at sight drawn on LaSalle National Bank, Chicago,
Illinois, accompanied by the following document(s):
Beneficiary's signed statement reading that "________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Other Instructions (if any)__________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
/ /Attachments (NOTE: All attachments must also be signed.)
-----------------------------------------------------------------------------
All draft(s) must be marked as drawn under this CREDIT. The original Letter
of Credit must be presented for endorsement at the time of
negotiation/payment.
Partial drawings are [ ] permitted [ ] prohibited
------------------------------------------------------------------------------
Charge our account for all Your correspondents' charges, if any,
payments and fees under this are for
L/C, unless otherwise indicated.
Account No._____________________ [ ]Our account. [ ]Beneficiary's account.
===============================================================================
PLEASE DATE AND OFFICIALLY SIGN THE AGREEMENT ON PAGE 3 OF THIS APPLICATION.
STANDBY LETTER OF CREDIT AGREEMENT
In consideration of LaSalle National Bank, Chicago, Illinois issuing an
irrevocable Standby Letter of Credit ("Credit") substantially according to
the Application appearing on the reverse side hereof ("Application"), we
jointly and severally agree as follows:
1. ISSUER'S GENERAL OBLIGATIONS. Upon your issuance of a Credit, your
obligations to us relative to the Credit include good faith and observance of
general banking usage, but do not include liability or responsibility of any
kind arising out of or in connection with: (a) performance of the underlying
contract or other transactions between us and the beneficiary; (b) acts,
errors, neglects, defaults, or omissions of any person other than you;
(c) loss or destruction of any telegram, cable, letter, instrument, or
document while in transit or in the possession of others; (d) knowledge or
lack of knowledge of any custom or usage of any particular trade;
(e) transmission, delivery, translation, or interpretation of any message
including any interruption, delay, error or omission therein;
(f) insufficiency, lack of authorization, invalidity of, lack of genuineness,
truthfulness or error or fraud in any documents presented under the Credit or
in any instructions purporting to be ours or your correspondent's and
pertaining to the Credit; (g) validity or correctness of any transfer or
proper identity of any transferee (if the Credit is issued in transferable
form); (h) payment in accordance with cable or other advice of negotiation or
payment, where it develops that the terms of the Credit were not complied with
or the documents failed to arrive; (i) waiver of any requirement which exists
for your protection and not ours, or which waiver does not in fact materially
prejudice us; or (j) any other act or omission for which banks are relieved
of responsibility under the "Uniform Customs & Practice for Documentary
Credits of the International Chamber of Commerce" as adopted from time to
time (hereafter "Revised Customs").
2. ISSUER'S OBLIGATIONS CONCERNING DOCUMENTS.
(a) Your obligations to us relative to the Credit include your
examination of documents with care so as to ascertain that on their face they
appear to comply with the terms of the Credit, but do not include liability
or responsibility of any kind arising out of or in connection with:
(i) genuineness or effect of documents which appear on your examination to be
regular on their face; (ii) honor of drafts or demands for payment which
appear on your examination to be regular on their face; or (iii) the ultimate
correctness of your decision regarding documentary compliance, where your
decision is based on your examination of the documents, or your exercise of
judgment, in a manner not manifestly unreasonable. You may accept documents
which substantially or reasonably comply with the terms of the Credit.
(b) Unless otherwise specified in the Application, you may in your
discretion accept or honor as complying with the Credit; (i) drafts or
documents signed by or issued to the purported executor, administrator,
trustee in bankruptcy, or other legal representative of any party designated
in the Credit; (ii) drafts which fail to bear any or adequate reference to
the Credit, or notation to be made on the Credit, or which comply under the
laws, rule, regulations, and general banking or trade customs and usages of
the place of drawing, negotiation or presentation; or (iv) drafts or
documents which comply with the Revised Customs.
3. PAYMENT; COMMISSIONS.
(a) We will pay you in United States currency and in immediately
available and freely transferable funds at your main office, the amount of
each draft drawn under or purporting to be drawn under the Credit together
with all other amounts owing to you in connection therewith, such payment to
be made at the time of negotiation of each respective draft or if so demanded
by you, on demand in advance of any drawing. In the case of drafts in foreign
currency, such payments shall be at the current rate of exchange for cable
transfers to the place of payment in the currency in which such draft is
drawn (or, if for any reason you are unable to establish such a rate of
exchange, in an amount equal to your actual cost of settlement); but in any
case, we may offer and you may, at your option, accept as a means of payment
first class banker's bills of exchange, in the amount and currency of the
draft, bearing our endorsement.
(b) We will pay on demand, in United States currency at your office:
(i) a commission with respect to the Credit at such rate as you may
reasonably deem to be proper; (ii) interest at a rate equal to _____% per
annum on amounts paid by you or any other drawee under any draft or other
order, instrument or demand drawn or presented under the Credit or this
Agreement from the date of such payment until you receive our reimbursement.
In the event no interest rate is inserted at the time we signed this
Agreement, interest shall accrue on all amounts paid by you or any drawee
under any draft or other order, or instrument or demand drawn or presented
under the Credit or this Agreement at your Prime Rate plus 2% per annum.
"Prime Rate" shall mean the rate in effect from time to time as set by you
and called your Prime Rate. Interest shall be calculated on the basis of a
360-day year and paid for actual days elapsed; and (iii) all charges and
expenses, including reasonable attorneys' fees, legal expenses, court costs,
and any reserve, insurance, or similar costs paid or incurred by you in
connection with your issuing of the Credit, your performing under the Credit
and this Agreement and all transactions related to or contemplated by this
Agreement (including without limitation your creating, perfecting,
exercising, enforcing or otherwise realizing upon your interest, rights, and
remedies).
4. GRANT OF SECURITY INTEREST: OBLIGATIONS OF CUSTOMER. We hereby grant
to you as security for all of our obligations to you, whether absolute or
contingent, due or to become due, now or hereafter arising from this or any
other agreement we may have with you, a security interest in all of the
following (the "Collateral"), all property belonging to any of us (including
deposit accounts and other credits), merchandise, and documents, of any
nature, now or hereafter in your actual or constructive possession or that of
your correspondents or in transit to you or your correspondents from or for
us in any manner whatsoever, whether expressly as security or otherwise, and
all proceeds of all the foregoing. You shall have all of the rights of a
secured party under the Uniform Commercial Code in the aforesaid property and
proceeds, and in addition all of the rights specified in this Agreement,
including the right to apply any of the Collateral to any of our obligations
to you at any time, without notice to us, in any order, and amount you may
determine. We will execute any financing statements, trust receipts, or other
documents you may request in order to perfect, maintain, protect, enforce, or
realize on your security interest in the Collateral. Upon request by you,
we will deposit with you such additional security for our liabilities to you
as you may in good xxxxx xxxx necessary for your protection.
5. ASSUMPTION OF RISK BY CUSTOMER; CUSTOMER'S INDEMNIFICATION OF
ISSUER; SUBROGATION.
(a) The beneficiary or any other user of the Credit and any other
drawer of any draft shall be deemed our agents, and we assume at risk, loss,
liability, charges, and expenses with respect to their acts or omissions and
also with respect to any error, delay, misdelivery, or loss in or arising out
of the transmission of telegrams, cables, letters, or other communications or
documents or items forwarded in connection with the drafts or the Credit. We
shall not be relieved from any obligation or liability, nor shall the terms
of this Agreement be affected by the occurrence of any of the foregoing. Any
action or inaction by you or your correspondents in connection with the
Credit or with instructions or drafts, documents, or merchandise relative to
the Credit, shall, if in good faith, conclusively be deemed to have been
authorized by us, and you shall have no liability therefor.
(b) We will indemnify you and your correspondents and defend and hold
you and them harmless from and against any and all loss, costs, expenses
(including reasonable attorneys' fees), suits, and liabilities, of any nature
whatever, sustained or incurred or asserted in connection with the Credit,
the payment or acceptance or refusal to pay or accept any draft, and any
other action or inaction in reliance upon the provisions of this Agreement.
(c) Whenever appropriate to prevent unjust enrichment and to the end
that we shall bear substantially all of the risks relative to the Credit and
the underlying transactions, you shall be subrogated (for purposes of
defending against our claims and proceeding against others to the extent of
your liability to us) to our rights against any person who may be liable to
us on any underlying transaction; to the rights of any holder in due course
or person with similar status against us; and to the rights of the
beneficiary or his assignee or person with similar status against us.
6. DEFAULT; REMEDIES.
(a) We will be in default under this Agreement upon the occurrence of
any of the following: (i) any failure to perform any of our obligations or
undertakings under this Agreement or any other agreement with you or
instrument delivered to you, including without limitation our obligation
promptly to pay all sums due you; (ii) any failure to furnish you upon demand
additional security satisfactory to you; (iii) any act or event evidencing or
reasonably appearing to evidence our insolvency or financial instability;
(iv) any failure to furnish upon demand any financial information you may
request of us or to permit at a reasonable time your inspection of our books,
records, and accounts; (v) any material misrepresentation made by us in
connection with the Credit; or (vi) any other act, event or occurrence which
in your sole judgment impairs your security or increases your risk.
(b) Upon default, all of our liabilities to you, of whatever nature,
whether contingent or absolute, shall become immediately due and payable
without notice or demand, and you shall have all the rights and remedies of a
secured party under the Uniform Commercial Code.
7. WAIVER BY ISSUER; ACTS NOT AFFECTING AGREEMENT. You shall have no
duty to exercise any of your rights hereunder, and you shall not be liable
for any failure to do so or delay in doing so. No such failure or delay on
the part of you or your correspondents shall operate as a waiver, and no
notice to or demand upon us by you or your correspondents shall be deemed a
waiver of your right to take any other or further action without notice or
demand. Your rights and liens and our obligations and liabilities under this
Agreement shall continue unimpaired and this Agreement shall remain binding
upon us, notwithstanding (a) release or substitution of any Collateral or any
right or interest therein; (b) extension of the maturity or time for
presentation of drafts or documents; (c) any other modification of the terms
of the Credit at the request of any of us, with or without notification to
the others or; (d) any increase in the amount of the Credit at our request.
No delay, extension of time, renewal, compromise, or other indulgence which
you may permit in connection with any of your rights hereunder shall impair
those rights, and you shall not be deemed to have waived any of those rights
unless such waiver is in writing and signed by you or your authorized agent;
nor shall any such waiver constitute a waiver of any other right or of the
same right at any future time.
8. SOLE OBLIGATION OF BANK. Without limiting any other provision
herein, you are hereby expressly authorized and directed to honor any request
for payment which is made under and in compliance with the terms of said
Credit without regard to, and without any duty on your part to inquire into,
the existence of any disputes or controversies between any of the
undersigned, the beneficiary of the Credit or any other person, firm or
corporation, or the respective rights, duties or liabilities of any of them
or whether any facts or occurrences represented in any of the documents
presented under the Credit are true or correct. Furthermore, we fully
understand and agree that your sole obligation to us shall be limited to
honoring requests for payment made under and in compliance with the terms of
the Credit and the Application and your obligation remains so limited even if
you may have assisted us in the preparation of the wording of the Credit or
any documents required to be presented thereunder or that you may otherwise
be aware of the underlying transaction giving rise to the Credit and this
application.
9. DURATION OF AGREEMENT; AGREEMENT BINDING UPON SUCCESSORS; INDEMNITY.
This Agreement shall remain in full force and effect as to each and every
transaction between you and us until you shall actually have received written
notice to the contrary from us, and after receipt of such written notice
shall continue in full force and effect as to all transactions between you
and us prior to the date of such receipt. This Agreement shall not be revoked
or impaired by the death of any party hereto, by the revocation or release of
any obligations hereunder of any one or more parties hereto, or (if any party
hereto shall be a partnership) by any changes in the individuals composing
the partnership. If this Agreement is terminated or revoked as to any of us
for any reason, we will indemnify and save you harmless from any loss which
you may incur in acting hereunder prior to your receipt of written notice of
such termination or revocation. If this Agreement is signed by one party, the
terms "we", "our", "us", shall be read throughout as "I, "my", "me", as the
case may be. If this Agreement is signed by two or more parties, it shall
constitute the joint and several agreement of such parties.
10. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the law of Illinois applicable to contracts made and to be
wholly performed within Illinois. Except as otherwise expressly provided
herein, the Revised Customs shall be binding upon this Agreement and upon the
Credit, and in the absence of proof expressly to the contrary shall serve as
evidence of general banking usage.
------------------------------------ ---------------------------------------
Date Firm Name
By ------------------------------------
Official Signature
---------------------------------------
Xxxxxx Xxxxxxx
---------------------------------------
Xxxx, Xxxxxx, Xxxxx
FOR BANK USE ONLY
L/C # Amount $ Date
_________________ ______________________ _________________
Xxxxxxxx Xxxxxx # Xxxx # 00
______________ ______________________ _______________
New Commercial Borrower //Yes //No Participation Sold //Yes //No
Customer account # ___________________ Name of Bank ______________________
Officer I.D. _________________________
New L/C Customer //Yes //No Amount or % Sold __________________
Collateral Code ____ _________________ DDA Account # _____________________
Collateral Teller
BORROWER'S TOTAL DEBT (includes subject request)
Direct Indirect (Guaranties)
Amount Name Amount
Line of Credit Limit .....$ ________ ___________________________ $ ________
Letters of Credit ........$ ________ ___________________________ $ ________
This Credit ..............$ ________ ___________________________ $ ________
Pending ..................$ ________ ___________________________ $ ________
Total ....................$ ________ ___________________________ $ ________
Acceptances ..............$ ________ ___________________________ $ ________
Commercial Loans ......... ________ ___________________________ ________
Mortgage Loans ........... ________ ___________________________ ________
Personal Loans ........... ________ ___________________________ ________
Other .................... ________ ___________________________ ________
___________________________ ________
BORROWER'S TOTAL DIRECT AND INDIRECT LIABILITIES: $ _________________________
WARRANTOR: _____________________________ Customer No. ________________________
WARRANTOR'S TOTAL DIRECT AND INDIRECT LIABILITIES: $ _________________________
------------------------------------------------------------------------------
PLAN COMMITTEE APPROVAL/REVIEW DATE: _____________________ (when required)
APPROVED BY: _____________________ Account Officer
_____________________ Division Head
_____________________ Group Head
_____________________ Control Administrator
Commission Fee:
__________% per annum on a 360-day basis
for actual days. Xxxx/debit
customer's account (please
specify).
EXHIBIT C
STOCK PLEDGE AND SECURITY AGREEMENT
THIS STOCK PLEDGE AND SECURITY AGREEMENT (this "PLEDGE AGREEMENT"),
dated as of March 28, 1995, by Continental Waste Industries, Inc., a Delaware
corporation, CWI Ventures, Inc., a New Jersey corporation, WPP Services, Inc. an
Ohio corporation, FLL Inc., a Michigan corporation, Karat Corp., a New Jersey
corporation, Victory Waste Incorporated, a California corporation, G.E.M.
Environmental Management Inc., a Delaware corporation, and Greenfield
Environmental Development Corp., a Delaware corporation (collectively, the
"PLEDGORS"), in favor of LaSalle National Bank (the "AGENT"), as Agent for
the Lenders party to the Credit Agreement defined below.
W I T N E S S E T H :
WHEREAS, the Pledgors own all of the issued and outstanding shares of the
capital stock of the corporations identified on SCHEDULE I attached hereto
opposite their names and those corporations from time to time hereafter acquired
or formed by Pledgors, the Shares of which are required to be pledged to the
Agent for its benefit and the ratable benefit of the Lenders pursuant to Section
6.A.3 and 8.A.13 of the Agreement, as identified by execution of the Addendum
attached hereto as SCHEDULE II (hereinafter referred to individually as a
"PLEDGED SUBSIDIARY" and collectively as the "PLEDGED SUBSIDIARIES");
WHEREAS, the Pledgors, the Agent and the Lenders are, simultaneously
herewith, entering into that certain Credit Agreement, of even date herewith (as
at any time amended, modified, supplemented, extended, renewed or restated, the
"AGREEMENT"), pursuant to which the Lenders have agreed to make the Loans and
extend financial accommodations to the Borrowers provided under the Agreement;
and
WHEREAS, as a condition of making the Loans and extending financial
accommodations under the Agreement and as security for the Obligations to the
Lenders under the Agreement, the Lenders are requiring that Pledgors execute and
deliver this Pledge Agreement in order to secure said Obligations, and that the
Pledged Subsidiaries execute this Pledge Agreement for the purposes set forth in
Section 8(g) below.
NOW, THEREFORE, in order to induce the Lenders to make the Loans and
extend financial accommodations under the Agreement and in consideration of the
benefits to be derived by the Pledgors from the Loans and financial
accommodations, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Agreement are used herein as therein defined, and the following shall have
(unless otherwise provided elsewhere in this Pledge Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"BANKRUPTCY CODE" shall mean Xxxxx 00, Xxxxxx Xxxxxx Code, as amended
from time to time, and any successor statute thereto.
"PERMITS" shall have the meaning assigned to such term in the Security
Agreement referred to in the Agreement.
"PLEDGE AGREEMENT" shall mean this Stock Pledge and Security Agreement,
including all amendments, modifications and supplements and any exhibits or
schedules to any of the foregoing, and shall refer to the Agreement as the same
may be in effect at the time such reference becomes operative.
"PLEDGED COLLATERAL" shall have the meaning assigned to such term in
Section 2 hereof.
"SECURED OBLIGATIONS" shall have the meaning assigned to such term in
Section 3 hereof.
"TERMINATION DATE" shall mean the date on which all of the Secured
Obligations shall have been fully paid and satisfied and the Lenders shall not
have any obligation or commitment to make any Loans or extend any financial
accommodations under the Agreement.
2. PLEDGE AND SECURITY INTEREST. The Pledgors hereby pledge and
collaterally assign to the Agent and grant to the Agent, for its benefit and the
ratable benefit of the Lenders, a first priority continuing security interest in
all of the following (collectively, the "PLEDGED COLLATERAL"):
(a) together with all voting rights therefor, all of the shares of
common and preferred stock of the Pledged Subsidiaries
- 2 -
owned by Pledgors and all other shares of capital stock of the Pledged
Subsidiaries and any warrants, rights or options now or hereafter owned or
acquired in any manner by the Pledgors, whether as a stock dividend, as a result
of or in connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off, or otherwise acquired (collectively, the "PLEDGED
SHARES");
(b) the certificates representing the Pledged Shares, whether now or
hereafter existing;
(c) all payments, income, dividends (whether in cash, stock or
property), liquidating dividends, distributions, cash, instruments, securities
of any issuer (including, without limitation, any warrants, options or rights to
acquire any such securities), and other property or proceeds from time to time
received, receivable or otherwise distributed or to be distributed in respect of
or in exchange for any or all of the Pledged Shares;
(d) all rights, rights to payments, claims, causes of action and
interests (but no obligations or liabilities) of Pledgors as against any Person
arising or granted to Pledgors with respect to the Pledged Shares, together with
all collateral and other security (including, without limitation, security
agreements, pledge agreements, guaranties, letters of credit and deposits) which
may now or hereafter secure any of the foregoing.
3. SECURITY FOR SECURED OBLIGATIONS. This Pledge Agreement secures,
and the Pledged Collateral is security for the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise, and performance of the
Obligations, whether for principal, premium, interest, fees, costs or expenses
(including, without limitation, all attorneys' fees and expenses of collection),
and whether now or hereafter existing, arising or incurred under or in
connection with the Agreement and any Loan Documents (as at any time amended,
modified, supplemented, extended, renewed or restated) referred to in the
Agreement, together with all obligations and liabilities of the Pledgors under
this Pledge Agreement (collectively, the "SECURED OBLIGATIONS").
4. DELIVERY OF PLEDGED SHARES. All certificates or instruments
representing or evidencing the Pledged Shares are
- 3 -
correctly described on SCHEDULE I and, when executed, SCHEDULE II, attached
hereto, and shall be delivered to and held by the Agent pursuant hereto. All
such certificates shall be accompanied by duly executed instruments of transfer
or assignment in blank and all such instruments or notes shall be endorsed by
Pledgor to the Agent with recourse, all in form and substance satisfactory to
the Agent. The Agent shall have the right, subject to the provisions of Section
8 hereof and subject to the requirements of any applicable regulatory
authorities, at any time in its discretion and without notice to the Pledgors,
to transfer to or to register in the name of the Agent or any of its nominees,
any or all of the Pledged Shares. In addition, the Agent shall have the right
at any time to exchange certificates or instruments, representing or evidencing
the Pledged Shares for certificates or instruments of smaller or larger
denominations.
5. REPRESENTATIONS AND WARRANTIES. The Pledgors represent and
warrant to the Agent and the Lenders with respect to the Pledged Collateral
that:
(a) Each Pledgor is, and at the time of delivery of the Pledged Shares
to the Agent pursuant to Section 4 hereof will be, the sole holder of record and
title and the sole beneficial owner of the Pledged Shares described on SCHEDULE
I opposite its name, and, when executed, SCHEDULE II, attached hereto, free
and clear of any Lien thereon, except for the Lien created by this Pledge
Agreement.
(b) Except for (i) the Shares of WPP Continental de Costa Rica S.A.
which represent 85% of the issued and outstanding shares of the capital stock of
WPP Continental de Costa Rica S.A., (ii) the Shares of Xxxxxxxx Landfill
Corporation which represent 66 2/3% of the outstanding capital stock of Xxxxxxxx
Landfill Corporation, (iii) the Shares of Victory Waste Incorporated which
represent 96% of the issued and outstanding shares of common stock and 19% of
the issued and outstanding shares of Series A-1 Preferred Stock of Victory Waste
Incorporated, and (iv) the Shares of G.E.M. Environmental Management Inc. which
represent 83% of the issued and outstanding common stock of G.E.M. Environmental
Management Inc., the Pledged Shares constitute and represent all of the issued
and outstanding shares of each class of the capital stock of the Pledged
Subsidiaries. All of the Pledged Shares have been duly
- 4 -
authorized and validly issued and are fully paid and non-assessable.
(c) The Pledgors have full power, right and authority to enter into this
Pledge Agreement and to pledge, assign, transfer, deliver, deposit and set over
the Pledged Collateral to the Agent as provided herein.
(d) None of the Pledged Shares of the Pledgors either have been issued
or transferred in violation of any federal or state securities registration,
securities transfer, securities disclosure or similar laws, rules or regulations
of any jurisdiction to which such issuance or transfer may be subject, or are
restricted by any restrictive agreement, stop transfer order or legend appearing
on the certificates therefor. The Pledgors' entry into this Pledge Agreement
and the grant to the Agent of the pledge and security interest hereunder do not
violate any of the foregoing.
(e) The authorized capital stock, par value per share, and numbers of
shares of stock issued and outstanding for each of the Pledged Subsidiaries are
as set forth on SCHEDULE I and, when executed, SCHEDULE II, attached hereto
and such shares are fully paid and nonassessable and are owned and held
beneficially and of record by the respective Pledgors. As of the date hereof,
there are no existing options, rights, warrants, calls or commitments of any
character whatsoever relating to any capital stock of the Pledged Subsidiaries.
(f) No consent, approval, authorization or other order of any Person and
no consent, authorization, approval, or other action by, and no notice to or
filing with, any governmental authority, regulatory body or other Person is
required either (i) for the pledge hereunder by the Pledgors of the Pledged
Collateral or for the execution, delivery or performance by the Pledgors of this
Pledge Agreement or (ii) for the exercise by the Agent of the voting or other
rights provided for in this Pledge Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Pledge Agreement except as may be required
in connection with any such sale, transfer or other disposition by laws
affecting the sale of securities generally.
(g) The pledge, assignment and delivery of the Pledged Shares pursuant
to this Pledge Agreement will create a valid first
- 5 -
priority lien on and a first priority perfected security interest in the Pledged
Shares securing the payment of the Secured Obligations.
(h) This Pledge Agreement and each of the other Loan Documents to which
any Pledgor is a party have been duly authorized, executed and delivered by the
Pledgors and constitute legal, valid and binding obligations of the Pledgors
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, or other similar laws affecting the
rights of creditors generally or by the application of general equitable
principles.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Pledge Agreement.
6. COVENANTS. The Pledgors covenant and agree that until the
Termination Date:
(a) The Pledgors will own, beneficially and of record, and maintain
exclusive control, subject to the Agent's rights hereunder, of all of the issued
and outstanding shares of capital stock of the Pledged Subsidiaries and any
warrants, rights or other options therefor and any securities convertible or
exercisable into any of the foregoing, free and clear of any Lien thereon,
except for the Lien created by this Pledge Agreement.
(b) The Pledgors will not sell, assign, transfer, pledge, or otherwise
encumber or xxxxx x Xxxx on any of its rights in or to any of the Pledged
Collateral, whether now or hereafter existing.
(c) The Pledgors will, at their expense, promptly execute, acknowledge
and deliver all such instruments and take all such action as the Agent from time
to time may reasonably request in order to ensure to the Agent and the Lenders
the benefits of the Lien in and to the Pledged Collateral intended to be created
by this Pledge Agreement, including the filing of any necessary Uniform
Commercial Code financing statements, which may be filed by the Agent with or
without the signature of the Pledgors.
(d) The Pledgors will defend the title to the Pledged Collateral and the
Liens of the Agent and the Lenders thereon, and
- 6 -
indemnify and hold harmless the Agent and the Lenders against any claim, right
or interest of any Person adverse to the Agent and Lenders and will maintain and
preserve the Liens of the Agent and the Lenders until the termination of this
Pledge Agreement.
(e) The Pledgors will, upon obtaining any additional Pledged
Subsidiaries, the Shares of which are required to be pledged to the Agent for
its benefit and the ratable benefit of the Lenders pursuant to Section 8.A.13 of
the Agreement, or any additional shares of the Pledged Subsidiaries, promptly
(and in any event within three (3) Business Days) deliver to the Agent a Pledge
Addendum, duly executed by the Pledgor, in substantially the form of SCHEDULE
II hereto (a "PLEDGE ADDENDUM"), in respect of the additional shares which
are to be pledged pursuant to this Pledge Agreement. The Pledgors hereby
authorize the Agent to attach each Pledge Addendum to this Pledge Agreement and
agree that all shares listed on any Pledge Addendum delivered to the Agent shall
for all purposes hereunder be considered respectively, part of the Pledged
Shares and part of the Pledged Collateral.
7. PLEDGORS' RIGHTS.
-----------------
(a) The Pledgors shall have the right, at all times and from time to
time, unless and until such Pledged Collateral is sold, assigned, transferred or
conveyed by the Agent in exercise of its rights hereunder after the occurrence
of an Event of Default, to vote and give consents with respect to the Pledged
Collateral or any part thereof for all purposes not inconsistent with the
provisions of this Pledge Agreement, the Agreement, and any other Loan Document;
PROVIDED, HOWEVER, that no vote shall be cast, and no consent shall be given
or action as a shareholder taken, which would have the effect of impairing the
position or interest of the Agent or Lenders in respect of the Pledged
Collateral or which would authorize or effect a violation or breach of the
Agreement or which would authorize or effect (except to the extent not in
violation of the Agreement), (i) the dissolution or liquidation, in whole or in
part, of any of the Pledged Subsidiaries, (ii) the consolidation or merger of
any of the Pledged Subsidiaries with any other Person, (iii) the sale,
disposition or encumbrance of all or substantially all of the assets of any of
the Pledged Subsidiaries, (iv) any change in the authorized number of shares,
the stated capital or the authorized share capital of any of the Pledged
Subsidiaries or the issuance of any additional shares of any of the
- 7 -
Pledged Subsidiaries' stock or (v) the alteration of the voting rights with
respect to the stock of any of the Pledged Subsidiaries.
(b) As long as no Event of Default shall have occurred and be
continuing, all dividends or distributions and all other payments or
distributions on or in respect of any of the Pledged Shares whenever paid or
made, shall be paid to Pledgors. Upon the occurrence of an Event of Default and
during the continuation of such Event of Default, all such dividends or
distributions, if received by the Pledgors, shall be received in trust for the
benefit of the Agent, shall be segregated from the other property or funds of
the Pledgors, and shall be forthwith delivered to the Agent, as Pledged
Collateral in the same form as so received (with any necessary endorsement).
8. DEFAULTS AND REMEDIES. (a) Upon the occurrence of an Event of
Default and during the continuation of such Event of Default, the Agent may, and
is hereby authorized and empowered to, transfer and register in its name or in
the name of its nominee the whole or any part of the Pledged Shares, collect and
receive all cash dividends and other distributions made thereon, and exercise
all conversion, exchange, subscription or other corporate rights, privileges or
options pertaining to the Pledged Shares, except to vote the Pledged Shares
which voting rights shall be retained by the Pledgors until sale, assignment,
transfer or disposition of the Pledged Stock by the Agent in exercise of its
rights hereunder; PROVIDED, HOWEVER, that, notwithstanding the foregoing,
the Agent has all right, power and authority to sell, transfer or otherwise
dispose of the right to vote the Pledged Shares to any transferee thereof. In
addition to the rights and remedies given to it under the Agreement and this
Stock Pledge Agreement, the Agent shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code as enacted in and then in effect
in Illinois. The Agent may also sell in one or more sales after ten (10) days'
notice of the time and place of any public sale or of the time after which a
private sale is to take place (which notice the Pledgors agree is commercially
reasonable), but without any previous notice or advertisement, the whole or any
part of the Pledged Collateral and to otherwise act with respect to the Pledged
Collateral as though the Agent was the outright owner thereof, the Pledgors
hereby irrevocably constituting and appointing the Agent as the proxy and
attorney-in-fact of the Pledgor, with full power
- 8 -
of substitution to do so; PROVIDED, HOWEVER, the Agent shall not have any duty
to exercise any such right or to preserve the same and shall not be liable for
any failure to do so or for any delay in doing so. Any sale shall be made at a
public or private sale at the Agent's place of business, or at any public
building in the City of Chicago or elsewhere to be named in the notice of sale,
either for cash or (without assuming any credit risk of the transferee or
thereby discharging the Secured Obligations to the extent of such purchase price
until paid in cash and reserving the right to resell the Collateral upon the
failure of said transferee to so pay the purchase price therefor) upon credit or
for future delivery at such price as the Agent may deem fair. The Agent may for
its own account be the purchaser of the whole or any part of the Pledged
Collateral so sold and, in lieu of paying any purchase price therefor, the Agent
may set off or apply the purchase price against the Secured Obligations. Each
purchaser, including the Agent, at any such sale shall hold the property sold
absolutely free from any claim or right of whatsoever kind, including any equity
or right of redemption of any of the Pledgors, and the Pledgors hereby
specifically waive and release all rights of redemption, stay or appraisal which
they have or may have under any rule or law or statute now existing or hereafter
adopted. Each sale shall be made to the highest bidder, but the Agent reserves
the right to reject any and all bids at such sale which, in its discretion, it
shall deem inadequate. Demands of performance, notices of sale, advertisements
and the presence of property at sale are hereby waived and any sale hereunder
may be conducted by an auctioneer or any officer or agent of the Agent.
(b) If, at the original time or times appointed for the sale of the
whole or any part of the Pledged Collateral, the highest bid, if there be but
one sale, shall be inadequate to discharge in full all the Secured Obligations,
or if the Pledged Collateral be offered for sale in lots, if at any of such
sales, the highest bid for the lot offered for sale would indicate to the Agent,
in its discretion, the unlikelihood of the proceeds of the sales of the whole of
the Pledged Collateral being sufficient to discharge all the Secured
Obligations, the Agent may, on one or more occasions and in its discretion,
postpone any of said sales by public announcement at the time of sale or the
time of previous postponement of sale, and no other notice of such postponement
or postponements or sale need be given, any other notice being hereby waived;
PROVIDED, HOWEVER, that any sale or sales made after such
- 9 -
postponement shall be after ten (10) days' prior written notice to Pledgors.
(c) In the event of any sales hereunder the Agent shall, after deducting
all reasonable costs or expenses of every kind, including reasonable fees and
disbursements of its attorneys (including in-house counsel who are employees of
the Agent) for care, safekeeping, collection, sale, delivery or otherwise, apply
the residue of the proceeds of the sales to the payment or reduction, either in
whole or in part, of the Secured Obligations in accordance with the agreements
and instruments governing and evidencing such obligations, returning the
surplus, if any, to Pledgors.
(d) If, at any time when the Agent shall determine to exercise its right
to sell the whole or any part of the Pledged Collateral hereunder, such Pledged
Collateral or the part thereof to be sold shall not, for any reason whatsoever,
be effectively registered under applicable state blue sky or federal securities
laws, the Agent may, in its discretion (subject only to applicable requirements
of law), sell such Pledged Collateral or part thereof by private sale in such
manner and under such circumstances as the Agent may deem necessary or
advisable, but subject to the other requirements of this Section 8, and shall
not be required to effect such registration or to cause the same to be effected.
Without limiting the generality of the foregoing, in any such event the Agent in
its discretion (x) may, in accordance with applicable securities laws, proceed
to make such private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be or shall
have been filed under said laws, (y) may approach and negotiate with a single
possible purchaser to effect such sale, and (z) may restrict such sale to a
purchaser who will represent and agree that such purchaser is purchasing for its
own account, for investment and not with a view to the distribution or sale of
such Pledged Collateral or part thereof. In addition to a private sale as
provided above in this Section 8, if any of the Pledged Collateral shall not be
freely distributable to the public without registration under applicable state
blue sky or federal securities laws at the time of any proposed sale pursuant to
this Section 8, then the Agent shall not be required to effect such registration
or cause the same to be effected but, in its discretion (subject only to
applicable requirements of law), may require that any sale hereunder
- 10 -
(including a sale at auction) be conducted subject to restrictions (i) as to the
financial sophistication and ability of any Person permitted to bid or purchase
at any such sale, (ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale, including
restrictions on future transfer thereof, (iii) as to the representations
required to be made by each Person bidding or purchasing at such sale relating
to that Person's access to financial information about Pledgors and such
Person's intentions as to the holding of the Pledged Collateral so sold for
investment, for its own account, and not with a view to the distribution
thereof, and (iv) as to such other matters as the Agent may, in its discretion
deem necessary or appropriate in order that such sale (notwithstanding any
failure so to register) may be effected in compliance with the UCC and other
laws affecting the enforcement of creditors' rights and all applicable insurance
and state blue sky and federal state securities laws.
(e) Notwithstanding the foregoing, the Pledgors agree that the Agent at
any time may effect any sale of Collateral hereunder by one or more private
sales thereof, including sales pursuant to subsection (d) above. The Pledgors
also acknowledge that any such private sale may result in prices and other terms
less favorable to the seller than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Agent shall
be under no obligation to delay a sale of any of the Pledged Collateral for the
period of time necessary to permit the registrant to register such securities
for public sale under applicable state blue sky or federal securities laws, even
if Pledgors would agree to do so.
(f) The Pledgors agree that following the occurrence and during the
continuance of an Event of Default, they will not at any time plead, claim or
take the benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Pledge Agreement, or the absolute sale of the whole or any
part of the Pledged Collateral or the possession thereof by any purchaser at any
sale hereunder, and the Pledgors waive the benefit of all such laws to the
extent they lawfully may do so. The Pledgors agree that they will not interfere
with any right, power or remedy of the Agent provided for in this Pledge
Agreement or now or hereafter
- 11 -
existing at law or in equity or by statute or otherwise, or the exercise or
beginning of the exercise by the Agent by any one or more of such rights, powers
or remedies. No failure or delay on the part of the Agent to exercise any such
right, power or remedy and no notice or demand which may be given to or made
upon the Pledgors by the Agent with respect to any such remedies shall operate
as a waiver thereof, or limit or impair the Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against the Pledgors in any respect.
(g) The Pledgors agree to comply or cooperate with the Agent and the
Lenders in complying and to use its best efforts to cause the Pledged
Subsidiaries to comply or cooperate with the Agent and the Lenders in complying
(and by execution hereof, the Pledged Subsidiaries hereby agree to so comply and
cooperate with the Agent in so complying), with all environmental laws, rules
and regulations and all state blue sky and federal securities laws, rules and
regulations applicable to any sale or disposition by the Agent hereunder and to
take all actions and execute any and all documents, forms or other writings
reasonably requested by the Agent in order to effect such compliance and sale or
disposition.
(h) The Pledgors further agree that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to the Agent and the
Lenders, that the Agent and Lenders have no adequate remedy at law in respect of
such breach and, as a consequence, agree that each and every covenant contained
in this Section 8 shall be specifically enforceable against the Pledgors. The
Pledgors hereby waive and agree not to assert any defenses against an action for
specific performance of such covenants.
(i) The Agent may, in lieu of exercising its power to sell the Pledged
Collateral at a public or private sale as provided herein, proceed by a suit or
suits at law or in equity to foreclose the pledge and sell the Collateral, or
any portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction.
(j) The Agent acknowledges that applicable regulatory authorities may
have to consent to or approve any sale, transfer or other disposition of the
Pledged Collateral which effects the transfer of a Permit, and the Pledgors
hereby waive and agree not
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to assert against the Agent or the Lenders any claim that any such sale,
transfer or other disposition, or the terms or conditions thereof, were not
commercially reasonable because of any action taken by, inactivity of or
withholding of consent or approval by such regulatory authority.
9. APPLICATION OF PROCEEDS. Any cash held by the Agent as Pledged
Collateral and all cash proceeds received by the Agent in respect of any sale
of, liquidation of, or other realization upon all or any part of the Pledged
Collateral shall be applied by the Agent as follows:
(a) first, to the payment of the reasonable costs and expenses of such
sale or other realization, including reasonable legal fees and expenses to the
Agent's and Lenders' counsel (including its in-house counsel who may be
employees of the Agent or Lenders);
(b) next, to payment of any obligations of the Pledgor to the Agent or
the Lenders pursuant to Section 15 hereof;
(c) next, to the payment of the Secured Obligations in accordance with
the terms of the Agreement or as otherwise determined by the Agent; and
(d) finally, after payment in full of all Secured Obligations, to the
payment to Pledgors or their respective successors or assigns, or to whomsoever
may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such proceeds.
10. WAIVER. No delay on the Agent's part in exercising any power of
sale, Lien, option or other right hereunder, and no notice or demand which may
be given to or made upon the Pledgors by the Agent with respect to any power of
sale, Lien, option or other right hereunder, shall constitute a waiver thereof,
or limit or impair the Agent's right to take any action or to exercise any power
of sale, Lien, option, or any other right hereunder, without notice or demand,
or prejudice the Agent's rights as against the Pledgors in any respect.
11. ASSIGNMENT. The Agent may assign, endorse or transfer any
instrument evidencing all or any part of the Secured
- 13 -
Obligations as provided in, and in accordance with, the Agreement, and the
holder of such instrument shall be entitled to the benefits of this Pledge
Agreement.
12. TERMINATION. Following the Termination Date, the Agent shall
deliver to Pledgors the Pledged Collateral pledged by the Pledgors at the time
subject to this Pledge Agreement and all instruments or assignments executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgors' obligations hereunder and this
Pledge Agreement shall at such time terminate.
13. LIEN ABSOLUTE. All rights of the Agent and Lenders hereunder, and
all obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Agreement, the Notes,
any other Loan Document or any other agreement or instrument governing or
evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Agreement, the
Notes, any other Loan Document or any other agreement or instrument governing or
evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other Collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any of the Pledgors.
14. RELEASE. The Pledgors consent and agree that the Agent may, with
the concurrence of the Required Lenders, at any time, or from time to time, in
its discretion (a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured Obligations
in accordance with the terms of the Credit Agreement and (b)exchange, release
and/or surrender all or any of the Pledged Collateral, or any part thereof, by
whomsoever deposited, which is now or may hereafter be
- 14 -
held by the Agent in connection with all or any of the Secured Obligations; all
in such manner and upon such terms as the Agent may deem proper, and without
notice to or further assent from the Pledgors, it being hereby agreed that
Pledgors shall be and remain bound upon this Pledge Agreement, irrespective of
the existence, value or condition of any of the Pledged Collateral, and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount thereof set
forth in the Agreement, or any other agreement governing any Secured
Obligations. The Pledgors hereby waive notice of acceptance of this Pledge
Agreement, and also presentment, demand, protest and notice of dishonor of any
and all of the Secured Obligations, and promptness in commencing suit against
any part hereto or liable hereon, and in giving any notice to or of making any
claim or demand hereunder upon the Pledgors. No act or omission of any kind on
the Agent's or any Lender's part shall in any event affect or impair this Pledge
Agreement.
15. INDEMNIFICATION. The Pledgors agree jointly and severally to
indemnify and hold the Agent, each Lender and each of their directors, officers,
employees, agents and counsel, harmless from and against any taxes, penalties,
liabilities, claims, judgments and damages, including reasonable fees and
disbursements of attorneys therefor (including in-house counsel who may be
employees of the Agent or Lenders), and other expenses incurred thereby or
arising in connection with the enforcement of or realization on this Pledge
Agreement or the Lien provided for herein, including, without limitation, any
federal or state securities law liability imposed or asserted against any such
party in connection with any sale, assignment, transfer, disposition or other
realization on the Pledged Collateral unless caused by such party's willful
misconduct or gross negligence, and any taxes payable in connection with the
delivery of any of the Pledged Collateral as provided herein. The obligations
of Pledgors under this Section 15 shall survive the termination of this Pledge
Agreement.
