Exhibit 10.27
TERM LOAN AGREEMENT
(Pennsylvania)
THIS TERM LOAN AGREEMENT (together with all schedules and exhibits hereto and
any amendments or modifications hereto in effect from time to time, this
"Agreement"), is made this 26 day of September, 1995, by and between EASTERN
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ENVIRONMENTAL SERVICES, INC., a Delaware corporation with offices located at
X.X. #0, Xxx 0000, Xxxxx, Xxxxxxxxxxxx 00000; PULASKI GRADING, INC., a Kentucky
corporation with offices located at 0000 Xxxxx Xxxxxxx, 000 Xxxxx Xxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000; S & S GRADING, INC., a West Virginia corporation with
offices located at Xxxxx 0, Xxx 000, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000; CAROLINA
GRADING, INC., a South Carolina corporation with offices located at 000 XxXxxxxx
Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000; NHD, INC., a Pennsylvania corporation with
offices located at X.X. #0, Xxx 0000, Xxxxx, Xxxxxxxxxxxx 00000 and EASTERN REAL
PROPERTY, INC., a Florida corporation with offices located at X.X. #0, Xxx 0000,
Xxxxx, Xxxxxxxxxxxx 00000; (hereinafter, collectively the "Borrower") and FIRST
FIDELITY BANK, N.A. (the "Bank").
The Borrower has applied to the Bank for a loan in the principal amount of One
Million Three Hundred Fifty Thousand Dollars ($1,350,000.00) (the "Loan"). The
Loan shall be evidenced by Term Notes (together with any amendments or
modifications thereto in effect from time to time, the "Notes").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and intending to be legally bound hereby, the
Bank and the Borrower agree as follows:
A. TERMS OF LOAN AGREEMENT.
1. PAYMENT OF PRINCIPAL. The principal balance of the Loan shall be paid
in forty-eight (48) consecutive monthly installments in the amount of
Twenty-eight Thousand One Hundred Twenty-five and 00/100 Dollars
($28,125.00) (48 consecutive monthly installments of Eighteen Thousand
Seven Hundred Fifty and 00/00 Dollars ($18,750.00) as to the Nine
Hundred Thousand and 00/100 Dollars ($900,000.00); and 48 consecutive
monthly installments of Nine Thousand Three Hundred Seventy-Five and
00/100 Dollars ($9,375.00) as to the Four Hundred Fifty Thousand and
00/100 Dollars ($450,000.00) Note) each, commencing October, 1995, and
continuing on the same day of each such consecutive period thereafter,
with a final installment in the amount of the remaining unpaid
principal balance outstanding hereunder together with any accrued,
unpaid interest thereon due and payable on September 26, 1999.
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2. INTEREST PAYMENTS. The Borrower shall pay the Bank, together with
each principal installment as set forth in Paragraph A.1. hereof,
interest in arrears on the unpaid principal balance of the Loan.
Interest on the outstanding principal balance of the Loan shall accrue
at Seven and three one-hundredths per cent (7.03%) per annum.
3. COMPUTATION. Interest and any fees or compensation based upon a per
annum rate shall be calculated on the basis of a 360 day year for the
actual number of days elapsed.
4. DEBITING OF ACCOUNT. Eastern Environmental Services, Inc. agrees to
maintain an account (the "Account") at the Bank continuously until the
Liabilities due hereunder are paid in full. The Bank may, and the
Borrower authorizes the Bank to, debit the Account for the amount of
any payment as and when such payment becomes due hereunder. If there
are insufficient funds in the Account at the time the Account is
debited, and the debiting creates an overdraft, the Bank may charge
the Borrower an administrative fee in an amount established from time
to time by the Bank. Notwithstanding the foregoing, the Bank may, and
the Borrower authorizes the Bank to, debit any account maintained by
the Borrower with the Bank for the amount of any payment, as and when
such payment becomes due hereunder, whether such payment is for
accrued interest, principal or expense. Such authorization shall not
affect the Borrower's obligation to pay when due all amounts payable
hereunder, whether or not there are sufficient funds in any accounts
of the Borrower. The foregoing rights of the Bank to debit the
Borrower's accounts shall be in addition to, and not in limitation of,
any rights of set-off which the Bank and/or any Affiliate may have
hereunder or under any Loan Document.
5. ADDITIONAL TERMS. Additional terms pertaining to the time, place and
mode of making payments are described in the Note.