16. REINSTATEMENTS. This Pledge Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against any of the Pledgors or any of the Pledged Subsidiaries for liquidation
or reorganization, should any of the Pledgors or any of the Pledged Subsidiaries
become insolvent
- 15 -
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of any Pledgor's or any of
the Pledged Subsidiaries' assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance under
applicable law is rescinded or reduced in amount, or must otherwise be restored
or returned by any obligee of the Secured Obligations, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
17. MISCELLANEOUS.
--------------
(a) The Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to rely on reasonable advice of
counsel concerning all matters pertaining to its duties hereunder.
(b) Neither the Agent nor any of its officers, directors, employees,
agents or counsel shall be liable for any action lawfully taken or omitted to be
taken by it or them hereunder or in connection herewith, except for its or their
own gross negligence or willful misconduct.
(c) This Pledge Agreement shall be binding upon the Pledgors, and their
respective successors and assigns, and shall inure to the benefit of, and be
enforceable by, the Agent, the Lenders and their respective successors and
assigns, and shall be governed by, and construed and enforced in accordance
with, the internal laws in effect in the State of Illinois without giving effect
to principles of choice of law. None of the terms of provisions of this Pledge
Agreement may be waived, altered, modified or amended except in writing duly
signed for and on behalf of the Agent, the Required Lenders and the Pledgors.
(d) This Pledge Agreement and each of the other Loan Documents shall be
construed to the extent reasonable to be consistent with each other such
document, but to the extent that the terms and conditions of this Pledge
Agreement are actually
- 16 -
inconsistent with the terms and provisions of the Agreement, the Agreement will
govern.
18. SEVERABILITY. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Pledge Agreement which are valid.
19. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Pledge Agreement, each
such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and either shall be sent by telecopy (with
receipt confirmed), delivered in person with receipt acknowledged or sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Pledgors and the Agent at the addresses set forth in the
Agreement, or at such other address as may be substituted by notice given as
therein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice, demand,
request, consent, approval, declaration or other communication hereunder shall
be deemed to have been duly given or served on the date on which sent by
telecopy and receipt confirmed, personally delivered, with receipt acknowledged,
or five days after the same shall have been deposited in the United States mail.
Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons designated above to
receive copies shall in no way adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other communication.
20. SECTION TITLES. The Section titles contained in this Pledge
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
21. COUNTERPARTS. This Pledge Agreement may be executed in any number
of counterparts, which shall, collectively and separately, constitute one
agreement.
- 17 -
22. AMENDMENTS AND MODIFICATION. No amendment or modification of any
provision of this Pledge Agreement shall be effective except by an agreement in
writing signed by the Agent, the Required Lenders and the Pledgors.
23. CONSENT TO JURISDICTION AND WAIVER OF JURY TRIAL AND PERSONAL
Service. EACH PLEDGOR EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED WITHIN XXXX COUNTY, ILLINOIS IN ANY ACTION,
SUIT OR PROCEEDING (WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY) COMMENCED
THEREIN IN CONNECTION WITH OR WITH RESPECT TO THE OBLIGATIONS, THIS PLEDGE
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION,
ANY DEFENSES OR COUNTER CLAIMS THEREIN), AND EACH PLEDGOR, THE AGENT AND THE
LENDERS EACH WAIVE ANY RIGHT TO JURY TRIAL THAT THEY MAY NOW OR HEREAFTER HAVE
UNDER ANY LAWS AND ANY OBJECTION TO VENUE IN CONNECTION THEREWITH. EACH PLEDGOR
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS OR PAPERS ISSUED OR SERVED
IN CONNECTION WITH THE FOREGOING AND AGREES THAT SERVICE OF SUCH PROCESS OR
PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, DIRECTED TO THE PLEDGORS AT THE ADDRESSES SET FORTH IN THE
AGREEMENT AND THE PLEDGORS' REGISTERED AGENTS, IN WHICH CASE SUCH PROCESS OR
PAPERS SHALL BE DEEMED RECEIVED FIVE (5) DAYS THEREAFTER, OR BY OVERNIGHT MAIL
OR EXPRESS DELIVERY SERVICE, IN WHICH CASE SUCH PROCESS OR PAPERS SHALL BE
DEEMED RECEIVED ONE (1) DAY THEREAFTER.
24. NATURE OF PLEDGORS' OBLIGATIONS. Each Pledgor acknowledges and
agrees that the liability of each Pledgor for all Obligations, and under this
Pledge Agreement and each Loan Document, is joint and several.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed as of the date first above written.
PLEDGORS:
Continental Waste Industries, Inc.,
a Delaware corporation
By:________________________________
- 18 -
Name:______________________________
Title:_____________________________
CWI Venture, Inc., a New Jersey
corporation
By:________________________________
Name:______________________________
Title:_____________________________
WPP Services, Inc., an Ohio
corporation
By:________________________________
Name:______________________________
Title:_____________________________
FLL, Inc., a Michigan corporation
By:________________________________
Name:______________________________
Title:_____________________________
- 19 -
Karat Corp., a New Jersey
corporation
By:________________________________
Name:______________________________
Title:_____________________________
Victory Waste Incorporated, a
California corporation
By:________________________________
Name:______________________________
Title:_____________________________
G.E.M. Environmental Management
Inc., a Delaware corporation
By:________________________________
Name:______________________________
Title:_____________________________
Greenfield Environmental
Development Corp., a Delaware
corporation
By:________________________________
Name:______________________________
Title:_____________________________
- 20 -
ACCEPTED AND ACKNOWLEDGED BY:
Gila Bend Regional Landfill, Inc.,
an Arizona corporation
By:________________________________
Name:______________________________
Title:_____________________________
WPP Continental de Costa Rica S.A.,
a Costa Rican corporation
By:________________________________
Name:______________________________
Title:_____________________________
Berrien County Landfill, Inc., a
Michigan corporation
By:______________________________
Name:____________________________
Title:___________________________
Prichard Landfill Corporation,
a West Virginia corporation
By:________________________________
Name:______________________________
Title:_____________________________
- 21 -
Xxxxx Hollow Landfill Corp.,
a West Virginia corporation
By:________________________________
Name:______________________________
Title:_____________________________
Northwest Tennessee Disposal
Corporation, a Tennessee
corporation
By:________________________________
Name:______________________________
Title:_____________________________
Southern Illinois Regional
Landfill, Inc., an Illinois
corporation
By:________________________________
Name:______________________________
Title:_____________________________
Midwest Material Management, Inc.,
an Indiana corporation
By:______________________________
Name:____________________________
Title:___________________________
- 22 -
Xxxxxx Brothers Waste, Inc.,
a Tennessee corporation
By:________________________________
Name:______________________________
Title:_____________________________
Xxxxxxxxx Waste, Inc., a Tennessee
corporation
By:______________________________
Name:____________________________
Title:___________________________
CWI of Missouri, Inc.,
a Missouri corporation
By:________________________________
Name:______________________________
Title:_____________________________
CWI of Illinois, Inc.,
an Illinois corporation
By:________________________________
Name:______________________________
Title:_____________________________
Xxxxxx Brothers, Inc., a Tennessee
corporation
By:______________________________
Name:____________________________
Title:___________________________
Commercial Waste Disposal, Inc.,
- 23 -
a Kentucky corporation
By:________________________________
Name:______________________________
Title:_____________________________
Bluegrass Recycling & Transfer
Company, a Kentucky corporation,
By:________________________________
Name:______________________________
Title:_____________________________
South Trans, Inc.,
a New Jersey corporation
By:________________________________
Name:______________________________
Title:_____________________________
Triple G Landfills, Inc., an
Indiana corporation
By:______________________________
Name:____________________________
Title:___________________________
United Refuse Co., Inc.,
an Indiana corporation
By:________________________________
Name:______________________________
Title:_____________________________
- 24 -
Sanifill, Inc., a Tennessee
corporation
By:________________________________
Name:______________________________
Title:_____________________________
Springfield Environmental, Inc.,
a Delaware corporation
By:________________________________
Name:______________________________
Title:_____________________________
Springfield Environmental, Inc.,
an Indiana corporation
By:________________________________
Name:______________________________
Title:_____________________________
Victory Environmental Services,
Inc., a Delaware corporation
By:________________________________
Name:______________________________
Title:_____________________________
- 25 -
Jamax Corporation,
an Indiana corporation
By:________________________________
Name:______________________________
Title:_____________________________
- 26 -
SCHEDULE I
Attached to and forming a part of that certain Pledge Agreement dated as
of March 28, 1995, by Continental Waste Industries, Inc. ("CWI"), CWI Venture,
Inc., WPP Services, Inc., FLL, Inc., Karat Corp., Victory Waste Incorporated,
G.E.M. Environmental Management, Inc. and Greenfield Environmental Development
Corp. as Pledgors, in favor of LaSalle National Bank, as the Agent.
PLEDGED SHARES OF THE PLEDGED SUBSIDIARIES
------------------------------------------
Number of Number of Number of
Class Par Shares Shares Shares Certificate
Pledgor Name of Issuer of Stock Value Authorized Issued Owned Number(s)
------- -------------- -------- ----- ---------- -------- --------- -----------
CWI Xxxxxx Brothers
Waste, Inc., a Common None 1000 1000 1000 7
Tennessee
corporation
CWI Northwest Tennessee Common None 1000 1000 1000 1
Disposal
Corporation, a
Tennessee
corporation
CWI CWI of Illinois, Common 1000 1000 1000
Inc., an Illinois
corporation
CWI CWI of Missouri, Common 30,000 30,000 30,000
Inc., a Missouri
corporation
CWI FLL, Inc., a Common 50,000 2,000 2,000
Michigan
corporation
CWI South Trans, Inc., Common 2,000 100 100
a New Jersey
corporation
CWI Southern Illinois Common 100,000 1,000 1,000
Regional Landfill,
Inc., an Illinois
corporation
CWI Bluegrass Recycling Common 1000 1000 1000
& Transfer Company,
a Kentucky
corporation
-27-
Number of Number of Number of
Class Par Shares Shares Shares Certificate
Pledgor Name of Issuer of Stock Value Authorized Issued Owned Number(s)
------- -------------- -------- ----- ---------- -------- --------- -----------
CWI Commercial Waste Common 1000 1000 1000
Disposal, Inc., a
Kentucky
corporation
CWI Victory Waste Common 350,000,000 22,158,853 21,369,023
Incorporated, a
California Preferred 3,000,000 179,745 33,750
corporation Series A-1 (Series A-1) (Series A-1)
Series A-2
CWI WPP Services, Inc., Common 850 100 100
an Ohio corporation
CWI Karat Corp., a New Common 2,000 100 100
Jersey corporation
CWI Midwest Material Common 1000 300 300
Management, Inc.,
an Indiana
corporation
CWI Xxxxxxxxx Waste, Common 1000 100 100
Inc., a Tennessee
corporation
CWI Xxxxxx Brothers, Common 1000 1000 1000
Inc., a Tennessee
corporation
CWI CWI Venture, Inc., Common 1000 1000 1000
a New Jersey
corporation
Karat Xxxxxxxx Landfill Common 6,000 60 60
Corporation, a West
Virginia
corporation
Karat Xxxxx Hollow Common 400 100 100
Landfill Corp., a West
Virginia
corporation
Victory G.E.M. Common 35,000,000 34,922,503 20,866,920
Environmental
Management, Inc., Preferred 3,000,000
a Delaware
corporation
CWI G.E.M. Common 35,000,000 34,922,503 8,559,996
Environmental
Management, Inc., a Preferred 3,000,000 3,000,000
Delaware
corporation
G.E.M. Springfield Common 1000 1000 1000
Environmental,
Inc., a Delaware
corporation
-28-
Number of Number of Number of
Class Par Shares Shares Shares Certificate
Pledgor Name of Issuer of Stock Value Authorized Issued Owned Number(s)
------- -------------- -------- ----- ---------- -------- --------- -----------
G.E.M. Springfield Common 1000 1000
Environmental,
Inc., an Indiana
corporation
G.E.M. Victory Common 100 10 10
Environmental
Services, Inc., a
Delaware
corporation
G.E.M. Jamax Corporation, Common 1000 1000 1000
an Indiana
corporation
G.E.M. Greenfield A Common 10,000 A 10,000 10,000
Environmental
Development Corp., B Common 5840 B 5840 5840
a Delaware
corporation Preferred 2000 P 2000 2000
Greenfield Sanifill, Inc., Common 2000 100 100
Inc., a Tennessee
corporation
Greenfield United Refuse Co., Common 1000 1000 1000
Inc., an Indiana
corporation
Greenfield Triple G Landfills, Common 1000 100 100
Inc., an Indiana
corporation
CWI Venture Gila Bend Regional. Common 1000 100 100
Landfill, Inc., an
Arizona corporation
WPP Services WPP Continental de
Costa Rica S.A., a
Costa Rican
corporation
FLL, Inc. Berrien County Common 1000 100 100
Landfill, Inc., a
Michigan
corporation
-29-
SCHEDULE II
to the Pledge Agreement
PLEDGE ADDENDUM
This Pledge Addendum, dated _______________ is delivered pursuant to
Section 6(e) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Addendum is to be attached to that certain Stock Pledge
and Security Agreement, dated as of March 28, 1995 ("Pledge Agreement") by the
undersigned, as Pledgor, in favor of LaSalle National Bank, as the Agent, and
that the Pledged Shares listed on this Pledge Addendum shall be and become a
part of the Pledged Collateral referred to in said Pledge Agreement and shall
secure all Secured Obligations referred to in said Pledge Agreement.
The undersigned agrees that the securities listed below shall for all
purposes constitute Pledged Collateral and shall be subject to the security
interest created by the Pledge Agreement.
The undersigned hereby certifies that the representations and warranties
set forth in Section 5 of the Pledge Agreement are true and correct as to the
Pledge Collateral listed herein on and as of the date hereof.
PLEDGOR:
____________________________,
a ________ Corporation
By:______________________________
Name:____________________________
Title:___________________________
PLEDGED SHARES
--------------
- 30 -
Class of Name of Shares Number of Number of Certificate
Name of Issuer Stock Par Value Authorized Shares Issued Shares Owned Number(s)
-------------- -------- --------- -------------- ------------- ------------ ------------
- 31 -
EXHIBIT D
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement") is made as of
March 28, 1995 by CONTINENTAL WASTE INDUSTRIES, INC., a Delaware corporation
and its subsidiaries, which currently consist of Xxxxxx Brothers, Inc., a
Tennessee corporation, Xxxxxx Brothers Waste, Inc., a Tennessee corporation,
Berrien County Landfill, Inc., a Michigan corporation, Bluegrass Recycling &
Transfer Company, a Kentucky corporation, Commercial Waste Disposal, Inc., a
Kentucky corporation, Xxxxxxxxx Waste, Inc., a Tennessee corporation, CWI of
Illinois, Inc., an Illinois corporation, CWI of Missouri, Inc., a Missouri
corporation, FLL, Inc., a Michigan corporation, G.E.M. Environmental Management,
Inc., a Delaware corporation, Gila Bend Regional Landfill, Inc., an Arizona
corporation, Greenfield Environmental Development Corp., a Delaware corporation,
Jamax Corporation, an Indiana corporation, Karat Corp., a New Jersey
corporation, Midwest Material Management, Inc., an Indiana corporation,
Northwest Tennessee Disposal Corp., a Tennessee corporation, Prichard Landfill
Corp., a West Virginia corporation, Xxxxx Hollow Landfill Corp., a West Virginia
corporation, Sanifill, Inc., a Tennessee corporation, CWI Venture, Inc., a New
Jersey corporation, Southern Illinois Regional Landfill, Inc., an Illinois
corporation, South Trans, Inc., a New Jersey corporation, Springfield
Environmental, Inc., a Delaware corporation, Springfield Environmental, Inc., an
Indiana corporation, Triple G Landfills, Inc., an Indiana corporation, United
Refuse Co., Inc., an Indiana corporation, Victory Environmental Services, Inc.,
a Delaware corporation, Victory Waste Incorporated, a California corporation,
WPP Continental de Costa Rica S.A., and WPP Services, Inc., an Ohio corporation
(individually, any of said corporations may be referred to herein as a
"BORROWER," and collectively are sometimes referred to as the "BORROWERS"),
for the benefit of LASALLE NATIONAL BANK, a national banking association with
its principal offices located in Chicago, Illinois, as agent for the Lenders (as
defined herein) (the "AGENT"), and the various financial institutions which
are or may become, signatories or parties to this Agreement or to the Credit
Agreement (as defined herein) (individually, a "LENDER", and collectively the
"LENDERS").
WHEREAS, Borrowers are involved in the business of transportation,
handling and disposal of non-hazardous solid waste;
WHEREAS, subject to the terms and conditions of a certain Credit Agreement
of even date herewith between Borrowers and Lenders (as amended, supplemented or
restated, the "CREDIT AGREEMENT") and subject to the terms and conditions of
certain Loan Documents as defined in the Credit Agreement, Lenders will make
Loans to Borrower;
WHEREAS, the Loans are secured by, among other things, a Security
Agreement and certain Mortgages as defined in the Credit Agreement;
WHEREAS, one of the conditions of making the Loans is the execution and
delivery of this Environmental Indemnity Agreement by Borrowers,
NOW, THEREFORE, to induce Lenders to make the Loans and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers, acknowledging that but for the execution and
delivery of this Agreement, Lenders would not have entered into the Credit
Agreement and extended to Borrowers the Loans thereunder, jointly and severally,
hereby represent, warrant and covenant to Lenders as follows:
1. DEFINITIONS. Capitalized terms in this Agreement are used with
the meanings set forth in the Schedule of Definitions attached to this Agreement
or set forth elsewhere in this Agreement. Capitalized terms used and not
otherwise defined in this Agreement shall have the meanings set forth in the
Credit Agreement and Loan Documents.
2. REPRESENTATIONS AND WARRANTIES. Except as set forth in the
Environmental Report or as set forth in Schedule 1, the Borrowers jointly and
severally represent and warrant to Lenders as follows:
(a) Borrowers and all of their operations are and always have been
in material compliance with all Environmental Laws.
(b) Borrowers have obtained all Environmental Permits necessary
for all of their operations, all such Environmental Permits are in full
force and effect and have not been revoked or suspended or threatened to
be revoked or suspended, and Borrowers and all of their operations are in
compliance with all terms and conditions of such Environmental Permits.
(c) Neither Borrowers nor any of their past or present operations
are subject to: any judicial or administrative proceedings or
investigations commenced by any Person; or any Consent Decree or other
order from, or agreement with, any Person, respecting (i) any
Environmental Laws, (ii) any Remedial Action or (iii) any Liabilities
arising from Non-hazardous Solid Wastes or the Release or threatened
Release of a Hazardous Substance.
(d) The Borrowers have not received any Environmental
Notifications, and Borrowers have no basis to believe that any of them
will be a potentially responsible party or otherwise allegedly responsible
for any Liabilities or Remedial Actions at any Landfill or other site or
facility owned or operated by other Persons.
(e) There is not now, nor, to the best of Borrowers' knowledge
after due inquiry, has there ever been any Hazardous Substance on or in
the Property, other than (i) asbestos waste that has been disposed of in
accordance with Environmental Laws and Environmental Permits and (ii)
Non-hazardous Solid Wastes for which the Borrowers have or had at the
applicable time all Environmental Permits required by all Environmental
Laws.
-2-
(f) No Environmental Lien has attached to or been asserted against
all or any portion of the Property.
(g) There has been no Release of any Hazardous Substance caused by
Borrowers or related to their operations or, to the best of Borrowers'
knowledge after due inquiry, by any other Person from, on or into the
Property.
(h) Borrowers have not used, processed, transported, managed,
disposed of or stored any Hazardous Substances, other than (i) asbestos
waste that has been disposed of in accordance with Environmental Laws and
Environmental Permits and (ii) Non-hazardous Solid Waste for which the
Borrowers have or had at the applicable time all Environmental Permits
required by all Environmental Laws.
(i) Borrowers have filed all closure plans, post-closure plans,
corrective action plans, contingency plans and similar plans for all
Landfills, transfer stations and other waste-related facilities operated
or owned by Borrowers, and Borrowers have posted or otherwise supplied to
the applicable Governmental Authority all financial assurance mechanisms
required in connection with such plans or otherwise by applicable
Environmental Laws or any Environmental Permit.
(j) After diligent inquiry, Borrowers have no knowledge of (i) a
statistically significant increase in the presence of any Hazardous
Substance or other substance or constituent in the groundwater monitoring
xxxxx at any of Borrowers' Landfills or other waste facilities or (ii) any
other event, condition or change in condition, which in either case could
lead to an enforcement or clean-up action by any Governmental Authority,
be the basis for Liabilities of the Borrowers to any third party, require
any other Remedial Action by Borrowers or otherwise adversely affect the
Property, the Borrowers, or the operations, business or financial
condition of the Borrowers.
(k) There are not, and never have been, any underground storage
tanks on the Property other than as set forth in Schedule 2, and all such
underground storage tanks are in compliance with all Environmental Laws.
(l) Other than with respect to (i) asbestos waste that has been
disposed of in accordance with Environmental Laws and Environmental
Permits and (ii) Non-hazardous Solid Waste for which the Borrowers have
or had at the applicable time all Environmental Permits required by all
Environmental Laws, there is no on-site or off-site location to which the
Borrowers have transported any Hazardous Substance and no person has
transported any Hazardous Substance generated by Borrowers to any on-site
or off-site locations.
3. COVENANTS. Borrowers jointly and severally covenant and agree in
favor of Lenders as follows:
-3-
(a) Except for asbestos waste that has been or is being disposed
of in accordance with Environmental Laws and Environmental Permits and
Non-hazardous Solid Waste for which the Borrowers have all Environmental
Permits required by all Environmental Laws, the Borrowers (i) will not
generate, transport, store, handle, manage, dispose of or otherwise deal
with any Hazardous Substances, (ii) will keep the Property free of all
Hazardous Substances, and (iii) shall not cause or permit the Property or
any part thereof to be used for the storage, treatment, generation,
transportation, processing, handling, production or disposal of any
Hazardous Substances.
(b) Borrowers will comply with all applicable Environmental Laws
and all Environmental Permits. The Borrowers will obtain all
Environmental Permits necessary or required in order to operate their
business and the Property as currently operated or any expansion thereof
and will take all action necessary to maintain such Environmental Permits
in full force and effect.
(c) Borrowers will promptly provide Lender with a copy of all
Environmental Notifications which Borrowers receive. If such
Environmental Notification is not written, Borrowers shall provide Lender
with a narrative report of such Environmental Notification.
(d) Borrowers will undertake and timely complete all Remedial
Action if and when required by Environmental Law or by any Governmental
Authority.
(e) Borrowers will cure or otherwise appropriately respond to any
non-compliance with any Environmental Laws indicated in any inspection
report of any Governmental Authority or otherwise and complete any action
required to be taken thereby or so respond within the time period set
forth therein, as extended with the written consent of the Governmental
Authority, or, if no such time period is set forth therein, then by the
time the next Governmental Authority inspection is performed.
(f) Borrowers will at all times allow Agent, Lenders and their
respective officers, directors, employees, agents, representatives,
contractors and subcontractors access, from time to time at reasonable
hours, to Borrowers' facilities, the Property or any part thereof, for the
purpose of ascertaining or investigating site conditions (including
without limitation subsurface conditions) or the compliance of Borrowers
with the terms of this Agreement or any other Loan Document, at any time,
before, concurrent with or after the exercise of any remedy by Lenders
under this Agreement or any Loan Document.
(g) If any Lender obtains evidence or information that a material
breach of, or non-compliance with, any Environmental Law or Environmental
Permit exists or may exist with respect to the Borrowers, their
operations, or the Property, such Lender or Agent may require that a full
or supplemental environmental inspection and audit report with respect to
the Borrowers, their business, the Property or any part thereof, of a
scope and
-4-
level of detail reasonably satisfactory to Agent or such Lender, be
prepared by an environmental engineer or other qualified person selected
by the Borrower and acceptable to the Agent or such Lender, at the sole
cost and expense of Borrower. If Agent or such Lender requires, such
inspection will include a records search and subsurface testing for the
presence of Hazardous Substances in the soil, subsoil, bedrock, surface
water and/or groundwater under the Property. If said report indicates
that (i) a Release of any Hazardous Substances has occurred and/or is
occurring on, at or from the Property, other than as permitted by any
applicable Environmental Law or any Environmental Permit, or (ii) there is
a material violation of any Environmental Law or Environmental Permit,
Borrower will promptly undertake and diligently pursue to completion all
Remedial Action and any additional action reasonably required by Lender.
(h) Borrowers will not alter, destroy, fill, flood or in any other
manner unlawfully interfere with any wetlands located on the Property or
otherwise without an appropriate Environmental Permit authorizing same and
then only in full compliance with the terms set forth in such permit.
Nothing contained in this section or Agreement shall be deemed to convey to the
Agent or any Lender any power or authority to control (i) the Borrowers, (ii)
the operations of the Borrowers, (iii) the operations or management of the
Property, or (iv) decisions concerning the generation, transportation,
treatment or disposal of any Hazardous Substances by the Borrowers at the
Property or otherwise.
4. INDEMNIFICATIONS. The Borrowers jointly and severally covenant
and agree that they will indemnify, exonerate, hold harmless, and defend Agent
and Lenders and any current or former officer, director, employee, attorney or
agent of Agent or any Lender (individually an "INDEMNITEE" and collectively
the "INDEMNITEES"), immediately upon demand by any Indemnitee from any and all
Liabilities, regardless of whether caused by or within the control of the
Borrowers, arising out of or in any way relating to:
(a) The existence of Hazardous Substances over, beneath, in or
upon the Property, or a Release from the Property of any Hazardous
Substance.
(b) Any violation or alleged violation of any Environmental Law
regarding, arising out of or in connection with the Property or the
actions or operations of the Borrowers.
(c) Any generation, transportation, treatment, recycling, storage,
or disposal of Hazardous Substances (or arrangement for any of the
foregoing) by Borrowers.
(d) Any Release or threatened Release of Hazardous Substances to,
at or from any property or facility owned or operated by another Person
and for which Borrowers are or may be alleged to have Liabilities.
-5-
(e) Any exposure to Hazardous Substances manufactured, generated,
transported, handled, processed, stored, disposed of or used at the
Property or as part of the operations of the Borrowers that causes or
contributes to any disease, injury or illness of any Person regardless of
time between exposure and manifestation of such disease, injury or illness
and irrespective of whether Borrowers' operations were in compliance with
Environmental Laws at the time of such exposure.
(f) Any Release of a Hazardous Substance from an underground
storage tank located on the Property.
(g) Any misrepresentation, omission, breach of representation or
warranty, or nonfulfillment of any covenant or agreement contained in this
Agreement.
(h) Any Liabilities related to any matter set forth on the
Schedules to this Agreement or contained in the Environmental Report.
If the foregoing indemnification is found by a court of competent jurisdiction
to be void, invalid or unenforceable as against any of the Borrowers under any
applicable law, then such Indemnitor shall pay to the Lenders and the other
Borrowers the maximum contribution to the payment of the foregoing Liabilities
as may be permitted under such law and under any other applicable law.
5. SURVIVAL; LIMITATIONS. The representations, warranties, covenants
and agreements contained herein and the obligations of Borrowers to indemnify
Agent and Lenders and the other Indemnitees with respect to the Liabilities set
forth in the foregoing paragraphs (collectively, "ENVIRONMENTAL OBLIGATIONS"),
shall not be limited to the amount of the Loans and shall survive: (i) the
foreclosure of any liens on all or any portion of the Property in favor of
Lenders or a third party or the conveyance of the Property or any part thereof
by deed in lieu of foreclosure (and shall not be limited to the amount of any
deficiency in any foreclosure sale of Property); (ii) repayment of all amounts
due under the Notes and all Obligations under the Loan Documents; and (iii) the
discharge of the Security Agreement and Mortgages, the cancellation of the Notes
and the release of any and all other Loan Documents evidencing the termination
of the lending relationship between Borrowers and Lenders.
6. JOINT AND SEVERAL LIABILITY. Each of the Environmental
Obligations of the Borrowers are joint and several and independent of the
obligation of the other Borrowers. Separate actions may be brought against each
or any number of Borrowers, regardless of whether all Borrowers are joined in
any such action or actions and irrespective of any invalidity, illegality,
irregularity or unenforceability of any Obligations or Environmental
Obligations.
7. COSTS. In the event that Agent, Lenders or the other Indemnitees
incur any costs to collect or enforce the Environmental Obligations hereunder,
including, without limitation, reasonable attorneys' fees and court costs
incurred in any litigation or any bankruptcy and administrative proceedings, or
appeals therefrom, and pre-judgement and post-judgment interest,
-6-
Borrowers shall, upon demand by Agent, by any Lender or by any of the other
Indemnitees, promptly reimburse Agent, Lenders or the other Indemnitees
therefor, plus interest from the date so incurred until paid at the highest rate
of interest then applicable under the Credit Agreement or any of the Notes.
8. NOTICE. All demands, notices and other communications given
hereunder shall be in writing and given in accordance with and to the addresses
set forth in the Credit Agreement or any other Loan Document.
9. MERGER AND MODIFICATION. This Agreement and the Loan Documents
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended, modified, revised,
supplemented or restated except by a writing signed by each of the parties
hereto. Any consent, waiver or suspension of any Environmental Obligation or
other duty or responsibility of any Borrowers hereunder shall not be deemed
effective unless in writing and signed by a duly authorized officer of Agent.
10. GOVERNING LAW; ENFORCEABILITY. This Agreement has been made and
delivered in and shall be construed according to and governed by the internal
laws of the State of Illinois. This Agreement shall be construed and
interpreted in such a manner as to be effective, enforceable and valid under all
applicable laws. If any provision hereof shall be held invalid, prohibited or
unenforceable under any applicable laws of any applicable jurisdiction, such
invalidity, prohibition or unenforceability shall be limited to such provision
and shall not affect or invalidate the other provisions hereof or affect the
validity or enforceability of such provision in any other jurisdiction, and to
that extent, the provisions hereof are severable.
11. COUNTERPART SIGNATURES. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
12. BINDING NATURE; ASSIGNABILITY. This Agreement and the
Environmental Obligations shall be binding upon and enforceable against the
Borrowers and their respective successors and assigns; provided, however, that
no Borrower may assign any of its Environmental Obligations or other duties or
responsibilities hereunder without the prior written consent of the Agent.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute and deliver this Agreement as of the day and year first
above written.
CONTINENTAL WASTE INDUSTRIES, INC. LASALLE NATIONAL BANK
By:___________________________ By:__________________________
-7-
--------------------------------------------------------------------------------
Name: Name:
Title: Title:
-8-
XXXXXX BROTHERS, INC.
By:
-----------------------------
Name:
Title:
XXXXXX BROTHERS WASTE, INC.
By:
-----------------------------
Name:
Title:
BERRIEN COUNTY LANDFILL, INC.
By:
-----------------------------
Name:
Title:
BLUE GRASS RECYCLING & TRANSFER CO.
By:
-----------------------------
Name:
Title:
COMMERCIAL WASTE DISPOSAL, INC.
By:
-----------------------------
Name:
Title:
-0-
XXXXXXXXX WASTE, INC.
By:
-----------------------------
Name:
Title:
CWI OF ILLINOIS, INC.
By:
-----------------------------
Name:
Title:
CWI OF MISSOURI, INC.
By:
-----------------------------
Name:
Title:
CWI VENTURE, INC.
By:
-----------------------------
Name:
Title:
FLL, INC.
By:
-----------------------------
Name:
Title:
G.E.M. ENVIRONMENTAL MANAGEMENT, INC.
By:
-----------------------------
Name:
-10-
Title:
GILA BEND REGIONAL LANDFILL, INC.
By:
-----------------------------
Name:
Title:
GREENFIELD ENVIRONMENTAL DEVELOPMENT CORP.
By:
-----------------------------
Name:
Title:
JAMAX CORPORATION
By:
-----------------------------
Name:
Title:
KARAT CORP.
By:
-----------------------------
Name:
Title:
MIDWEST MATERIAL MANAGEMENT, INC.
By:
-----------------------------
Name:
Title:
-00-
XXXXXXXXX XXXXXXXXX DISPOSAL CORP.
By:
-----------------------------
Name:
Title:
XXXXXXXX LANDFILL CORP.
By:
-----------------------------
Name:
Title:
XXXXX HOLLOW LANDFILL CORP.
By:
-----------------------------
Name:
Title:
SANIFILL, INC.
By:
-----------------------------
Name:
Title:
SOUTHERN ILLINOIS REGIONAL LANDFILL, INC.
By:
-----------------------------
Name:
Title:
-00-
XXXXX XXXXX, INC.
By:
-----------------------------
Name:
Title:
SPRINGFIELD ENVIRONMENTAL, INC.
an Indiana corporation
By:
-----------------------------
Name:
Title:
SPRINGFIELD ENVIRONMENTAL, INC.
a Delaware corporation
By:
-----------------------------
Name:
Title:
TRIPLE G LANDFILL, INC.
By:
-----------------------------
Name:
Title:
UNITED REFUSE CO., INC.
By:
-----------------------------
Name:
Title:
-13-
VICTORY ENVIRONMENTAL SERVICES, INC.
By:
-----------------------------
Name:
Title:
VICTORY WASTE INCORPORATED
By:
-----------------------------
Name:
Title:
WPP CONTINENTAL XXXXXXX RICA S.A.
By:
-----------------------------
Name:
Title:
WPP SERVICES, INC.
By:
-----------------------------
Name:
Title:
-14-
SCHEDULE OF DEFINITIONS
FOR
ENVIRONMENTAL INDEMNITY AGREEMENT
The following capitalized terms shall have the following meanings when used in
this Agreement:
(a) "CONSENT DECREE" means any consent decree, consent order,
administrative order, settlement, stipulation, letter or other correspondence,
or formal or informal understanding or arrangement, oral or written, from or
with any Governmental Authority or other Person that binds or requires any
Borrower to maintain or act upon any of the Property or operate its business in
a prescribed manner.
(b) "CREDIT AGREEMENT" is defined in the preamble to this Agreement.
(c) "ENVIRONMENTAL LAW" means and includes, without limitation, any
federal, state or local law, statute, code, rule, regulation or ordinance and
any order, judgment or decree of any court, commission, committee, panel,
tribunal, department or administrative body (including, without limitation, any
Consent Decree and any Environmental Permits) now or hereafter enacted,
promulgated or issued regulating or relating to any Hazardous Substance or
pertaining to health, industrial hygiene or the environmental or ecological
aspects of Borrowers' business or conditions on, under or about the Property,
including without limitation each of the following: the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, (as amended by
the Superfund Amendment and Reauthorization Act and otherwise), 42 U.S.C.
Section 9601 ET SEQ.; the Resource Conservation and Recovery Act of 1976, as
amended, 42 U.S.C. Section 6901 ET SEQ.; the Toxic Substance Control Act, as
amended, 15 U.S.C. Section 2601 ET SEQ.; the Clean Air Act, as amended, 42
U.S.C. Section 7401 ET SEQ.; the Federal Pollution Control Act, as amended, 33
U.S.C. Section 1251 ET SEQ.; the Occupational Safety and Health Act, as
amended, 42 U.S.C. Section 651 ET SEQ.; the Federal Hazardous Materials
Transportation Act, 49 U.S.C. Section 801 ET SEQ.; the National Environmental
Policy Act of 1975, as amended, 42 U.S.C. Section 4321 ET SEQ.;
The Clean Water Act, as amended; the Federal Wetlands Protection Act, as
amended; all statutes, regulations, policies and procedures related to the
permitting and operation of solid waste transportation, handling, processing,
storage, transfer or disposal facilities and operations as enacted in Costa
Rica and in the states of Illinois, West Virginia, Arizona, Tennessee, Indiana,
Missouri, Kentucky, and Michigan; and the rules, regulations and ordinances of
the U.S. Environmental Protection Agency, the agencies, boards and commissions
exercising activity over Borrowers and their operations in Costa Rica and in the
states of Illinois, West Virginia, Arizona, Indiana, Missouri, Kentucky and
Michigan, and all other entities, agencies, boards, commissions and other
governmental offices, bodies and political subdivisions having jurisdiction over
Borrowers, Borrowers' business, the Property or the use or operation thereof.
(d) "ENVIRONMENTAL LIEN" shall mean any lien, encumbrance or
preferential arrangement of any kind in favor of any Person for any Liabilities
arising under or by reason of
-15-
a breach of any Environmental Law, or arising from or in response to a Release
or threatened Release of a Hazardous Substance.
(e) "ENVIRONMENTAL NOTIFICATIONS" shall mean any summons, citation,
directive, order, claim, complaint, litigation, investigation, proceeding,
judgment, letter or other communication, written or oral, actual or threatened,
from any Person, concerning (i) any intentional or unintentional act or
omission or any condition or event which has resulted, or which may result, in
the Release of Hazardous Substances at or from the Property or any property
adjacent to or within the vicinity of the Property, or any asserted liability
therefore; (ii) the imposition of any Environmental Lien on the Property; (iii)
any material violation of any Environmental Law or any challenge to or
revocation or suspension of any Environmental Permits; or (iv) any Liability for
on-site or off-site contamination from Hazardous Substances or Non-hazardous
Solid Waste allegedly generated, transported, managed, disposed of or otherwise
dealt with by any Borrower.
(f) "ENVIRONMENTAL PERMIT" shall mean any permit, approval,
authorization, license, variance, or permission required or received from a
Government Authority under any applicable Environmental Law.
(g) "ENVIRONMENTAL OBLIGATION(S)" is defined in paragraph 5 of the
Agreement.
(h) "ENVIRONMENTAL REPORT" shall mean the report of Xxxxxx X. Xxxxxx,
Inc., dated February 1995.
(i) "GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
court, commission, committee, panel, tribunal, agency or administrative body of
any federal, state, county, local or city governmental entity (or other
political subdivision thereof,) and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
(j) "HAZARDOUS SUBSTANCES" means and includes, without limitation:
(i) Those substances included within the definitions of "hazardous
substance," "hazardous waste," "toxic substance," "solid waste," "pollutant" or
"contaminant" in any Environmental Law;
(ii) Any material, waste or substance which is any of the following: (a)
asbestos or any material composed of or containing asbestos; (b) radio-active;
(c) highly flammable, toxic, corrosive, or explosive; or (d) petroleum or any
petroleum based substance or waste or any constituent of any such substance,
waste or product; and
(iii) Those other substances, materials and wastes which are or become
regulated under any Environmental Law or which are or become classified as
hazardous or toxic by any Environmental Law.
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(k) "INDEMNITEE(S)" is defined in paragraph 4 of this Agreement.
(l) "LIABILITIES" shall mean all liabilities, obligations,
responsibilities, clean-up costs, response costs, losses, fines, penalties,
damages (including, without limitation, punitive and consequential damages), and
all other costs and expenses (including, without limitation, pre-judgment and
post-judgment interest, attorney, expert witness and consulting fees at all
trial and appellate levels, and costs of investigation and feasibility studies),
whether the foregoing are primary or secondary, direct or indirect, known or
unknown, absolute or contingent.
(m) "NON-HAZARDOUS SOLID WASTE" means "non-hazardous solid waste" or
comparable term as defined in any Environmental Law.
(n) "PERSON" shall mean any person, group of persons, employee,
individual, corporation, partnership, entity, organization, trust, or any
Governmental Authority.
(o) "PROPERTY" shall mean all real and personal property or facilities
wherever located that are owned or operated now or at any time in the future by
any of the Borrowers or any agent, subsidiary or entity controlled by any
Borrower.
(p) "RELEASE" shall mean release, spill, emission, leaking, pumping,
escape, injection, deposit, disposal, discharge, dispersal, leaking or migration
into the indoor or outdoor environment or into or out of the Property or any
other property, including the movement of Hazardous Substances through or in the
air, soil, surface water or groundwater.
(q) "REMEDIAL ACTION" shall mean actions required by Environmental
Law, by the terms of any Environmental Permit or by any Government Authority to
(i) contain, clean-up, remove, treat or in any other way address Hazardous
Substances or Non-hazardous Solid Wastes in any environment; (ii) prevent,
contain or minimize the Release or any threatened Release of Hazardous
Substances or Non-hazardous Solid Wastes so they do not migrate, endanger or
threaten to migrate or endanger public health or welfare or any environment; or
(iii) study, investigate, sample, test, monitor or maintain any environment.
-17-
SCHEDULE 1 TO ENVIRONMENTAL INDEMNITY AGREEMENT
1. The landfill near Ft. Xxxxx, Indiana, operated by United Refuse Co.,
Inc., is operating beyond its permitted boundaries vertically. This facility
was issued a permit by the Indiana Department of Environmental Management
which contained an error in the computation of the permitted slopes allowed
at the facility. CWI and IDEM are negotiating a consent order to resolve this
situation, including a modification to bring the current disposal area within
the permit boundaries.
2. Southern Illinois Regional Landfill, Inc., is operating its landfill
in Xxxxxxx County, Illinois, pursuant to a consent order dated September 14,
1994, between SIRL and State of Illinois.
3. Xxxxxxxx Landfill Corp. is operating its landfill in Xxxxx County,
West Virginia, pursuant to a letter of authority from the West Virginian
Department of Environmental Protection ("DEP") dated December 27, 1994, which
permits the Company to dispose of waste in its constructed but unpermitted
expansion area. The permit for the expansion area has not been issued by DEP
because the Company has not submitted documentation verifying that it has
posted adequate financial assurance for the expansion area. The Company has
posted financial assurance adequate for the requirements of the expansion
area, but has not submitted documentation to DEP evidencing that the
financial assurance instruments are in place. The Company intends to withhold
filing these documents until it receives a proposed volume increase from
7,500 tons per month to 9,999 tons per month for the expansion area permit.