6. PREPAYMENT. If interest hereunder accrues at a floating rate,
prepayment of principal may be made at any time without prepayment
penalty or premium. If interest hereunder accrues at a fixed rate,
the Loan may be prepaid, in whole or in part, at any time, provided,
that any prepayment (whether in whole or in part and whether made
voluntarily or because of accelerations) will also be accompanied by
(i) all accrued and unpaid interest on the Loan and all other fees,
expenses, and other sums due and owing hereunder, and (ii) an
additional amount (the "Make Whole Premium") determined by the Bank,
in its sole discretion. The Bank's determination of the Make Whole
Premium shall be conclusive and binding, absent manifest error. All
payments received on the Note may be applied in such order as the Bank
in its sole discretion shall determine.
7. FEES. The Borrower shall pay to the Bank a nonrefundable one-time
facility fee equal to one-half of one percent (0.5%) of the Loan or
Six Thousand Seven Hundred Fifty Dollars ($6,750.00) on or before the
date of this Agreement. The Borrower acknowledges that this facility
fee is a liquidated damages amount, and together with amounts payable
by the Borrower to the Bank under Paragraph J.2. hereof, constitutes
reasonable compensation to the Bank for the Bank's expenses and
services arising in connection with the
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negotiation of this Agreement, the Note and all other Loan Documents
executed in connection herewith and preparing for the closing of the
transaction described herein. Notwithstanding anything to the
contrary in this Agreement, the Bank may charge the Borrower an
additional reasonable facility fee in the event that the Loan is ever
modified, renewed or extended.
B. DEFINITIONS. As used herein, the following terms shall have the following
meanings:
1. AFFILIATE. The term "Affiliate" means First Fidelity Bancorporation
and any of its direct and indirect affiliates and subsidiaries.
2. BASE RATE. The term "Base Rate" means the rate of interest
established by the Bank as its reference rate in making loans, and is
not tied to any external rate of interest or index. The rate of
interest charged hereunder shall change automatically and immediately
as of the date of any change in the Base Rate, without notice to the
Borrower.
3. COLLATERAL. The term "Collateral" means any and all property of any
Obligor (as defined below) now or hereafter in the possession, custody
or control of the Bank or any Affiliate including, but not limited to,
any balance or share of any deposit, trust or agency account of any
Obligor and all collateral described in any and all Loan Documents (as
defined below), the additional collateral described in Section G
hereof, any additional collateral more fully described in the Schedule
(defined below), and any other property of any Obligor now or
hereafter subject to a security agreement, mortgage, pledge agreement,
assignment, hypothecation or other document granting the Bank or any
Affiliate a security interest or other lien or encumbrance.
4. CONSOLIDATED. The term "Consolidated" means an accounting
presentation which includes any consolidated subsidiaries of the
Borrower.
5. GAAP. The term "GAAP" means generally accepted accounting principles
in effect from time to time in the United States.
6. LIABILITIES. The term "Liabilities" means any and all indebtedness
and obligations of every kind and description of the Borrower owing to
the Bank or any Affiliate, whether or not under the Loan Documents,
and whether such debts or obligations are primary or secondary, direct
or indirect, absolute or contingent, sole, joint or several, secured
or unsecured, due or to become due, contractual or tortious, arising
by operation of law, by overdraft, or otherwise, or now or hereafter
existing, including, without limitation, principal, interest, fees,
late fees, expenses, attorneys' fees and costs, and/or the allocated
costs and fees of the Bank's in-house legal counsel, that have been or
may hereafter be contracted or incurred.
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7. LOAN DOCUMENTS. The term "Loan Documents" means any and all credit
accommodations, notes, loan agreements, and any other agreements and
documents, now or hereafter existing, creating, evidencing,
guarantying, securing or relating to any or all of the Liabilities,
together with all amendments, modifications, renewals, or extensions
thereof.
8. OBLIGOR. The term "Obligor" means the Borrower and each and every
maker, endorser, guarantor, or surety of or for the Liabilities.
9. SCHEDULE. The term "Schedule" means the Schedule of Additional Terms
to Term Loan Agreement which is attached hereto.
C. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants with
respect to itself and, to the extent applicable, each of its consolidated
subsidiaries, that:
1. ORGANIZATION; AUTHORITY. As to each Borrower that is not an
individual, it is a corporation duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its
organization or formation and is duly qualified as a foreign
corporation and is in good standing under the laws of each
jurisdiction in which it is required to be qualified because of the
business it conducts or the property it owns. The Borrower has the
necessary power, authority, and legal right to own, or lease and enjoy
undisturbed, its assets and engage in its business as now conducted
and it has the necessary power, authority, and legal right to enter
into and perform this Agreement, the Note, and any other Loan Document
to which it is a party. The execution and performance of the Loan
Documents have been duly authorized by all necessary proceedings and
upon their execution and delivery, they will be valid, binding and
enforceable in accordance with their terms, and the Borrower's
execution and performance of the Loan Documents to which it is a party
will not violate any orders, laws or regulations applicable to the
Borrower, any organizational documents of the Borrower, or any
instruments, indentures or agreements (including any provisions
pertaining to subordinated debt) to which the Borrower is a party or
by which the Borrower or any of its properties are bound; and all
consents, approvals, licenses, franchises, patents, trademarks and
other general intangibles required in connection with this Agreement,
the other Loan Documents or the operation of the Borrower's business
have been obtained and are in full force and effect. The Borrower's
subsidiaries and affiliates, if any, are duly organized, validly
existing, and in good standing under the laws of the jurisdictions of
their organization;
2. USE OF PROCEEDS; NO PURCHASES OF MARGIN STOCK. The proceeds of the
Loan will be used only in connection with the Borrower's business, for
the following purposes:
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1) to refinance an existing term debt of Eastern Environmental
Services, Inc.; and
2) to provide additional working capital to:
A) Pulaski Grading, Inc.;
B) S & S Grading, Inc.;
C) Caroling Grading, Inc.;
D) NHD, Inc.; and
E) Eastern Real Property, Inc.
None of the proceeds of the Loan will be used to purchase or carry any "margin
security" or extend credit for such purpose within the meaning of Regulations G
or U of the Board of Governors of the Federal Reserve System;
3. FINANCIAL STATEMENTS. All financial statements, statements as to
ownership of the Borrower and its assets, and other statements and
information delivered to the Bank were prepared in accordance with
GAAP, consistently applied, are true and correct, and disclose all
presently outstanding indebtedness or obligations of the Borrower,
including contingent obligations, obligations under leases of property
from others, and all liens and encumbrances, including tax liens,
against its properties and assets; and there have been no adverse
changes in the Borrower's financial condition or business since the
date of such statements;
4. SUITS. Except as to the suit disclosed in Borrower's S.E.C. 10(K)
documents, there are no material actions, suits, proceedings, or
claims pending or threatened against the Borrower or any of its
property; and the Borrower's business is in compliance with all
applicable orders, laws and regulations;
5. DEFAULTS. The Borrower is not in default under any agreement to which
the Borrower is a party or by which the Borrower or any of its
property is bound, or under any indenture or instrument evidencing any
indebtedness of the Borrower, and neither the Borrower's execution of
nor performance under the Loan Documents will create a default or any
lien or encumbrance under any such agreement, indenture or instrument
other than a lien or encumbrance in favor of the Bank;
6. ERISA. No employee benefit plan established or maintained by the
Borrower which is subject to the Employee Retirement Income Security
Act 29 U.S.C. (S)1001 et seq. ("ERISA") has an accumulated funding
deficiency (as such term is defined in ERISA). No material liability
to the Pension Benefit Guaranty Corporation (or any successor thereto
under ERISA) has been incurred by the Borrower with respect to any
such plan and no Reportable Event under ERISA has occurred. The
Borrower has no actual or anticipated liability under Section 4971 of
the Internal Revenue Code ("Code") (relating to tax on failure to meet
the minimum funding standard of Section 412 of the Code) with
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respect to any employee benefit plan to which it contributes but which
is not maintained or established by it;
7. TAX RETURNS AND TAXES. The Borrower has filed all federal, state, and
local tax returns required to be filed and to be the best of
Borrower's knowledge has paid all taxes, assessments, and governmental
charges and levies thereon, including interest and penalties, except
where the same are being contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside, and
no liens for taxes have been filed and no claims are being assessed by
a governmental authority with respect to any taxes. The charges,
accruals and reserves on the books of the Borrower with respect to
taxes or other governmental charges are adequate;
8. COMPLIANCE WITH LAWS. The Borrower has complied with all requirements
of foreign, federal, state, and local law in connection with the
acquisition, ownership, and operation of the Borrower's business and
property, including, without limitation, any and all applicable
requirements of environmental protection laws;
9. ENVIRONMENTAL COMPLIANCE. To the best of the Borrower's knowledge,
after due inquiry and investigation, the Borrower and all previous
owners and/or operators of the real and/or personal property of the
Borrower have not knowingly engaged in any conduct, resulting in the
discharging of hazardous substances or wastes into the atmosphere or
waters, or onto lands. The Borrower has not received a summons,
citation, directive, letter, or other communication, written or oral,
from any jurisdiction, political subdivision, agency, or
instrumentality thereof, concerning any intentional or unintentional
action or omission on the Borrower's part resulting in the discharging
of hazardous substances into the atmosphere or waters, or onto lands;
and
10. AFFIRMANCE OF ADDITIONAL COVENANTS. The Borrower hereby makes and
affirms, for itself and if applicable, for its consolidated
subsidiaries, any additional representations and warranties set forth
on the Schedule.