EXHIBIT E
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "SECURITY AGREEMENT") is made as of March
28, 1995 by each of the parties listed on the signature pages hereof and those
parties from time to time hereafter made part of this Security Agreement by
their execution of the Joinder Agreement in the form attached to the Credit
Agreement (individually referred to as a "DEBTOR" and collectively as the
"DEBTORS"), in favor of LaSalle National Bank, as Agent for the Lenders party
to the Credit Agreement (defined below) (the "SECURED PARTY").
W I T N E S S E T H :
WHEREAS, Continental Waste Industries, Inc., a Delaware corporation
("CWI"), together with its Subsidiaries, which currently consist of Xxxxxx
Brothers, Inc., a Tennessee corporation, Xxxxxx Brothers Waste, Inc., a
Tennessee corporation, Berrien County Landfill, Inc., a Michigan corporation,
Bluegrass Recycling & Transfer Company, a Kentucky corporation, Commercial Waste
Disposal, Inc., a Kentucky corporation, Xxxxxxxxx Waste, Inc., a Tennessee
corporation, CWI of Illinois, Inc., an Illinois corporation, CWI of Missouri,
Inc., a Missouri corporation, CWI Venture, Inc., a New Jersey corporation, FLL,
Inc., a Michigan corporation, G.E.M. Environmental Management Inc., a Delaware
corporation, Gila Bend Regional Landfill, Inc., an Arizona corporation,
Greenfield Environmental Development Corp., a Delaware corporation, Jamax
Corporation, an Indiana corporation, Karat Corp., a New Jersey corporation,
Midwest Material Management, Inc. an Indiana corporation, Northwest Tennessee
Disposal Corporation, a Tennessee corporation, Prichard Landfill Corporation, a
West Virginia corporation, Xxxxx Hollow Landfill Corp., a West Virginia
corporation, Sanifill, Inc., a Tennessee corporation, Southern Illinois Regional
Landfill, Inc., an Illinois corporation, South Trans, Inc., a New Jersey
corporation, Springfield Environmental, Inc., a Delaware corporation,
Springfield Environmental, Inc., an Indiana corporation, Triple G Landfills,
Inc., an Indiana corporation, United Refuse Co., Inc., an Indiana corporation,
Victory Environmental Services, Inc., a Delaware corporation, Victory Waste
Incorporated, a California corporation, WPP Continental de Costa Rica S.A., a
Costa Rican corporation and WPP Services, Inc., an Ohio corporation
(individually, any of said
corporations may be referred to herein as a "DEBTOR," and collectively are
sometimes referred to as the "DEBTORS"), are simultaneously herewith incurring
certain indebtedness, liabilities and other Obligations to the Lenders pursuant
to that certain Credit Agreement of even date herewith, among the Debtors, the
Agent and the Lenders (as amended, modified, renewed or restated, and any
substitutions or replacements therefor, the "AGREEMENT," with defined terms used
but not otherwise defined herein being used with the same meanings as therein
defined);
WHEREAS, each of the Debtors acknowledges that it is directly and
indirectly benefited by said financial accommodations;
WHEREAS, as a condition to entering into the Agreement and making any
Loans or other financial accommodations to the Debtors thereunder, the Lenders
require a pledge of and security interest in all of the personal property and
fixtures of the Debtors to secure the aforesaid Obligations.
NOW, THEREFORE, for and in consideration of good and valuable
consideration, and as a material inducement to the Lenders to enter into the
Agreement, the Debtors, acknowledging that but for the execution and delivery of
this Security Agreement, Lenders would not have entered into the Agreement and
extend to Debtors the Loans and financial accommodations thereunder, intending
to be legally bound, hereby agree with the Secured Party as follows:
1. DEFINITIONS. Terms used herein and not otherwise defined herein
shall have the meaning set forth in the Agreement, and terms used herein and not
otherwise defined herein or in the Agreement shall have the same meaning
assigned to said term in the version of the Uniform Commercial Code currently
adopted by the State of Illinois (the "UCC"). When used herein, the following
defined terms shall have the following meanings:
"ACCOUNT" shall mean any right to payment for goods sold or leased or
for services rendered that is not evidenced by an Instrument or Chattel Paper,
whether or not it has been earned by performance, including without limitation,
contract rights related thereto (including all rights to receive monies due and
to become due under or pursuant to any Accounts, General Intangibles and
contract rights and all of the rights to terminate, and to perform, compel
performance or otherwise exercise all remedies under, such
- 2 -
Accounts, General Intangibles and contract rights), any and all manner of
accounts receivable, all security agreements, guaranties, letters of credit and
any other security therefor.
"ACCOUNTS COLLATERAL" shall mean all Accounts, Chattel Paper,
Instruments and General Intangibles, and all guaranties, security agreements,
letters of credit and other security therefor.
"ACCOUNT DEBTOR" shall mean a person or party obligated on an Account,
Chattel Paper or General Intangible.
"CHATTEL PAPER" shall mean a writing or writings which evidence both a
monetary obligation and a security interest in or a lease of specific Goods and
includes a group of writings involving a security agreement or lease and an
instrument or series of instruments evidencing a transaction, including without
limitation, all installment contracts and leases.
"COLLATERAL" means each and every one the Debtors' Accounts, Accounts
Collateral, Chattel Paper, Documents, Equipment, Fixtures, Goods, General
Intangibles (including Permits), Monies, Instruments and Inventory, and all of
the real and personal property and interests of the Debtors, wheresoever
located, whether held individually, jointly or severally and whether now or
hereafter owned, acquired, arising or existing, all products, rents, profits and
proceeds of any of the foregoing (including, without limitation, all proceeds of
insurance policies or letters of credit covering or related to any of the
foregoing) and all writings, correspondence, books, files, invoices, bills of
lading, purchase orders, computer files and programs, computer tapes and discs
and cards, accounting records, data, information and other records relating to
any of the foregoing; PROVIDED, HOWEVER, that "Collateral" shall not be
deemed to include any Permit if and only to the extent that it is unlawful to
grant a security interest in any such Permit without the consent, authorization
or approval of the issuer thereof, but "Collateral" in any event shall include:
(i) any such Permit once such consent, authorization or approval has been given,
and (ii) the products and proceeds (including the proceeds of any sale,
assignment or transfer) of all Permits, including those for which it would be
unlawful to grant a security interest in the Permit as such without the consent,
authorization or approval of the issuer thereof.
- 3 -
"DOCUMENT" shall mean a document of title (as defined in the UCC) and
any receipt in the nature of a warehouse receipt.
"EQUIPMENT" shall mean machinery and Goods used or bought for use
primarily in Debtors' business, including without limiting the generality of the
foregoing, the machinery and equipment set forth on the Equipment List attached
as SCHEDULE 1 hereto, all accessions, parts and appurtenances thereto and all
substitutions or replacements thereof, and any Goods not included within the
definition of Inventory or, as defined in the UCC, farm products or consumer
goods.
"EVENT OF DEFAULT" shall mean any of the following events: (i) any
Event of Default as defined in the Agreement, or (ii) the making of a
misrepresentation, material in any respect to the Collateral, any part thereof
or the Secured Party's security interest therein, at any time by any Debtor
hereunder.
"FIXTURES" shall have the same meaning assigned to said term in the UCC,
all accessions, parts and appurtenances thereto and all substitutions or
replacements thereof.
"GENERAL INTANGIBLES" shall mean any personal property (including things
in action) other than Goods, Accounts, Chattel Paper, Documents, Instruments and
Monies, and shall include, without limitation: all intangible personal
property; uncertificated securities; choses in action and causes of action;
customer lists; tax refund claims; rights to receive any assets distributed upon
or in connection with the termination of any employee benefit plan; rights to
receive any proceeds from the sale or other disposition of any assets otherwise
included in or as Collateral hereunder; trademarks, service marks, applications
for trademarks or service marks, trade names, trade secrets, patents, patent
applications, blueprints, designs, formulae, inventions, licenses, permits
(including Permits), franchise rights, copyrights, goodwill; all contract rights
(to the extent such rights are not included in the definition of Accounts),
including all rights under real and personal property leases and any options to
lease or acquire any real property, all rights to receive monies due and to
become due under or pursuant to contracts for damages arising out of or for
breach or default under contracts, and the right to terminate contracts, to
perform thereunder and to compel performance and otherwise exercise remedies
thereunder; all claims
- 4 -
under guaranties or indemnifications or any claims against third parties,
security interests, letters of credit, deposits or other security held by or
granted to the Debtors; and any rights of stoppage in transit, replevin,
repossession or reclamation and other rights and remedies of Debtors, PROVIDED,
HOWEVER, that "General Intangibles" shall not be deemed to include any Permit
which is excluded from the definition of "Collateral," but only to the extent of
such exclusion.
"GOODS" shall mean all movable things and Fixtures, including all
accessions, parts and appurtenances thereto and all substitutions or
replacements thereof, but not including Monies, Documents, Instruments,
Accounts, Chattel Paper or General Intangibles.
"INSTRUMENT" shall mean a negotiable instrument (as defined in the UCC)
or a certificated security (as defined in the UCC), or any other writing which
evidences a right to payment of money and is not itself a security agreement or
lease and is of a type which is in ordinary course of business transferred by
delivery with any necessary endorsement or assignment, together with all
substitutions or replacements therefor.
"INVENTORY" shall mean Goods held for sale or lease or to be furnished
under contracts of service, including, without limiting the generality of the
foregoing, raw materials, supplies, work in process, materials used or consumed
in any Debtor's business, finished goods, and Inventory which has been returned
to or repossessed or stopped in transit, together with all Documents relating to
the foregoing and all accessions, parts and appurtenances thereto and all
substitutions or replacements thereof.
"MONIES" means (i) all cash at any time on deposit with or held by the
Agent or any other bank or institution for the account of the Debtors, (ii) all
accounts of the Debtor with the Agent or any other bank or institution, (iii)
all investments and reinvestments of amounts from time to time credited to such
accounts, and (iv) all interest, dividends, distributions and other proceeds
payable on or with respect to such investments and reinvestments and such
accounts.
- 5 -
"PERMITS" means any and all governmental or regulatory permits,
licenses, authorizations or approvals (and all applications with respect
thereto) of any kind or nature which are required by the Debtors under
applicable law to operate their businesses, including those listed on SCHEDULE
2 hereto, together with any and all successor permits, any extensions, renewals
or substitutions of any of the foregoing, and all other such licenses, permits,
authorizations or approvals of any kind or nature.
"SECURED OBLIGATIONS" means all Obligations as defined in the Agreement,
and specifically includes: (i) performance of each covenant, promise and
agreement of Debtors contained herein or incorporated herein by reference; (ii)
payment of all sums required to be made by Debtors pursuant to the terms hereof;
(iii) each and every promise, agreement, covenant, debt and all other
liabilities, obligations and indebtedness of the Debtors to the Agent and
Lenders, their successors or assigns, whether primary, secondary, contingent,
direct or indirect, howsoever incurred, created, arising or evidenced, whether
presently or hereafter existing, evidenced, arising or to become due, which such
liabilities, obligations and indebtedness of the Debtors to the Agent and
Lenders arise from or in connection with the Agreement, the Loans thereunder and
the Notes evidencing the same, together with interest thereon, and any Interest
Rate Contract or any other Loan Documents or any refinancings, substitutions,
extensions, renewals, replacements and modifications for or of the foregoing;
and (iv) the enforcement by the Agent and the Lenders of their respective rights
and remedies under any or all of the foregoing (including all costs, expenses
and reasonable attorneys' and paralegals' fees and expenses incurred by the
Secured Party or the Lenders).
2. GRANT OF SECURITY INTEREST. As continuing security for the prompt
payment and performance of all of the Secured Obligations, each Debtor hereby
assigns, pledges, hypothecates, transfers, sets over and delivers to the Secured
Party and grants to the Secured Party, for its benefit and the ratable benefit
of the Lenders, a continuing security interest in the Collateral.
3. REPRESENTATIONS AND WARRANTIES. Debtors represent and warrant to
the Secured Party that: (i) except for or with respect to Permitted Liens, no
financing statement covering any of the Collateral is on file in any public
office reflecting any of the Debtors as debtor therein; (ii) except for certain
Permitted Liens
- 6 -
on Equipment and/or Fixtures, the security interest granted hereunder is a first
priority security interest; (iii) each of the Debtors has good and marketable
title to all of their respective properties and assets, including the
Collateral, and are the lawful owners of all of its Collateral, free and clear
of all Liens whatsoever, other than the security interests of the Secured Party
hereunder and Permitted Liens; (iv) each of the Debtors has the full power and
authority to execute this Security Agreement and perform the respective Debtor's
obligations hereunder, and to subject the Collateral to the security interest
hereunder; (v) this Security Agreement is a legal, valid and binding obligation
of each Debtor enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws or equitable principles of general
application relating to the enforcement of creditors' rights generally; (vi) all
information with respect to the Collateral and Account Debtors set forth in any
schedule, certificate or other writing at any time heretofore or hereafter
furnished by any Debtor to the Secured Party or any Lender, and all other
written information heretofore or hereafter furnished by Debtors to the Secured
Party or any Lender, is and will be true and correct in all material respects as
of the date furnished.
4. USE OF EQUIPMENT AND FIXTURES. Until the occurrence of an Event
of Default not cured or waived in writing by the Secured Party, Debtors may have
possession of their Equipment and Fixtures and use the same in any lawful manner
not inconsistent with this Security Agreement or with any policy of insurance on
any of the Equipment or Fixtures, but may not sell, abandon or otherwise
transfer or dispose of any Equipment or Fixtures, except as permitted under
Section 8.B.8 of the Agreement.
5. COLLECTIONS ON ACCOUNTS COLLATERAL.
a. Until the occurrence of an Event of Default not cured or waived in
writing by the Secured Party, Debtors (i) may use and consume, in the ordinary
course of their business, any raw materials, work in process or materials
normally held by Debtors for such purpose; (ii) will, at their own expense,
endeavor to collect, as and when due, all amounts due with respect to any of the
Accounts Collateral, including the taking of such action with respect to such
collection as the Secured Party may reasonably request or, in the absence of
such request, as Debtors may deem advisable; and (iii) may grant, in the
ordinary course of business,
- 7 -
to any party obligated on any of the Accounts Collateral, any rebate, refund or
allowance to which such party may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale or lease of which shall have
given rise to such Accounts Collateral.
b. The Secured Party, however, may at any time and from time to time
contact any Account Debtor of the Debtors or obligor under any of Debtors'
Instruments in order to verify the validity or amount or any other matter
relating to any Account or any Instrument. In addition, after the occurrence of
an Event of Default not cured or waived in writing by the Secured Party, the
Secured Party also may at any time and from time to time (i) notify any Account
Debtors of any Debtor and any obligors under any of Debtor's Instruments that
the Accounts and the Instruments of any Debtors have been assigned to the
Secured Party and the Secured Party has a security interest therein; and (ii)
notify in Secured Party's or in each respective Debtor's name, any parties
obligated on any of the Debtor's Accounts Collateral or obligors on Debtor's
Instruments to perform or make payment to the Secured Party of any obligations
to be performed or amounts due or to become due thereunder and enforce
performance or collection of any of the Debtor's Accounts Collateral or Debtors'
Instruments by suit or otherwise and surrender, discharge, release, sell, assign
or exchange all or any part thereof, or settle, adjust, compromise or extend or
renew for any period (whether or not longer than the original period) any
indebtedness thereunder or evidenced thereby.
c. Upon request or demand of the Secured Party after the occurrence of
such an Event of Default, Debtors will, at their own expense, (i) notify any
parties obligated on any of the Debtors' Accounts Collateral or Instruments to
make payment to the Secured Party of any amounts due or to become due
thereunder, and (ii) forthwith, upon receipt, transmit and deliver to the
Secured Party, in the form received, all cash, checks, drafts, chattel paper and
other instruments or writings for the payment of money (properly endorsed, where
required, so that such items may be collected by the Secured Party) which may be
received by Debtors at any time in full or partial payment or otherwise as
proceeds of any of the Collateral. Any such items which may be received by any
Debtor after such request by the Secured Party will not be commingled with any
other of its funds or property, but will be held separate and apart from its own
funds or property and upon express trust for the
- 8 -
Secured Party until delivery is made to the Secured Party. The Secured Party is
authorized to endorse, in the name of any Debtor, any such items, howsoever
received by the Secured Party, representing any payment on or other proceeds of
any of the Collateral.
6. REPORTING REQUIREMENTS.
a. Each Debtor will from time to time, as the Secured Party may
request, prepare, deliver or make available to the Secured Party, schedules,
certificates, reports and all books and records respecting all or any of the
Collateral and the items or amounts received by any Debtor in full or partial
payment or otherwise as proceeds of any of the Collateral, all to such extent as
the Secured Party may request. Any such schedule, certificate or report
requested to be prepared by the Secured Party shall be executed by a duly
authorized officer of the respective Debtor and shall be in such form and detail
as the Secured Party may specify. Any such schedule identifying any Accounts
subject to the security interest hereunder shall be accompanied (if the Secured
Party so reasonably requests) by a true and correct copy of the invoice
evidencing such Accounts and by evidence of shipment or performance.
b. Each Debtor shall from time to time, upon Secured Party's request,
prepare and deliver to the Secured Party as often as requested by the Secured
Party from time to time but not more often than on a monthly basis, a schedule,
executed by a duly authorized officer of the respective Debtor and in form and
detail satisfactory to the Secured Party, itemizing and describing each piece of
machinery or equipment purchased since the date of the last such schedule and
will, upon request of the Secured Party, deliver copies of the purchase orders
and certificates of delivery or installation for each such piece.
c. Each Debtor shall immediately notify the Secured Party of the
occurrence of any event causing loss or depreciation (outside of normal
depreciation in accordance with GAAP) in the value of Equipment or any other
Collateral which-exceeds the lesser of ten percent (10%) of the book value of
such class of Collateral as reflected on the most recent balance sheet of the
respective Debtors or $100,000, and the amount of such loss or depreciation.
- 9 -
7. AGREEMENTS AND COVENANTS OF DEBTORS. Each Debtor hereby covenants
and agrees that it:
(a) will, upon request of the Secured Party, execute such financing
statements, continuation statements, any schedules to be attached to the
foregoing and other documents or forms (and pay the cost of processing, filing
or recording the same in all public offices deemed necessary by the Secured
Party) and do such other acts and things, all as the Secured Party may from time
to time reasonably request, to establish and maintain a valid first priority
lien and security interest of the Secured Party in the Collateral (free of all
Liens except Permitted Liens) to secure the payment of the Secured Obligations
including, without limitation, delivering for the possession of the Secured
Party any certificates of title, any Instruments and any Chattel Paper as
requested by Secured Party, appropriately endorsed;
(b) unless 30 days' prior written notice is given to Secured Party, will
keep all Inventory at its respective address as set forth below;
(c) unless 30 days' prior written notice is given to Secured Party, will
keep at its respective address set forth below its records concerning Accounts
Collateral, which records will be of such character as will enable the Secured
Party to determine at any time the status thereof, and each Debtor will not
duplicate any such records at any other address;
(d) unless 30 days' prior written notice is given to Secured Party, will
keep at its respective address set forth below, all Collateral consisting of
Equipment, except vehicles which shall not be used outside the territorial
limits of the United States;
(e) will not, unless 30 days' prior written notice is given to the
Secured Party, change the location of its chief executive office or its chief
place of business, or do business under any business or assumed name other than
as may be set forth on SCHEDULE 7.A to the Agreement;
(f) will furnish the Secured Party such information concerning Debtors,
the Collateral and the Account Debtors and obligors on Debtors' Instruments as
the Secured Party may from time to time reasonably request;
- 10 -
(g) will permit the Secured Party and its agents, from time to time, to
inspect and evaluate the Collateral or any part thereof, and to inspect, audit
and make copies of and extracts from all records and all other papers in the
possession of Debtor, and will, upon request of the Secured Party, deliver to
the Secured Party all of such records and papers which pertain to the Collateral
and Account Debtors and obligors on Debtors' Instruments;
(h) will, upon request of the Secured Party, stamp on its Chattel Paper
and Instruments or its records concerning other Collateral, a notation, in form
satisfactory to the Secured Party, of the security interest of the Secured Party
hereunder;
(i) except as otherwise permitted hereunder or under the Agreement, will
not sell, lease, transfer, assign, compromise, settle or otherwise dispose of,
or create or permit to exist any Lien on or in any Collateral to or in favor of
anyone other than the Secured Party and holders of Permitted Liens but only to
the extent of such Permitted Liens;
(j) will at all times, at its own expense keep all Inventory, Equipment
and Fixtures insured against such hazards and liabilities as are commonly
insured against by companies similarly situated, in such amounts, with such
companies, under such policies and in such form, all as shall be reasonably
satisfactory to the Secured Party based on companies similarly situated, which
policies shall provide that loss thereunder shall be payable to the Secured
Party for the account of the Secured Party as its interest may appear and that
the Secured Party shall receive at least thirty (30) days' prior written notice
of any termination or amendment of such policies, and shall if the Secured Party
so requests, be deposited with the Secured Party;
(k) agrees that the Secured Party may apply any proceeds of any such
insurance which may be received by it toward payment of Secured Obligations,
whether or not due, in such order of application as the Secured Party may
determine, and further agrees that if Debtors fail to maintain any insurance or
policies of insurance as required above, or fail to pay any premium related
thereto, the Secured Party may obtain or pay the same, but shall be under no
obligation to do so;
- 11 -
(l) irrevocably appoints, designates and constitutes the Secured Party
and its officers, employees and agents, as Debtors' attorney-in-fact for the
purpose of, upon the occurrence and during the continuation of an Event of
Default, making, settling and adjusting claims under any and all such insurance
policies and of endorsing Debtor's name on any checks, drafts, instruments or
other items of payment received by such Debtor or the Secured Party pursuant to
such insurance policies;
(m) will at all times keep all Inventory, Equipment and Fixtures in good
condition and repair, and will pay all costs of repairs or maintenance of the
foregoing when due and, if Debtors fail in the foregoing, Debtors agree that the
Secured Party may, without so requiring, pay such costs;
(n) will reimburse the Secured Party upon demand for all costs and
expenses, including reasonable attorneys' fees and legal expenses, incurred by
the Secured Party in seeking to collect or enforce any rights with respect to,
or in the inspection, sale, lease, or disposition of, the Collateral and in
seeking to collect all Secured Obligations and to enforce rights hereunder or
under the Agreement, including expenses of any repairs to any realty or other
property to which any of the Equipment or Fixtures may be affixed or be a part;
(o) will reimburse the Secured Party upon demand for all reasonable
costs and expenses incurred by the Secured Party pursuant to this paragraph 7;
(p) agrees that a carbon, photographic or other reproduction of this
Security Agreement may be filed in lieu of, and shall be sufficient as, a
financing statement;
(q) shall bear the risks of loss with respect to its Collateral and
will indemnify the Secured Party and hold the Secured Party harmless from any
and all claims, demands, liabilities, losses, damages, diminutions of value,
costs and expenses relating to or in any way arising out of or from any
possession, use, operation, control, sale, disposition, or collection of any of
the Collateral, normal wear and tear excepted, and hereby releases the Secured
Party from any and all claims or causes of action which Debtors may have, now or
hereafter, relating to the foregoing; and
- 12 -
(r) will promptly notify the Secured Party of any provision of or change
in any Law of which Debtors become aware that would allow any Permits which are
not presently included as Collateral hereunder, to be assigned as Collateral
hereunder and promptly seek and take all action necessary and use best efforts
to obtain any necessary consent and approval to such an assignment if such
consent or approval is required under or pursuant to such Law.
8. RIGHTS OF SECURED PARTY.
a. The Secured Party may, from time to time, at its option, perform any
agreement of Debtors hereunder which Debtors shall fail to perform and take any
other action which the Secured Party deems necessary for the maintenance or
preservation of any of the Collateral or its security interest therein, and
Debtors agree to forthwith reimburse the Secured Party for all expenses of the
Secured Party in connection with the foregoing, together with interest thereon
at the Default Rate of interest on Prime Rate Loans then applicable under the
Agreement from the date of demand until reimbursed by Debtors.
b. Secured Party and Lenders shall have, in addition to the rights and
remedies given to it under this Security Agreement and the Agreement, all of the
rights and remedies of a secured party under the UCC or under the Uniform
Commercial Code as enacted in any jurisdiction in which any of the Collateral
may be located and all rights and remedies allowed by all applicable Laws, all
of which rights and remedies shall be cumulative, and non-exclusive, to the
extent permitted by said Laws. Each Debtor hereby expressly waives, to the
fullest extent permitted by such applicable Law, any right of redemption in the
Collateral, any and all notices, advertisements, hearings or process of law in
connection with the exercise by the Secured Party or the Lenders of any of their
rights and remedies. Upon demand after the occurrence of an Event of Default,
each Debtor agrees to assemble, at its expense, all of its Collateral at such
place or places designated by the Secured Party, and the Secured Party may, to
the fullest extent of the Law, (i) enter upon such places or any other premises
where any of the Collateral may be located, without any obligation to pay rent
to any Debtor, and take possession of and remove such Collateral or render such
Collateral unusable, (ii) sell or lease any or all of the Collateral, free of
all rights and claims of any Debtor therein and thereto, at any public or
private sale conducted on Debtor's
- 13 -
premises or any other location designated by the Secured Party, and (iii) bid
for and purchase any or all of such Collateral at any such sale. Any
notification of intended disposition of any of the Collateral required by Law
shall be deemed reasonably and properly given if given to the respective Debtor
at the address and in the manner set forth in Section 9 hereof at least ten (10)
Business Days before such disposition. Any proceeds of any disposition by the
Secured Party of any of the Collateral may be applied by the Secured Party to
the payment of expenses incurred in connection with the Collateral, including
reasonable attorneys' fees and legal expenses, and any balance of such proceeds
may be applied by the Secured Party toward the payment of such of the Secured
Obligations in the order of application set forth in the Agreement.
c. Notwithstanding anything to the contrary contained herein, if at any
time any assignment of a Permit requires the prior consent or approval of the
issuer of such Permit under then existing Law, the Secured Party will not take
any action pursuant to this Agreement which would constitute or result in any
such assignment without it first obtaining or causing the respective Debtor to
first obtain such consent or approval of such issuer. Each Debtor agrees to
take any action which the Secured Party may reasonably request in order to
obtain and enjoy the full rights and benefits granted to the Secured Party by
this Security Agreement and each other agreement, instrument and document
delivered to the Secured Party in connection herewith or in any document
evidencing or securing the Collateral, to use its best efforts to assist in
obtaining the consent or approval of the issuer of any Permit or any other
regulatory authority for any action or transaction contemplated by this Security
Agreement which is then required by Law, and specifically, without limitation,
upon request, to prepare, sign and file with the appropriate Permit issuer or
regulatory authority the assignor's or transferor's portion of any application
or applications for consent to the assignment of such Permit necessary or
appropriate under the Permit issuer's or other regulatory authority's rules and
regulations for approval of any sale or sales of Collateral by or on behalf of
the Secured Party and the Lenders.
- 14 -
9. GENERAL.
a. The Secured Party shall be deemed to have exercised reasonable care
in the custody and preservation of any of the Collateral in its possession if it
takes such action for that purpose as any Debtor requests in writing, but
failure of the Secured Party to comply with any such request shall not of itself
be deemed a failure to exercise reasonable care, and no failure of the Secured
Party to preserve or protect any rights with respect to such Collateral against
prior parties, or to do any act with respect to the preservation of such
Collateral not so requested by any Debtor, shall be deemed a failure to exercise
reasonable care in the custody or preservation of such Collateral.
b. Any notice from the Secured Party to any Debtor shall be (i) in
writing, and (ii) delivered in person, telexed, telecopied or sent by certified
or registered mail, postage prepaid, return receipt requested, or by overnight
mail or express delivery service to the addresses of the parties hereto set
forth below, unless such address, telex number or telecopier number is changed
by written notice hereunder. Each such notice, request, consent or other
communication shall be effective (i) if given by telecopier, when such telecopy
is transmitted to the telecopier number specified on the signature page hereof
and a confirmation of such telecopy has been received by the sender, (ii) if
given by telex, when such telex is transmitted to the telex number specified on
the signature page hereof and the answerback is received by sender, (iii) if
given by mail, five (5) days after such communication is deposited in the mail,
certified or registered with return receipt requested, addressed as aforesaid or
(iv) if given by any other means, when delivered at the addresses specified on
the signature page hereof.
c. No delay on the part of the Secured Party in the exercise of any
right or remedy or failure by the Secured Party to require strict performance by
any Debtor of any terms or provisions hereunder shall operate as a waiver
thereof, and no single or partial exercise by the Secured Party of any right or
remedy hereunder shall preclude other or further exercise thereof or the
exercise of any other such right or remedy.
d. This Security Agreement has been executed, delivered and accepted in
and shall be deemed to have been made under and shall be construed in accordance
with and governed by the laws of the
- 15 -
State of Illinois without regard to its conflict of law rules. Section headings
used herein are for convenience only and shall not effect the construction or
interpretation of this Security Agreement. Whenever possible, each provision of
this Security Agreement shall be interpreted in such manner as to be effective,
enforceable and valid under applicable Law, but if any provision of this
Security Agreement shall be unenforceable, prohibited by or invalid under
applicable Law, such provision shall be severable and ineffective to the extent
of such unenforceability, prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Security
Agreement.
e. The terms, provisions, conditions and covenants herein contained
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors, assigns, personal representatives and transferees.
The rights and privileges of the Secured Party hereunder shall inure to the
benefit of its successors and assigns, if any.
f. This Security Agreement and each of the other Loan Documents shall
be construed to the extent reasonable to be consistent with each such other
document, but to the extent that the terms and conditions of this Security
Agreement are actually inconsistent with the terms and conditions of the
Agreement, the Agreement will govern.
10. CONSENT TO JURISDICTION AND WAIVER OF JURY TRIAL AND PERSONAL
Service. EACH DEBTOR EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN XXXX COUNTY, ILLINOIS IN ANY ACTION, SUIT
OR PROCEEDING (WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY) COMMENCED
THEREIN IN CONNECTION WITH OR WITH RESPECT TO THE OBLIGATIONS, THIS SECURITY
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION,
ANY DEFENSES OR COUNTER CLAIMS THEREIN), AND EACH DEBTOR, THE AGENT AND THE
LENDERS EACH WAIVE ANY RIGHT TO JURY TRIAL THAT THEY MAY NOW OR HEREAFTER HAVE
UNDER ANY LAWS AND ANY OBJECTION TO VENUE IN CONNECTION THEREWITH. EACH DEBTOR
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS OR PAPERS ISSUED OR SERVED
IN CONNECTION WITH THE FOREGOING AND AGREES THAT SERVICE OF SUCH PROCESS OR
PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, DIRECTED TO THE DEBTORS AS SET FORTH BELOW AND THE DEBTORS'
REGISTERED AGENTS, IN WHICH CASE SUCH PROCESS OR PAPERS SHALL BE DEEMED RECEIVED
FIVE (5) DAYS
- 16 -
THEREAFTER, OR BY OVERNIGHT MAIL OR EXPRESS DELIVERY SERVICE, IN WHICH CASE SUCH
PROCESS OR PAPERS SHALL BE DEEMED RECEIVED ONE (1) DAY THEREAFTER.
11. NATURE OF DEBTORS' OBLIGATIONS. The Debtors acknowledge and agree
that the liability of the Debtors for all Obligations, and under this Security
Agreement and each Loan Document, is joint and several.
12. LIEN ABSOLUTE. All rights of the Agent and Lenders hereunder, and
all obligations of the Debtors hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Agreement, the Notes,
any other Loan Document or any other agreement or instrument governing or
evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Agreement, the
Notes, any other Loan Document or any other agreement or instrument governing or
evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other Collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Debtors.
13. RELEASE. The Debtors consent and agree that the Agent may, with
the concurrence of the Required Lenders, at any time, or from time to time, in
its discretion (a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured Obligations
and (b) exchange, release and/or surrender all or any of the Collateral, or any
part thereof, by whomsoever deposited, which is now or may hereafter be held by
the Agent in connection with all or any of the Secured Obligations; all in such
manner and upon such terms as the Agent may deem proper, and without notice to
or further assent from the Debtors, it being hereby agreed that the Debtors
shall be and
- 17 -
remain bound upon this Security Agreement, irrespective of the existence, value
or condition of any of the Collateral, and notwithstanding any such change,
exchange, settlement, compromise, surrender, release, renewal or extension, and
notwithstanding also that the Secured Obligations may, at any time, exceed the
aggregate principal amount thereof set forth in the Agreement, or any other
agreement governing any Secured Obligations. The Debtors hereby waive notice of
acceptance of this Security Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and promptness in
commencing suit against any part hereto or liable hereon, and in giving any
notice to or of making any claim or demand hereunder upon the Debtors. No act
or omission of any kind on the Agent's or any Lender's part shall in any event
affect or impair this Security Agreement.
14. INDEMNIFICATION. The Debtors agree jointly and severally to
indemnify and hold the Agent, each Lender and each of their directors, officers,
employees, agents and counsel, harmless from and against any taxes, penalties,
liabilities, claims, judgments and damages, including reasonable fees and
disbursements of attorneys therefor (including in-house counsel who may be
employees of the Agent or Lenders), and other expenses incurred thereby or
arising in connection with the enforcement of or realization on this Security
Agreement or the Lien provided for herein, including, without limitation, any
federal or state securities law liability imposed or asserted against any such
party in connection with any sale, assignment, transfer, disposition or other
realization on the Collateral unless caused by such party's willful misconduct
or gross negligence, and any taxes payable in connection with the delivery of
any of the Collateral as provided herein. The obligations of the Debtors under
this Section 14 shall survive the termination of this Security Agreement.
15. REINSTATEMENTS. This Security Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against any of the Debtors for liquidation or reorganization, should any of the
Debtors become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of any
Debtor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance under applicable law is
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee of the
- 18 -
Secured Obligations, whether as a "voidable preference," "fraudulent
conveyance," or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Secured Obligations shall be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
IN WITNESS WHEREOF, Debtors have caused this Security Agreement to be duly
executed as of the day and year first above written.
CONTINENTAL WASTE INDUSTRIES, INC.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Chief Executive Office: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 19 -
XXXXXX BROTHERS, INC.,
a Tennessee corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: X.X. Xxx 000
Xxxx, Xxxxxxxxx 00000
Chief Executive Office: X.X. Xxx 000
Xxxx, Xxxxxxxxx 00000
Other Business Location(s): 0000 X. Xxxxxxx 00
Xxxxx Xxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
XXXXXX BROTHERS WASTE, INC.,
a Tennessee corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: X.X. Xxx 000
Xxxx, Xxxxxxxxx 00000
Chief Executive Office: X.X. Xxx 000
Xxxx, Xxxxxxxxx 00000
Other Business Location(s): 0000 X. Xxxxxxx 00
Xxxxx Xxxx, Xxxxxxxxx 00000
McKenzie Transfer Xxxxxxx
Xxxxxxx 00
XxXxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
-20-
BERRIEN COUNTY LANDFILL, INC.,
a Michigan corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 X. Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Chief Executive Office: 0000 X. Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
BLUEGRASS RECYCLING & TRANSFER COMPANY,
a Kentucky corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: U.S. Xxxxxxx 00
Xxxxxx, Xxxxxxxx 00000
Chief Executive Office: X.X. Xxxxxxx 00
Xxxxxx, Xxxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 21 -
COMMERCIAL WASTE DISPOSAL, INC.
a Kentucky corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Chief Executive Office: Xxxxx 0, Xxx Xxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Other Business Location(s): Xxxxxxx 00, Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
COVINGTON WASTE, INC.,
a Tennessee corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Chief Executive Office: 000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 22 -
CWI OF ILLINOIS, INC.,
an Illinois corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: Xxxxx 0, Xxx 000
XxXxxx, Xxxxxxxx 00000
Chief Executive Office: Xxxxx 0, Xxx 000
XxXxxx, Xxxxxxxx 00000
Other Business Location(s): 0000 X. Xxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
0000 Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 23 -
CWI OF MISSOURI, INC.,
a Missouri corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00000 Xxxxx Xxxxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Chief Executive Office: 00000 Xxxxx Xxxxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Other Business Location(s): 000 Xxxxxxxx
Xx. Xxxxxxxxx, Xxxxxxxx 00000
Xxxxx 0, Xxx 0000
Xx. Xxxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
CWI VENTURE, INC.,
a New Jersey corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Chief Executive Office: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Other Business Location(s): None
Telephone: (000) 000-0000
Telecopy : (000) 000-0000
- 24 -
FLL, INC.,
a Michigan corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Chief Executive Office: 0000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 25 -
G.E.M. ENVIRONMENTAL MANAGEMENT INC.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
GILA BEND REGIONAL LANDFILL, INC.,
an Arizona corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 26 -
GREENFIELD ENVIRONMENTAL DEVELOPMENT CORP.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
JAMAX CORPORATION,
an Indiana corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): 0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 27 -
KARAT CORP.,
a New Jersey corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Chief Executive Office: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
MIDWEST MATERIAL MANAGEMENT, INC.,
an Indiana corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxx 00000
Chief Executive Office: 000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 28 -
NORTHWEST TENNESSEE DISPOSAL CORPORATION,
a Tennessee corporation
By:_____________________________________
Name:___________________________________
Its:____________________________________
Address: 000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Chief Executive Office: 000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Other Business Location(s): 0000 Xxxxxxx 00 Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: None
PRICHARD LANDFILL CORPORATION,
a West Virginia corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxx Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Chief Executive Office: 0000 Xxx Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 00 -
XXXXX XXXXXX XXXXXXXX XXXX.,
x Xxxx Xxxxxxxx corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Chief Executive Office: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
SANIFILL, INC.,
a Tennessee corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 30 -
SOUTHERN ILLINOIS REGIONAL LANDFILL, INC.,
an Illinois corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: Xxxxx 0, Xxx 000
XxXxxx, Xxxxxxxx 00000
Chief Executive Office: Xxxxx 0, Xxx 000
XxXxxx, Xxxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
SOUTH TRANS, INC.,
a New Jersey corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Chief Executive Office: 00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 31 -
SPRINGFIELD ENVIRONMENTAL, INC.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Its:____________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): 0000 Xxxxx Xxxxxx Xxxx 00
Xxxxx Xxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
SPRINGFIELD ENVIRONMENTAL, INC.,
a New Jersey corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): 0000 Xxxxx Xxxxxx Xxxx 00
Xxxxx Xxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 32 -
TRIPLE G LANDFILLS, INC.,
an Indiana corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
UNITED REFUSE CO., INC.,
an Indiana corporation
By:_____________________________________
Name:___________________________________
Its:____________________________________
Address: 0000 Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Chief Executive Office: 0000 Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 33 -
VICTORY ENVIRONMENTAL SERVICES, INC.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 00000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Chief Executive Office: 00000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
VICTORY WASTE INCORPORATED,
a California corporation
By:
-------------------------------------
Name:___________________________________
Its:____________________________________
Address: 00000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Chief Executive Office: 00000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 00 -
XXX XXXXXXXXXXX xx XXXXX XXXX S.A.,
a Costa Rican corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: Relleno de Sanitario Los Manyos
Del Club La Xxxxxx
Xxxxxx San Xxxx de Alajuela
Alajuela, Costa Rica
Chief Executive Office: Relleno de Sanitario Los Manyos
Del Club La Xxxxxx
Xxxxxx San Xxxx de Alajuela
Alajuela, Costa Rica
Other Business Location(s): None
Telephone: 000-000-000-0000
Telecopy: 000-000-000-0000
WPP SERVICES, INC.,
an Ohio corporation
By:_____________________________________
Name:___________________________________
Its: ___________________________________
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Chief Executive Office: 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Other Business Location(s): None
Telephone: 000-000-0000
Telecopy: 000-000-0000
- 35 -
SECURITY AGREEMENT
SCHEDULE 1
(Attach Equipment List
for each of Debtors)
- 36 -
SECURITY AGREEMENT
SCHEDULE 2
Permits (Including Applications)
- 37 -
EXHIBIT F
LAW OFFICES
XXXXXXX & XXXXXXXX LTD.
000 XXXXX XXXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
--------
TELEPHONE (000) 000-0000
FACSIMILE (000) 000-0000
WRITER'S DIRECT DIAL NO. IN REPLY REFER TO:
March 28, 1995
LaSalle National Bank, as Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We have acted as counsel to Continental Waste Industries, Inc., a
Delaware corporation ("CWI"), together with its direct and indirect
subsidiaries, which currently consist of those subsidiaries listed on
EXHIBIT A, attached hereto. Any of said corporations may be referred to
herein as a "BORROWER," individually and referred to collectively as the
"BORROWERS." We have represented the Borrowers in connection with the
execution and delivery of the Credit Agreement dated as of the date hereof
("Credit Agreement") among the Borrowers, the Lenders, and LaSalle National
Bank as Agent ("Agent"). This opinion is rendered to you pursuant to the
Credit Agreement. Capitalized terms used herein and not otherwise defined
will have the respective meanings ascribed to them in the Credit Agreement.
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction,
of the following documents:
1. The Credit Agreement.
2. The Revolving Note(s) dated as of the date hereof from the Borrowers
to Lender(s).
3. The Stock Pledge Agreement dated as of the date hereof, executed by
CWI and other Pledgers, together with duly executed stock powers or
assignments endorsements in blank.
4. Environmental Indemnity Agreement dated as of the date hereof,
executed by the Borrowers.
5. Security Agreement dated as of the date hereof, executed by the
Borrowers.
6. UCC-1 Financing Statements dated as of the date hereof, executed by
the Borrowers.
7. Mortgages and Leasehold Mortgages listed on EXHIBIT B attached hereto
and dated as of the date hereof, executed by the Borrower indicated on
EXHIBIT B in favor
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 2
of the Agent for the benefit of Lender(s) encumbering real property
located solely within the State of Illinois.
8. Certificates of Incorporation for each of the Borrowers certified by
the Secretary of State where such Borrowers are incorporated.
9. Certificates of Good Standing for each of the Borrowers issued by the
Secretary of State of the state of incorporation and state of foreign
qualification.
10. Secretary's Certificate accompanied by the resolutions authorizing
the execution of the Loan Documents of each of the Borrowers and
attached as EXHIBIT C hereto.
11. Bylaws of each of the Borrowers.
12. UCC Financing Statement Searches (schedule on EXHIBIT D hereto).
Documents 1-7 above are hereinafter referred to as the "Loan Documents".
In rendering the opinions expressed below, we have assumed, with your
permission and without independent verification, that:
(a) the signatures of persons, except those of the Borrowers, signing
all documents in connection with which this opinion is rendered are genuine
and authorized;
(b) all documents submitted to us as originals or duplicate originals
are authentic;
(c) all documents submitted to us as copies, whether certified or not,
conform to authentic original documents;
(d) none of the Borrowers' chattel paper, instruments or investment
securities bears any endorsement or legend indicating an ownership or other
interest therein other than that of the respective Borrower;
(e) each of the Borrowers has rights in each item of Collateral (as
defined in the Credit Agreement) owned by it and existing on the date hereof
and will have rights in each item of Collateral owned by it arising after the
date hereof;
(f) value has been given to the Borrowers in the form of an advance
under the Credit Agreement for the security interests and other rights in and
assignments of Collateral described in or contemplated by the Credit
Agreement executed and delivered by the Borrowers on or prior to the date
hereof;
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 3
(g) all parties to the Loan Documents (other than the Borrowers) have
full power and authority to execute, deliver and perform thereunder and under
the documents required or permitted to be delivered and performed thereunder,
and all such Loan Documents have been duly authorized by all necessary
corporate or other action on the part of such other parties, have been duly
executed by such other parties and have been duly delivered by such other
parties; and
(h) any Collateral in which a security interest can be perfected only
by possession is in your possession.
When, in this opinion, the existence or absence of facts is indicated to
be based on our knowledge or awareness, we are referring to the actual
knowledge of Xxxxxxx & Xxxxxxxx Ltd. attorneys who have represented the
Borrowers during the course of our representation of the Borrowers. In that
respect, we have not undertaken any independent investigation to determine
the existence or absence of such facts, and no inferences as to our knowledge
of the existence or absence of such facts should be drawn from such
representation.
Notwithstanding anything to the contrary herein, we express no opinion
with respect to the priority or authority of any person to execute, deliver
or perform, or the legality, validity or binding effect, voidability or
enforceability of (i) any creation or assumption of any Obligations, as
defined in the Credit Agreement or any transfer of any interest in property
(including, without limitation, any collateral assignment including
assignments absolute in form but intended for security, any grant of a
security interest or lien, or any mortgage) which would constitute a
fraudulent conveyance under applicable law, for which the creating, assuming
or transferring party does not receive "adequate consideration" ("adequate
consideration" being defined as consideration sufficient to constitute "fair
value" as that term is defined under the Uniform Fraudulent Conveyance Act
and sufficient to constitute "reasonably equivalent value" as defined in the
Bankruptcy Code of 1978, and as amended (11 U.S.C. Section 101 ET SEQ.)) or
(ii) any agreement entered into, or under which liabilities are incurred
with the intent (actual or otherwise) to hinder, delay or defraud either present
or future creditors. Notwithstanding the foregoing, we have been provided with
an officer's certificate of CWI to the effect that: no transfer is being made,
and no liabilities are being incurred pursuant to the Credit Agreement with
actual intent to hinder, delay or defraud either present or future creditors;
and CWI (i) is not insolvent as of the date hereof and will not become insolvent
as a result of any such transfer or liability; (ii) is not engaged in business
or any transaction, and is not about to engage in business or any transaction,
for which the property remaining with such corporation is unreasonably small
capital after giving effect to the transfers and liabilities contemplated in the
Credit Agreement; and (iii) does not intend to incur, and does not believe that
it will incur, debts that would be beyond its ability to pay as they mature. To
the extent that such representations made in such officer's certificate are
true, the Agent's security interest in and liens on the Collateral and the
incurrence of the Obligations would not be challengeable or avoidable as a
fraudulent conveyance within
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 4
the meaning of the Uniform Fraudulent Conveyance Act on Section 548 of The
Bankruptcy Code of 1978, as amended. We advise you that applicable judicial
decisions do not clearly specify the meaning of such representations or how
they would be determined to be true or false. We are not experts in asset
valuation, financial analysis, financial reporting or other similar
disciplines and we have conducted no independent investigation with respect
to the matters set forth in such officer's certificate.
Our opinions as hereinafter expressed are subject to the following
further qualifications:
(a) our opinions are subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws relating to or
affecting the rights of creditors generally;
(b) our opinions are subject to limitations imposed by general
principles of equity upon the enforceability of any of the remedies,
covenants or other provisions of the Loan Documents and upon the availability
of injunctive relief or other equitable remedies, and the application of
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity), particularly with regard to certain
covenants and provisions of agreements where (i) the breach of such covenants
or provisions imposes restrictions or burdens upon a debtor and it cannot be
demonstrated that the enforcement of such restrictions or burdens is
reasonably necessary for the protection of a creditor, (ii) a creditor's
enforcement of such covenants or provisions under the circumstances, or the
manner of such enforcement, would violate such creditor's implied covenant of
good faith and fair dealing, or would be commercially unreasonable, or (iii)
a court having competent personal and subject matter jurisdiction finds that
such covenants or provisions were at the time made, or are in application,
unconscionable as a matter of law or public policy;
(c) we express no opinion as to the enforceability of cumulative
remedies to the extent such cumulative remedies purport to or would have the
effect of compensating the party entitled to the benefits thereof in
amounts in excess of the actual loss suffered by such party;
(d) we express no opinion as to the creation or perfection of security
interests in property in which it is illegal or violative of governmental
rules or regulations to grant security interests including without limitation
permits and licenses granted by governmental entities, property subject to
negative pledge clauses, property which is or is to become a "fixture" as
defined in the Applicable Code (except with respect to property located in
Illinois), aircraft, aircraft engines, propellers and related parts, ships,
railroad cars, locomotives or other rolling stock, vessels (although we have
been provided with an officer's certificate of the Company stating that it
owns no aircraft or related parts for which recording or filing under the
Federal
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 5
Aviation Act of 1958, as amended, is required for perfection or any ships or
vessels for which recording or filing under the Federal Ship Mortgage Act is
required for perfection or any railroad cars, locomotives or other rolling
stock or vessels for which recording or filing with the Interstate Commerce
Commission is required for perfection), crops, copyrights, literary property
rights, patents, patent applications, trademarks or service marks or
applications thereof, know-how, processes, trade secrets, computer software,
unrecorded and unwritten data and information, and rights and licenses
thereunder, nor do we express any opinion with respect to the creation or
perfection of any security interest in any "accounts," "chattel paper,"
"documents," "instruments" or "general intangibles" (as defined in the
Uniform Commercial Code in effect in the applicable state of filing as of the
date hereof, the ("Applicable Code")) with respect to which the account
debtor or obligor is the United States of America, any state (other than
Illinois), county, city, municipality or other governmental body, or any
department, agency or instrumentality thereof, unless the same has been
assigned to you pursuant to the Assignment of Claims Act of 1940, as amended,
or any similar law or regulation relating to the assignment or pledge thereof;
(e) any purported assignment of an agreement or any governmental
approval, license or permit may be subject to restrictions upon assignment or
transfer which, although not necessarily applicable to assignments intended
as security, may be required before you will be treated as an assignee
thereof, except to the extent that consents to or approvals of such
assignment have been obtained from the appropriate governmental body or third
party;
(f) the rights of debtors, guarantors and other secured parties to
receive notices under Section 9-504 and 9-505 of the Applicable Code may not
be waived prior to default and the failure to comply with such notice
requirements will bar the recovery of any deficiency remaining after the
retention or sale of repossessed collateral;
(g) pre-default waivers of equity rights and defenses may not be
enforceable under state or federal law and federal equitable subordination
principles are, in part, a matter of statutory law which cannot be waived by
a private party;
(h) certain provisions of the Loan Documents regarding the application
of proceeds realized from the sale of Collateral do not make reference
(although they do not have to in order to enable you to exercise the rights
and remedies of a secured party under the Applicable Code) to your
obligations to satisfy indebtedness due to the holders of subordinate
security interests in such collateral under certain conditions under
Section 9-504(1)(c) of the Applicable Code;
(i) notwithstanding certain language of the Loan Documents, you may be
limited to recovering only reasonable expenses with respect to the retaking,
holding, preparing for sale or lease, selling, leasing and the like of
collateral and reasonable attorneys' fees and legal expenses;
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 6
(j) under certain circumstances, a foreclosure upon, retention of, or
public or private sale of, collateral in satisfaction of Liabilities or
indebtedness may constitute a fraudulent conveyance within the meaning of the
Uniform Fraudulent Conveyance Act or a transaction avoidable under Section
548 of The Bankruptcy Code of 1978, as amended;
(k) the duties to exercise reasonable care in the custody and
preservation of Collateral in a secured party's possession, to deal with and
to dispose of Collateral in a commercially reasonable manner and to act in
good faith with diligence, reasonableness and care as required by the
Applicable Code or other applicable law may not be disclaimed by agreement,
waived or released prior to a default;
(l) provisions in the Loan Documents deemed to impose penalties,
forfeitures, or the payment of interest on interest may be unenforceable,
void or voidable under Illinois law;
(m) requirements in the Loan Documents specifying that provisions
thereof may only be waived in writing may not be enforced to the extent that
an oral agreement or an implied agreement by trade practice or course of
conduct has been created modifying any provision of such Loan Documents;
(n) we express no opinion as to the laws of, or the effect or
applicability of the laws of, any jurisdiction other than the laws of the
State of Illinois, and other than the general corporate laws of the states of
incorporation of each Borrower and the federal laws of the United States of
America;
(o) with respect to paragraph 1 set forth below, our opinion is based
solely upon certificates of good standing and certified articles of
organization of each of the Borrowers and the representations made to us by
the Borrowers, except with respect to WPP/Continental De Costa Rica S.A. we
express no opinion;
(p) with respect to paragraph 8 set forth below, our opinion as to the
perfection of the Agent's liens upon and security interests in the Pledged
Collateral and Collateral referred to in the Stock Pledge Agreement and the
Security Agreement is limited by and subject to the applicable provisions of
the Applicable Code (as defined above), which provisions result in the lapse
of perfection under certain circumstances; further, in our perfection opinion
based upon the summary of the law relating to the requirements for perfection
and filing as set forth in the Applicable Codes of states other than the
State of Illinois, we have relied solely upon the Secured Transaction Guide
published by Commerce Clearing House, current through March 15, 1995;
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 7
(q) we express no opinion as to the existence of any of the Collateral
or the validity or condition of the title of the Company thereto;
(r) certain rights, remedies and waivers contained in the Loan
Documents may be rendered ineffective, or limited by, applicable laws or
judicial decisions governing such provisions (other than those referred to
above), but such laws and judicial decisions do not, in our opinion, make the
Loan Documents inadequate for the practical realization of your rights and
remedies thereunder;
(s) the Loan Documents may not be enforceable under circumstances where
your actions, failures to act, or waivers or amendments of the Loan Documents
so radically change the essential nature of the terms and conditions of the
liabilities that, in effect, a new relationship has arisen between you and
the Borrowers which is substantially and materially different from that
presently contemplated by the Loan Documents;
(t) we express no opinion as to the validity, legality, enforceability or
binding effect of any provision of the Loan Documents which purport to
obligate the Borrowers to indemnify you for losses, claims and expenses
incurred by you which arise out of your failure to meet obligations imposed
on you by applicable law which cannot be waived by the Borrowers at the
present time under applicable law;
(u) we express no opinion as to the validity, legality, enforceability
or binding effect of any provision of the Loan Documents to the extent that
such provisions purport to waive rights or obligations which cannot be waived
by law;
(v) we express no opinion with respect to the validity or existence of
any governmental permits or licenses of an environmental nature which are
required to conduct a Borrower's business or the fulfillment of the
governmentally imposed or regulatory requirements by Borrowers to conduct
landfill operations and we express no opinion as to any other matters with
respect to such environmentally related permits and licenses;
(w) we express no opinion as to the priority of the lien of any
Mortgage or Leasehold Mortgage, as it is our understanding that you will be
relying on title insurance for such purpose; and
(x) we express no opinion as to the enforceability of any Mortgage or
Leasehold Mortgage, which purports to secure a lien on property located
outside of the State of Illinois.
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 8
Based upon the foregoing and subject to the qualifications set forth
below, we are of the opinion that:
1. Each of the Borrowers (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of the state set forth
opposite its name on EXHIBIT A; and (b) is duly qualified as a foreign
corporation to do or transact business in, and is in good standing under the
laws of, each jurisdiction in which the ownership or lease of its respective
property or the conduct of its respective business requires such
qualification, except for jurisdictions in which failure by it to so qualify
would not have a material adverse effect on its business or operations.
2. Each of the Borrowers has the requisite corporate power and
authority (a) to own or lease and pledge or grant a security interest in its
assets and properties and to operate its properties and to conduct its
business as currently operated and conducted; and (b) to execute, deliver and
enter into, to incur and perform its respective obligations under and to
create such liens and security interests in favor of the Agent as are
provided for in the Loan Documents to which it is a party or signatory.
3. The Loan Documents to which any of the Borrowers is a party or
signatory, the transactions provided for therein and each of the Borrowers'
execution, delivery and entry into, incurrence and performance of each of its
respective obligations under, and creation of the liens and security
interests in favor of the Agent as are provided for in the Loan Documents to
which it is a party or signatory (a) have been duly and validly authorized by
all necessary action; (b) do not and will not violate, conflict with or
result in a violation or breach of, accelerate any performance required by
any of the Borrowers under, or create or impose any lien, security interest
or other encumbrance on any of the Borrowers' properties or assets (except as
provided in and pursuant to the Loan Documents) by reason of the terms of (i)
the certificate or articles of incorporation or bylaws of any of the
Borrowers; (ii) any law, rule or regulation of any governmental authority
applicable to any of or by or to which any of the Borrowers or their
properties are bound or subject; or (iii) to the best of our knowledge, and
based solely on Borrower's representation, any order, writ, judgment,
injunction or decree of any court or any other governmental authority, or any
indenture, mortgage, deed of trust, lease, security agreement or any other
instrument or agreement to which any of the Borrowers is a party or subject
or by which any of the Borrowers or their properties is bound; and (c) do not
and will not require any consent, license, authorization, waiver, approval,
withholding of disapproval, filing with any court, governmental authority or
other Person not already obtained or filed as of the date hereof.
4. The Loan Documents to which any of the Borrowers are a party or
signatory have been duly executed and delivered thereby and constitute the
respective legal, valid and binding obligations of such Borrowers,
enforceable against such Borrowers in accordance with their
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 9
respective terms, subject only to (i) bankruptcy, insolvency, reorganization,
moratorium, arrangement or similar laws relating to or affect the rights of
creditors generally; and (ii) general principles of equity with respect to
availability of equitable remedies, regardless of whether enforcement is
sought in proceedings at law or in equity.
5. To the best of our knowledge after due inquiry as of the date
hereof, each Borrower's (i) authorized capital stock, (ii) issued capital
stock, (iii) outstanding capital stock, (iv) par value per share, and (v) the
beneficial ownership of said outstanding shares, are as set forth in
EXHIBIT E, attached hereto. All of said outstanding shares have been duly
and validly issued.
6. To the best of our knowledge after due inquiry, all of the issued and
outstanding shares of the capital stock of each of the Borrowers, and all
rights, options or warrants therefor, were offered, issued and sold by the
Borrowers in material compliance with all applicable federal and state
securities, blue sky and similar laws, and in compliance with the
requirements of any applicable exemptions from registration relied upon under
such laws.
7. Except as set forth in EXHIBIT F, no subscription, warrant, option
or other right (preemptive or otherwise) to purchase or acquire any shares of
any class of capital stock of any of the Borrowers, or securities convertible
into such capital stock is authorized or outstanding; and there is no
commitment of any Borrower to issue any such shares, warrants, options or
other such rights or securities.
8. The provisions of the Stock Pledge Agreement and the Security
Agreement create legal and valid liens and security interests in,
respectively, the Pledged Collateral and Collateral referred to therein, in
favor of the Agent, all of which liens and security interests have attached
thereto and are enforceable as against the Borrowers. The delivery at the
closing to the Agent of the stock certificates evidencing the Pledged Shares
referred to in the Stock Pledge Agreement perfects the aforesaid liens and
security interest in such Pledged Shares as of the date hereof. The forms of
Uniform Commercial Code financing statements executed by the Borrowers under
the Stock Pledge Agreement and Security Agreement have been duly executed
thereby, and are sufficient in form and substance (including, without
limitation, in its description of collateral covered thereby), to perfect
upon due filing with the appropriate offices referred to in EXHIBIT G, the
above referenced liens and security interests in the above referenced Pledged
Collateral and the Collateral owned by the Borrowers and in which a security
interest may be perfected by filing a financing statement under the Applicable
Code. The appropriate offices in which to file said financing statements
against the respective Borrowers are as set forth in EXHIBIT G, attached
hereto.
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 10
9. Each Mortgage securing a lien on a property located in the State of
Illinois is in proper form for the creation of the mortgage lien or lien of
record on the respective Borrower's interest in the property described
therein as being granted, hypothecated and pledged to the Agent, and further
is in proper form for recording in the real property records of the
Recorder's Office of the county in which the property is located.
10. Each Leasehold Mortgage securing a lien on a property located in
the State of Illinois is in proper form for the creation of the mortgage lien
or lien of record on the respective Borrower's leasehold interest in the
property described therein as being granted, hypothecated and pledged to the
Agent, and further is in proper form for recording in the real property
records of the Recorder's Office of the county in which the property is
located.
11. The Mortgages and the Leasehold Mortgages (with respect only to
those properties located in Illinois), when recorded in the official real
property records of the appropriate Recorder's Office, will constitute the
valid and binding obligation of the respective Borrowers, enforceable against
said Borrowers in accordance with their respective terms. The appropriate
offices in which to file said Mortgages and Leasehold Mortgages are as set
forth in EXHIBIT B, attached hereto.
12. Assuming that the Mortgages and Leasehold Mortgages (with respect
only to those properties located in Illinois) are duly recorded, each of said
documents will constitute a valid, direct lien and perfected fixture filing
of record, as security for the obligations of the Borrowers under the Credit
Agreement against the properties described in the respective Mortgages and
Leasehold Mortgages.
13. Except as set forth at Schedule 7.F of the Credit Agreement, to the
best of our knowledge based on Borrower's representation, there are no
actions, suits, investigations, or proceedings (whether or not purportedly on
behalf of any Borrower) pending, threatened against or affecting any
Borrower, or the business or properties of any Borrower, or before or by any
governmental agency, or any court, arbitrator or grand jury, which may
reasonably be expected to result in any material adverse change in the
business, operations, or properties or assets or in the condition,
financial or otherwise, of the Borrowers or in the ability of any Borrower to
perform its obligations under the Credit Agreement. Except as otherwise
disclosed in the Environmental Indemnity Agreement and schedules thereto,
dated March 28, 1995, among Agent, Lenders and Borrowers, no Borrower, to the
best of our knowledge after due inquiry, is in default with respect to any
judgment, order, writ, injunction, grand jury, or of any governmental agency,
a default under which would have consequences which could materially and
adversely affect the business, properties or assets or the condition,
financial or otherwise, of any Borrower.
XXXXXXX & XXXXXXXX LTD.
LaSalle National Bank, as Agent
March 28, 1995
Page 11
This opinion letter is solely for use by the Agent and each of the
Lenders and permitted assigns and participants, party to the Credit Agreement
and it may not be used or relied upon by any other person or entity for any
other purpose, nor may it be quoted or filed with any governmental agency
without our prior consent. This opinion is given as of the date hereof and
nothing shall require us to advise you of any facts arising after that date
which would invalidate or otherwise alter any matter opined to herein.
Very truly yours,
[Sig]
Xxxxxxx & Xxxxxxxx Ltd.
EXHIBIT A
LIST OF BORROWERS
-----------------
State of Foreign
Name Incorporation Qualification
---- ------------- ------------------
Continental Waste Industries, Inc. Delaware --
Xxxxxx Brothers, Inc. Tennessee --
Xxxxxx Brothers Waste, Incorporated Tennessee Kentucky, Missouri
Berrien County Landfill, Inc. Michigan --
Bluegrass Recycling & Transfer Company Kentucky Illinois, Missouri
Commercial Waste Disposal, Inc. Kentucky --
Xxxxxxxxx Waste, Inc. Tennessee --
CWI of Illinois, Inc. Illinois --
CWI of Missouri, Inc. Missouri --
CWI Venture, Inc. New Jersey --
FLL, Inc. Michigan --
G.E.M. Environmental Management Inc. Delaware Indiana
Gila Bend Regional Landfill, Inc. Arizona --
Greenfield Environmental Development Corp. Delaware Indiana, Tennessee
Jamax Corporation Indiana --
Karat Corp. New Jersey --
Midwest Material Management, Inc. Indiana --
Northwest Tennessee Disposal Corporation Tennessee --
Xxxxxxxx Landfill Corporation West Virginia --
Xxxxx Hollow Landfill Corp. West Virginia New Jersey
Sanifill, Inc. Tennessee --
Southern Illinois Regional Landfill, Inc. Illinois --
South Trans, Inc. New Jersey --
Springfield Environmental, Inc. (Delaware) Delaware --
Springfield Environmental, Inc. (Indiana) Indiana --
Triple G Landfills, Inc. Indiana --
United Refuse Co., Inc. Indiana --
Victory Environmental Services, Inc. Delaware Indiana
Victory Waste Incorporated California --
WPP Continental de Costa Rica, X.X. Xxxxx Rica --
WPP Services, Inc. Ohio --
A-1
EXHIBIT B
MORTGAGES AND LEASEHOLD MORTGAGES LOCATED IN ILLINOIS
-----------------------------------------------------
Borrower Property Location Filing Office
-------- ----------------- -------------
CWI of Illinois, Inc. Marion, Illinois Illinois Secretary of State
Xxxxxxxxxx County
CWI of Illinois, Inc. Mt. Xxxxxx, Illinois Illinois Secretary of State
Jefferson County
CWI of Illinois, Inc. Sparta, Illinois Illinois Secretary of State
Xxxxxxxx County
Southern Illinois Regional De Xxxx, Illinois Illinois Secretary of State
Landfill, Inc. Xxxxxxx County
B-1
EXHIBIT C
SECRETARY'S CERTIFICATES AND RESOLUTIONS
----------------------------------------
C-1
EXHIBIT D
SCHEDULE OF UCC FINANCING SEARCHES
----------------------------------
Borrower Office Searched Result of Search
-------- ---------------- -----------------
Xxxxxx Brothers Waste, Inc. Kentucky Secretary of State No UCC statements on file
Tennessee Secretary of State See Attached
Berrien County Landfill, Inc. Michigan Secretary of State No UCC statements on file
Bluegrass Recycling & Transfer Company Illinois Secretary of State See Attached
Missouri Secretary of State See Attached
Kentucky Secretary of State No UCC statements on file
Commercial Waste Disposal, Inc. Kentucky Secretary of State No UCC statements on file
Continental Waste Industries, Inc. New Jersey Secretary of State No UCC statements on file
Delaware Secretary of State No UCC statements on file
Xxxxxxxxx Waste, Inc. Tennessee Secretary of State No UCC statements on file
CWI of Illinois, Inc. Illinois Secretary of State See Attached
CWI of Missouri, Inc. Missouri Secretary of State See Attached
(f/k/a Tutor Jr. Refuse Company)
CWI Venture, Inc. New Jersey Secretary of State No UCC statements on file
FLL, Inc. Michigan Secretary of State See Attached
FLL of Delaware, Inc. (merged into FLL, Inc.) Delaware Secretary of State No UCC statements on file
New Jersey Secretary of State See Attached
G.E.M. Environmental Management, Inc. Indiana Secretary of State No UCC statements on file
Delaware Secretary of State No UCC statements on file
Gila Bend Regional Landfill, Inc. Arizona Secretary of State No UCC statements on file
Greenfield Environmental Development Corp. Arizona Secretary of State No UCC statements on file
Delaware Secretary of State No UCC statements on file
Indiana Secretary of State No UCC statements on file
Jamax Corporation Indiana Secretary of State See Attached
Karat Corp. New Jersey Secretary of State No UCC statements on file
Midwest Material Management, Inc. Indiana Secretary of State See Attached
Northwest Tennessee Disposal Corporation Tennessee Secretary of State See Attached
D-1
Borrower Office Searched Result of Search
-------- ---------------- -----------------
Prichard Landfill Corporation West Virginia Secretary of State See Attached
Xxxxx Hollow Landfill Corp. New Jersey Secretary of State No UCC statements on file
West Virginia Secretary of State No UCC statements on file
Sanifill, Inc. Indiana Secretary of State No UCC statements on file
Tennessee Secretary of State See Attached
Southern Illinois Regional Landfill, Inc. Illinois Secretary of State See Attached
South Trans, Inc. New Jersey Secretary of State See Attached
Springfield Environmental, Inc. Delaware Secretary of State No UCC statements on file
(Delaware and Indiana) Illinois Secretary of State No UCC statements on file
Indiana Secretary of State See Attached
Triple G Landfills, Inc. Indiana Secretary of State No UCC statements on file
United Refuse Co., Inc. Indiana Secretary of State See Attached
Victory Environmental Services, Inc. Delaware Secretary of State No UCC Statements on file
Indiana Secretary of State No UCC Statements on file
Victory Waste, Incorporated California Secretary of State No UCC statements on file
Indiana Secretary of State No UCC statements on file
WPP Services, Inc. Ohio Secretary of State No UCC statements on file
D-2
EXHIBIT E
CAPITALIZATION
--------------
Beneficial
Owner* of
Outstanding
Shares and
Authorized Capital Issued Capital Outstanding Percentage of
Borrower Stock Stock Capital Stock Ownership
-------- ----- ----- ------------- ---------
Xxxxxx Brothers, 1,000 shares 1,000 common 1,000 common 100%
Inc. shares shares
Xxxxxx Brothers, 1,000 shares 1,000 common 1,000 common 100%
Waste, shares shares
Incorporated
Berrien County 1,000 shares 100 common shares 100 common shares 100% owned
Landfill, Inc. by FLL, Inc.
Bluegrass 1,000 shares 1,000 common 1,000 common 100%
Recycling & shares shares
Transfer Company
Commercial Waste 1,000 shares 1,000 common 1,000 common 100%
Disposal, Inc. shares shares
Xxxxxxxxx Waste, 1,000 shares 100 common shares 100 common shares 100%
Inc.
CWI of Illinois, 1,000 shares 1,000 common 1,000 common 100%
Inc. shares shares
CWI of Missouri, 30,000 shares 30,000 common 30,000 common 100%
Inc. shares shares
CWI Venture, Inc. 1,000 shares 1,000 common 1,000 common 100%
shares shares
FLL, Inc. 50,000 shares 2,000 common 2,000 common 100%
shares shares
G.E.M. 35,000 shares 34,922,503 shares common issued/outstanding
Environmental 3,000,000 shares perferred issued/outstanding
Management Inc. 8,559,962 shares common owned directly by CWI
("GEM") 3,000,000 shares preferred owned directly by
CWI (100%)
20,866,920 shares common owned by Victory
Combined ownership of CWI & Victory in GEM is
29,426,882 common and 3,000,000 preferred
This represents 84.26% of the outstanding common
stock and 85.5% of total outstanding shares
of total outstanding shares of common plus
preferred stock
E-1
Beneficial
Owner* of
Outstanding
Shares and
Authorized Capital Issued Capital Outstanding Percentage of
Borrower Stock Stock Capital Stock Ownership
-------- ----- ----- ------------- ---------
Gila Bend 1,000 shares 100 common shares 100 common shares 100% owned
Regional Landfill, by CWI
Inc. Venture, Inc.
Greenfield 13,750 shares 7,750 Class A 7,750 Class A 100% owned
Environmental common shares common shares by GEM
Development
Corp. ("GEDC")
Jamax Corporation 1,000 shares 1,000 shares 1,000 shares 100% owned
by GEM
Karat Corp. 2,000 shares 100 common shares 100 common shares 100%
Midwest Material 1,000 shares 300 common shares 300 common shares 100%
Management, Inc.
Northwest 1,000 shares 1,000 common 1,000 common 100%
Tennessee shares shares
Disposal
Corporation
Xxxxxxxx Landfill 6,000 shares 60 common shares 60 common shares 66% owned by
Corp. Karat Corp.
Xxxxx Hollow 400 shares 100 common shares 100 common shares 100% owned
Landfill Corp. by Karat Corp.
Sanifill, Inc. 2,000 shares 100 common shares 100 common shares 100% owned
by GEDC
South Trans, Inc. 2,000 shares 100 common shares 100 common shares 100%
Southern Illinois 100,000 shares 1,000 common 1,000 common 100%
Regional Landfill, shares shares
Inc.
Springfield 1,000 shares 1,000 common 1,000 common 100% owned
Environmental shares shares by GEM
Inc. (Delaware)
Springfield 1,000 shares 1,000 common 1,000 common 100% owned
Environmental shares shares by GEM
Inc. (Indiana)
Triple G Landfills, 1,000 shares 1,000 common 1,000 common 100% owned
Inc. shares shares by GEDC
E-2
Beneficial
Owner* of
Outstanding
Shares and
Authorized Capital Issued Capital Outstanding Percentage of
Borrower Stock Stock Capital Stock Ownership
-------- ----- ----- ------------- ---------
United Refuse, 1,000 shares 1,000 common 1,000 common 100% owned
Co., Inc. shares shares by GEDC
Victory 100 shares 10 common 10 common 100% owned
Environmental shares shares by GEM
Services, Inc.
Victory Waste 350,000,000 shares 22,158,853 shares common issued/outstanding
Incorporated 179,745 shares preferred issued/outstanding
21,389,745 shares common owned by CWI
50,000 shares preferred owned by CWI
This represents 96.44% of the outstanding
common and 18.78% of the preferred (96.35% of
the Victory common giving effect to the
conversion of the preferred stock)
WPP Continental 100 common shares 100 common shares 100 common shares 85% owned
de Costa Rica S.A. by WPP
Services,
Inc.
WPP Services, 850 shares 100 common shares 100 common shares 100%
Inc.
Unless other indicated, CWI is the "beneficial owner" referenced by this
column heading.
E-3
EXHIBIT F
WARRANTS AND OTHER OPTIONS
F-1
CONTINENTAL WASTE INDUSTRIES, INC.
OPTIONS & WARRANTS AT 12/31/94
OUTSTANDING
AS OF EXERCISE EXPIRATION ORIGINAL
OPTIONS -- EMPLOYEES 12/31/94 PRICE DATE ISSUE
-----------------------------------------------------------
DECEMBER 9, 1994 17,750 $9.00 12/9/99 17,750
JANUARY 1, 1994 25,380 $7.50 1/31/99 27,650
JANUARY 1, 1993 55,733 $2.24 1/1/98 58,852
JANUARY 1, 1992 18,373 $1.86 1/1/97 20,600
OPTIONS -- DIRECTORS
DECEMBER 9, 1994 15,000 $10.25 11/9/99 15,000
DECEMBER 9, 1993 30,000 $4.47 11/9/98 30,000
JANUARY 18, 1993 1,338 $5.64 2/18/98 1,338
JANUARY 28, 1993 160,513 $3.93 1/28/03 160,513
JANUARY 18, 1992 1,338 $5.64 2/16/97 1,338
OPTIONS ---------- ----------
325,425 333,041
---------- ----------
WARRANTS:
UNDERWRITER WARRANTS (11/4/94) 50,000 $13.30 11/4/99 50,000
WARRANTS (11/4/94) 42,656 $9.50 11/4/99 42,656
INHOUSE WARRANTS (1/20/94) 20,000 $9.00 1/20/97 20,000
ZERO WARRANTS (8/1/94) 43,860 $3.93 8/1/99 43,860
NI (8/1/94) 11,696 $3.93 8/1/99 11,696
UNDERWRITER WARRANTS (10/28/91) 20,000 $6.00 10/28/96 20,000
---------- ----------
WARRANTS 188,212 188,212
---------- ----------
F-2
CONTINENTAL WASTE INDUSTRIES, INC.
DECEMBER 9, 1994 STOCK OPTIONS
12/31/94
DATE TOTAL BALANCE
ISSUED OF ISSUED OF EXERCISE
DATE EXPIR. OPTIONS OPTIONS PRICE VESTING DESCRIPTION
------- ------- ------- ------- -------- -------------------
XXXXX, XXXXXXX 12/9/94 12/9/99 2,500 2,500 $9.00 2.78% PER MONTH
XXXXXXXXX, XXXX 12/9/94 12/9/99 1,000 1,000 $9.00 2.78% PER MONTH
XXXXXXXXX, XXXXX 12/9/94 12/9/99 750 750 $9.00 2.78% PER MONTH
XXXXXXXX, XXXXXXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXXXX, XXXXXX 12/9/94 12/9/99 100 100 $9.00 2.78% PER MONTH
XXXXXXXX, XXXXX 12/9/94 12/9/99 3,000 3,000 $9.00 2.78% PER MONTH
XXXXX, XXXX 12/9/94 12/9/99 700 700 $9.00 2.78% PER MONTH
XXXXX, XXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXX, XXXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXXX, XXXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXXX, XXXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXXXXX, XXXX 12/9/94 12/9/99 300 300 $9.00 2.78% PER MONTH
XXXXXXX, XXXXX 12/9/94 12/9/99 300 300 $9.00 2.78% PER MONTH
XXXXXXX, XXX 12/9/94 12/9/99 300 300 $9.00 2.78% PER MONTH
XXXXXX, XXXXX 12/9/94 12/9/99 1,500 1,500 $9.00 2.78% PER MONTH
XXXXXX, XXXXX 12/9/94 12/9/99 1,500 1,500 $9.00 2.78% PER MONTH
XXXXXX, XXXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXXXXXX, XXXXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
XXXXXXX, XXXXX 12/9/94 12/9/99 750 750 $9.00 2.78% PER MONTH
XXXXXX, XXXXXXX 12/9/94 12/9/99 300 300 $9.00 2.78% PER MONTH
XXXXXXX, XXXXX 12/9/94 12/9/99 750 750 $9.00 2.78% PER MONTH
XXXXXX, XXXX 12/9/94 12/9/99 500 500 $9.00 2.78% PER MONTH
-------- --------
17,750 17,750
-------- --------
F-3
CONTINENTAL WASTE INDUSTRIES, INC.
JANUARY 31, 1994 STOCK OPTIONS
12/31/94
DATE TOTAL BALANCE
ISSUED OF ISSUED OF EXERCISE
DATE EXPIR. OPTIONS OPTIONS PRICE VESTING DESCRIPTION
------- ------- ------- ------- -------- -------------------
XXXXX, XXXXXXX 1/31/94 1/31/99 10,000 10,000 $7.50 2.78% PER MONTH
XXXXXX, T. XXXXX 1/31/94 1/31/99 2,500 834 $7.50 VESTED (TERMINATED 1994)
XXXXXXXX, XXXXX 1/31/94 1/31/99 2,000 2,000 $7.50 2.78% PER MONTH
XXXXXX, XXXXX 1/31/94 1/31/99 2,000 2,000 $7.50 2.78% PER MONTH
XXXXXX, XXXXX 1/31/94 1/31/99 1,500 1,500 $7.50 2.78% PER MONTH
XXXXXX, XXXXX 1/31/94 1/31/99 1,500 1,500 $7.50 2.78% PER MONTH
XXXXX, XXXXX 1/31/94 1/31/99 750 750 $7.50 2.78% PER MONTH
XXXXXX, XXXX 1/31/94 1/31/99 750 146 $7.50 VESTED (TERMINATED 1994)
XXXXXXX, XXXXX 1/31/94 1/31/99 750 750 $7.50 2.78% PER MONTH
XXXXXXX, XXXXX 1/31/94 1/31/99 750 750 $7.50 2.78% PER MONTH
XXXXXXXXX, XXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXXXX, XXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXXXXX, XXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXXX, XXXXXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXX, XXXXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXXXXXX, XXXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXXXXX, XXXXXXXX 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
WASKU, HOPE 1/31/94 1/31/99 500 500 $7.50 2.78% PER MONTH
XXXXXXX, XXX 1/31/94 1/31/99 300 300 $7.50 2.78% PER MONTH
XXXXXXX, XXXXX 1/31/94 1/31/99 300 300 $7.50 2.78% PER MONTH
XXXXXX, XXXXXXX 1/31/94 1/31/99 300 300 $7.50 2.78% PER MONTH
XXXXXXX, XXXXXX 1/31/94 1/31/99 250 250 $7.50 2.78% PER MONTH
-------- ---------
27,650 25,380
-------- ---------
F-4
CONTINENTAL WASTE INDUSTRIES, INC.
STOCK OPTIONS
12/31/94
DATE TOTAL BALANCE
ISSUED OF ISSUED OF EXERCISE
DATE EXPIR. OPTIONS OPTIONS PRICE VESTING DESCRIPTION
------- ------- ------- ------- -------- -------------------
------- -------
XXXXXX, XXXXX 2/18/93 2/18/98 1,338 1,338 $5.64 IMMEDIATE
------- -------
XXXXXX, XXXXXX 1/28/93 1/28/03 160,513 160,513 $3.93 IMMEDIATE
------- -------
XXXXXX, XXXXX 2/18/92 2/18/97 1,338 1,338 $5.64 IMMEDIATE
------- -------
XXXXXXXX, XXXXX 1/1/93 1/1/98 5,350 5,350 $2.24 $2.78% PER MONTH
XXXXXX, XXXXX 1/1/93 1/1/98 2,675 2,675 $2.24 $2.78% PER MONTH
XXXXXX, XXXXX 1/1/93 1/1/98 2,675 2,675 $2.24 $2.78% PER MONTH
XXXXX, XXXXXXX 1/1/93 1/1/98 26,752 26,752 $2.24 $2.78% PER MONTH
XXXXXX, T. XXXXX 1/1/93 1/1/98 5,350 3,567 $2.24 VESTED (TERMINATED 1994)
XXXXXX, XXXXX 1/1/93 1/1/98 5,350 5,350 $2.24 $2.78% PER MONTH
XXXXX, XXXXX 1/1/93 1/1/98 2,006 2,006 $2.24 $2.78% PER MONTH
XXXXXXX, XXXX 1/1/93 1/1/98 2,006 2,006 $2.24 $2.78% PER MONTH
XXXXXXX, XXXXXX 1/1/93 1/1/98 2,006 2,006 $2.24 $2.78% PER MONTH
XXXX, XXXXXX 1/1/93 1/1/98 2,006 670 $2.24 VESTED (TERMINATED 1993)
WASKU, HOPE 1/1/93 1/1/98 1,338 1,338 $2.24 $2.78% PER MONTH
XXXXXXXX, XXXXXXXX 1/1/93 1/1/98 1,338 1,338 $2.24 $2.78% PER MONTH
------- -------
58,852 55,733
------- -------
XXXXXX, XXXXX 1/1/92 1/1/97 3,478 3,478 $1.86 VESTED
XXXXXX, XXXXX 1/1/92 1/1/97 3,478 3,478 $1.86 VESTED
XXXXX, XXXXXXX 1/1/92 1/1/97 5,350 5,350 $1.86 VESTED
XXXXXX, XXXXX 1/1/92 1/1/97 2,675 2,675 $1.86 VESTED (TERMINATED 1994)
XXXX, XXXXXX 1/1/92 1/1/97 1,338 893 $1.86 VESTED (TERMINATED 1993)
XXXX, XXXXXXX 1/1/92 1/1/97 2,675 893 $1.86 VESTED (TERMINATED 1992)
XXXXXXXX, XXXXXXXX 1/1/92 1/1/97 803 803 $1.86 VESTED
PETITE, XXXXXXXX 1/1/92 1/1/97 803 803 $1.86 VESTED (TERMINATED 1993)
------- ------
20,600 18,373
------- ------
F-5
CONTINENTAL WASTE INDUSTRIES, INC.