D. CONDITIONS. The obligation of the Bank to make the Loan to the Borrower is
subject to and conditioned upon each of the following: (i) the fees due to
the Bank under Sections A.7. and J.3. of this Agreement have been paid to
the Bank; (ii) the representations and warranties contained in Section C
hereof are true and correct on and as of the date of the Loan; (iii) no
Event of Default described in Section H, and no event which, with the
giving of notice, or the passage of time, or both, would become an Event of
Default, has occurred and is continuing; (iv) all of the Loan Documents
remain in full force and effect; and (v) the Bank has received the
following documents, duly executed and delivered by the Obligor thereunder,
and in form and substance satisfactory to the Bank:
a. The Note(s) and this Agreement;
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b. If the Borrower is a corporation, certified resolutions of the Board
of Directors of the Borrower authorizing the Borrower to borrow
hereunder and to execute, deliver and perform its obligations under
the Loan Documents. If the Borrower is a partnership, the Borrower
shall deliver to the Bank a certified document executed by all general
partners of the Borrower authorizing the Borrower to borrow hereunder
and authorizing the Borrower's execution, delivery and performance of
the Loan Documents. Such resolution or document shall contain such
other provisions as shall be required by the Bank;
c. The following security, subordination, and/or guaranty documents, and
related instruments necessary to perfect any interest in the
Collateral described therein:
1.) As to the $900,000.00 Note to be executed by Eastern
Environmental Services, Inc., Guaranties of Pulaski Grading,
Inc., S & S Grading, Inc., Carolina Grading, Inc., NHD, Inc.
and Eastern Real Property, Inc.
2.) As to the $450,000.00 Note to be executed by Pulaski
Grading, Inc., S & S Grading, Inc., Carolina Grading, Inc.,
NHD, Inc. and Eastern Realty Property, Inc., a Guaranty to
be executed by Eastern Environmental Services, Inc.;
3.) Perfected Security interests in all equipment and vehicles
of Borrower in South Carolina, West Virginia, Kentucky,
Maine and Pennsylvania, including, but not limited to, UCC-
1's at the State and local level as may be required, and
appropriate notations on the Certificates of Title for all
equipment and vehicles covered by Title Registration
statutes in the respective jurisdictions of the equipment
and vehicle's state of registration or location.
d. Such other documents as the Bank may reasonably require, including,
without limitation, proof of insurance, appraisals of real and/or
personal property, environmental analysis, other agreements,
instruments, or indentures to which an Obligor is a party, including,
without limitation, financing statements, proofs, opinions of the
Borrower's counsel and/or other professionals, guaranties and other
written assurances.
E. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees that so long as
there are any outstanding Liabilities hereunder or otherwise, the Borrower
and each of its consolidated subsidiaries shall:
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1. FINANCIAL STATEMENTS. Furnish to the Bank the following financial
information: (i) not later than ninety (90) days after the end of each
fiscal year, consolidated and consolidating audited compiled year-end
financial statements for the Borrower (if the boxes herein are left
blank, then the type of financial statement shall be determined by the
Bank at its sole discretion), and if applicable, for each of its
consolidated subsidiaries, including, but not limited to, statements
of financial condition, income and cash flows, a reconciliation of net
worth, notes to financial statements (all of the above prepared in
accordance with GAAP, consistently applied, by an independent
certified public accountant acceptable to the Bank, and certified as
true, correct, and complete by the Borrower's chief financial officer)
and any other information that may assist the Bank in assessing the
Borrower's financial condition; (ii) not later than forty-five (45)
days after the end of each interim fiscal quarter, the Borrower's
consolidated and consolidating financial statements, including, but
not limited to, statements of financial condition, income and cash
flows, and a reconciliation of net worth (all of the above prepared in
a format acceptable to the Bank, certified as true, correct, and
complete by the Borrower's chief financial officer); (iii) the
following statements and schedules relating to the Borrower's
business, quarterly or at such other times as may be requested by the
Bank:
accounts receivable agings
accounts payable schedules
Location of each piece of equipment and vehicles.