STOCK OPTIONS
12/31/94
DATE TOTAL BALANCE
ISSUED OF ISSUED OF EXERCISE
DATE EXPIR. OPTIONS OPTIONS PRICE VESTING DESCRIPTION
------- ------- ------- ------- -------- -------------------
DIRECTOR OPTIONS:
XXXXXXX XXXXXXX 11/9/94 11/9/99 5,000 5,000 $10.25 VESTED
XXXXXX XXXXXX 11/9/94 11/9/99 5,000 5,000 $10.25 VESTED
XXXX XXXXXXX 11/9/94 11/9/99 5,000 5,000 $10.25 VESTED
------- -------
15,000 15,000
------- -------
XXXXXXX XXXXXXX 11/9/93 11/9/98 10,000 10,000 $1.47 VESTED
XXXXXX XXXXXX 11/9/93 11/9/98 10,000 10,000 $1.47 VESTED
XXXX XXXXXXX 11/9/93 11/9/98 10,000 10,000 $1.47 VESTED
------- -------
30,000 30,000
------- -------
F-6
EXHIBIT G
UCC FILINGS
-----------
NAME OF BORROWER FILING OFFICES
---------------- --------------
1. Continental Waste Industries, Inc. a) New Jersey Secretary of State
Tennessee Secretary of State
2. Xxxxxx Brothers, Inc. a) Tennessee Secretary of State
Xxxxxxx County, Tennessee
3. Xxxxxx Brothers Waste, Incorporated a) Tennessee Secretary of State
Xxxxxxx County, Tennessee (UCC-1)
Xxxxxxx County, Tennessee
(Fixture Filing)
Kentucky Secretary of State
Xxxxxx County, Kentucky
Missouri Secretary of State
St. Louis Independent City,
Missouri
4. Berrien County Landfill, Inc. a) Michigan Secretary of State
Berrien County, Michigan
(Fixture Filing - UCC-1A)
5. Bluegrass Recycling & a) Kentucky Secretary of State
Transfer Company Xxxxxxx County, Kentucky (UCC-1)
Xxxxxxx County, Kentucky
(Fixture Filing)
Illinois Secretary of State
Missouri Secretary of State
Cape Girardeu County, Missouri
6. Commercial Waste Disposal, Inc. a) Kentucky Secretary of State
Xxxxxx County, Kentucky (UCC-1)
Xxxxxx County, Kentucky
(Fixture Filing)
XxXxxxxxx County, Kentucky (UCC-1)
XxXxxxxxx County, Kentucky
(Fixture Filing)
7. Xxxxxxxxx Waste, Inc. a) Tennessee Secretary of State
Xxxxxx County, Tennessee
(Fixture Filing)
8. CWI of Illinois, Inc. a) Illinois Secretary of State
Xxxxxxxxxx County, Illinois
(Fixture Filing)
Jefferson County, Illinois
(Fixture Filing)
Xxxxxxxx County, Illinois
(Fixture Filing)
9. CWI of Missouri, Inc. a) Missouri Secretary of State
Cape Girardeu County, Missouri
(Fixture Filing)
St. Xxxxxxxxx County, Missouri
(Fixture Filing)
10. CWI Venture, Inc. a) New Jersey Secretary of State
G-1
NAME OF BORROWER FILING OFFICES
---------------- --------------
11. FLL, Inc. a) Michigan Secretary of State
Berrien County, Michigan (Fixture
Filing UCC-1A)
Indiana Secretary of State
12. G.E.M. Environmental a) Indiana Secretary of State
Management, Inc.
13. Gila Bend Regional Landfill, Inc. a) Arizona Secretary of State
14. Greenfield Environmental a) Arizona Secretary of State
Development Corp. Indiana Secretary of State
Tennessee Secretary of State
15. Jamax Corporation a) Indiana Secretary of State
Vigo County, Indiana
(Fixture Filing)
16. Karat Corp. a) New Jersey Secretary of State
17. Midwest Material Management, Inc. a) Indiana Secretary of State
18. Northwest Tennessee Disposal a) Tennessee Secretary of State
Corporation Obion County, Tennessee
(Fixture Filing)
19. Xxxxxxxx Landfill Corporation a) Xxxx Xxxxxxxx Xxxxxxxxx xx Xxxxx
Xxxxx Xxxxxx
20. Xxxxx Hollow Landfill Corp. a) New Jersey Secretary of Xxxxx
Xxxx Xxxxxxxx Xxxxxxxxx xx Xxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx (Fixture Filing)
21. Sanifill, Inc. a) Indiana Secretary of State
Tennessee Secretary of State
Jefferson County, Tennessee
22. Southern Illinois Regional a) Illinois Secretary of State
Landfill, Inc. Xxxxxxx County, Illinois
(Fixture Filing)
23. South Trans, Inc. a) New Jersey Secretary of State
24. Springfield Environmental, Inc. a) Indiana Secretary of State
(Indiana)
25. Springfield Environmental, Inc. a) Indiana Secretary of State
(Delaware) Xxxxx County, Indiana
(Fixture Filing)
26. Triple G. Landfills, Inc. a) Indiana Secretary of State
G-2
NAME OF BORROWER FILING OFFICES
---------------- --------------
27. United Refuse Co. a) Indiana Secretary of State
Xxxxx County, Indiana
(Fixture Filing)
28. Victory Environmental a) Indiana Secretary of State
Services, Inc. Vigo County, Indiana
(Fixture Filing)
29. Victory Waste Incorporated a) Indiana Secretary of State
30. WPP/Continental De Costa Rica, S.A. a) No filing
31. WPP Services, Inc. a) Ohio Secretary of State
Xxxxxxxxxx County, Ohio
G-3
EXHIBIT G
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT
AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT AND
SECURITY AGREEMENT ("Mortgage") is made as of this ___ day of ____________,
1995, by Southern Illinois Regional Landfill, Inc., an Illinois corporation
("Mortgagor"), whose address is as set forth herein, and who is a
Subsidiary of Continental Waste Industries, Inc., a Delaware corporation
("CWI"), in favor of LaSalle National Bank, a national banking association,
as Agent for itself and various Lenders (together with its successors and
assigns, including each and every holder from time to time of the Notes
hereinafter defined, the "Mortgagee"), whose address is as set forth herein.
WITNESSETH:
A. Lenders have agreed to extend loans to CWI and its Subsidiaries
(collectively, the "Borrowers"), including Mortgagor, up to the aggregate
principal amount of FORTY-FIVE MILLION AND 00/100 DOLLARS ($45,000,000.00)
comprised of: (i) revolving loans ("Revolving Loan" or "Loan" and
collectively "Revolving Loans" or "Loans") up to the maximum aggregate
principal amount of Forty-Five Million and 00/100 Dollars ($45,000,000.00)
("Commitment"); and (ii) letters of credit not to exceed the lesser of (aa)
the unused amount of the Commitment or (bb) Five Million and 00/100 Dollars
($5,000,000.00); all pursuant to the terms of that certain Credit Agreement
(together with all amendments, modifications, restatements, replacements,
consolidations, substitutions, renewals and extensions thereof the "Credit
Agreement") of even date herewith by and between Mortgagee, CWI and its
subsidiaries, including Mortgagor.
ARTICLE 1
TERMS OF THE INDEBTEDNESS
1.1 CERTAIN TERMS OF INDEBTEDNESS: The following is a summary of
certain terms of the Indebtedness (as hereinafter defined) secured by this
Mortgage:
This Mortgage was prepared
by and after recording mail to:
Xxxx X. Xxxxxxxxxx Legal Description: SEE
Lord, Bissell & Brook Exhibit C attached hereto
000 Xxxxx XxXxxxx Xxxxxx Xxxxxx address:_________________________
Xxxxxxx, XX 00000 P.I.N.:_________________________________
(a) THE NOTES: The term "Notes" shall collectively refer to that
certain Revolving Note or Revolving Notes of even date herewith made by
Mortgagor and the other Borrowers and payable to the order of the respective
Lenders in the original aggregate principal amount of Forty-Five Million and
00/100 Dollars ($45,000,000.00) a form of which Revolving Note is attached
hereto as EXHIBIT A and the terms of which are hereby incorporated herein by
this reference.
(b) INTEREST RATE AND PAYMENTS: Interest shall accrue and the
Indebtedness evidenced by the Notes shall be repaid as provided in the Notes
and in the Credit Agreement.
(c) MATURITY: All of the unpaid principal balance outstanding under
the Notes and all unpaid interest thereon shall become due and payable,
unless extended or if not sooner paid or if not sooner due by acceleration on
______________, 1998 (hereinafter referred to as the "Maturity Date").
1.2 DEFINITION OF THE INDEBTEDNESS: The term "Indebtedness" shall
mean the principal amount and interest payable thereon, and all the fees,
amounts, payments, liabilities and monetary liabilities and obligations due
or required to be paid by the Borrowers under the Notes, the Credit
Agreement, this Mortgage or the other Loan Documents, and all amendments,
modifications, restatements, replacements, consolidations, substitutions,
renewals, extensions, and increases thereto, whether heretofore or hereafter
existing, and whether primary or secondary, direct of indirect, absolute or
contingent.
ARTICLE 2
DEFINITIONS
2.1 DEFINITIONS: Capitalized terms used herein that are not expressly
defined in this Article shall have the meaning defined elsewhere in this
Mortgage or in the Credit Agreement. The following terms shall have the
following meanings:
(a) AWARDS: Either or both of: (i) the Mortgagor's right, title and
interest in all awards and payments now or hereafter made by any municipal,
state or federal agency or authority to Mortgagor, including any awards or
payments for any taking of the Mortgaged Property as a result of the exercise
of the right of condemnation or eminent domain and, (ii) any and all proceeds
and payments now or hereafter made by any insurance company as a result of any
casualty or other event in connection with the Mortgaged Property.
(b) BUILDINGS: Any and all structures and on-site improvements, and
any and all additions, alterations, betterments and appurtenances thereto,
now or at any time hereafter situated,
2
placed or constructed upon the Real Estate (as hereinafter defined).
(c) CONTRACTS: The Mortgagor's right, title and interest in any and
all contracts, documents or agreements pertaining to the ownership, use,
occupancy, development, design, construction, financing, operation,
management, alteration, repair, marketing, sale, lease or enjoyment of the
Mortgaged Property, and all rights, privileges, authority and benefits
thereunder (but under no circumstances any liabilities, obligations or
responsibilities thereunder).
(d) DEFAULT RATE: As defined in the Credit Agreement, Default Rate
shall mean (i) with respect to any Prime Rate Loan, the sum of three percent
(3%) plus the Prime Rate from time to time in effect; (ii) with respect to
any LIBOR Loan, the sum of two percent (2%) plus the rate of interest in
effect thereon at the time of such default until the end of the Interest
Period applicable thereto and, thereafter, at a rate per annum equal to the
sum of three percent (3%) plus the Prime Rate from time to time in effect;
and (iii) with respect to other monetary Obligations (as defined in the
Credit Agreement) for which a Default Rate is not otherwise specified, the
sum of three percent (3%) PLUS the Prime Rate from time to time in effect.
(e) EVENT OF DEFAULT: The occurrences defined in Article 9 of this
Mortgage.
(f) FIXTURES: All fixtures, as defined in and subject to the
Uniform Commercial Code, located on the Real Estate including, without
limitation, all systems, fittings, structures, equipment, apparatus, fixtures
and other improvements and items now or hereafter temporarily or permanently
attached to, installed in or used in connection with any of the Buildings or
the Real Estate, including, but not limited to, any and all partitions,
hardware, motors, engines, boilers, furnaces, pipes, plumbing, conduit,
sprinkler systems, fire extinguishing equipment, elevator equipment,
telephone and other communications equipment, security equipment, master
antennas and cable television equipment, water tanks, heating, ventilating,
air conditioning and refrigeration equipment, laundry facilities, and
incinerating, gas and electric machinery and equipment.
(g) GOVERNMENTAL AUTHORITY: Any and all courts, boards, agencies,
commissions, offices or other authorities of any nature whatsoever for any
governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or
otherwise) or arbitration authority, whether now or hereafter in existence.
(h) IMPOSITIONS: All (i) general and special real estate and personal
property taxes and other land taxes and assessments, water and sewer rates
and charges, and all other governmental
3
charges and any interest or costs or penalties with respect to the Mortgaged
Property, (ii) charges for any easement or agreement maintained for the
benefit of the Mortgaged Property which at any time prior to or after the
execution of the Loan Documents may be assessed, levied or imposed upon the
Mortgaged Property or the rent or income received therefrom or any use or
occupancy thereof, (iii) other taxes, assessments, fees and governmental
charges levied, imposed or assessed upon or against Mortgagor in connection
with the Mortgaged Property, and (iv) annual premiums for insurance policies
required to be maintained under this Mortgage or the Credit Agreement with
respect to the Mortgaged Property.
(i) LEASES: The Mortgagor's right, title and interest in any and all
leases, subleases, licenses, concessions or grants of other possessory
interests (written or oral) now or hereafter in force, covering or affecting
the Mortgaged Property, or any part thereof or interest therein, together
with all rights, powers, privileges, options and other benefits of Mortgagor
thereunder (but under no circumstances any liabilities, obligations or
responsibilities thereunder).
(j) LEGAL REQUIREMENTS: The terms, covenants, conditions and
restrictions now or hereafter existing to which Mortgagor may be bound or to
which the Mortgaged Property is subject under (i) any and all present and
future statutes, laws, rulings opinions, rules, regulations, codes, permits,
certificates, approvals, ordinances, judicial decisions or orders of any
Governmental Authority in any way applicable to Mortgagor or the Mortgaged
Property, and the ownership, use, occupancy, possession, development,
design, construction, financing, operation, maintenance, alteration,
repair, marketing, sale, lease or enjoyment thereof, including without
limitation, any related to zoning, building, utility service, sewer service,
fire safety, land and water use, environmental protection, occupational
health and safety or flood hazard; (ii) any and all Leases; (iii) any and all
Contracts; (iv) any lease, sublease, option, articles of agreement for deed,
installment contract or other contract or agreement pursuant to which
Mortgagor is granted any possessory, legal, equitable, beneficial or other
interest in the Mortgaged Property; and (v) any and all other easements,
covenants, conditions, restrictions, leases or other contracts and agreements
(written or oral) of any nature to which Mortgagor may be bound or to which
the Mortgaged Property may be subject.
(k) LOAN DOCUMENTS: This Mortgage, the Notes, the Credit Agreement, the
Environmental Indemnity Agreement and each and every one of the other "Loan
Documents" as defined in the Credit Agreement, whether now or hereafter
existing, and any and all other documents now or hereafter evidencing or
securing the payment of the Indebtedness or the observance or performance of
the Obligations, and any and all amendments, modifications, restatements,
replacements, substitutions, renewals, extensions and
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increases thereto whether heretofore or hereafter entered into in connection
with the Indebtedness.
(l) MORTGAGED PROPERTY: The Real Estate, Fixtures, Leases, Contracts,
Rents, Awards and Personality together with:
(i) any and all rights, privileges, tenements, hereditaments,
right-of-way, easements, appendages and appurtenances of the Real Estate
belonging or in anyway appertaining thereto, and all right, title and
interest of Mortgagor in and to any streets, ways, strips or gores of land
adjoining the Real Estate or any part thereof; and
(ii) any and all betterments, additions, appurtenances,
substitutions, replacements and after acquired title or interests thereof and
all reversions and remainders therein; and
(iii) any and all other security and collateral of any nature
whatsoever, now or hereafter given for the repayment of the Indebtedness or
the performance and discharge of the Obligations.
(m) MORTGAGEE: The above named Mortgagee and any and all successors,
as Agent for the Lenders under the Notes or other Loan Documents.
(n) MORTGAGEE'S ADDRESS, ETC.;: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; Telephone ______________________; Telex _____________________;
Telecopy ______________________________.
(o) MORTGAGOR: The above named Mortgagor and any and all successors,
transferees, assignees and subsequent owners of the Mortgaged Property.
(p) MORTGAGOR'S ADDRESS, ETC.;: Xxxxx 0, Xxx 000, XxXxxx, Xxxxxxxx
00000; Telephone ______________________; Telex ___________________________;
Telecopy __________________________________.
(q) OBLIGATIONS: Any and all of the covenants, conditions, warranties,
representations and other obligations (other than the obligation to repay the
Indebtedness) of the Borrowers to Mortgagee under or as set forth in the
Notes, the Credit Agreement (including but not limited to all obligations to
reimburse for draws under any letter of credit), this Mortgage or the other
Loan Documents and under the Legal Requirements, whether heretofore or
hereafter existing, and whether primary or secondary, direct or indirect,
absolute or contingent, and including the enforcement by Mortgagee of its
rights and remedies under any or all of the foregoing (including all costs,
expenses and reasonable attorneys' and
5
paralegals' fees and expenses incurred by the Lenders and the Mortgagee).
(r) PERMITTED EXCEPTIONS: The encumbrances and title exceptions
specifically described in EXHIBIT B attached hereto and made a part hereof.
(s) PERSONALITY: All right, title and interest of Mortgagor in and to
all furniture, furnishings, equipment, machinery, of any kind or character as
defined in the provisions of the Uniform Commercial Code now or hereafter
located upon, within or about the Real Estate and the Buildings, or used or
useful in connection therewith, together with all existing or future
accessories, replacements and substitutions thereto or therefor and the
proceeds therefrom, including, but not limited to: (i) all furniture,
furnishings and equipment; (ii) all building materials and equipment intended
to be incorporated in the improvements now or hereafter to be constructed on
the Real Estate, whether or not yet incorporated in such improvements; (iii)
all machinery, apparatus, systems, equipment or articles used in supplying
heating, gas, electricity, ventilation, air conditioning, water, light,
power, refrigeration, fire protection, elevator service, telephone and other
communication service, waste removal and all fire sprinklers, smoke detectors,
alarm systems, security systems, electronic monitoring equipment and devices;
(iv) all maintenance equipment; (v) all office furniture, equipment and
supplies; (vi) all tractors, mowers, sweepers, snow removal equipment and
other equipment used in maintenance of interior and exterior portions of the
Real Estate or the Buildings; and (vii) all other maintenance supplies and
inventories; provided, that the enumeration of any specific articles of
personality set forth above shall in no way include or be held to exclude any
items of property not specifically enumerated, and that any of the foregoing
items that do not constitute personal property but constitute fixtures under
applicable law shall be included in the definition of the term "fixtures"
as used herein.
(t) PRIME RATE: The rate of interest announced or referred by
Mortgagee from time to time as its prime rate for interest to the
determinations, with each change in such Prime Rate to take effect on the
same day such change is announced by Mortgagee. The of the term "Prime
Rate" is not intended nor does it imply that rate of interest is a preferred
rate of interest or one which offered by the Mortgagee to its most
creditworthy customers.
(u) REAL ESTATE: The Real Estate owned in fee simple by Mortgagor
consisting of approximately ______ acres in the County of Xxxxxxx, State of
Illinois and legally described on EXHIBIT C attached hereto and made a part
hereof.
(v) RENTS: All of the rents, revenues, income, profits, deposits and
other benefits payable under the Leases and/or
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otherwise arising from or out of the Mortgaged Property or out of the
ownership, use or enjoyment of all or any portion of the Mortgaged Property
or part thereof or interest therein.
ARTICLE 3
GRANT
3.1 GRANT. To secure the full and timely payment of the Indebtedness
and the full and timely performance and discharge of the Obligations,
Mortgagor by these presents hereby GRANTS, ASSIGNS, MORTGAGES and Warrants
unto Mortgagee the Mortgaged property subject to the Permitted Exceptions,
free and clear from all rights and benefits under and by virtue of the
Homestead Exemption Laws of the State of Illinois (which rights and benefits
are hereby expressly released and waived). Mortgagor does hereby bind itself,
its successors and assigns to warrant and forever defend fee simple absolute
title to the Mortgaged Property unto Mortgagee, and the quiet and peaceful
enjoyment and possession thereof, against every person whomsoever claiming
the same or any part thereof or interest therein, except for the Permitted
Exceptions.
3.2 CONDITION OF GRANT: The condition of these presents is such that
if Mortgagor and the other Borrowers shall pay or cause to be paid the
Indebtedness as and when the same shall become due and payable and shall
observe, perform and discharge the Obligations in accordance with this
Mortgage and the other Loan Documents, then this Mortgage and the other Loan
Documents and the estates and rights granted by them shall be released and
terminated by Mortgagee.
ARTICLE 4
ASSIGNMENT OF LEASES AND RENTS
4.1 ASSIGNMENT OF LEASES AND RENTS: To further secure the full and
timely payment of Indebtedness and the full and timely performance and
discharge of the Obligations, Mortgagor hereby sells, assigns and transfers
unto Mortgagee all of the Leases, together with the Rents now due and which
may hereafter become due under or by virtue of any of the Leases, and all
rights and remedies conferred by applicable State law, as such may be amended
from time to time, it being the intention hereby to establish an absolute and
present transfer and assignment of all such Leases and Rents, and all avails
thereunder, to Mortgagee; provided, however, the acceptance by Mortgagee of
the foregoing assignment, with all of the rights, powers, privileges and
authority so created, shall not, prior to entry upon and taking possession of
the Mortgaged Property by Mortgagee, be deemed or construed to constitute
Mortgagee a "Mortgagee in Possession," nor thereafter or at any time or in
any event obligate Mortgagee to appear in or defend any actions thereunder,
to expend any money, incur any expenses, or
7
perform or discharge any obligation, duty or liability under the Leases or to
assume any obligation or responsibility for any security deposits or other
deposits delivered to Mortgagor thereunder. So long as no Event of Default
shall exist, Mortgagee shall not demand from any tenants under the Leases any
Rents or monies hereby assigned arising from or out of said Leases or from or
out of the Mortgaged Property or any part thereof, but shall permit the
Mortgagor to collect, but not prior to accrual, all such Rents and enjoy the
same; provided that notwithstanding the foregoing, all tenants under the
Leases shall comply with any demand for Rents or monies made by Mortgagee
without inquiring or investigating as to whether such demand is made in
compliance herewith. A demand by Mortgagee to any tenant or purchaser for
payment of monies by reason of any Event of Default claimed by Mortgagee
shall be sufficient direction to said tenant to make future payments of
monies to Mortgagee without the necessity for further consent by, or notice
to, Mortgagor.
ARTICLE 5
SECURITY AGREEMENT
5.1 SECURITY INTEREST.
(a) This Mortgage is both a real property mortgage and a "security
agreement" within the meaning of the Uniform Commercial Code of Illinois
(the "UCC"), and any other applicable law. To the extent any of the
Mortgaged Property consists of personal property under the UCC, whether
tangible or intangible in nature, Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the
Indebtedness and Obligations, a security interest in the Mortgaged Property.
Said portion of the Mortgaged Property so subject to the UCC shall be
referred to in this paragraph as "Collateral".
(b) If any Event of Default shall occur, Mortgagee, in addition to any
other rights and remedies which it might have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the UCC including, without limiting the
generality of the foregoing, the right to take possession of the Collateral
of any part thereof, and to take such other measures as Mortgagee may deem
necessary for the care, protection and preservation of the collateral.
(c) If any Event of Default then exists, without notice, demand or
legal process of any kind, Mortgagee may take possession of any or all of the
Collateral, wherever it might be found and for that purpose, Mortgagee shall
have the right, without reaching the peace, to enter upon the premises of
Mortgagor where the Collateral is located (or is believed to be located)
without any obligation to pay rent to Mortgagor, or any other place or
8
places under the control of Mortgagor where the Collateral is believed to be
located and kept, and remove the Collateral therefrom to the premises of
Mortgagee or any agent of Mortgagee, for such time as Mortgagee may desire, in
order to effectively collect or liquidate the Collateral, and/or Mortgagee may
require Mortgagor to assemble the Collateral and make it available to Mortgagee
at a place or places to be designated by Mortgagee. If an Event of Default then
exists, Mortgagee shall have the right to obtain access to Mortgagor's data
processing equipment, computer hardware and software relating to the
Collateral and to use all of the foregoing and the information contained therein
in any manner Mortgagee deems appropriate which is related to the
preservation or disposition of the Collateral or to the collection of the
Indebtedness or Obligations.
(d) Any notice required to be given by Mortgagee of a sale, lease or
other disposition or other intended action by Mortgagee with respect to any
of the Collateral which is deposited in the United States mails, postage
prepaid and duly addressed to Mortgagor at the address specified in Article
2, at least ten (10) Business Days (as defined in the Credit Agreement) prior
to such proposed action, shall constitute fair and reasonable notice to
Mortgagor of any such action. The net proceeds realized by Mortgagee upon any
such sale or other disposition, after deduction for the reasonable expenses
of retaking, holding, preparing for sale, selling or the like and the
reasonable attorneys' fees and legal expenses incurred by Mortgagee or
Lenders in connection therewith, shall be applied as provided herein toward
satisfaction of the Indebtedness and the Obligations. Mortgagee shall account
to Mortgagor for any surplus realized upon any such sale or other
disposition, and Mortgagor shall remain liable for any deficiency. The
commencement of any action, legal or equitable, or the rendering of any
judgment or decree for any deficiency shall not affect Mortgagee's Lien on
the Collateral until the Indebtedness and Obligations are fully paid.
Mortgagor agrees that Mortgagee has no obligation to preserve rights to the
Collateral against any other parties. To the extent Mortgagor has the power,
without violating the terms of any agreement existing as of the Closing Date
(as defined in the Credit Agreement), to grant such a license, Mortgagee is
hereby granted a license or other right to use, without charge, any
Mortgagor's labels, patents, production certificates, type certificates,
supplemental certificates, copyrights, rights of use of any name, trade
secrets, trade names, tradestyles, trademarks, service marks and advertising
matter, or any property of a similar nature, as it pertains to the
Collateral, in completing production of, advertising for sale and selling any
Collateral.
(e) In addition to all such rights and remedies, the sale, lease or
other disposition of the Collateral, or any part thereof, by Mortgagee after
an Event of Default may be for cash, credit or any combination thereof, and
Mortgagee may purchase all
9
or any part of the Collateral at public or, if permitted by Law, private
sale, and in lieu of actual payment of such purchase price, may set-off the
amount of such purchase price against the Indebtedness and Obligations then
owing. Any sale of the Collateral may be adjourned from time to time with or
without notice. Mortgagee may, in its sole discretion, cause any Collateral
to remain on Mortgagor's premises, at Mortgagor's expense, pending sale or
other disposition of such Collateral. Mortgagee shall have the right to
conduct such sales on a Mortgagor's premises, at Mortgagor's expense, or
elsewhere on such occasion or occasions as Mortgagee may see fit.
(f) Mortgagor shall pay to Mortgagee on demand any and all
reasonable expenses, including legal expenses and reasonable attorneys' fees,
incurred or paid by Mortgagee in protecting its interest in the Collateral and
in enforcing its rights hereunder with respect to the Collateral.
5.2 CHARACTERIZATION AS PERSONALITY. This grant of a security interest
to Mortgagee in the granting clause of this Mortgage shall not be construed to
derogate from or impair the lien or provisions of or the rights of Mortgagee
hereunder with respect to any property described herein which is real
property or which the parties have agreed to treat as real property. The
stated intention of Mortgagor and Mortgagee is that everything used in
connection with the production of income from the Real Estate or adapted for
use thereon is, and at all times and for all purposes and in all proceedings,
both legal and equitable, at Mortgagee's election, regarded as real property,
irrespective of whether or not the same is physically attached to the land
and/or Improvements.
5.3 FINANCING STATEMENT. This Mortgage is intended to be a financing
statement under the Uniform Commercial Code with respect to all personal
property of the Mortgagor pledged herein and all fixtures. The addresses of
Mortgagor and Mortgagee are as defined in Section 2.1 of this Mortgage. This
Mortgage is to be filed for record in the real estate records of the county
where the Real Estate is located. Mortgagor is the record owner of the Real
Estate.
5.4 FURTHER ASSURANCES AND DELIVERIES. If requested by Mortgagee,
Mortgagor shall execute and deliver to Mortgagee, in form reasonably
satisfactory to Mortgagee, additional security agreements, financing
statements and/or other instruments covering all personal property or
fixtures of Mortgagor pledged hereunder, whether now existing or hereafter
acquired, placed on, or annexed or made appurtenant to the Real Estate,
including delivery of any and all instruments (together with endorsements in
blank) delivered to Mortgagee, which instruments constitute or constituted
proceeds of any personal property pledged herein.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Mortgagor hereby represents and warrants to Mortgagee as of the date hereof
and as of all dates hereafter that:
6.1 ORGANIZATION, AUTHORITY. Mortgagor: (a) is duly organized, validly
existing and in good standing under the laws of the State of Illinois; and (b)
is qualified to do business in every jurisdiction in which the nature of its
business or properties makes such qualification necessary and the failure to so
qualify would have a Materially Adverse Effect on the business or financial
affairs of Mortgagor.
6.2 PERMITS AND APPROVALS. All permits, certificates, approvals and
licenses required for or in connection with the ownership, use, occupancy or
enjoyment of the Mortgaged Property have been duly and validly issued and are
and shall at all times hereafter be in full force and effect.
6.3 ACCESS. All streets and highways necessary for access to and full
use, occupancy and operation of the Mortgaged Property have been completed and
are open and available to the Mortgaged Property without further condition or
cost to Mortgagor.
6.4 NO VIOLATION OF LEGAL REQUIREMENTS. Except as otherwise represented
or provided in the Environmental Indemnity Agreement, neither the contemplated
use, occupancy or operation of the Mortgaged Property violates or will then
violate any Legal Requirements to which the Mortgagor may be bound or to which
the Mortgaged Property may be subject. Mortgagor shall promptly notify
Mortgagee, in writing, of its receipt of any notice of a violation of any Legal
Requirements. Mortgagor hereby agrees to indemnify and hold Mortgagee harmless
from all loss, cost, damage, claim and expense incurred by Mortgagee on account
of Mortgagor's failure to perform the obligations of this subparagraph.
6.5 ILLINOIS RESPONSIBLE PROPERTY TRANSFER ACT. With respect to the
Illinois Responsible Property Transfer Act, 765 ILCS 90/1 ET SEQ. ("IRPTA"):
(1) no disclosure document is required by IRPTA; (2) there are no underground
storage tanks located on the Mortgaged Property; and (3) the Mortgaged Property
does not contain any facilities which are subject to reporting under Section
312 of the Federal Emergency Planning and Community Right to Know Act of 1986,
and the federal regulations promulgated thereunder.
6.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Mortgagor hereby
makes each and every representation and warranty contained in the Credit
Agreement and the Environmental Indemnity Agreement, which are incorporated
herein by this reference as if set forth herein in full.
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ARTICLE 7
COVENANTS
Until the entire Indebtedness shall have been paid and the Obligations
performed in full, Mortgagor hereby unconditionally covenants and agrees as
follows:
7.1 PAYMENT AND PERFORMANCE. Mortgagor shall pay the Indebtedness, as and
when all or any payment thereunder is due and shall perform or cause to be
performed all of the Obligations in full on or before the dates the Obligations
or any part thereof are required to be performed, and shall commit or suffer no
act or event which (upon notice or the passage of time, or both) would
constitute a default or Event of Default under the Loan Documents or the Legal
Requirements.
7.2 COMPLIANCE WITH LAWS. Mortgagor will promptly and faithfully comply
in all material respects with all present and future laws, ordinances, rules,
regulations and requirements, and all other Legal Requirements, including,
without limitation, applicable zoning, building, land use, occupational health
and safety, hazardous waste and substances, and environmental requirements, of
every Governmental Authority and of every Board of Fire Underwriters having
jurisdiction, or similar body exercising similar functions, which may be
applicable to it or to the Mortgaged Property, or any part thereof, or to the
use, occupancy, possession, operation, maintenance, alteration or repair of
the Mortgaged Property, or any part thereof or interest therein. Mortgagor shall
immediately notify Mortgagee, orally and in writing, of its receipt of any
notice of a violation in any material respect of any Legal Requirements.
Mortgagor shall pay to Mortgagee, upon demand, all losses, costs, damages,
claims and expenses incurred by Mortgagee on account of Mortgagor's failure
to perform the obligations of this paragraph.
7.3 PAYMENT OF IMPOSITIONS.
(a) Mortgagor will duly pay and discharge, or cause to be paid and
discharged, the Impositions, such Impositions or installments thereof to be
paid not later than the day any fine, penalty, interest or cost may be added
thereto or imposed by law for the non-payment thereof. Mortgagor shall, upon
Mortgagee's request, furnish proof to Mortgagee within fifteen (15) days after
such request that such Impositions have been paid.
(b) Mortgagee may at its option, should Mortgagor fail to pay any
Impositions levied or assessed on or against the Real Estate before they become
delinquent, pay the full amount of any such tax xxxx, including any applicable
interest or penalties, and all such monies so advanced shall be additional
Indebtedness of
12
Mortgagor to Mortgagee secured by the lien of this Mortgage and shall bear
interest at the Default Rate and be payable on demand.
7.4 MAINTENANCE AND REPAIR. Mortgagor shall (i) constantly maintain the
Mortgaged Property in good condition and make all repairs and replacements
thereof and additions and improvements thereto as are necessary or appropriate
under sound management practices; and (ii) prevent any act or thing which might
impair or diminish the value or usefulness of the Mortgaged Property, or the
Improvements with respect thereto.
7.5 INSURANCE. Mortgagor shall procure for, deliver to and maintain for
the benefit of Mortgagee during the term of this Mortgage, all such insurance
as required by Mortgagee, including, but not limited to, casualty insurance
against loss or damage by fire, lightning and other hazards and casualties as
are now included in so-called "extended coverage" policies in amounts not
less than the full insurable replacement value of all Buildings and other
Fixtures and equipment from time to time on the Mortgaged Property, and
comprehensive public liability insurance in an amount satisfactory to
Mortgagee. All insurance policies shall be in form, companies and amounts
satisfactory to Mortgagee. All insurance policies shall (i) include, when
available, non-contributing Mortgagee endorsements in favor of and with loss
payable to Mortgagee, (ii) name Mortgagee and Lenders as additional insureds
with respect to liability insurance, (iii) include standard waiver of
subrogation endorsements, (iv) provide that the coverage shall not be
terminated or materially modified without thirty (30) days' advance written
notice to Mortgagee and (v) provide that no claims shall be paid thereunder
without ten (10) days' advance written notice to Mortgagee. Mortgagor will
deliver all insurance policies premium prepaid, to Mortgagee and, will
deliver renewal or replacement policies at least thirty (30) days prior to
the date of expiration of any policy. The requirements of the preceding
sentence shall apply to any separate policies of insurance taken out by
Mortgagor concurrent in form or contributing in the event of loss with the
insurance policies. If Mortgagor fails to provide such insurance, or if any
policy is canceled, reduced, or not renewed, Mortgagee may, but shall not be
obligated, to obtain such insurance, and the cost thereof shall be additional
Indebtedness of Mortgagor to Mortgagee secured hereby bearing interest at the
Default Rate. Mortgagor will promptly upon demand pay directly to or
reimburse Mortgagee for all premiums and other costs incurred in procuring
such insurance. In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment in whole or in
part of the Indebtedness, all right, title and interest of Mortgagor in and
to such policies then in force concerning the Mortgaged Property, and all
proceeds payable thereunder, shall thereupon vest in the purchaser at such
foreclosure or in Mortgagee in the event of such transfer.
13
7.6 ADJUSTMENT OF LOSSES WITH INSURER. Mortgagor hereby assigns to
Mortgagee all proceeds from any insurance policies pertaining to the Mortgaged
Property, and in the event of a casualty loss in excess of $50,000 Mortgagee
is hereby authorized and empowered, at its option, to make or file proofs of
loss or damage and to adjust or compromise any loss, and to collect and receive
the proceeds from any such policies; provided, however, Mortgagee shall not be
held responsible for any failure to collect any insurance proceeds regardless of
the cause of failure.
7.7 APPLICATION OF INSURANCE PROCEEDS. In the event of any insured loss,
Mortgagor shall give prompt written and oral notice thereof to Mortgagee and to
the insurer. In the event of a casualty loss exceeding $50,000, Mortgagee may
require that the payment for such loss be paid directly to Mortgagee only and
not jointly to Mortgagor and Mortgagee. Mortgagee may, at its option, if the
proceeds for any loss exceed $50,000, apply the proceeds to the reduction of the
Indebtedness or may if Mortgagee requests within twenty (20) days of the
casualty, release the same to Mortgagor to be applied to the restoration or
repair of the Mortgaged Property in accordance with Mortgagee's customary
construction disbursement procedures. If the proceeds for any loss are equal to
or less than $50,000, and provided that no Event of Default exists, Mortgagee
shall release the same to Mortgagor to be applied to the restoration or repair
of the Mortgaged Property. If the proceeds are released to be applied to the
restoration or repair of the Mortgaged Property, Mortgagor shall expeditiously
proceed to repair or restore the Mortgaged Property. In the event of an Event of
Default, Mortgagee shall have the right and option to declare the entire balance
of the Indebtedness remaining unpaid to be immediately due and payable and
shall have the right, at its option, to apply the whole or any part of such
insurance proceeds toward the payment of any of the Indebtedness, in such order
and manner as Mortgagee may elect.
7.8 CONDEMNATION PROCEEDS. All Awards shall be paid to Mortgagee and,
after deducting from said Awards all of its expenses in the collection and
administration of said sums, Mortgagee shall have the right, at its option,
if the proceeds of the Awards exceed $50,000, to apply the net proceeds in
payment of the Indebtedness (whether then matured or to mature in the future),
either in whole or in part (in such order as Mortgagee shall deem proper), or to
require the Mortgaged Property so affected by such condemnation to be repaired
or restored by the use of such proceeds. If the proceeds of any Awards are equal
to or less than $50,000, and provided that no Event of Default exists, Mortgagee
shall release the same to Mortgagor to be applied to the restoration or repair
of the Mortgaged Property. Mortgagor agrees that if the proceeds are released to
be applied toward restoration, Mortgagor shall expeditiously proceed to so
repair or restore the Mortgaged Property. If Mortgagee does elect to apply such
proceeds in payment or reduction of the Indebtedness secured hereby, whether
14
due or not, and if the same are insufficient to pay such amount in full,
Mortgagee shall have the right and option to declare the entire balance of the
Indebtedness remaining unpaid to be immediately due and payable. Mortgagee
shall be entitled to all Awards, and is hereby authorized, at its option, to
commence, appear in and prosecute, in its own name or in Mortgagor's name, any
such proceeding relating to any condemnation, and to settle or compromise any
claim in connection therewith. Mortgagor hereby assigns and transfers to
Mortgagee all Awards up to the amount of the Indebtedness and the claims,
rights and proceedings in connection therewith. Mortgagor agrees to execute
such further assignments of all Awards and claims, rights and proceedings in
connection therewith as Mortgagee may request. Mortgagee shall not be held
responsible for any failure to collect any amount in connection with any such
proceeding regardless of the cause of failure.
7.9 PERFORMANCE OF AGREEMENTS. Mortgagor will duly and punctually
perform all covenants and agreements under any agreements to which it is
respectively a party with respect to the Mortgaged Property or any part
thereof, including, but not limited to the Credit Agreement and the
Environmental Indemnity Agreement.
7.10 INSPECTION. Upon the Mortgagee's request, Mortgagor shall permit
Mortgagee or any Lender, and any of their officers, employees or agents, to
visit, during normal business hours, for inspection and review, the Mortgaged
Property and will make available and furnish to Mortgagee and any Lender the
Mortgagor's books and records and such financial information concerning the
Mortgaged Property as reasonably requested by Mortgagee or any Lender.
7.11 HOLD HARMLESS. In addition to the agreements of Mortgagor under the
Credit Agreement and the Environmental Indemnity Agreement, Mortgagor hereby
indemnifies and will defend and hold Mortgagee and the Lenders harmless from
and against any and all proceedings, claims, actions, causes of action,
suits, proceedings, investigations, losses, costs, liabilities, damages,
punitive damages, penalties and expenses, including reasonable attorneys' and
paralegals' fees and disbursements arising out of, affecting or relating to
the Mortgaged Property, or the value of the Notes or the Loan Documents.
7.12 DEPOSITS FOR IMPOSITIONS. Upon the demand of Mortgagee, and in
addition to the payments of principal and interest payable under the terms of
the Notes, Mortgagor shall pay to Mortgagee each month, until all the
Indebtedness secured hereby is fully paid, an amount equal to one-twelfth (1/12)
of Mortgagee's estimate of the next annual Impositions. Mortgagor shall also pay
to Mortgagee such additional amounts, to be determined by Mortgagee from time to
time, as will provide a sufficient fund at least thirty (30) days' prior to the
due dates of the next installment of such Impositions
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for payment of such Imposition. Amounts held hereunder by Mortgagee shall not
bear interest and may be commingled with Mortgagee's other funds. Provided that
no event has occurred which with the passage of time or the giving of notice or
both would constitute an Event of Default hereunder, amounts held by Mortgagee
pursuant to this paragraph 7.12 shall be made available to Mortgagor in
sufficient time to allow Mortgagor to satisfy Mortgagor's obligations under the
Loan Documents to pay Impositions. Upon an Event of Default under this Mortgage,
Mortgagee may, at its option, without being required so to do, apply any
deposits on hand to any of the Indebtedness, in such order and manner as
Mortgagee may elect. All deposits are hereby pledged as additional security for
payment of the Indebtedness and performance of the Obligations, and shall be
held by Mortgagee irrevocably to be applied for the purposes for which made as
herein provided and shall not be subject to the direction or control of
Mortgagor. If Mortgagee elects, Mortgagor shall provide, at its expense, a tax
service contract for the term of this Mortgage, issued by a tax reporting
agency approved by Mortgagee. If Mortgagee does not so elect, Mortgagor
shall reimburse Mortgagee for the cost of making annual tax searches throughout
the term of this Mortgage.