and/or (iv) such information respecting the operations, financial or
otherwise, of the Borrower or any of its subsidiaries, as the Bank may
from time to time reasonably request;
2. COMPLIANCE CERTIFICATE. Furnish to the Bank, together with each set
of financial statements described in Paragraphs E.1. (i) and (ii)
above, a compliance certificate, in the form attached hereto as
Exhibit A, signed by the Borrower (if an individual) or the Borrower's
chief financial officer, certifying that (i) all representations and
warranties set forth in this Agreement and in any other Loan Document
remain true and correct; (ii) none of the covenants in this Agreement
or in any other Loan Document has been breached; and (iii) no event
has occurred which, alone, or with the giving of notice or the passage
of time, or both, would constitute an Event of Default under this
Agreement or under the other Loan Documents;
3. NOTICE OF CERTAIN EVENTS. Promptly give written notice to the Bank of
(i) the details of any Reportable Events (as defined in ERISA) which
have occurred; (ii) the occurrence of any event which alone or with
notice, the passage of time, or both, would constitute an Event of
Default; (iii) the commencement of any proceeding or litigation which,
if adversely determined, would adversely affect its financial
condition or ability to conduct its business; and (iv) the formation
of any subsidiary of the Borrower after the date of this
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Agreement, which notice shall be accompanied by the resolution of the
Board of Directors of such subsidiary authorizing such subsidiary to
execute a guaranty of the Liabilities, satisfactory in form and
substance to the Bank, together with such guaranty duly executed by
such subsidiary;
4. PRESERVATION OF PROPERTY; INSURANCE. Keep and maintain (and promptly
notify Bank of any change of location of any equipment or vehicles),
and require its subsidiaries to keep and maintain (and promptly notify
Bank of any change of location of any equipment or vehicles), all of
its and their property and assets in good order and repair, maintain
extended coverage, general liability, business interruption, hazard,
property and other insurance in amounts deemed sufficient by the Bank
and as is customary for businesses similar to the Borrower's business,
and deliver to the Bank certificates of all such insurance in effect;
and cause all such policies covering any Collateral and business
interruption to contain loss payee endorsements in favor of the Bank
and to be subject to cancellation or reduction in coverage only upon
30 days prior written notice thereof to the Bank at its address set
forth in this Agreement;
5. TAXES. Pay and discharge, and require its subsidiaries to pay and
discharge, when due, all taxes, assessments or other governmental
charges imposed on them or any of their respective properties, unless
the same are currently being contested in good faith by appropriate
proceedings and adequate reserves are maintained therefor;
6. OPERATION OF PROPERTIES. Operate its properties, and cause those of
its subsidiaries to be operated in compliance with all applicable
orders, rules and regulations promulgated by the jurisdictions and
agencies thereof where such properties are located, and duly file or
cause to be filed such reports and/or information returns as may be
required or appropriate under applicable orders, regulations or law;
7. ACCESS TO PROPERTIES, BOOKS AND RECORDS. Permit the Bank's
representatives and/or agents full and complete access to any or all
of the Borrower's and its subsidiaries' properties and financial
records, to make extracts from and/or audit such records and to
examine and discuss the Borrower's properties, business, finances and
affairs with the Borrower's officers and outside accountants;
8. ENVIRONMENTAL LIENS. In the event that there shall be filed a lien
against any property of the Borrower by any jurisdiction, political
subdivision, agency, or instrumentality thereof, arising from an
intentional or unintentional act or omission of the Borrower,
resulting in the discharging of hazardous substances or wastes into
the atmosphere or waters, or onto lands, then, within thirty (30) days
from the date that the Borrower is given notice that the lien has been
placed against such property, or within such shorter period
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of time in the event that such jurisdiction, political subdivision,
agency, or instrumentality thereof has commenced steps to cause such
property to be sold pursuant to the lien, the Borrower shall either
(i) pay the claim and remove the lien from the applicable property or
(ii) furnish to such jurisdiction, political subdivision, agency, or
instrumentality thereof that imposed the lien one of the following:
(a) a bond satisfactory to such jurisdiction, political subdivision,
agency, or instrumentality thereof in the amount of the claim out of
which the lien arises; (b) a cash deposit in the amount of the claim
out of which the lien arises; or (c) other security reasonably
satisfactory to such jurisdiction, political subdivision, agency, or
instrumentality thereof in an amount sufficient to discharge the claim
out of which the lien arises;
9. REMOVAL OF HAZARDOUS SUBSTANCES. Should the Borrower cause or permit
any intentional or unintentional act or omission resulting in the
discharging of hazardous substances or wastes into the atmosphere or
waters, or onto lands resulting in damage to the natural resources
without having obtained a permit issued by the appropriate
governmental authorities, the Borrower shall promptly clean up same in
accordance with all applicable federal, state, and local orders,
statutes, laws, ordinances, rules and regulations; and
10. ADDITIONAL AFFIRMATIVE COVENANTS. The Borrower further affirmatively
covenants and agrees that it shall perform any other affirmative
covenants set forth in the Schedule and in the Loan Documents to which
the Borrower is a party.