7.13 LIEN STATUS. Mortgagor shall protect the lien and security interest
of this Mortgage and the Loan Documents and shall not place, or permit to be
placed, or otherwise mortgage, pledge, hypothecate or encumber the Mortgaged
Property with any other lien, attachment, levy, or security interest of any
nature whatsoever (whether mechanics, judgment, delinquent tax, statutory,
contractual or other) regardless of whether the same is allegedly or expressly
subordinate and inferior to the liens and security interest created by this
Mortgage and the Loan Documents, except for the Permitted Exceptions, and if any
such lien or security interest is asserted against the Mortgaged Property,
Mortgagor shall promptly, and at its own cost and expense, pay the underlying
claim in full, or appear in and defend any action or claim, or take such other
action so as to cause the same to be released within thirty (30) days of when
asserted, made or filed.
7.14 RESTRICTIONS ON TRANSFER AND FINANCING. It shall be an immediate Event
of Default and default hereunder if, without the prior written consent of the
Mortgagee, any of the following shall occur, in which event Mortgagee shall be
allowed, at its option and in its sole discretion, to accelerate the
Indebtedness, and in any event Mortgagee may condition its consent upon such
increase in rate of interest payable upon the Indebtedness, change in monthly
payments thereon, change in maturity thereof and/or the payment of a fee, all as
Mortgagee may in its sole discretion require:
(a) If the Mortgagor shall create, effect, contract for, commit to or
consent to or shall suffer or permit any conveyance, sale (including any
installment sale), exchange,
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assignment, transfer, lien, pledge, mortgage, security interest or other
encumbrance or alienation of the Mortgaged Premises or any part thereof, or
legal or equitable interest therein whether any such above conveyance, sale,
assignment, transfer, lien, pledge, mortgage, security interest, encumbrance
or alienation is effected directly, indirectly, voluntarily or involuntarily, by
operation of law or otherwise; or
(b) If there is a transfer, lien, pledge, mortgage, security interest
or other encumbrance or alienation of the ownership interests in Mortgagor
whether directly, indirectly, voluntarily or involuntarily, by operation of law
or otherwise or if Mortgagor is dissolved or otherwise ceases to exist; provided
however, that subject to the conditions of and as may be permitted under the
Credit Agreement, Mortgagor shall be permitted to (i) consolidate or merge with
any Person (as defined in the Credit Agreement); (ii) acquire any stock in, or
acquire all or substantially all of the assets or properties of, any Person; and
(iii) create any Subsidiaries;
(c) If CWI shall suffer or permit the sale, transfer of, or
acquisition by any Person of fifty percent (50%) or more of the voting stock of
CWI;
This Section 7.14 shall not apply to: (i) liens securing the Indebtedness; or
(ii) the lien of current taxes and assessments not yet due and payable.
(d) Any consent by Mortgagee permitting a transaction otherwise
prohibited hereunder shall not constitute a consent to or waiver of any right,
remedy or power of Mortgagee to withhold its consent on a subsequent occasion to
a transaction not otherwise permitted by the provisions of this paragraph 7.14.
(e) Any such sale, transfer, assignment, conveyance, lease, lien,
pledge, mortgage, hypothecation or any other encumbrance or alienation or
contract or agreement to do any of the foregoing shall be null and void and of
no force or effect.
7.15 EXISTENCE. Mortgagor shall maintain and preserve its corporate
existence, good standing, certificates of authority, licenses, permits,
franchises, patents, trademarks, trade names, service marks, copyrights, leases
and all other contracts and rights necessary or desirable to continue its
operations and business on a profitable basis and will generally continue the
same line of business as that being presently conducted.
7.16 USE RESTRICTIONS. Mortgagor shall not use, maintain, operate or
occupy, or allow the use, maintenance, operation or occupancy of, the Mortgaged
Property in any manner which would: (a) be dangerous unless safeguarded as
required by law; or (b)
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make void, voidable or cancelable, or increase the premium of, any insurance
then in force with respect thereto.
7.17 REPLACEMENT OF FIXTURES AND PERSONALTY. Mortgagor shall not, without
the prior written consent of Mortgagee, permit any of the Fixtures or Personalty
to be removed at any time from the Real Estate.
ARTICLE 8
EVENTS OF DEFAULT
The term "Event of Default" shall mean the occurrence or happening, at any
time and from time to time, of any one or more of the following, without notice
to Mortgagor and without any grace period unless otherwise expressly set forth
herein or in the Loan Documents.
8.1 PAYMENT OF INDEBTEDNESS. If Mortgagor and the other Borrowers shall
fail: (i) to make any payment of principal on any Loan or Note or reimbursement
of any draw under a Letter of Credit when due by acceleration or otherwise, or
(ii) to make any payment of interest on any Loan or Note or any payment of any
fee due under the Credit Agreement within three (3) days after such payment
obligation is due.
8.2 FAILURE TO OBTAIN MORTGAGEE'S CONSENT TO TRANSFER OR FINANCING. If
Mortgagor shall make any unpermitted transfer or financing in violation of
Paragraph 7.14 above.
8.3 PERFORMANCE OF OBLIGATION. If there is an Event of Default under the
Credit Agreement, the Environmental Indemnity Agreement or any of the other Loan
Documents, or if Mortgager and/or the other Borrowers shall default in the due
observance or performance of any of the Obligations (other than a breach which
would constitute an Event of Default under Sections 8.1, 8.2 or the preceding
clause of Section 8.3 in this Article 8 or for which another cure period is
expressly provided) and such default is not cured within thirty (30) days after
notice from Mortgagee thereof.
8.4 LAWS AFFECTING OBLIGATIONS AND INDEBTEDNESS. If subsequent to the date
of this Mortgage, any law is passed (a) which renders payment of the
Indebtedness and/or performance of the Obligations by Mortgagor and the other
Borrowers unlawful or (b) which prohibits Mortgagee from exercising any of its
rights and remedies under the Loan Documents.
8.5 FORECLOSURE OF OTHER LIENS. If the holder of a junior or senior
mortgage or other lien on the Mortgaged Property (without hereby implying
Mortgagee's consent to any such junior or senior mortgage or other lien)
declares a default or institutes
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foreclosure or other proceedings for the enforcement of its remedies
thereunder.
8.6 DAMAGE OR DESTRUCTION. If the Mortgaged Property or any material part
thereof is demolished, destroyed or damaged by any cause whatsoever and the loss
is not adequately covered by insurance actually collected and Mortgagor fails to
deposit with Mortgagee the deficiency upon written request.
8.7 TAX ON INDEBTEDNESS OR MORTGAGE. If any law is passed: (a) which would
impose upon Mortgagee the obligation to pay the whole or any part of the
Impositions; or (b) which would change in any way the laws relating to the
taxation of mortgages, deeds of trust or debts so as to affect this Mortgage or
the Indebtedness; provided, however, that if in the opinion of Mortgagee's
counsel it shall be lawful for Mortgagor to pay such Impositions or to reimburse
Mortgagee thereof, then no Event of Default shall be deemed to have occurred if
a mutually satisfactory reimbursement agreement is executed by Mortgagor and
delivered to Mortgagee and such Impositions or reimbursements are thereafter
paid by Mortgagor.
8.8 LEVY OR ATTACHMENT. If any writ, attachment, levy, citation, lien or
distress warrant shall be issued against the Mortgaged Property or any part
thereof or interest therein.
8.9 FAILURE TO OBTAIN OR MAINTAIN PERMITS AND LICENSES. The failure of
Mortgagor to obtain or maintain any permits or licenses which are necessary
and required for the ownership, use and operation of the Mortgaged Property,
or the cancellation or any attempted assignment thereof, without the prior
written consent of Mortgagee.
ARTICLE 9
DEFAULT AND FORECLOSURE
9.1 REMEDIES. If an Event of Default shall occur, Mortgagee may, at its
option, exercise one or more or all of the following remedies either
successively or concurrently.
(a) ACCELERATION. Declare the unpaid portion of the Indebtedness to
be immediately due and payable, with interest thereon accruing at the Default
Rate, without further notice or demand (each of which hereby is expressly waived
by Mortgagor and the other Borrowers), whereupon the same shall become
immediately due and payable.
(b) RECEIVER. Apply at any time to a court having jurisdiction for
the appointment of a receiver of the Mortgaged Property, and of the Rents and
Leases; and such appointment shall be made by the court as a matter of strict
right to Mortgagee and
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without reference to the adequacy or inadequacy of the security or value of
the Mortgaged Property, or to the solvency or insolvency of Mortgagor, and
Mortgagor does hereby irrevocably consent to such appointment. The Rents shall
be applied by the receiver to the payment of the Indebtedness, as provided in
paragraph 9.5 below, or as otherwise ordered by the court.
(c) ENTRY ON MORTGAGED PROPERTY. Enter upon the Mortgaged Property
as is permitted by law, without force or with such force as is permitted by
law, and without notice or process or with such notice or process as is
required by law, unless such notice or process is waivable, in which case
Mortgagor hereby waives such notice and process, and take exclusive possession
thereof and of all books, records and accounts relating thereto.
(d) FULL OR PARTIAL JUDICIAL FORECLOSURE. Pursuant to the procedures
provided by applicable law, institute and prosecute foreclosure proceedings with
respect to the Mortgaged Property; or, if Mortgagee so elects, institute
foreclosure procedures only with respect to a portion of the Indebtedness or to
a portion of the Mortgaged Property (such partial proceedings being hereinafter
referred to as a partial foreclosure). Mortgagor agrees that a sale pursuant to
a partial foreclosure, if so made, shall not in any manner affect the remainder
of the secured Indebtedness, but as to such remainder this Mortgage and the lien
thereof shall remain in full force and effect just as though no foreclosure sale
had been made under the provisions of this paragraph. Notwithstanding the filing
of any partial foreclosure or entry of a decree of sale therein, Mortgagee may
elect, at any time prior to a foreclosure sale pursuant to such decree, to
discontinue such partial foreclosure and to accelerate the entire secured
Indebtedness by reason of any Event of Default upon which such partial
foreclosure was predicated or by reason of any other Event of Default, and
proceed with full foreclosure proceedings. It is further agreed that several
foreclosure sales may be made pursuant to partial foreclosures without
exhausting the right of full or partial foreclosure sale for any remainder of
the secured Indebtedness, it being the purpose hereof to provide for a partial
foreclosure sale of the secured Indebtedness without exhausting the power to
foreclose and to sell the Mortgaged Property pursuant to any such partial
foreclosure for any other part of the secured Indebtedness whether matured at
the time or subsequently maturing, and without exhausting any right of
acceleration and full foreclosure.
(e) OTHER. Exercise any other remedy specifically granted under the
Loan Documents, or now or hereafter existing at law or in equity, by virtue of
statute or otherwise.
9.2 RIGHT AND AUTHORITY OF RECEIVER OR MORTGAGEE IN THE EVENT OF DEFAULTS,
POWER OF ATTORNEY. Upon the occurrence of an Event of Default hereunder and
entry upon the Mortgaged Property
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pursuant to paragraph 9(c) above, or appointment of a receiver pursuant to
paragraph 9(b) above, and under such terms and conditions as may be deemed
prudent and reasonable, in Mortgagee's or the receiver's opinion under the
circumstances, all at Mortgagor's expense, Mortgagee or said receiver, as the
case may be, may do or permit any one or more of the following, successively
or concurrently in accordance with applicable law: (a) enter upon and take
possession and control of the Mortgaged Property; (b) take and maintain
possession of all documents, books, records, papers and accounts related to
the Mortgaged Property; (c) exclude Mortgagor, its agents and employees wholly
from the Mortgaged Property; (d) manage and operate the Mortgaged Property;
(e) preserve and maintain the Mortgaged Property; (f) make repairs and
alterations to the Mortgaged Property; (g) complete any construction or
repair of the improvements on the Mortgaged Property with such changes,
additions or modifications to the plans and specifications or intended
disposition and use of the improvements under construction on the Mortgaged
Property as Mortgagee may deem appropriate or desirable to place the
Mortgaged Property in such condition as will, in Mortgagee's sole judgment,
make it or any part thereof readily marketable or rentable; (h) conduct a
marketing or leasing program with respect to the Mortgaged Property, or
employ a marketing or leasing agent or agents to do so, directed to the lease
or sale of the Mortgaged Property, under such other terms and conditions as
Mortgagee may in its sole discretion deem appropriate or desirable; (i)
employ such contractors, subcontractors, materialmen, architects, engineers,
consultants, managers, brokers, marketing agents or other employees, agents,
independent contractors or professionals, as Mortgagee may in its sole
discretion deem appropriate or desirable, to implement and effectuate the
rights and powers herein granted; (j) execute and deliver, in the name of
Mortgagor as attorney-in-fact and agent of Mortgagor, or in its own name as
Mortgagee or receiver, such documents and instruments as are necessary or
appropriate to consummate authorized transactions; (k) enter such leases,
whether of real or personal property, or tenancy agreements, under such terms
and conditions as Mortgagee or receiver may in its sole discretion deem
appropriate or desirable; (l) collect and receive the Rents from the
Mortgaged Property; (m) eject tenants or repossess personal property, as
provided by law, for breaches of the conditions of their leases or other
agreements; (n) xxx for unpaid rents, payments, income or proceeds in the
name of Mortgagor or Mortgagee; (o) maintain actions in forcible entry and
detainer and actions in distress for rent; (p) compromise or give acquittance
for rents, payments, income or proceeds that may become due; (q) delegate or
assign any and all rights and powers given to Mortgagee by this Mortgage;
and/or (r) do any acts which Mortgagee or the receiver in its discretion
deems appropriate or desirable to protect the security hereof and/or use such
measures, legal or equitable, as it may in its discretion deem appropriate or
desirable, to implement and effectuate the provisions of this Mortgage. This
Mortgage shall constitute a direction to and full
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authority to any lessee or other third-party who has heretofore dealt or may
hereafter deal with Mortgagor or Mortgagee, at the request of Mortgagee, to pay
all amounts owing under any lease or other agreement to Mortgagee without proof
of the default relied upon. Any such lessee or third-party is hereby irrevocably
authorized to rely upon and comply with (and shall be fully protected by
Mortgagor in so doing) any request, notice or demand by Mortgagee for the
payment to Mortgagee of any Rents or other sums which may be or thereafter
become due under its lease or other agreement, or for the performance of any
undertakings under any such lease or other agreement, and shall have no right
or duty to inquire as to whether any Event of Default under this Mortgage or
any of the other Loan Documents has actually occurred or is then existing,
and Mortgagor hereby constitutes and appoints Mortgagee, its assignees,
successors, transferees and nominees, as Mortgagor's true and lawful attorney
in fact and agent, with full power of substitution in the Mortgaged Property,
in Mortgagor's name and stead, to do or permit any or more of the foregoing
described rights, remedies, powers and authorities, successively and
concurrently, and said power of attorney shall be deemed a power coupled with
an interest and irrevocable.
9.3 REMEDIES CUMULATIVE AND CONCURRENT. The rights and remedies of
Mortgagee as provided herein and in the Loan Documents shall be cumulative
and concurrent and may be pursued separately, successively or together against
Mortgagor or against other obligors or against the Mortgaged Property, or any
one or more of them, at the sole discretion of Mortgagee, and may be exercised
as often as occasion therefor shall arise. The failure to exercise any such
right or remedy shall in no event be construed as a waiver or release thereof.
9.4 WAIVER OF REDEMPTION, NOTICE, MARSHALLING, ETC. To the extent
permitted by law, Mortgagor hereby waives any and all rights of redemption from
sale under any order or decree of foreclosure of this Mortgage or under any sale
pursuant to any statute, order, decree or judgment of any court, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Mortgaged Property or any portion thereof. Mortgagor further agrees, to
the extent permitted by law, that if a default occurs hereunder, neither
Mortgagor nor anyone claiming through or under it shall or will set up, claim or
seek to take advantage of any homestead exemption, appraisement, valuation,
stay, extension, moratorium or other laws now or hereafter in force in order to
prevent or hinder enforcement or foreclosure of this Mortgage, or absolute sale
of the property hereby conveyed, or the final and absolute putting into
possession thereof, immediately after such sale, of the purchasers thereat, and
Mortgagor, for itself and all who may at any time claim through or under it,
hereby waives and releases to the full extent that it may lawfully so do the
benefit of such laws and any and all rights to have the assets comprised in
22
the security intended to be created hereby marshalled upon any foreclosure of
the lien hereof.
9.5 APPLICATION OF PROCEEDS. The proceeds of any sale or all or any
portion of the Mortgaged Property and the amounts generated by any holding,
leasing, operation or other use of the Mortgaged Property shall be applied by
Mortgagee in the order set forth in Section 10.G of the Credit Agreement.
9.6 NO CONDITIONS PRECEDENT TO EXERCISE OF REMEDIES: Mortgagor shall not
be relieved of any Obligation by reason of: (a) the failure of Mortgagee to
comply with any request of Mortgagor to foreclose the lien of this Mortgage or
to enforce any provision of the other Loan Documents; (b) the release,
regardless of consideration, of the Mortgaged Property or any portion thereof,
or the addition of any other property to the Mortgaged Property; (c) any
agreement or stipulation extending, renewing, rearranging or in any other way
modifying the terms of the Loan Documents without first having obtained the
consent of, given notice to or paid any consideration to Mortgagor and in such
event Mortgagor shall continue to be obligated to make payment according to the
terms of any such extension or modification agreement unless expressly released
and discharged in writing by Mortgagee; or (d) by any other act or occurrence
save and except the complete payment of the Indebtedness and the complete
fulfillment of all of the Obligations.
9.7 INDEMNITY. Mortgagee shall not be obligated to perform or discharge,
nor does it hereby undertake to perform or discharge, any obligation, duty or
liability of Mortgagor, and Mortgagor shall and does hereby agree to protect,
indemnify, defend and hold Mortgagee harmless of and from any and all liability,
loss, cost, expense or damage which it may or might incur in the exercise of its
rights, remedies, powers and authority hereunder, and of and from any and all
claims and demands whatsoever which may be asserted against it by reason of any
alleged obligations, undertakings or liabilities. Should Mortgagee incur any
such liability, loss, cost or damage of or in the defense of any claims or
demands, the amount thereof, including costs, expenses and reasonable attorneys'
fees, shall be secured hereby, and Mortgagor shall reimburse Mortgagee therefor
immediately upon demand, with interest accruing at the Default Rate.
9.8 DISCONTINUANCE OF PROCEEDINGS. In case Mortgagee shall have proceeded
to invoke any right, remedy or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon the same for any reason,
Mortgagee shall have the unqualified right so to do and, in such an event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Indebtedness, the Obligations, the Loan Documents, the Mortgaged Property
and otherwise, and the rights, remedies,
23
recourses and powers of Mortgagee shall continue as if the same had never been
invoked.
ARTICLE 10
MISCELLANEOUS
10.1 REVOLVING LINE OF CREDIT ADVANCES. The Notes evidence "revolving
credit" obligations from Mortgagor and other Borrowers to the respective Lenders
under the Credit Agreement. The total amount of the indebtedness evidenced by
the Notes may decrease or increase from time to time as borrowings are made,
repaid and reborrowed thereunder, and the Lenders may hereafter, at their
option, or shall, as required and obligated under the Credit Agreement or the
Notes, make further advances thereunder to Mortgagor and the other Borrowers or
on behalf of Mortgagor and the other Borrowers, but the maximum aggregate
principal amount outstanding of such advances secured at any one time shall
never exceed Forty-Five Million and 00/100 Dollars ($45,000,000.00), exclusive
of interest, or other disbursements permitted Mortgagee for maintenance of its
security.
10.2 LETTERS OF CREDIT. Subject to the terms and conditions of the Credit
Agreement, the Commitment may be availed of by Mortgagor and the other Borrowers
in the form of Letters of Credit. The Lenders may hereafter, at their option, or
shall, as required and obligated under the Credit Agreement, issue Letters of
Credit to Mortgagor and the other Borrowers or on behalf of Mortgagor and the
other Borrowers, but the maximum aggregate principal amount outstanding of all
advances under the Notes and amounts issued under the Letters of Credit which
are secured at any one time shall never exceed Forty-Five Million and 00/100
Dollars ($45,000,000.00), exclusive of interest, or other disbursements
permitted Mortgagee for maintenance of its security.
10.3 FUTURE ADVANCES. This Mortgage is given to secure payment of the
Indebtedness in accordance with the Notes, and reimbursement of the Letters of
Credit regardless of whether the entire amount of any loan proceeds or any
Letters of Credit shall have been advanced or issued to Mortgagor and the other
Borrowers on the date hereof, or at a later date, and to secure the payment and
performance of all other Obligations under the Loan Documents, and any other
amount or amounts that may be added to the Indebtedness under the terms of the
Loan Documents or this Mortgage. The parties intend that the lien of this
Mortgage shall secure sums advanced and readvanced in accordance with the Notes
or amounts issued under Letters of Credit after the date of recording this
Mortgage and pursuant to and in accordance with the terms and provisions of the
Credit Agreement to the same extent and with the same priority as if such
advances and Letters of Credit were made or issued on the date of recordation of
this Mortgage, even though
24
there may be no principal amount outstanding on the Notes or no drawings under
any Letters of Credit at the time any such advances are made or such Letters of
Credit are issued.
10.4 OBLIGATORY ADVANCES. It is specifically understood and agreed that all
funds which are advanced by Mortgagee or the Lenders and employed in the
performance of the obligations of Mortgagor and the other Borrowers under this
Mortgage or the Loan Documents in the exercise of Mortgagee's judgment are
necessary to protect Mortgagee's security and shall, because of economic
necessity and compulsion, be deemed advanced by Mortgagee or the Lenders under
an obligation to do so regardless of the identity of the person or persons to
whom such funds are furnished and shall be added to the Indebtedness and shall
be equally secured by this Mortgage and shall have the same priority as all
amounts, if any, advanced as of the date of recordation of this Mortgage.
10.5 FURTHER ASSURANCES. Mortgagor, upon the reasonable request of
Mortgagee, will execute, acknowledge and deliver such further instruments and do
such further acts as may be necessary to carry out more effectively the purpose
of the Loan Documents.
10.6 RECORDING AND FILING. Mortgagor will cause the appropriate Loan
Documents and all supplements thereto at all times to be recorded and filed in
such manner and in such places as Mortgagee shall request, and will pay any
recording and filing taxes, fees and other charges.
10.7 NOTICE. Any notices, requests or consents required or permitted by
this Mortgage shall be (i) in writing, and (ii) delivered in person, telexed,
telecopied or sent by certified or registered mail, postage prepaid, return
receipt requested, or by overnight mail or express delivery service to the
addresses of the parties hereto set forth in Article 2, unless such address,
telex number or telecopier number is changed by written notice hereunder. Each
such notice, request, consent or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier number
specified in Article 2 hereof and a confirmation of such telecopy has been
received by the sender, (ii) if given by telex, when such telex is transmitted
to the telex number specified in Article 2 hereof and the answerback is received
by sender, (iii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the addresses specified in Article 2 hereof.
10.8 MORTGAGEE'S RIGHT TO PERFORM THE OBLIGATIONS. If Mortgagor fails to
make any payment or perform any act required by the Loan Documents or the Legal
Requirements, Mortgagee, without any obligation so to do and without waiving any
other right, remedy or recourse, may make such payment or perform such act at
the
25
expense of Mortgagor. All sums so paid by Mortgagee and all costs incurred in
connection therewith, together with interest thereon at the Default Rate from
the date of payment, shall constitute part of the Indebtedness secured by this
Mortgage and the Loan Documents and shall be paid by Mortgagor to Mortgagee on
demand or shall be included in any judgment of foreclosure.
10.9 MODIFICATION. The Loan Documents and the terms of each of them may not
be changed, waived, discharged or terminated orally, but only by an instrument
or instruments in writing signed by the parties to the Loan Document being so
modified, including Mortgagee, even if Mortgagee has not executed such Loan
Document. If the payment of the Indebtedness, or any part thereof, be extended
or varied, or if any part of the security or guaranties therefor be released,
all persons now or at any time hereafter liable therefor, or interested in the
Mortgaged Property, shall be held to assent to such extension, variation or
release, and their liability, and the lien, and all provisions hereof, shall
continue in full force and effect; the right of recourse against all such
persons being expressly reserved by Mortgagee, notwithstanding any such
extension, variation or release. Any person, firm or corporation taking a junior
mortgage, or other lien upon the Mortgaged Property or any part thereof or any
interest therein, shall take the said lien subject to the rights of Mortgagee
and/or the Lenders to amend (including, without limitation, changing the rate
of interest or manner of computation thereof), modify, extend or release the
Notes, this Mortgage, or any other document or instrument evidencing, securing
or guarantying the Indebtedness, in each and every case without obtaining the
consent of the holder of such junior lien and without the lien of this Mortgage
losing its priority over the rights of any such junior lien.
10.10 NO WAIVER. All options and rights of election herein provided for the
benefit of Mortgagee are continuing, and the failure to exercise any such option
or right of election upon a particular default or breach or upon any subsequent
default or breach shall not be construed as waiving the right to exercise such
option or election at any later date. No exercise of the rights and powers
herein granted and no delay or omissions in the exercise of such rights and
powers shall be held to exhaust the same or be construed as a waiver thereof,
and every such right and power may be exercised at any time and from time to
time.
10.11 MORTGAGEE'S COST AND EXPENSES. Mortgagor further expressly
covenants and agrees to pay Mortgagee all costs and expenses of every kind paid
or incurred by Mortgagee or the Lenders in any way in connection with the Notes,
this Mortgage or other Loan Documents or any modifications, restatements or
amendments thereof, and the protection of the Mortgaged Property or the
maintenance of the lien of this Mortgage, and the security interests under the
other Loan Documents or otherwise in connection with the determination and
exercise by Mortgagee or the Lenders of
26
any of their rights or remedies under the Loan Documents or any
modifications, restatements or amendments thereof, upon the occurrence of any
event which, with the passage of time or the giving of notice or both, could
constitute a default or an Event of Default hereunder, including any and all
expenditures for documentary evidence, title examination or title insurance,
minutes of foreclosure, or any abstract or opinion of title to the Mortgaged
Property, or for any appraisal, environmental audit, accounting or
engineering, and all similar fees, costs, charge and expenses, and including
all reasonable attorneys fees and stenographer's fees, paid or incurred by
Mortgagee or the Lenders in any suit or legal proceeding, or in preparation
or in anticipation of declaring a default or event of default, or in
preparation or in anticipation of such suit or proceeding, regardless of
whether such suit or proceeding is actually instituted, including, without
limitation, any bankruptcy or insolvency proceeding, probate proceeding, or
other proceeding in which Mortgagee or the Lenders may in their discretion
intervene in order to protect its security or appeal from any of the
foregoing, or otherwise paid or incurred by Mortgagee or the Lenders in
obtaining legal advice regarding their rights and remedies under the Loan
Documents or any modifications, restatements or amendments thereof, or in
determining whether to declare a default or Event of Default hereunder. All
such fees, costs, charges and expenses shall constitute so much additional
indebtedness evidenced by the Notes and secured by this Mortgage, regardless
of whether the same may cause the Indebtedness secured hereby to exceed the
face amount of the Notes, and shall be immediately due and payable when
incurred, with interest accruing thereon at the Default Rate, and shall be
allowed in any decree of foreclosure hereof. No proceeding to foreclose this
Mortgage, whether a decree of foreclosure shall have been entered therein or
not, shall be dismissed, nor shall a release of this Mortgage be given until
all such expenses, charges and costs of Mortgagee shall have been paid in
full.
10.12 USURY. It is expressly stipulated and agreed to be the intent of
Mortgagor and Mortgagee to at all times comply with applicable law now or
hereafter governing the interest payable on the Notes or the Loans secured
hereby. If the applicable law is ever revised, repealed, or judicially
interpreted so as to render usurious any amount called for under the Notes (or
under any other instrument evidencing or relating to any of the Indebtedness),
or contracted for, charged, taken, reserved or received with respect to the
Loans secured hereby, or if Mortgagee's acceleration of the Notes or any
prepayment by Mortgagor results in Mortgagor having paid any interest in excess
of that permitted by law, then it is Mortgagor's and Mortgagee's express intent
that all excess amounts theretofore collected by Mortgagee or the Lenders be
credited on the principal balance of the Notes (or, if the Notes have been paid
in full, refunded to Mortgagor), and the provisions of the Notes and this
Mortgage and other Loan Documents immediately be deemed
27
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder and thereunder.
10.13 SUCCESSORS AND ASSIGNS; COVENANTS RUNNING WITH THE LAND. The terms,
provisions, covenants and conditions hereof and of the Loan Documents shall be
binding upon Mortgagor, its successors and assigns, and shall inure to the
benefit of Mortgagee, the Lenders and their respective successors, substitutes
and assigns, and shall constitute covenants running with the land.
10.14 CONFLICT OF TERMS. The terms, provisions, covenants and conditions of
the Mortgage shall be construed in such a manner as to be consistent with the
terms and any other instruments executed in connection with or as security for
the Indebtedness and Obligations secured hereby; provided, however, in the event
of a conflict between the terms of this Mortgage and the terms of the other Loan
Documents, the terms of the Credit Agreement shall control.
10.15 APPLICABLE LAW. The Credit Agreement, the Notes and the Indebtedness
and Obligations evidenced are and shall be governed by and construed in
accordance with the laws of the State of Illinois. This Mortgage and the
perfection and enforcement of the liens and security interests hereunder (and
any financing statement filed in connection herewith) shall be governed by
and construed and enforced in accordance with the laws of the State of
Illinois, and that interest payable on the Loans and all other advances made by
the Mortgagee or the Lenders to Mortgagor shall be governed by Illinois law
because such advances shall constitute Indebtedness and Obligations under and
shall bear interest in accordance with the terms of the Credit Agreement.
10.16 NO JOINT VENTURE; NO THIRD PARTY BENEFICIARY. Mortgagor acknowledges
and agrees that in no event shall Mortgagee be deemed to be a partner or joint
venturer with it. Without limitation of the foregoing, Mortgagee shall not be
deemed to be such a partner or joint venturer on account of its becoming a
mortgagee in possession or exercising any rights pursuant to this Mortgage or
pursuant to any other instrument or document securing any portion of the
Indebtedness or otherwise. No other person shall be deemed to have any right or
priority under this Mortgage to any extent or for any purpose whatsoever, nor
shall any other person have any claim or right of action with respect to the
Mortgaged Property or proceeds of the Indebtedness or be deemed a third-party
beneficiary under this Mortgage or under the Loan Documents.
10.17 SEVERABILITY. The Loan Documents are intended to be performed in
accordance with, and only to the extent permitted by,
28
all applicable Legal Requirements. If any provision of any of the Loan Documents
or the application thereof to any person or circumstance shall, for any reason
and to any extent, be invalid or unenforceable neither the remainder of the
instrument in which such provision is contained, nor the application of such
provision to other persons or circumstances nor the other instruments referred
to herein shall be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
10.18 CONSENT OF MORTGAGEE. Any consent by Mortgagee in any single
instance shall not be deemed or construed to be Mortgagee's consent in any like
matter arising at a subsequent date, and the failure of Mortgagee to promptly
exercise any right, power, remedy, consent or approval provided herein or at law
or in equity shall not constitute or be construed as a waiver of the same, nor
shall Mortgagee be estopped from exercising such right, power, remedy, consent
or approval at a later date. Any consent or approval requested of and granted
by Mortgagee pursuant hereto shall be narrowly construed to be applicable only
to Mortgagor and the matter identified in such consent or approval (and no third
party shall claim any benefit by reason thereof), and shall not be deemed to
constitute Mortgagee a venturer or partner with Mortgagor whatsoever, nor shall
privity of contract be presumed to have been established with any such third
party. If Mortgagee deems it to be in its best interest to retain the assistance
of persons, firms or corporations (including, but not limited to, attorneys,
appraisers, engineers and surveyors) with respect to a request for consent or
approval, Mortgagor shall reimburse Mortgagee for all costs incurred in
connection with the employment of such persons, firms or corporations.
29
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed as
of the day and year first above written.
SOUTHERN ILLINOIS REGIONAL LANDFILL, INC.,
an Illinois corporation
By:___________________________________
Print Name:___________________________
Its: _________________________________
ATTEST: [SEAL]
By:___________________________________
Print Name:___________________________
Its: _________________________________
In the Presence of:
______________________________________
Witness
PRINT NAME:___________________________
______________________________________
Witness
PRINT NAME:___________________________
30
MORTGAGOR'S ACKNOWLEDGMENT
STATE OF ____________)
) SS
COUNTY OF ____________)
I, ______________________________, a Notary Public in and
for said County in the State aforesaid, DO HEREBY CERTIFY that
_____________________________ and ___________________________,
the ___________________________ and __________________________
respectively, of _______________________________________, a(n)
_________________corporation, personally known to me to be the
same persons whose names are subscribed to the foregoing instrument
as such officers, appeared before me this day in person and
acknowledged that they signed and delivered such instrument as
their own free and voluntary act and as the free and voluntary act
of said corporation for the uses and purposes set forth therein.
Given under my hand and Notarial Seal this _____ day of
______________, 1995.
__________________________
Notary Public
My Commission Expires:
_________________, 19___
31
EXHIBIT A
[REVOLVING NOTE]
32
EXHIBIT B
PERMITTED EXCEPTIONS
33
EXHIBIT C
LEGAL DESCRIPTION
P.I.N.
Common Address:
34
EXHIBIT H
LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
FINANCING STATEMENT AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, FINANCING
STATEMENT AND SECURITY AGREEMENT ("Mortgage") is made as of this _____________
day of _________________, 1995, by Continental Waste Industries of Illinois,
Inc., an Illinois corporation ("Mortgagor"), whose address is as set forth
herein, and who is a Subsidiary of Continental Waste Industries, Inc., a
Delaware corporation ("CWI"), in favor of LaSalle National Bank, a national
banking association, as Agent for itself and various Lenders (together with its
successors and assigns, including each and every holder from time to time of the
Notes hereinafter defined, the "Mortgagee"), whose address is as set forth
herein.
WITNESSETH:
A. Lenders have agreed to extend loans to CWI and its Subsidiaries
(collectively, the "Borrowers"), including Mortgagor, up to the aggregate
principal amount of FORTY-FIVE MILLION AND 00/100 DOLLARS ($45,000,000.00)
comprised of: (i) revolving loans ("Revolving Loan" or "Loan" and collectively
"Revolving Loans" or "Loans") up to the maximum aggregate principal amount of
Forty-Five Million and 00/100 Dollars ($45,000,000.00) ("Commitment"); and (ii)
letters of credit not to exceed the lesser of (aa) the unused amount of the
Commitment or (bb) Five Million and 00/100 Dollars ($5,000,000.00); all pursuant
to the terms of that certain Credit Agreement (together with all amendments,
modifications, restatements, replacements, consolidations, substitutions,
renewals and extensions thereof the "Credit Agreement") of even date herewith by
and between Mortgagee, CWI and its subsidiaries, including Mortgagor.
ARTICLE 1
TERMS OF THE INDEBTEDNESS
1.1 CERTAIN TERMS OF INDEBTEDNESS: The following is a summary of certain
terms of the Indebtedness (as hereinafter defined) secured by this Mortgage:
This Mortgage was prepared
by and after recording
mail to:
Xxxx X. Xxxxxxxxxx Legal Description: SEE
Lord, Bissell & Brook Exhibit C attached hereto
000 Xxxxx XxXxxxx Xxxxxx Xxxxxx address:________________________
Xxxxxxx, XX 00000 P.I.N.:________________________________
1
(a) THE NOTES: The term "Notes" shall collectively refer to the certain
Revolving Note or Revolving Notes of even date herewith made by Mortgagor and
the other Borrowers and payable to the order of the respective Lenders in the
original aggregate principal amount of Forty-Five Million and 00/100 Dollars
($45,000,000.00) a form of which Revolving Note is attached hereto as EXHIBIT A
and the terms of which are hereby incorporated herein by this reference.
(b) INTEREST RATE AND PAYMENTS: Interest shall accrue and the
Indebtedness evidenced by the Notes shall be repaid as provided in the Notes and
in the Credit Agreement.
(c) MATURITY: All of the unpaid principal balance outstanding under the
Notes and all unpaid interest thereon shall become due and payable, unless
extended or if not sooner paid or if not sooner due by acceleration on
__________________, 1998 (hereinafter referred to as the "Maturity Date").
1.2 DEFINITION OF THE INDEBTEDNESS: The term "Indebtedness" shall mean
the principal amount and interest payable thereon, and all the fees, amounts,
payments, liabilities and monetary liabilities and obligations due or required
to be paid by the Borrowers under the Notes, the Credit Agreement, this Mortgage
or the other Loan Documents, and all amendments, modifications, restatements,
replacements, consolidations, substitutions, renewals, extensions, and increases
thereto, whether heretofore or hereafter existing, and whether primary or
secondary, direct or indirect, absolute or contingent.
ARTICLE 2
DEFINITIONS
2.1 DEFINITIONS: Capitalized terms used herein that are not expressly
defined in this Article shall have the meaning defined elsewhere in this
Mortgage or in the Credit Agreement. The following terms shall have the
following meanings:
(a) AWARDS: Either or both of: (i) the Mortgagor's right, title and
interest in all awards and payments now or hereafter made by any municipal,
state or federal agency or authority to Mortgagor, including any awards or
payments for any taking of the Mortgaged Property as a result of the exercise of
the right of condemnation or eminent domain and, (ii) any and all proceeds and
payments now or hereafter made by any insurance company as a result of any
casualty or other event in connection with the Mortgaged Property.
(b) BUILDINGS: Any and all structures and on-site improvements, and any
and all additions, alterations, betterments
2
and appurtenances thereto, now or at any time hereafter situated, placed or
constructed upon the Real Estate (as hereinafter defined).
(c) CONTRACTS: The Mortgagor's right, title and interest in any and all
contracts, documents or agreements pertaining to the ownership, use, occupancy,
development, design, construction, financing, operation, management, alteration,
repair, marketing, sale, lease or enjoyment of the Mortgaged Property, and all
rights, privileges, authority and benefits thereunder (but under no
circumstances any liabilities, obligations or responsibilities thereunder).
(d) DEFAULT RATE: As defined in the Credit Agreement, Default Rate shall
mean (i) with respect to any Prime Rate Loan, the sum of three percent (3%) plus
the Prime Rate from time to time in effect; (ii) with respect to any LIBOR Loan,
the sum of two percent (2%) plus the rate of interest in effect thereon at the
time of such default until the end of the Interest Period applicable thereto
and, thereafter, at a rate per annum equal to the sum of three percent (3%) plus
the Prime Rate from time to time in effect; and (iii) with respect to other
monetary Obligations (as defined in the Credit Agreement) for which a Default
Rate is not otherwise specified, the sum of three percent (3%) PLUS the Prime
Rate from time to time in effect.
(e) EVENT OF DEFAULT: The occurrences defined in Article 9 of this
Mortgage.
(f) FIXTURES: All fixtures, as defined in and subject to the Uniform
Commercial Code, located on the Real Estate including, without limitation, all
systems, fittings, structures, equipment, apparatus, fixtures and other
improvements and items now or hereafter temporarily or permanently attached to,
installed in or used in connection with any of the Buildings or the Real Estate,
including, but not limited to, any and all partitions, hardware, motors,
engines, boilers, furnaces, pipes, plumbing, conduit, sprinkler systems, fire
extinguishing equipment, elevator equipment, telephone and other communications
equipment, security equipment, master antennas and cable television equipment,
water tanks, heating, ventilating, air conditioning and refrigeration equipment,
laundry facilities, and incinerating, gas and electric machinery and equipment.
(g) GOVERNMENTAL AUTHORITY: Any and all courts, boards, agencies,
commissions, offices or other authorities of any nature whatsoever for any
governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or
otherwise) or arbitration authority, whether now or hereafter in existence.
(h) IMPOSITIONS: All (i) general and special real estate and personal
property taxes and other land taxes and assessments, water
3
and sewer rates and charges, and all other governmental charges and any interest
or costs or penalties with respect to the Mortgaged Property, (ii) charges for
any easement or agreement maintained for the benefit of the Mortgaged Property
which at any time prior to or after the execution of the Loan Documents may be
assessed, levied or imposed upon the Mortgaged Property or the rent or income
received therefrom or any use or occupancy thereof, (iii) other taxes,
assessments, fees and governmental charges levied, imposed or assessed upon or
against Mortgagor in connection with the Mortgaged Property, and (iv) annual
premiums for insurance policies required to be maintained under this Mortgage or
the Credit Agreement with respect to the Mortgaged Property.
(i) LEASES: The Mortgagor's right, title and interest in any and all
leases, subleases, sub-subleases, licenses, concessions or grants of other
possessory interests (written or oral) now or hereafter in force, covering or
affecting the Mortgaged Property, or any part thereof or interest therein,
together with all rights, powers, privileges, options and other benefits of
Mortgagor thereunder (but under no circumstances any liabilities, obligations or
responsibilities thereunder).
(j) LEGAL REQUIREMENTS: The terms, covenants, conditions and restrictions
now or hereafter existing to which Mortgagor may be bound or to which the
Mortgaged Property is subject under (i) any and all present and future statutes,
laws, rulings, opinions, rules, regulations, codes, permits, certificates,
approvals, ordinances, judicial decisions or orders of any Governmental
Authority in any way applicable to Mortgagor or the Mortgaged Property, and the
ownership, use, occupancy, possession, development, design, construction,
financing, operation, maintenance, alteration, repair, marketing, sale, lease
or enjoyment thereof, including without limitation, any related to zoning,
building, utility service, sewer service, fire safety, land and water use,
environmental protection, occupational health and safety or flood hazard; (ii)
any and all Leases; (iii) any and all Contracts; (iv) any lease, sublease,
option, articles of agreement for deed, installment contract or other contract
or agreement pursuant to which Mortgagor is granted any possessory, legal,
equitable, beneficial or other interest in the Mortgaged Property; and (v) any
and all other easements, covenants, conditions, restrictions, leases or other
contracts and agreements (written or oral) of any nature to which Mortgagor may
be bound or to which the Mortgaged Property may be subject.
(k) LOAN DOCUMENTS: This Mortgage, the Notes, the Credit Agreement, the
Environmental Indemnity Agreement and each and every one of the other "Loan
Documents" as defined in the Credit Agreement, whether now or hereafter
existing, and any and all other documents now or hereafter evidencing or
securing the payment of the Indebtedness or the observance or performance of the
Obligations, and any and all amendments, modifications,
4
restatements, replacements, substitutions, renewals, extensions and increases
thereto whether heretofore or hereafter entered into in connection with the
Indebtedness.
(l) MORTGAGED PROPERTY: The Real Estate, Fixtures, Leases, Contracts,
Rents, Awards and Personalty together with:
(i) any and all rights, privileges, tenements, hereditaments,
rights-of-way, easements, appendages and appurtenances of the Real Estate
belonging or in anyway appertaining thereto, and all right, title and
interest of Mortgagor in and to any streets, ways, strips or gores of land
adjoining the Real Estate or any part thereof; and
(ii) any and all betterments, additions, appurtenances,
substitutions, replacements and after acquired title or interests thereof
and all reversions and remainders therein; and
(iii) any and all other security and collateral of any nature
whatsoever, now or hereafter given for the repayment of the Indebtedness or
the performance and discharge of the Obligations.
(m) MORTGAGEE: The above named Mortgagee and any and all successors, as
Agent for the Lenders under the Notes or other Loan Documents.
(n) MORTGAGEE'S ADDRESS, ETC.;: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; Telephone __________________; Telex __________________;
Telecopy __________________.
(o) MORTGAGOR: The above named Mortgagor and any and all successors,
transferees, assignees and subsequent owners of the Mortgaged Property.
(p) MORTGAGOR'S ADDRESS, ETC.;: Xxxxx 0, XxXxxx, XX 00000; Telephone
__________________; Telex __________________; Telecopy __________________.
(q) OBLIGATIONS: Any and all of the covenants, conditions, warranties,
representations and other obligations (other than the obligation to repay the
Indebtedness) of the Borrowers to Mortgagee under or as set forth in the Notes,
the Credit Agreement (including but not limited to all obligations to reimburse
for draws under any letter of credit), this Mortgage or the other Loan Documents
and under the Legal Requirements, whether heretofore or hereafter existing, and
whether primary or secondary, direct or indirect, absolute or contingent, and
including the enforcement by Mortgagee of its rights and remedies under any or
all of the foregoing
5
(including all costs, expenses and reasonable attorneys' and paralegals' fees
and expenses incurred by the Lenders and the Mortgagee).
(r) PERMITTED EXCEPTIONS: The encumbrances and title exceptions
specifically described in EXHIBIT B attached hereto and made a part hereof.
(s) PERSONALTY: All right, title and interest of Mortgagor in and to all
furniture, furnishings, equipment, machinery, of any kind or character as
defined in the provisions of the Uniform Commercial Code now or hereafter
located upon, within or about the Real Estate and the Buildings, or used or
useful in connection therewith, together with all existing or future
accessories, replacements and substitutions thereto or therefor and the proceeds
therefrom, including, but not limited to: (i) all furniture, furnishings and
equipment; (ii) all building materials and equipment intended to be incorporated
in the improvements now or hereafter to be constructed on the Real Estate,
whether or not yet incorporated in such improvements; (iii) all machinery,
apparatus, systems, equipment or articles used in supplying heating, gas,
electricity, ventilation, air conditioning, water, light, power, refrigeration,
fire protection, elevator service, telephone and other communication service,
waste removal and all fire sprinklers, smoke detectors, alarm systems, security
systems, electronic monitoring equipment and devices; (iv) all maintenance
equipment; (v) all office furniture, equipment and supplies; (vi) all tractors,
mowers, sweepers, snow removal equipment and other equipment used in maintenance
of interior and exterior portions of the Real Estate or the Buildings; and (vii)
all other maintenance supplies and inventories; provided, that the enumeration
of any specific articles of personalty set forth above shall in no way exclude
or be held to exclude any items of property not specifically enumerated, and
that any of the foregoing items that do not constitute personal property but
constitute fixtures under applicable law shall be included in the definition of
the term "Fixtures" as used herein.
(t) PRIME RATE: The rate of interest announced or referred to by
Mortgagee from time to time as its prime rate for interest rate determinations,
with each change in such Prime Rate to take effect on the same day such change
is announced by Mortgagee. The use of the term "Prime Rate" is not intended nor
does it imply that such rate of interest is a preferred rate of interest or one
which is offered by the Mortgagee to its most creditworthy customers.
(u) REAL ESTATE: The leasehold estate created pursuant to that certain
lease dated ____________________, 19__, by and between Xxxxx X. Xxxxxxxxx
("Lessor") and Mortgagor, as lessee (the "Lease") relating to real estate in the
County of Xxxxxxxx, State of Illinois and legally described on EXHIBIT C
attached hereto and made a part hereof, (the "Leasehold Estate") a memorandum of
which
6
Lease is recorded with the Recorder of Deeds of Xxxxxxxx County, Illinois as
Document No. __________.
(v) RENTS: All of the rents, revenues, income, profits, deposits and
other benefits payable under the Leases and/or otherwise arising from or out of
the Mortgaged Property or out of the ownership, use or enjoyment of all or any
portion of the Mortgaged Property or part thereof or interest therein.
ARTICLE 3
GRANT
3.1 GRANT. To secure the full and timely payment of the Indebtedness and
the full and timely performance and discharge of the Obligations, Mortgagor by
these presents hereby GRANTS, ASSIGNS, MORTGAGES and Warrants unto Mortgagee the
Mortgaged Property subject to the Permitted Exceptions, free and clear from all
rights and benefits under and by virtue of the Homestead Exemption Laws of the
State of Illinois (which rights and benefits are hereby expressly released and
waived). Mortgagor does hereby bind itself, its successors and assigns to
warrant and forever defend fee simple absolute title to the Mortgaged Property
unto Mortgagee, and the quiet and peaceful enjoyment and possession thereof,
against every person whomsoever claiming the same or any part thereof or
interest therein, except for the Permitted Exceptions.
3.2 CONDITION OF GRANT: The condition of these presents is such that if
Mortgagor and the other Borrowers shall pay or cause to be paid the Indebtedness
as and when the same shall become due and payable and shall observe, perform and
discharge the Obligations in accordance with this Mortgage and the other Loan
Documents, then this Mortgage and the other Loan Documents and the estates and
rights granted by them shall be released and terminated by Mortgagees.
ARTICLE 4
ASSIGNMENT OF LEASES AND RENTS
4.1 ASSIGNMENT OF LEASES AND RENTS: To further secure the full and timely
payment of Indebtedness and the full and timely performance and discharge of the
Obligations, Mortgagor hereby sells, assigns and transfers unto Mortgagee all of
the Leases, together with the Rents now due and which may hereafter become due
under or by virtue of any of the Leases, and all rights and remedies conferred
by applicable state law, as such may be amended from time to time, it being the
intention hereby to establish an absolute and present transfer and assignment of
all such Leases and Rents, and all avails thereunder, to Mortgagee; provided,
however, the acceptance by Mortgagee of the foregoing assignment, with all
7
of the rights, powers, privileges and authority so created, shall not, prior to
entry upon and taking possession of the Mortgaged Property by Mortgagee, be
deemed or construed to constitute Mortgagee a "Mortgagee in Possession," nor
thereafter or at any time or in any event obligate Mortgagee to appear in or
defend any actions thereunder, to expend any money, incur any expenses, or
perform or discharge any obligation, duty or liability under the Leases or to
assume any obligation or responsibility for any security deposits or other
deposits delivered to Mortgagor thereunder. So long as no Event of Default
shall exist, Mortgagee shall not demand from any tenants under the Leases any
Rents or monies hereby assigned arising from or out of said Leases or from or
out of the Mortgaged Property or any part thereof, but shall permit the
Mortgagor to collect, but not prior to accrual, all such Rents and enjoy the
same; provided that notwithstanding the foregoing, all tenants under the Leases
shall comply with any demand for Rents or monies made by Mortgagee without
inquiring or investigating as to whether such demand is made in compliance
herewith. A demand by Mortgagee to any tenant or purchaser for payment of
monies by reason of any Event of Default claimed by Mortgagee shall be
sufficient direction to said tenant to make future payments of monies to
Mortgagee without the necessity for further consent by, or notice to, Mortgagor.
ARTICLE 5
SECURITY AGREEMENT
5.1 SECURITY INTEREST.
(a) This Mortgage is both a real property mortgage and a "security
agreement" within the meaning of the Illinois Uniform Commercial Code (the
"UCC") and any other applicable law. To the extent any of the Mortgaged
Property consists of personal property under the UCC, whether tangible or
intangible in nature, Mortgagor by executing and delivering this Mortgage has
granted and hereby grants to Mortgagee, as security for the Indebtedness and
Obligations, a security interest in the Mortgaged Property. Said portion of the
Mortgaged Property so subject to the UCC shall be referred to in this paragraph
as "Collateral".
(b) If any Event of Default shall occur, Mortgagee, in addition to
any other rights and remedies which it might have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the UCC including, without limiting the
generality of the foregoing, the right to take possession of the Collateral of
any part thereof, and to take such other measures as Mortgagee may deem
necessary for the care, protection and preservation of the Collateral.
8
(c) If any Event of Default then exists, without notice, demand or
legal process of any kind, Mortgagee may take possession of any or all of the
Collateral, wherever it might be found and for that purpose, Mortgagee shall
have the right, without breaching the peace, to enter upon the premises of
Mortgagor where the Collateral is located (or is believed to be located) without
any obligation to pay rent to Mortgagor, or any other place or places under the
control of Mortgagor where the Collateral is believed to be located and kept,
and remove the Collateral therefrom to the premises of Mortgagee or any agent of
Mortgagee, for such time as Mortgagee may desire, in order to effectively
collect or liquidate the Collateral, and/or Mortgagee may require Mortgagor to
assemble the Collateral and make it available to Mortgagee at a place or places
to be designated by Mortgagee. If an Event of Default then exists, Mortgagee
shall have the right to obtain access to Mortgagor's data processing equipment,
computer hardware and software relating to the Collateral and to use all of the
foregoing and the information contained therein in any manner Mortgagee deems
appropriate which is related to the preservation or disposition of the
Collateral or to the collection of the Indebtedness or Obligations.
(d) Any notice required to be given by Mortgagee of a sale, lease or
other disposition or other intended action by Mortgagee with respect to any of
the Collateral which is deposited in the United States mails, postage prepaid
and duly addressed to Mortgagor at the address specified in Article 2, at least
ten (10) Business Days (as defined in the Credit Agreement) prior to such
proposed action, shall constitute fair and reasonable notice to Mortgagor of any
such action. The net proceeds realized by Mortgagee upon any such sale or other
disposition, after deduction for the reasonable expenses of retaking, holding,
preparing for sale, selling or the like and the reasonable attorneys' fees and
legal expenses incurred by Mortgagee or Lenders in connection therewith, shall
be applied as provided herein toward satisfaction of the Indebtedness and the
Obligations. Mortgagee shall account to Mortgagor for any surplus realized upon
any such sale or other disposition, and Mortgagor shall remain liable for any
deficiency. The commencement of any action, legal or equitable, or the
rendering of any judgment or decree for any deficiency shall not affect
Mortgagee's Lien on the Collateral until the Indebtedness and Obligations are
fully paid. Mortgagor agrees that Mortgagee has no obligation to preserve
rights to the Collateral against any other parties. To the extent Mortgagor has
the power, without violating the terms of any agreement existing as of the
Closing Date (as defined in the Credit Agreement), to grant such a license,
Mortgagee is hereby granted a license or other right to use, without charge, any
Mortgagor's labels, patents, production certificates, type certificates,
supplemental certificates, copyrights, rights of use of any name, trade secrets,
trade names, tradestyles, trademarks, service marks and advertising matter, or
any property of a similar nature, as it pertains to the Collateral,
9
in completing production of, advertising or sale and selling any Collateral.
(e) In addition to all such rights and remedies, the sale, lease or
other disposition of the Collateral, or any part thereof, by Mortgagee after an
Event of Default may be for cash, credit or any combination thereof, and
Mortgagee may purchase all or any part of the Collateral at public or, if
permitted by Law, private sale, and in lieu of actual payment of such purchase
price, may set-off the amount of such purchase price against the Indebtedness
and Obligations then owing. Any sale of the Collateral may be adjourned from
time to time with or without notice. Mortgagee may, in its sole discretion,
cause any Collateral to remain on Mortgagor's premises, at Mortgagor's expense,
pending sale or other disposition of such Collateral. Mortgagee shall have the
right to conduct such sales on a Mortgagor's premises, at Mortgagor's expense,
or elsewhere on such occasion or occasions as Mortgagee may see fit.
(f) Mortgagor shall pay to Mortgagee on demand any and all
reasonable expenses, including legal expenses and reasonable attorneys' fees,
incurred or paid by Mortgagee in protecting its interest in the Collateral and
in enforcing its rights hereunder with respect to the Collateral.
5.2 CHARACTERIZATION AS PERSONALTY. The grant of a security interest to
Mortgagee in the granting clause of this Mortgage shall not be construed to
derogate from or impair the lien or provisions of or the rights of Mortgagee
hereunder with respect to any property described herein which is real property
or which the parties have agreed to treat as real property. The stated
intention of Mortgagor and Mortgagee is that everything used in connection with
the production of income from the Real Estate or adapted for use thereon is, and
at all times and for all purposes and in all proceedings, both legal and
equitable, at Mortgagee's election, regarded as real property, irrespective of
whether or not the same is physically attached to the land and/or Improvements.
5.3 FINANCING STATEMENT. This Mortgage is intended to be a financing
statement under the Uniform Commercial Code with respect to all personal
property of the Mortgagor pledged herein and all fixtures. The addresses of
Mortgagor and Mortgagee are as defined in Section 2.1 of this Mortgage. This
Mortgage is to be filed for record in the real estate records of the county
where the Real Estate is located. Mortgagor is the record owner of the Real
Estate.
5.4 FURTHER ASSURANCES AND DELIVERIES. If requested by Mortgagee,
Mortgagor shall execute and deliver to Mortgagee, in form reasonably
satisfactory to Mortgagee, additional security agreements, financing statements
and/or other instruments covering all personal property or fixtures of Mortgagor
pledged hereunder,
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whether now existing or hereafter acquired, placed on, or annexed or made
appurtenant to the Real Estate, including delivery of any and all instruments
(together with endorsements in blank) delivered to Mortgagee, which instruments
constitute or constituted proceeds of any personal property pledged herein.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Mortgagor hereby represents and warrants to Mortgagee as of the date hereof
and as of all dates hereafter that:
6.1 ORGANIZATION, AUTHORITY. Mortgagor: (a) is duly organized, validly
existing and in good standing under the laws of the State of Illinois; and (b)
is qualified to do business in every jurisdiction in which the nature of its
business or properties makes such qualification necessary and the failure to so
qualify would have a Materially Adverse Effect on the business or financial
affairs of Mortgagor.
6.2 PERMITS AND APPROVALS. All permits, certificates, approvals and
licenses required for or in connection with the ownership, use, occupancy or
enjoyment of the Mortgaged Property have been duly and validly issued and are
and shall at all times hereafter be in full force and effect.
6.3 ACCESS. All streets and highways necessary for access to and full
use, occupancy and operation of the Mortgaged Property have been completed and
are open and available to the Mortgaged Property without further condition or
cost to Mortgagor.
6.4 NO VIOLATION OF LEGAL REQUIREMENTS. Except as otherwise represented
or provided in the Environmental Indemnity Agreement, neither the contemplated
use, occupancy or operation of the Mortgaged Property violates or will then
violate any Legal Requirements to which the Mortgagor may be bound or to which
the Mortgaged Property may be subject. Mortgagor shall promptly notify
Mortgagee, in writing, of its receipt of any notice of a violation of any Legal
Requirements. Mortgagor hereby agrees to indemnify and hold Mortgagee harmless
from all loss, cost, damage, claim and expense incurred by Mortgagee on account
of Mortgagor's failure to perform the obligations of this subparagraph.
6.5 ILLINOIS RESPONSIBLE PROPERTY TRANSFER ACT. With respect to the
Illinois Responsible Property Transfer Act, 765 ILCS 90/1 ET SEQ. ("IRPTA"):
(1) no disclosure document is required by IRPTA; (2) there are no underground
storage tanks located on the Mortgaged Property; and (3) the Mortgaged Property
does not contain any facilities which are subject to reporting under Section 312
of the
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Federal Emergency Planning and Community Right to Know Act of 1986, and the
federal regulations promulgated thereunder.
6.6 LEASE. The Lease is in full force and effect and unmodified.
6.7 RENTS. All rents (including additional rents and other charges)
reserved in the Lease have been paid to the extent they were payable prior to
the date hereof.
6.8 DEFAULTS. There is no uncured default under the Lease or in the
performance of any of the terms, covenants, conditions or warranties thereof on
the part of the lessee to be observed and performed. Further, no state of facts
exists which, with the lapse of time or giving of notice or both would
constitute a default under the Lease.
6.9 INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Mortgagor hereby
makes each and every representation and warranty contained in the Credit
Agreement and the Environmental Indemnity Agreement, which are incorporated
herein by this reference as if set forth herein in full.
ARTICLE 7
COVENANTS
Until the entire Indebtedness shall have been paid and the Obligations
performed in full, Mortgagor hereby unconditionally covenants and agrees as
follows:
7.1 PAYMENT AND PERFORMANCE. Mortgagor shall pay the Indebtedness, as and
when all or any payment thereunder is due and shall perform or cause to be
performed all of the Obligations in full on or before the dates the Obligations
or any part thereof are required to be performed, and shall commit or suffer no
act or event which (upon notice or the passage of time, or both) would
constitute a default or Event of Default under the Loan Documents or the Legal
Requirements.
7.2 COMPLIANCE WITH LAWS. Mortgagor will promptly and faithfully comply
in all material respects with all present and future laws, ordinances, rules,
regulations and requirements, and all other Legal Requirements, including,
without limitation, applicable zoning, building, land use, occupational health
and safety, hazardous waste and substances, and environmental requirements, of
every Governmental Authority and of every Board of Fire Underwriters having
jurisdiction, or similar body exercising similar functions, which may be
applicable to it or to the Mortgaged Property, or any part thereof, or to the
use, occupancy, possession, operation, maintenance, alteration or repair of the
Mortgaged Property, or any part thereof or interest therein.
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Mortgagor shall immediately notify Mortgagee, orally and in writing, of its
receipt of any notice of a violation in any material respect of any Legal
Requirements. Mortgagor shall pay to Mortgagee, upon demand, all losses, costs,
damages, claims and expenses incurred by Mortgagee on account of Mortgagor's
failure to perform the obligations of this paragraph.
7.3 PAYMENT OF IMPOSITIONS.
(a) Mortgagor will duly pay and discharge, or cause to be paid and
discharged, the Impositions, such Impositions or installments thereof to be paid
not later than the day any fine, penalty, interest or cost may be added thereto
or imposed by law for the non-payment thereof. Mortgagor shall, upon
Mortgagee's request, furnish proof to Mortgagee within fifteen (15) days after
such request that such Impositions have been paid.
(b) Mortgagee may at its option, should Mortgagor fail to pay any
Impositions levied or assessed on or against the Real Estate before they become
delinquent, pay the full amount of any such tax xxxx, including any applicable
interest or penalties, and all such monies so advanced shall be additional
Indebtedness of Mortgagor to Mortgagee secured by the lien of this Mortgage and
shall bear interest at the Default Rate and be payable on demand.
7.4 MAINTENANCE AND REPAIR. Mortgagor shall (i) constantly maintain the
Mortgaged Property in good condition and make all repairs and replacements
thereof and additions and improvements thereto as are necessary or appropriate
under sound management practices; and (ii) prevent any act or thing which might
impair or diminish the value or usefulness of the Mortgaged Property, or the
Improvements with respect thereto.
7.5 INSURANCE. Mortgagor shall procure for, deliver to and maintain for
the benefit of Mortgagee during the term of this Mortgage, all such insurance as
required by Mortgagee, including, but not limited to, casualty insurance against
loss or damage by fire, lightning and other hazards and casualties as are now
included in so-called "extended coverage" policies in amounts not less than the
full insurable replacement value of all Buildings and other Fixtures and
equipment from time to time on the Mortgaged Property, and comprehensive public
liability insurance in an amount satisfactory to Mortgagee. All insurance
policies shall be in form, companies and amounts satisfactory to Mortgagee. All
insurance policies shall (i) include, when available, non-contributing Mortgagee
endorsements in favor of and with loss payable to Mortgagee, (ii) name Mortgagee
and Lenders as additional insureds with respect to liability insurance, (iii)
include standard waiver of subrogation endorsements, (iv) provide that the
coverage shall not be terminated or materially modified without thirty (30)
days' advance written notice to Mortgagee and (v) provide that no claims shall
be paid thereunder without ten (10)
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days' advance written notice to Mortgagee. Mortgagor will deliver all insurance
policies premium prepaid, to Mortgagee and, will deliver renewal or replacement
policies at least thirty (30) days prior to the date of expiration of any
policy. The requirements of the preceding sentence shall apply to any separate
policies of insurance taken out by Mortgagor concurrent in form or contributing
in the event of loss with the insurance policies. If Mortgagor fails to provide
such insurance, or if any policy is canceled, reduced, or not renewed, Mortgagee
may, but shall not be obligated, to obtain such insurance, and the cost thereof
shall be additional Indebtedness of Mortgagor to Mortgagee secured hereby
bearing interest at the Default Rate. Mortgagor will promptly upon demand pay
directly to or reimburse Mortgagee for all premiums and other costs incurred in
procuring such insurance. In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment in whole or in
part of the Indebtedness, all right, title and interest of Mortgagor in and to
such policies then in force concerning the Mortgaged Property, and all proceeds
payable thereunder, shall thereupon vest in the purchaser at such foreclosure or
in Mortgagee in the event of such transfer.
7.6 ADJUSTMENT OF LOSSES WITH INSURER. Mortgagor hereby assigns to
Mortgagee all proceeds from any insurance policies pertaining to the Mortgaged
Property, and in the event of a casualty loss in excess of $50,000 Mortgagee is
hereby authorized and empowered, at its option, to make or file proofs of loss
or damage and to adjust or compromise any loss, and to collect and receive the
proceeds from any such policies; provided, however, Mortgagee shall not be held
responsible for any failure to collect any insurance proceeds regardless of the
cause of failure.
7.7 APPLICATION OF INSURANCE PROCEEDS. In the event of any insured loss,
Mortgagor shall give prompt written and oral notice thereof to Mortgagee and to
the insurer. In the event of a casualty loss exceeding $50,000, Mortgagee may
require that the payment for such loss be paid directly to Mortgagee only and
not jointly to Mortgagor and Mortgagee. Mortgagee may, at its option, if the
proceeds for any loss exceed $50,000, apply the proceeds to the reduction of the
Indebtedness or may if Mortgagee requests within twenty (20) days of the
casualty, release the same to Mortgagor to be applied to the restoration or
repair of the Mortgaged Property in accordance with Mortgagee's customary
construction disbursement procedures. If the proceeds for any loss are equal to
or less than $50,000, and provided that no Event of Default exists, Mortgagee
shall release the same to Mortgagor to be applied to the restoration or repair
of the Mortgaged Property. If the proceeds are released to be applied to the
restoration or repair of the Mortgaged Property, Mortgagor shall expeditiously
proceed to repair or restore the Mortgaged Property. In the event of an Event
of Default, Mortgagee shall have the right and option to declare the entire
balance of the Indebtedness remaining unpaid
14
to be immediately due and payable and shall have the right, at its option, to
apply the whole or any part of such insurance proceeds toward the payment of any
of the Indebtedness, in such order and manner as Mortgagee may elect.
7.8 CONDEMNATION PROCEEDS. To the extent permitted under the Lease, all
Awards shall be paid to Mortgagee and, after deducting from said Awards all of
its expenses in the collection and administration of said sums, Mortgagee shall
have the right, at its option, if the proceeds of the Awards exceed $50,000, to
apply the net proceeds in payment of the Indebtedness (whether then matured or
to mature in the future), either in whole or in part (in such order as Mortgagee
shall deem proper), or to require the Mortgaged Property so affected by such
condemnation to be repaired or restored by the use of such proceeds. If the
proceeds of any Awards are equal to or less than $50,000, and provided that no
Event of Default exists, Mortgagee shall release the same to Mortgagor to be
applied to the restoration or repair of the Mortgaged Property. Mortgagor
agrees that if the proceeds are released to be applied toward restoration,
Mortgagor shall expeditiously proceed to so repair or restore the Mortgaged
Property. If Mortgagee does elect to apply such proceeds in payment or
reduction of the Indebtedness secured hereby, whether due or not, and if the
same are insufficient to pay such amount in full, Mortgagee shall have the right
and option to declare the entire balance of the Indebtedness remaining unpaid to
be immediately due and payable. Mortgagee shall be entitled to all Awards, and
is hereby authorized, at its option, to commence, appear in and prosecute, in
its own name or in Mortgagor's name, any such proceeding relating to any
condemnation, and to settle or compromise any claim in connection therewith.
Mortgagor hereby assigns and transfers to Mortgagee all Awards up to the amount
of the Indebtedness and the claims, rights and proceedings in connection
therewith. Mortgagor agrees to execute such further assignments of all Awards
and claims, rights and proceedings in connection therewith as Mortgagee may
request. Mortgagee shall not be held responsible for any failure to collect any
amount in connection with any such proceeding regardless of the cause of
failure.
7.9 PERFORMANCE OF AGREEMENTS. Mortgagor will duly and punctually perform
all covenants and agreements under any agreements to which it is respectively a
party with respect to the Mortgaged Property or any part thereof, including, but
not limited to the Credit Agreement and the Environmental Indemnity Agreement.
7.10 INSPECTION. Upon the Mortgagee's request, Mortgagor shall permit
Mortgagee or any Lender, and any of their officers, employees or agents, to
visit, during normal business hours, for inspection and review, the Mortgaged
Property and will make available and furnish to Mortgagee and any Lender the
Mortgagor's books and records and such financial information concerning the
15
Mortgaged Property as reasonably requested by Mortgagee or any Lender.
7.11 HOLD HARMLESS. In addition to the agreements of Mortgagor under the
Credit Agreement and the Environmental Indemnity Agreement, Mortgagor hereby
indemnifies and will defend and hold Mortgagee and the Lenders harmless from and
against any and all proceedings, claims, actions, causes of action, suits,
proceedings, investigations, losses, costs, liabilities, damages, punitive
damages, penalties and expenses, including reasonable attorneys' and paralegals'
fees and disbursements arising out of, affecting or relating to the Mortgaged
Property, or the value of the Notes or the Loan Documents.
7.12 DEPOSITS FOR IMPOSITIONS. Upon the demand of Mortgagee, and in
addition to the payments of principal and interest payable under the terms of
the Notes, Mortgagor shall pay to Mortgagee each month, until all the
Indebtedness secured hereby is fully paid, an amount equal to one-twelfth (1/12)
of Mortgagee's estimate of the next annual Impositions. Mortgagor shall also
pay to Mortgagee such additional amounts, to be determined by Mortgagee from
time to time, as will provide a sufficient fund at least thirty (30) days' prior
to the due dates of the next installment of such Impositions for payment of such
Imposition. Amounts held hereunder by Mortgagee shall not bear interest and may
be commingled with Mortgagee's other funds. Provided that no event has occurred
which with the passage of time or the giving of notice or both would constitute
an Event of Default hereunder, amounts held by Mortgagee pursuant to this
paragraph 7.12 shall be made available to Mortgagor in sufficient time to allow
Mortgagor to satisfy Mortgagor's obligations under the Loan Documents to pay
Impositions. Upon an Event of Default under this Mortgage, Mortgagee may, at
its option, without being required so to do, apply any deposits on hand to any
of the Indebtedness, in such order and manner as Mortgagee may elect. All
deposits are hereby pledged as additional security for payment of the
Indebtedness and performance of the Obligations, and shall be held by Mortgagee
irrevocably to be applied for the purposes for which made as herein provided and
shall not be subject to the direction or control of Mortgagor. If Mortgagee
elects, Mortgagor shall provide, at its expense, a tax service contract for the
term of this Mortgage, issued by a tax reporting agency approved by Mortgagee.
If Mortgagee does not so elect, Mortgagor shall reimburse Mortgagee for the cost
of making annual tax searches throughout the term of this Mortgage.
7.13 LIEN STATUS. Mortgagor shall protect the lien and security interest
of this Mortgage and the Loan Documents and shall not place, or permit to be
placed, or otherwise mortgage, pledge, hypothecate or encumber the Mortgaged
Property with any other lien, attachment, levy, or security interest of any
nature whatsoever (whether mechanics, judgment, delinquent tax, statutory,
16
contractual or other) regardless of whether the same is allegedly or expressly
subordinate and inferior to the liens and security interest created by this
Mortgage and the Loan Documents, except for the Permitted Exceptions, and if any
such lien or security interest is asserted against the Mortgaged Property,
Mortgagor shall promptly, and at its own cost and expense, pay the underlying
claim in full, or appear in and defend any action or claim, or take such other
action so as to cause the same to be released within thirty (30) days of when
asserted, made or filed.
7.14 RESTRICTIONS ON TRANSFER AND FINANCING. It shall be an immediate
Event of Default and default hereunder if, without the prior written consent of
the Mortgagee, any of the following shall occur, in which event Mortgagee shall
be allowed, at its option and in its sole discretion, to accelerate the
Indebtedness, and in any event Mortgagee may condition its consent upon such
increase in rate of interest payable upon the Indebtedness, change in monthly
payments thereon, change in maturity thereof and/or the payment of a fee, all as
Mortgagee may in its sole discretion require:
(a) If the Mortgagor shall create, effect, contract for, commit to or
consent to or shall suffer or permit any conveyance, sale (including any
installment sale), exchange, assignment, transfer, lien, pledge, mortgage,
security interest or other encumbrance or alienation of the Mortgaged Premises
or any part thereof, or legal or equitable interest therein whether any such
above conveyance, sale, assignment, transfer, lien, pledge, mortgage, security
interest, encumbrance or alienation is effected directly, indirectly,
voluntarily or involuntarily, by operation of law or otherwise; or
(b) If there is a transfer, lien, pledge, mortgage, security interest
or other encumbrance or alienation of the ownership interests in Mortgagor
whether directly, indirectly, voluntarily or involuntarily, by operation of law
or otherwise or if Mortgagor is dissolved or otherwise ceases to exist; provided
however, that subject to the conditions of and as may be permitted under the
Credit Agreement, Mortgagor shall be permitted to (i) consolidate or merge with
any Person (as defined in the Credit Agreement); (ii) acquire any stock in, or
acquire all or substantially all of the assets or properties of, any Person; and
(iii) create any Subsidiaries;
(c) If CWI shall suffer or permit the sale, transfer of, or
acquisition by any Person of fifty percent (50%) or more of the voting stock of
CWI;
This Section 7.14 shall not apply to: (i) liens securing the Indebtedness; or
(ii) the lien of current taxes and assessments not yet due and payable.
17
(d) Any consent by Mortgagee permitting a transaction otherwise
prohibited hereunder shall not constitute a consent to or waiver of any right,
remedy or power of Mortgagee to withhold its consent on a subsequent occasion to
a transaction not otherwise permitted by the provisions of this paragraph 7.14.
(e) Any such sale, transfer, assignment, conveyance, lease, lien,
pledge, mortgage, hypothecation or any other encumbrance or alienation or
contract or agreement to do any of the foregoing shall be null and void and of
no force or effect.
7.15 EXISTENCE. Mortgagor shall maintain and preserve its corporate
existence, good standing, certificates of authority, licenses, permits,
franchises, patents, trademarks, trade names, service marks, copyrights, leases
and all other contracts and rights necessary or desirable to continue its
operations and business on a profitable basis and will generally continue the
same line of business as that being presently conducted.
7.16 USE RESTRICTIONS. Mortgagor shall not use, maintain, operate or
occupy, or allow the use, maintenance, operation or occupancy of, the Mortgaged
Property in any manner which would: (a) be dangerous unless safeguarded as
required by law; or (b) make void, voidable or cancelable, or increase the
premium of, any insurance then in force with respect thereto.
7.17 REPLACEMENT OF FIXTURES AND PERSONALTY. Mortgagor shall not, without
the prior written consent of Mortgagee, permit any of the Fixtures or Personalty
to be removed at any time from the Real Estate.
7.18 COVENANTS RELATING TO THE LEASEHOLD ESTATE.
(a) Mortgagor agrees to defend the Leasehold Estate created under the
Lease for the entire remainder of the term set forth therein, against all and
every person or persons lawfully claiming, or who may claim the same or any part
thereof, subject to the payment of the rents in the Lease reserved and subject
to the performance and observance of all of the terms, covenants, conditions
and warranties thereof.
(b) Mortgagor shall pay or cause to be paid all rents, additional rents,
taxes, assessments, water rates, sewer rents, and other charges and impositions
payable by the lessee under the Lease for which provision has not been made
hereinbefore, when and as often as the same shall become due and payable.
Mortgagor will in every case deliver, or cause to be delivered, a proper receipt
for any such item so paid and will within ten (10) days after the time when such
payment shall be due and payable deliver to the Mortgagee, a copy of the
receipts for any such payments.
18
(c) Mortgagor shall at all times promptly and faithfully keep and perform,
or cause to be kept and performed, all the covenants and conditions contained in
the Lease by the lessee under the Lease be kept and performed and in all
respects conform to and comply with the terms and conditions of the Lease, and
the Borrower further covenants that it shall not do or permit anything which
will impair or tend to impair the security of this Mortgage.
(d) Mortgagor shall not modify, extend or in any way alter the terms of
the Lease or cancel or surrender said Lease, or waive, execute, condone or in
any way release or discharge the lessor thereunder of or from the obligations,
covenants, conditions and agreements by said lessor to be done and performed;
and the Mortgagor does expressly release, relinquish and surrender unto the
Mortgagee all of its rights, power and authority to cancel, surrender, amend,
modify or alter in any way the terms and provisions of the Lease and any attempt
on the part of the Mortgagor to exercise any such right without the written
approval and consent of the Mortgagee being first had and obtained shall
immediately constitute an Event of Default hereunder.
(e) Mortgagor shall immediately give Mortgagee written notice of any
default or claimed default under the Lease or of the receipt by it of any notice
of default from the lessor thereunder.
(f) In the event of any failure by Mortgagor to perform any covenant on
the part of lessee to be observed and performed under the Lease, the performance
by Mortgagee on behalf of Mortgagor of the lease covenant shall not remove or
waive, as between Mortgagor and Mortgagee, the corresponding default under the
terms hereof and any amount so advanced by Mortgagee or any costs incurred in
connection therewith, with interest thereon at the Default Rate shall constitute
additional Indebtedness and be immediately due and payable.
ARTICLE 8
EVENTS OF DEFAULT
The term "Event of Default" shall mean the occurrence or happening, at any
time and from time to time, of any one or more of the following, without notice
to Mortgagor and without any grace period unless otherwise expressly set forth
herein or in the Loan Documents.
8.1 PAYMENT OF INDEBTEDNESS. If Mortgager and the other Borrowers shall
fail: (i) to make any payment of principal on any Loan or Note or reimbursement
of any draw under a Letter of Credit when due by acceleration or otherwise, or
(ii) to make any payment of interest on any Loan or Note or any payment of any
fee due under the Credit Agreement within three (3) days after such payment
obligation is due.
19
8.2 FAILURE TO OBTAIN MORTGAGEE'S CONSENT TO TRANSFER OR FINANCING. If
Mortgagor shall make any unpermitted transfer or financing in violation of
Paragraph 7.14 above.
8.3 PERFORMANCE OF OBLIGATION. If there is an Event of Default under the
Credit Agreement, the Environmental Indemnity Agreement or any of the other Loan
Documents, or if Mortgager and/or the other Borrowers shall default in the due
observance or performance of any of the Obligations (other than a breach which
would constitute an Event of Default under Sections 8.1, 8.2 or the preceding
clause of Section 8.3 in this Article 8 or for which another cure period is
expressly provided) and such default is not cured within thirty (30) days after
notice from Mortgagee thereof.
8.4 LAWS AFFECTING OBLIGATIONS AND INDEBTEDNESS. If subsequent to the
date of this Mortgage, any law is passed (a) which renders payment of the
Indebtedness and/or performance of the Obligations by Mortgagor and the other
Borrowers unlawful or (b) which prohibits Mortgagee from exercising any of its
rights and remedies under the Loan Documents.
8.5 FORECLOSURE OF OTHER LIENS. If the holder of a junior or senior
mortgage or other lien on the Mortgaged Property (without hereby implying
Mortgagee's consent to any such junior or senior mortgage or other lien)
declares a default or institutes foreclosure or other proceedings for the
enforcement of its remedies thereunder.
8.6 DAMAGE OR DESTRUCTION. If the Mortgaged Property or any material part
thereof is demolished, destroyed or damaged by any cause whatsoever and the loss
is not adequately covered by insurance actually collected and Mortgagor fails to
deposit with Mortgagee the deficiency upon written request.
8.7 TAX ON INDEBTEDNESS OR MORTGAGE. If any law is passed: (a) which
would impose upon Mortgagee the obligation to pay the whole or any part of the
Impositions; or (b) which would change in any way the laws relating to the
taxation of mortgages, deeds of trust or debts so as to affect this Mortgage or
the Indebtedness; provided, however, that if in the opinion of Mortgagee's
counsel it shall be lawful for Mortgagor to pay such Impositions or to reimburse
Mortgagee thereof, then no Event of Default shall be deemed to have occurred if
a mutually satisfactory reimbursement agreement is executed by Mortgagor and
delivered to Mortgagee and such Impositions or reimbursements are thereafter
paid by Mortgagor.
8.8 LEVY OR ATTACHMENT. If any writ, attachment, levy, citation, lien or
distress warrant shall be issued against the Mortgaged Property or any part
thereof or interest therein.
20
8.9 FAILURE TO OBTAIN OR MAINTAIN PERMITS AND LICENSES. The failure of
Mortgagor to obtain or maintain any permits or licenses which are necessary and
required for the ownership, use and operation of the Mortgaged Property, or the
cancellation or any attempted assignment thereof, without the prior written
consent of Mortgagee.
ARTICLE 9
DEFAULT AND FORECLOSURE
9.1 REMEDIES. If an Event of Default shall occur, Mortgagee may, at its
option, exercise one or more or all of the following remedies either
successively or concurrently.
(a) ACCELERATION. Declare the unpaid portion of the Indebtedness to
be immediately due and payable, with interest thereon accruing at the Default
Rate, without further notice or demand (each of which hereby is expressly waived
by Mortgagor and the other Borrowers), whereupon the same shall become
immediately due and payable.
(b) RECEIVER. Apply at any time to a court having jurisdiction for
the appointment of a receiver of the Mortgaged Property, and of the Rents and
Leases; and such appointment shall be made by the court as a matter of strict
right to Mortgagee and without reference to the adequacy or inadequacy of the
security or value of the Mortgaged Property, or to the solvency or insolvency of
Mortgagor, and Mortgagor does hereby irrevocably consent to such appointment.
The Rents shall be applied by the receiver to the payment of the Indebtedness,
as provided in paragraph 9.5 below, or as otherwise ordered by the court.
(c) ENTRY ON MORTGAGED PROPERTY. Enter upon the Mortgaged Property
as is permitted by law, without force or with such force as is permitted by law,
and without notice or process or with such notice or process as is required by
law, unless such notice or process is waivable, in which case Mortgagor hereby
waives such notice and process, and take exclusive possession thereof and of all
books, records and accounts relating thereto.
(d) FULL OR PARTIAL JUDICIAL FORECLOSURE. Pursuant to the procedures
provided by applicable law, institute and prosecute foreclosure proceedings with
respect to the Mortgaged Property; or, if Mortgagee so elects, institute
foreclosure procedures only with respect to a portion of the Indebtedness or to
a portion of the Mortgaged Property (such partial proceedings being hereinafter
referred to as a partial foreclosure). Mortgagor agrees that a sale pursuant to
a partial foreclosure, if so made, shall not in any manner affect the remainder
of the secured Indebtedness, but as to such remainder this Mortgage and the lien
thereof shall remain in full force and effect just as though no foreclosure sale
had
21
been made under the provisions of this paragraph. Notwithstanding the filing of
any partial foreclosure or entry of a decree of sale therein, Mortgagee may
elect, at any time prior to a foreclosure sale pursuant to such decree, to
discontinue such partial foreclosure and to accelerate the entire secured
Indebtedness by reason of any Event of Default upon which such partial
foreclosure was predicated or by reason of any other Event of Default, and
proceed with full foreclosure proceedings. It is further agreed that several
foreclosure sales may be made pursuant to partial foreclosures without
exhausting the right of full or partial foreclosure sale for any remainder of
the secured Indebtedness, it being the purpose hereof to provide for a partial
foreclosure sale of the secured Indebtedness without exhausting the power to
foreclose and to sell the Mortgaged Property pursuant to any such partial
foreclosure for any other part of the secured Indebtedness whether matured at
the time or subsequently maturing, and without exhausting any right of
acceleration and full foreclosure.
(e) OTHER. Exercise any other remedy specifically granted under the
Loan Documents, or now or hereafter existing at law or in equity, by virtue of
statute or otherwise.
9.2 RIGHT AND AUTHORITY OF RECEIVER OR MORTGAGEE IN THE EVENT OF DEFAULTS,
POWER OF ATTORNEY. Upon the occurrence of an Event of Default hereunder and
entry upon the Mortgaged Property pursuant to paragraph 9(c) above, or
appointment of a receiver pursuant to paragraph 9(b) above, and under such terms
and conditions as may be deemed prudent and reasonable, in Mortgagee's or the
receiver's opinion under the circumstances, all at Mortgagor's expense,
Mortgagee or said receiver, as the case may be, may do or permit any one or more
of the following, successively or concurrently in accordance with applicable
law: (a) enter upon and take possession and control of the Mortgaged Property;
(b) take and maintain possession of all documents, books, records, papers and
accounts related to the Mortgaged Property; (c) exclude Mortgagor, its agents
and employees wholly from the Mortgaged Property; (d) manage and operate the
Mortgaged Property; (e) preserve and maintain the Mortgaged Property; (f) make
repairs and alterations to the Mortgaged Property; (g) complete any construction
or repair of the improvements on the Mortgaged Property with such changes,
additions or modifications to the plans and specifications or intended
disposition and use of the improvements under construction on the Mortgaged
Property as Mortgagee may deem appropriate or desirable to place the Mortgaged
Property in such condition as will, in Mortgagee's sole judgment, make it or any
part thereof readily marketable or rentable; (h) conduct a marketing or leasing
program with respect to the Mortgaged Property, or employ a marketing or leasing
agent or agents to do so, directed to the lease or sale of the Mortgaged
Property, under such other terms and conditions as Mortgagee may in its sole
discretion deem appropriate or desirable; (i) employ such contractors,
subcontractors, materialmen, architects, engineers, consultants, managers,
brokers, marketing
22
agents or other employees, agents, independent contractors or professionals, as
Mortgagee may in its sole discretion deem appropriate or desirable, to implement
and effectuate the rights and powers herein granted; (j) execute and deliver, in
the name of Mortgagor as attorney-in-fact and agent of Mortgagor, or in its own
name as Mortgagee or receiver, such documents and instruments as are necessary
or appropriate to consummate authorized transactions; (k) enter such leases,
whether of real or personal property, or tenancy agreements, under such terms
and conditions as Mortgagee or receiver may in its sole discretion deem
appropriate or desirable; (l) collect and receive the Rents from the Mortgaged
Property; (m) eject tenants or repossess personal property, as provided by law,
for breaches of the conditions of their leases or other agreements; (n) xxx for
unpaid rents, payments, income or proceeds in the name of Mortgagor or
Mortgagee; (o) maintain actions in forcible entry and detainer and actions in
distress for rent; (p) compromise or give acquittance for rents, payments,
income or proceeds that may become due; (q) delegate or assign any and all
rights and powers given to Mortgagee by this Mortgage; and/or (r) do any acts
which Mortgagee or the receiver in its discretion deems appropriate or desirable
to protect the security hereof and/or use such measures, legal or equitable, as
it may in its discretion deem appropriate or desirable, to implement and
effectuate the provisions of this Mortgage. This Mortgage shall constitute a
direction to and full authority to any lessee or other third-party who has
heretofore dealt or may hereafter deal with Mortgagor or Mortgagee, at the
request of Mortgagee, to pay all amounts owing under any lease or other
agreement to Mortgagee without proof of the default relied upon. Any such
lessee or third-party is hereby irrevocably authorized to rely upon and comply
with (and shall be fully protected by Mortgagor in so doing) any request, notice
or demand by Mortgagee for the payment to Mortgagee of any Rents or other sums
which may be or thereafter become due under its lease or other agreement, or for
the performance of any undertakings under any such lease or other agreement, and
shall have no right or duty to inquire as to whether any Event of Default under
this Mortgage or any of the other Loan Documents has actually occurred or is
then existing, and Mortgagor hereby constitutes and appoints Mortgagee, its
assignees, successors, transferees and nominees, as Mortgagor's true and lawful
attorney in fact and agent, with full power of substitution in the Mortgaged
Property, in Mortgagor's name and stead, to do or permit any or more of the
foregoing described rights, remedies, powers and authorities, successively and
concurrently, and said power of attorney shall be deemed a power coupled with an
interest and irrevocable.
9.3 REMEDIES CUMULATIVE AND CONCURRENT. The rights and remedies of
Mortgagee as provided herein and in the Loan Documents shall be cumulative and
concurrent and may be pursued separately, successively or together against
Mortgagor or against other obligors or against the Mortgaged Property, or any
one or more of them, at the sole discretion of Mortgagee, and may be exercised
as
23
often as occasion therefor shall arise. The failure to exercise any such right
or remedy shall in no event be construed as a waiver or release thereof.
9.4 WAIVER OF REDEMPTION, NOTICE, MARSHALLING, ETC. To the extent
permitted by law, Mortgagor hereby waives any and all rights of redemption from
sale under any order or decree of foreclosure of this Mortgage or under any sale
pursuant to any statute, order, decree or judgment of any court, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Mortgaged Property or any portion thereof. Mortgagor further agrees, to
the extent permitted by law, that if a default occurs hereunder, neither
Mortgagor nor anyone claiming through or under it shall or will set up, claim or
seek to take advantage of any homestead exemption, appraisement, valuation,
stay, extension, moratorium or other laws now or hereafter in force in order to
prevent or hinder enforcement or foreclosure of this Mortgage, or absolute sale
of the property hereby conveyed, or the final and absolute putting into
possession thereof, immediately after such sale, of the purchasers thereat, and
Mortgagor, for itself and all who may at any time claim through or under it,
hereby waives and releases to the full extent that it may lawfully so do the
benefit of such laws and any and all rights to have the assets comprised in the
security intended to be created hereby marshalled upon any foreclosure of the
lien hereof.
9.5 APPLICATION OF PROCEEDS. The proceeds of any sale or all or any
portion of the Mortgaged Property and the amounts generated by any holding,
leasing, operation or other use of the Mortgaged Property shall be applied by
Mortgagee in the order set forth in Section 10.G of the Credit Agreement.
9.6 NO CONDITIONS PRECEDENT TO EXERCISE OF REMEDIES: Mortgagor shall not
be relieved of any Obligation by reason of: (a) the failure of Mortgagee to
comply with any request of Mortgagor to foreclose the lien of this Mortgage or
to enforce any provision of the other Loan Documents; (b) the release,
regardless of consideration, of the Mortgaged Property or any portion thereof,
or the addition of any other property to the Mortgaged Property; (c) any
agreement or stipulation extending, renewing, rearranging or in any other way
modifying the terms of the Loan Documents without first having obtained the
consent of, given notice to or paid any consideration to Mortgagor and in such
event Mortgagor shall continue to be obligated to make payment according to the
terms of any such extension or modification agreement unless expressly released
and discharged in writing by Mortgagee; or (d) by any other act or occurrence
save and except the complete payment of the Indebtedness and the complete
fulfillment of all of the Obligations.
9.7 INDEMNITY. Mortgagee shall not be obligated to perform or discharge,
nor does it hereby undertake to perform or discharge,
24
any obligation, duty or liability of Mortgagor, and Mortgagor shall and does
hereby agree to protect, indemnify, defend and hold Mortgagee harmless of and
from any and all liability, loss, cost, expense or damage which it may or might
incur in the exercise of its rights, remedies, powers and authority hereunder,
and of and from any and all claims and demands whatsoever which may be asserted
against it by reason of any alleged obligations, undertakings or liabilities.
Should Mortgagee incur any such liability, loss, cost or damage of or in the
defense of any claims or demands, the amount thereof, including costs, expenses
and reasonable attorneys' fees, shall be secured hereby, and Mortgagor shall
reimburse Mortgagee therefor immediately upon demand, with interest accruing at
the Default Rate.
9.8 DISCONTINUANCE OF PROCEEDINGS. In case Mortgagee shall have proceeded
to invoke any right, remedy or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon the same for any reason,
Mortgagee shall have the unqualified right so to do and, in such an event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Indebtedness, the Obligations, the Loan Documents, the Mortgaged Property
and otherwise, and the rights, remedies, recourses and powers of Mortgagee shall
continue as if the same had never been invoked.
ARTICLE 10
MISCELLANEOUS
10.1 REVOLVING LINE OF CREDIT ADVANCES. The Notes evidence "revolving
credit" obligations from Mortgagor and other Borrowers to the respective Lenders
under the Credit Agreement. The total amount of the indebtedness evidenced by
the Notes may decrease or increase from time to time as borrowings are made,
repaid and reborrowed thereunder, and the Lenders may hereafter, at their
option, or shall, as required and obligated under the Credit Agreement or the
Notes, make further advances thereunder to Mortgagor and the other Borrowers or
on behalf of Mortgagor and the other Borrowers, but the maximum aggregate
principal amount outstanding of such advances secured at any one time shall
never exceed Forty-Five Million and 00/100 Dollars ($45,000,000.00), exclusive
of interest, or other disbursements permitted Mortgagee for maintenance of its
security.
10.2 LETTERS OF CREDIT. Subject to the terms and conditions of the Credit
Agreement, the Commitment may be availed of by Mortgagor and the other Borrowers
in the form of Letters of Credit. The Lenders may hereafter, at their option,
or shall, as required and obligated under the Credit Agreement, issue Letters of
Credit to Mortgagor and the other Borrowers or on behalf of Mortgagor and the
other Borrowers, but the maximum aggregate principal amount
25
outstanding of all advances under the Notes and amounts issued under the Letters
of Credit which are secured at any one time shall never exceed Forty-Five
Million and 00/100 Dollars ($45,000,000.00), exclusive of interest, or other
disbursements permitted Mortgagee for maintenance of its security.
10.3 FUTURE ADVANCES. This Mortgage is given to secure payment of the
Indebtedness in accordance with the Notes, and reimbursement of the Letters of
Credit regardless of whether the entire amount of any loan proceeds or any
Letters of Credit shall have been advanced or issued to Mortgagor and the
other Borrowers on the date hereof, or at a later date, and to secure the
payment and performance of all other Obligations under the Loan Documents, and
any other amount or amounts that may be added to the Indebtedness under the
terms of the Loan Documents or this Mortgage. The parties intend that the lien
of this Mortgage shall secure sums advanced and readvanced in accordance with
the Notes or amounts issued under Letters of Credit after the date of recording
this Mortgage and pursuant to and in accordance with the terms and provisions of
the Credit Agreement to the same extent and with the same priority as if such
advances and Letters of Credit were made or issued on the date of recordation of
this Mortgage, even though there may be no principal amount outstanding on the
Notes or no drawings under any Letters of Credit at the time any such advances
are made or such Letters of Credit are issued.
10.4 OBLIGATORY ADVANCES. It is specifically understood and agreed that
all funds which are advanced by Mortgagee or the Lenders and employed in the
performance of the obligations of Mortgagor and the other Borrowers under this
Mortgage or the Loan Documents in the exercise of Mortgagee's judgment are
necessary to protect Mortgagee's security and shall, because of economic
necessity and compulsion, be deemed advanced by Mortgagee or the Lenders under
an obligation to do so regardless of the identity of the person or persons to
whom such funds are furnished and shall be added to the Indebtedness and shall
be equally secured by this Mortgage and shall have the same priority as all
amounts, if any, advanced as of the date of recordation of this Mortgage.
10.5 FURTHER ASSURANCES. Mortgagor, upon the reasonable request of
Mortgagee, will execute, acknowledge and deliver such further instruments and do
such further acts as may be necessary to carry out more effectively the purpose
of the Loan Documents.
10.6 RECORDING AND FILING. Mortgagor will cause the appropriate Loan
Documents and all supplements thereto at all times to be recorded and filed in
such manner and in such places as Mortgagee shall request, and will pay any
recording and filing taxes, fees and other charges.
10.7 NOTICE. Any notices, requests or consents required or permitted by
this Mortgage shall be (i) in writing, and (ii)
26
delivered in person, telexed, telecopied or sent by certified or registered
mail, postage prepaid, return receipt requested, or by overnight mail or express
delivery service to the addresses of the parties hereto set forth in Article 2,
unless such address, telex number or telecopier number is changed by written
notice hereunder. Each such notice, request, consent or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in Article 2 hereof and a confirmation of
such telecopy has been received by the sender, (ii) if given by telex, when such
telex is transmitted to the telex number specified in Article 2 hereof and the
answerback is received by sender, (iii) if given by mail, five (5) days after
such communication is deposited in the mail, certified or registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the addresses specified in Article 2 hereof.
10.8 MORTGAGEE'S RIGHT TO PERFORM THE OBLIGATIONS. If Mortgagor fails to
make any payment or perform any act required by the Loan Documents or the Legal
Requirements, Mortgagee, without any obligation so to do and without waiving any
other right, remedy or recourse, may make such payment or perform such act at
the expense of Mortgagor. All sums so paid by Mortgagee and all costs incurred
in connection therewith, together with interest thereon at the Default Rate from
the date of payment, shall constitute part of the Indebtedness secured by this
Mortgage and the Loan Documents and shall be paid by Mortgagor to Mortgagee on
demand or shall be included in any judgment of foreclosure.
10.9 MODIFICATION. The Loan Documents and the terms of each of them may
not be changed, waived, discharged or terminated orally, but only by an
instrument or instruments in writing signed by the parties to the Loan Document
being so modified, including Mortgagee, even if Mortgagee has not executed such
Loan Document. If the payment of the Indebtedness, or any part thereof, be
extended or varied, or if any part of the security or guaranties therefor be
released, all persons now or at any time hereafter liable therefor, or
interested in the Mortgaged Property, shall be held to assent to such extension,
variation or release, and their liability, and the lien, and all provisions
hereof, shall continue in full force and effect; the right of recourse against
all such persons being expressly reserved by Mortgagee, notwithstanding any such
extension, variation or release. Any person, firm or corporation taking a
junior mortgage, or other lien upon the Mortgaged Property or any part thereof
or any interest therein, shall take the said lien subject to the rights of
Mortgagee and/or the Lenders to amend (including, without limitation, changing
the rate of interest or manner of computation thereof), modify, extend
27
or release the Notes, this Mortgage, or any other document or instrument
evidencing, securing or guarantying the Indebtedness, in each and every case
without obtaining the consent of the holder of such junior lien and without the
lien of this Mortgage losing its priority over the rights of any such junior
lien.
10.10 NO WAIVER. All options and rights of election herein provided for
the benefit of Mortgagee are continuing, and the failure to exercise any such
option or right of election upon a particular default or breach or upon any
subsequent default or breach shall not be construed as waiving the right to
exercise such option or election at any later date. No exercise of the rights
and powers herein granted and no delay or omissions in the exercise of such
rights and powers shall be held to exhaust the same or be construed as a waiver
thereof, and every such right and power may be exercised at any time and from
time to time.
10.11 MORTGAGEE'S COST AND EXPENSES. Mortgagor further expressly
covenants and agrees to pay Mortgagee all costs and expenses of every kind paid
or incurred by Mortgagee or the Lenders in any way in connection with the Notes,
this Mortgage or other Loan Documents or any modifications, restatements or
amendments thereof, and the protection of the Mortgaged Property or the
maintenance of the lien of this Mortgage, and the security interests under the
other Loan Documents or otherwise in connection with the determination and
exercise by Mortgagee or the Lenders of any of their rights or remedies under
the Loan Documents or any modifications, restatements or amendments thereof,
upon the occurrence of any event which, with the passage of time or the giving
of notice or both, could constitute a default or an Event of Default hereunder,
including any and all expenditures for documentary evidence, title examination
or title insurance, minutes of foreclosure, or any abstract or opinion of title
to the Mortgaged Property, or for any appraisal, environmental audit, accounting
or engineering, and all similar fees, costs, charge and expenses, and including
all reasonable attorneys fees and stenographer's fees, paid or incurred by
Mortgagee or the Lenders in any suit or legal proceeding, or in preparation or
in anticipation of declaring a default or event of default, or in preparation or
in anticipation of such suit or proceeding, regardless of whether such suit or
proceeding is actually instituted, including, without limitation, any bankruptcy
or insolvency proceeding, probate proceeding, or other proceeding in which
Mortgagee or the Lenders may in their discretion intervene in order to protect
its security or appeal from any of the foregoing, or otherwise paid or incurred
by Mortgagee or the Lenders in obtaining legal advice regarding their rights and
remedies under the Loan Documents or any modifications, restatements or
amendments thereof, or in determining whether to declare a default or Event of
Default hereunder. All such fees, costs, charges and expenses shall constitute
so much additional indebtedness evidenced by the Notes and secured by this
Mortgage, regardless of whether the same
28
may cause the Indebtedness secured hereby to exceed the face amount of the
Notes, and shall be immediately due and payable when incurred, with interest
accruing thereon at the Default Rate, and shall be allowed in any decree of
foreclosure hereof. No proceeding to foreclose this Mortgage, whether a decree
of foreclosure shall have been entered therein or not, shall be dismissed, nor
shall a release of this Mortgage be given until all such expenses, charges and
costs of Mortgagee shall have been paid in full.
10.12 USURY. It is expressly stipulated and agreed to be the intent of
Mortgagor and Mortgagee to at all times comply with applicable law now or
hereafter governing the interest payable on the Notes or the Loans secured
hereby. If the applicable law is ever revised, repealed, or judicially
interpreted so as to render usurious any amount called for under the Notes (or
under any other instrument evidencing or relating to any of the Indebtedness),
or contracted for, charged, taken, reserved or received with respect to the
Loans secured hereby, or if Mortgagee's acceleration of the Notes or any
prepayment by Mortgagor results in Mortgagor having paid any interest in excess
of that permitted by law, then it is Mortgagor's and Mortgagee's express intent
that all excess amounts theretofore collected by Mortgagee or the Lenders be
credited on the principal balance of the Notes (or, if the Notes have been paid
in full, refunded to Mortgagor), and the provisions of the Notes and this
Mortgage and other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
of the execution of any new document, so as to comply with the then applicable
law, but so as to permit the recovery of the fullest amount otherwise called for
hereunder and thereunder.
10.13 SUCCESSORS AND ASSIGNS; COVENANTS RUNNING WITH THE LAND. The terms,
provisions, covenants and conditions hereof and of the Loan Documents shall be
binding upon Mortgagor, its successors and assigns, and shall inure to the
benefit of Mortgagee, the Lenders and their respective successors, substitutes
and assigns, and shall constitute covenants running with the land.
10.14 MERGER. So long as the Indebtedness or any Obligations remains
outstanding, unless the Mortgagee shall otherwise consent in writing, the fee
title and the Leasehold Estate shall not merge but shall always be kept separate
and distinct, notwithstanding the union of said estates in either the lessor or
the lessee, or in a third party, by purchase or otherwise. The Mortgagor
covenants and agrees that, if it shall acquire the fee title, or any other
estate, title or interest in the Premises covered by said Lease, this Mortgage
shall be considered as mortgaged, assigned or conveyed to the Mortgagee and the
lien hereof spread to cover such estate with the same force and effect as
though specifically herein mortgaged, assigned or conveyed and spread. The
provisions of this paragraph shall not
29
apply if the holder of the Indebtedness acquires the fee of the Premises unless
Mortgagee shall so elect.
10.15 CONFLICT OF TERMS. The terms, provisions, covenants and conditions
of the Mortgage shall be construed in such a manner as to be consistent with the
terms and any other instruments executed in connection with or as security for
the Indebtedness and Obligations secured hereby; provided, however, in the event
of a conflict between the terms of this Mortgage and the terms of the other Loan
Documents, the terms of the Credit Agreement shall control.
10.16 APPLICABLE LAW. The Credit Agreement, the Notes and the
Indebtedness and Obligations evidenced are and shall be governed by and
construed in accordance with the laws of the State of Illinois. This Mortgage
and the perfection and enforcement of the liens and security interests hereunder
(and any financing statement filed in connection herewith) shall be governed by
and construed and enforced in accordance with the laws of the State of Illinois,
except that interest payable on the Loans and all other advances made by the
Mortgagee or the Lenders to Mortgagor shall be governed by Illinois law because
such advances shall constitute Indebtedness and Obligations under and shall bear
interest in accordance with the terms of the Credit Agreement.
10.17 NO JOINT VENTURE; NO THIRD PARTY BENEFICIARY. Mortgagor
acknowledges and agrees that in no event shall Mortgagee be deemed to be a
partner or joint venturer with it. Without limitation of the foregoing,
Mortgagee shall not be deemed to be such a partner or joint venturer on account
of its becoming a mortgagee in possession or exercising any rights pursuant to
this Mortgage or pursuant to any other instrument or document securing any
portion of the Indebtedness or otherwise. No other person shall be deemed to
have any right or priority under this Mortgage to any extent or for any purpose
whatsoever, nor shall any other person have any claim or right of action with
respect to the Mortgaged Property or proceeds of the Indebtedness or be deemed a
third-party beneficiary under this Mortgage or under the Loan Documents.
10.18 SEVERABILITY. The Loan Documents are intended to be performed in
accordance with, and only to the extent permitted by, all applicable Legal
Requirements. If any provision of any of the Loan Documents or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable neither the remainder of the instrument in which
such provision is contained, nor the application of such provision to other
persons or circumstances nor the other instruments referred to herein shall be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
30
10.19 CONSENT OF MORTGAGEE. Any consent by Mortgagee in any single
instance shall not be deemed or construed to be Mortgagee's consent in any like
matter arising at a subsequent date, and the failure of Mortgagee to promptly
exercise any right, power, remedy, consent or approval provided herein or at law
or in equity shall not constitute or be construed as a waiver of the same, nor
shall Mortgagee be estopped from exercising such right, power, remedy, consent
or approval at a later date. Any consent or approval requested of and granted
by Mortgagee pursuant hereto shall be narrowly construed to be applicable only
to Mortgagor and the matter identified in such consent or approval (and no third
party shall claim any benefit by reason thereof), and shall not be deemed to
constitute Mortgagee a venturer or partner with Mortgagor whatsoever, nor shall
privity of contract be presumed to have been established with any such third
party. If Mortgagee deems it to be in its best interest to retain the
assistance of persons, firms or corporations (including, but not limited to,
attorneys, appraisers, engineers and surveyors) with respect to a request for
consent or approval, Mortgagor shall reimburse Mortgagee for all costs incurred
in connection with the employment of such persons, firms or corporations.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed as of
the day and year first above written.
Continental Waste Industries of Illinois, Inc.
and Illinois corporation
By:
-------------------------------------
Print Name:
-----------------------------
Its:
------------------------------------
ATTEST: [SEAL]
By:
-------------------------------------
Print Name:
-----------------------------
Its:
------------------------------------
In the Presence of:
----------------------------------------
Witness
31
PRINT NAME:
-----------------------------
----------------------------------------
Witness
PRINT NAME:
-----------------------------
32
MORTGAGOR'S ACKNOWLEDGMENT
STATE OF _____________________ )
) SS
COUNTY OF ____________________ )
I, ____________________________, a Notary Public in and for said County in
the State aforesaid, DO HEREBY CERTIFY that ___________________________ and
______________________________, the _____________________________ and
______________________________ respectively, of _______________________________,
a(n) __________________________ corporation, personally known to me to be the
same persons whose names are subscribed to the foregoing instrument as such
officers, appeared before me this day in person and acknowledged that they
signed and delivered such instrument as their own free and voluntary act and as
the free and voluntary act of said corporation for the uses and purposes set
forth therein.
Given under my hand and Notarial Seal this ______ day of ______________,
1995.
________________________________________
Notary Public
My Commission Expires:
________________________, 19________
33
EXHIBIT A
[REVOLVING NOTE]
34
EXHIBIT B
PERMITTED EXCEPTIONS
35
EXHIBIT C
LEGAL DESCRIPTION
P.I.N.
Common Address:
36
CREDIT AGREEMENT
EXHIBIT I
NEW SUBSIDIARY CERTIFICATE
The undersigned Authorized Officer of Continental Waste Industries, Inc.,
a Delaware corporation (the "Company"), pursuant to Section 8.A.2(xvii) of that
certain Credit Agreement dated as of ____________, 1995 (as amended, modified or
supplemented from time to time, the "Credit Agreement") among the Company, its
subsidiaries, the Lenders party thereto, and LaSalle National Bank, as Agent
(the "Agent") hereby certifies to the Agent and the Lenders as follows:
(a) Since delivering the prior semi-annual New Subsidiary
Certificate, it has acquired [no New Subsidiaries] [the following New
Subsidiaries as of the date so indicated:]
_________________________
_________________________
(b) For each New Subsidiary listed in (a) above, the following are
attached hereto:
(1) A Good Standing Certificate in its state of organization
and in any other state in which the nature of its business and
property makes such qualification necessary or appropriate.
(2) A certified copy of its organizational documents and
bylaws.
(3) The address(es) of its chief executive office and of all
places of business.
(4) The ownership of all of its outstanding stock.
(5) Executed copies of the following documents:
(i) Joinder Agreement.
(ii) Officer's Certificate.
(iii) Secretary Certificate and resolutions, with
incumbency and authorized signatories.
(iv) UCC-1 Financing Statements for the states of
____________________________ and counties of
_____________________.
(v) Addendum to Stock Pledge Agreement (if
applicable).
(vi) Surveys, title policies, appraisals, Mortgages
and/or Leasehold Mortgages (if applicable).
(c) The outstanding capital stock of each New Subsidiary is
being forwarded to the Agent.
CONTINENTAL WASTE INDUSTRIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
Date:_______________________
- 2 -
CREDIT AGREEMENT
EXHIBIT J
FORM OF JOINDER AND ASSUMPTION AGREEMENT
AGREEMENT OF JOINDER AND ASSUMPTION, dated as of _________, 199_ (the
"JOINDER AGREEMENT") by [name of Subsidiary] (the "JOINING PARTY") in favor
of the Lenders and LaSalle National Bank ("AGENT"), as Agent for the Lenders
party to the Credit Agreement defined below.
WHEREAS, Continental Waste Industries, Inc., a Delaware corporation
("CWI"), together with its Subsidiaries (as defined in the Agreement)
(individually, any of said corporations may be referred to herein as a
"BORROWER," and collectively are sometimes referred to as "BORROWERS") are
the "BORROWERS" under that certain Credit Agreement dated as of _____________,
1995 (as from time to time amended, modified or supplemented, the "AGREEMENT")
among the Borrowers, the Agent and the Lenders (each undefined capitalized term
being used in this Joinder Agreement as defined in the Agreement);
WHEREAS, as a condition precedent to the obligations of the Lenders to
extend credit under the Agreement, the Borrowers were required to execute and
deliver certain Loan Documents, including that certain Security Agreement dated
as of ______________, 1995 in favor of the Agent for its benefit and the ratable
benefit of the Lenders (as from time to time amended, modified or supplemented,
the "SECURITY AGREEMENT");
WHEREAS, the Joining Party has become a Subsidiary of
____________________, a Borrower, and an Affiliate of CWI;
WHEREAS, pursuant to Section 8.A.13 of the Agreement, the Borrowers are
required to cause the Joining Party to assume all of the obligations of a
Borrower under and to become party to the Agreement, the Notes, the Security
Agreement, and other Loan Documents;
WHEREAS, the Joining Party is benefited by the financial accommodations
extended or to be extended by the Lenders pursuant to the Agreement;
NOW, THEREFORE, the Joining Party hereto hereby confirms and agrees as
follows:
SECTION 1. The Joining Party hereby joins the Agreement, the Notes, the
Security Agreement, the Stock Pledge Agreement, the Environmental Indemnity
Agreement, the Applications, and all Loan Documents to which Borrowers are
parties, all as if the Joining Party was an original signatory thereto. Joining
Party hereby assumes and agrees to perform, as a Borrower, guarantor, Maker,
Debtor, Pledgor, Applicant/Account Party, and/or other relevant or appropriate
designations or terms, all of the duties, obligations and promises thereof or as
such as set forth in or arising under the Agreement and the other Loan
Documents, to be bound as such by all of the terms, conditions and provisions
thereof, and to do as such any and all acts and things required of it under the
Agreement and the other Loan Documents. Without limiting the foregoing, the
Joining Party specifically and expressly assumes and agrees to pay and perform
all Obligations.
SECTION 2. By joining the Security Agreement, as security for the prompt
performance and payment in full in cash when due of the Secured Obligations (as
defined in the Security Agreement), the Joining Party assigns and pledges to the
Agent and grants to the Agent, for its benefit and the ratable benefit of the
Lenders, a security interest in all of such Joining Party's right, title and
interest in the Collateral, all as provided in the Security Agreement.
SECTION 3. The Joining Party will execute and deliver, as applicable,
duly completed addenda to each of the Schedules to the Agreement and the
Security Agreement, and file such financing statements, and such other documents
and instruments or notices, as may be necessary or desirable, or as the Agent
may reasonably request, in order to fully implement the intent of this Joinder
Agreement and/or to perfect the security interests granted hereby and under the
Security Agreement.
SECTION 4. The Joining Party certifies that the representations and
warranties set forth in the Agreement and the other Loan Documents which are
applicable to it under or as a result of this Joinder Agreement are true and
correct as of the date hereof.
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SECTION 5. All notices, requests and other communications to the Joining
Party provided for under the Loan Documents shall be delivered as set forth in
the Agreement to the address of the Joining Party as set forth on the signature
page hereof or at such other address as shall be designated by the Joining Party
in accordance with the Agreement.
SECTION 6. From and after the date hereof, all references in the
Agreement and other Loan Documents to the Borrowers, guarantors, makers,
Debtors, Pledgors, Applicants/Account Parties or other relevant terms shall be
deemed to include the Joining Party.
SECTION 7. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ITS
CONFLICT OF LAW RULES.
SECTION 8. This Joinder Agreement shall become effective as of the date
first above written upon its execution and delivery by the Joining Party to the
Agent.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to
be executed by its respective duly authorized officers as of the date first
above written.
[Name of Subsidiary]
as a Joining Party
By:________________________________
Name:______________________________
Title:_____________________________
Address:___________________________
___________________________
___________________________
Chief Executive Office:____________
___________________________________
Other Business Location(s):________
___________________________________
___________________________________
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Telephone:_________________________
Telex: _________________________
Telecopy: _________________________
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CREDIT AGREEMENT
EXHIBIT K
New Subsidiary
OFFICER'S CERTIFICATE
The undersigned ("Borrower") certifies to the best knowledge and belief of
Borrower, after reasonable inquiry and review of matters pertinent to the
subject matter of this Officer's Certificate and to the extent such applies to
the Borrower in connection with its delivery of a Joinder and Assumption
Agreement of even date herewith in connection with the Credit Agreement dated as
of _____________, 1995 (as amended, modified or supplemented, from time to time,
the "Credit Agreement"), among Continental Waste Industries, Inc., a Delaware
corporation, its subsidiaries, the Lenders party thereto, and LaSalle National
Bank, as Agent:
(i) All of the representations and warranties applicable to the
Borrower contained in the Loan Documents are, in all material respects,
true and correct as of the date hereof (other than those of such
representations which by their express terms speak to a date prior to such
date, which representations are, in all material respects, true and
correct as of such respective dates);
(ii) No event has occurred and is continuing which would
constitute an Event of Default;
(iii) No change or changes having a Materially Adverse Effect have
occurred since the date of the Credit Agreement;
(iv) The undersigned is an Authorized Officer of Borrower.
All capitalized terms not defined herein shall have the meaning given them
in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned hereunto set his/her signature on
behalf of Borrower as of ________________, ____.
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
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CREDIT AGREEMENT
EXHIBIT L
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated ___________, 199_ between
___________________________________ (the "ASSIGNOR") and
___________________________________ (the "ASSIGNEE").
PRELIMINARY STATEMENTS:
A. Reference is made to that certain Credit Agreement dated as
of ____________________, 1995 (the "AGREEMENT") among LaSalle National Bank,
as agent (the "AGENT") for itself and each other bank or financial institution
which is or becomes a party to the Agreement by execution of a counterpart
signature page thereto or an Assignment and Acceptance, as assignee
(collectively, the "LENDERS") and Continental Waste Industries, Inc., a
Delaware corporation ("CWI"), together with its Subsidiaries (as defined in
the Agreement) (individually, any of said corporations may be referred to herein
as a "BORROWER," and collectively are sometimes referred to as the
"BORROWERS"). Terms defined in the Agreement and not otherwise defined herein
are used herein as therein defined.
B. This Assignment and Acceptance is made with reference to the
following facts:
(i) The Assignor is a Lender and, as such, presently holds
a PRO RATA share of the rights and obligations of Lenders under
the Agreement.
(ii) As of the Effective Date (as defined below), the
aggregate amount of the Commitments of Lenders under the Agreement
is set forth below:
AGGREGATE AMOUNT
Letter of Credit [$ __________]
Revolving Loan Commitment [ __________]
Total [$ __________]
(iii) On the terms and conditions set forth below, the
Assignor desires to sell and assign to the Assignee, and the
Assignee desires to purchase and assume
from the Assignor, on the Effective Date (as defined below), that
portion of the Assignor's rights and obligations under the Agreement
which is equal to ______________________ percent (_____%)(1)
("ASSIGNED PERCENTAGE") of the rights and obligations of all Lenders
under the Agreement as of the Effective Date and which shall
constitute the Assignee's PRO RATA share.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, that portion of the
Assignor's rights and obligations under the Agreement equal to the Assigned
Percentage of (a) the Commitment as in effect as of the Effective Date, and (b)
that portion of each of the Revolving Loans and the Letters of Credit
outstanding on the Effective Date.
2. The Assignor represents and warrants that as of the Effective
Date and before giving effect to this Assignment (a) its PRO RATA share is
______________________________ percent (___%); (b) its PRO RATA share of the
Commitment is $__________; and (c) it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim. The Assignor makes no representation or warranty and
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Agreement or any other Loan
Document, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any other Loan Document or any other
instrument or document furnished pursuant thereto or any Collateral or (ii) the
financial condition of any party to any of the Loan Documents or the performance
or observance by any party to any of the Loan Documents of any of its
obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto.
3. The Assignee (a) confirms that it has received a copy of the
Agreement, together with copies of such documents and information as it has
deemed appropriate to make its own credit
--------------------
(1) Specify percentage to 9 decimal points.
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analysis and decision to enter into this Assignment and Acceptance; (b) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement; (c) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Agreement and the other Loan Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(d) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Agreement are required to be performed by
it as a Lender; and (e) specifies as its address for notices the office set
forth beneath its name on the signature page hereof.
4. Following the execution of this Assignment and Acceptance,
the original hereof will be delivered to the Agent for approval and acceptance
by the Agent and a copy hereof will be delivered to Borrowers. The effective
date for this Assignment and Acceptance (the "EFFECTIVE DATE") shall be the
later of (a) ____________ 19__, or (b) the date on which this Assignment and
Acceptance is accepted by the Agent; PROVIDED, HOWEVER, that the Assignor may in
its sole and absolute discretion terminate this Assignment and Acceptance if the
Effective Date has not occurred within sixty (60) days following the execution
hereof by the Assignor and the Assignee.
5. Upon such approval and acceptance by the Agent, from and after
the Effective Date, (a) the Assignee shall be a party to the Agreement and have
the rights and obligations of a Lender thereunder; and (b) the Assignor shall,
to the extent of the interests of Assignor assigned pursuant hereto, relinquish
its rights and be released from its obligations under the Agreement.
6. Upon such approval and acceptance by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Agreement in
respect of the interest assigned hereby (including without limitation all
payments of principal, interest and fees with respect thereto) to the Assignee.
The Assignor and the Assignee shall make all appropriate adjustments in payments
under the Agreement for periods prior to the Effective Date directly between
themselves.
-3-
7. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS, OBLIGATIONS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
[NAME OF ASSIGNOR]
By:______________________________
Its:__________________________
[NAME OF ASSIGNEE]
By:______________________________
Its:__________________________
Address for notices:
_________________________________
_________________________________
_________________________________
Accepted this ____ day of
______________, 19___.
LASALLE NATIONAL BANK,
as Agent
By:___________________________
Its:_______________________
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CREDIT AGREEMENT
EXHIBIT M
FORM OF
COMPLIANCE CERTIFICATE
FOR
CONTINENTAL WASTE INDUSTRIES, INC. AND SUBSIDIARIES
_____________, 199_
I, ______________, Chief Financial Officer of Continental Waste Industries,
Inc., do hereby certify that the Borrowers are in compliance with the financial
covenants of the Credit Agreement dated as of_______ , 1995, as of the end of
the quarter dated _________, 199_.
Computations to evidence such compliance are detailed below.
-------------------------------------
Chief Financial Officer
SECTION 8.A.1(a) WORKING CAPITAL RATIO
Current Assets (A)
--------
Current Liabilities (B)
--------
Ratio of (A) to (B)
--------
Minimum Required 1.75:1
--------
SECTION 8.A.1(b) LEVERAGE RATIO
Total Consolidated Debt -------- (A)
Total Assets:
Less: Total Liabilities --------
Less: Intangibles and write-up in --------
value of assets --------
Tangible Net Worth -------- (B)
Ratio of (A) to (B) --------
Maximum Allowed --------
SECTION 8.A.1(c) HISTORICAL INTEREST COVERAGE
Net Income
--------
Plus: Interest Expense --------
Income Taxes --------
Amortization Expense --------
Depreciation Expense --------
Minus: Interest Income which is
derived from Subsidiaries
of the Parent which are not
wholly-owned and which is
in excess of 10% of total
EBITDA --------
EBITDA -------- (A)
Total Interest Expense (including
interest capitalized
during the period) -------- (B)
RATIO OF (A) TO (B) --------
MINIMUM REQUIRED 5:1
--------
SECTION 8.B.3 PROFORMA INTEREST COVERAGE
ProForma Net Income --------
Plus: Interest Expense --------
Income Taxes --------
Amortization Expense --------
Depreciation Expense --------
-2-
Minus: Interest Income which is
derived from Subsidiaries
of the Parent which are not
wholly-owned and which is
in excess of 10% of total
EBITDA --------
PROFORMA EBITDA -------- (A)
ProForma Interest Expense on
total Indebtedness -------- (B)
RATIO OF (A) TO (B)
--------
Minimum Required 4:1
--------
SECTION 8.A.1(d) PROFITABLE OPERATIONS
Consolidated Net Income for the
quarter ending on the statement
date --------
Consolidated Net Income for the
previous quarter --------
Requirement: Consolidated Net Income shall not be less
than $0 for any two consecutive quarters
or for any fiscal year
- 3 -
CREDIT AGREEMENT
EXHIBIT N
BORROWING REQUEST
To: LaSalle National Bank
as Agent under the Credit Agreement
referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Reference is made to that certain Credit Agreement, dated as of
___________, 1995 (herein, as the same may be amended, modified, restated,
supplemented, extended, refinanced, refunded or renewed from time to time, the
"CREDIT AGREEMENT"), among Continental Waste Industries, Inc. ("CWI") and
its subsidiaries (the "BORROWERS"), various financial institutions which are
or may become parties thereto (the "LENDERS") and LaSalle National Bank,
individually and as agent for the Lenders (in such capacity, the "AGENT").
Terms used but not otherwise defined herein shall have the meaning set forth in
the Credit Agreement, notwithstanding any termination thereof.
Pursuant to Section 3.C of the Credit Agreement, the Borrowers hereby
request that on the Business Day listed below the Lenders make Loans (the
"REQUESTED LOANS") to the Borrowers in the aggregate principal amount set
forth below:
Revolving Loans to be made on __________, 19__:
Prime Rate Loans $_________
LIBOR Loans $_________
TOTAL $_________
The Interest Period for the LIBOR Loans described above shall be
[one/two/three/six] months.
To induce the Lenders to make the Requested Loans, the Borrowers hereby
jointly and severally represent and warrant to the Agent and each Lender that:
(a) The representations and warranties set forth in the Credit
Agreement will be true and correct in all material
respects as of the date of the Requested Loans, with the same effect as
through made on the date of the Requested Loans.
(b) No Event of Default has occurred and is continuing, or will
result from the making of the Requested Loans.
The undersigned represents and warrants that he is the [chief executive
officer/chief financial officer/treasurer] of each Borrower and as such is duly
authorized to execute this Borrowing Request and make the representations and
warranties set forth herein on behalf of each such Borrower.
IN WITNESS WHEREOF, the Borrowers have caused this Borrowing Request to be
executed and delivered, and representations and warranties contained herein to
be made, by its [chief executive officer/chief financial officer/treasurer] this
____ day of __________, 19__.
CONTINENTAL WASTE INDUSTRIES,
INC. AND EACH OF THE BORROWERS
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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