F. NEGATIVE COVENANTS. So long as any Liabilities are outstanding, the
Borrower and its consolidated subsidiaries shall not, without the prior
written consent of the Bank:
1. INCUR INDEBTEDNESS; CREATION OF LIEN. With the exceptions of loans
aggregating less than Two Hundred Fifty Thousand and 00/100
($250,000.00) Dollars in any one (1) fiscal year, incur, create, or
assume any indebtedness including, without limitation, obligations
under capitalized leases, except indebtedness owing to the Bank,
indebtedness existing on the date hereof and previously reported in
writing to and permitted by the Bank, and trade indebtedness arising
in the ordinary course of business; make any loans or advances to
others including, without limitation, officers, directors,
shareholders, principals, partners or affiliates of the Borrower or
any Obligor; or create, permit, or suffer the creation of any liens,
security interests, or other encumbrances on any of its property, real
or personal, except liens, security interests or encumbrances in favor
of the Bank or existing on the date hereof (or replacing existing debt
on the date hereof) and previously reported in writing to and
permitted by the Bank;
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2. SALE OF ASSETS; LIQUIDATION; MERGER; ACQUISITIONS. Convey, lease,
sell, transfer or assign any assets except in the ordinary course of
the Borrower's business for value received, liquidate or discontinue
its normal operations with intent to liquidate, enter into any merger
or consolidation, or acquire all or substantially all of the assets,
stock or other equity interests of another entity;
3. PAYMENT OF DIVIDENDS; REDEMPTION OF STOCK. Pay any dividends, make
any withdrawal from its capital, make any other distributions and/or
repurchase, redeem, or otherwise acquire or set aside reserves to
acquire, any of its outstanding stock, partnership or other equity
interests, except for such actions by any subsidiaries in favor of the
Borrower provided that nothing herein shall prohibit a forward or
reverse stock split;
4. ACCOUNTS. Sell, assign, transfer or dispose of any of its accounts or
notes receivable, with or without recourse, except to the Bank;
5. GUARANTY OBLIGATIONS. Become a guarantor, surety, obligor or
otherwise become directly, indirectly or contingently liable for the
debts or obligations of others, except for the benefit of the Bank or
its Affiliates, and except as an endorser of checks or drafts
negotiated in the ordinary course of the Borrower's business;
6. LEASE OBLIGATIONS. Incur, create, or assume any commitment to make
any Lease Payments if the aggregate amount payable thereunder in any
one fiscal year would exceed One Hundred Thousand and 00/100
($100,000.00) Dollars; "Lease Payments" means any direct or indirect
payment or payments, whether as rent or otherwise, including fees or
service or finance charges, under any lease, rental or other agreement
for the use of the property of any person and/or entity other than the
Borrower whether or not such agreement contains an option to purchase;
7. SALE-LEASEBACK TRANSACTIONS. Enter into any sale-leaseback
transaction or any transaction howsoever termed which would have the
same or substantially the same result or effect as a sale-leaseback;
8. PREPAYMENT OF OTHER INDEBTEDNESS. Prepay any amounts not required to
be prepaid, except to the Bank or any Affiliate, or cause or permit to
be accelerated any amounts on any outstanding indebtedness now
existing or hereafter arising;
9. EXPENSES FOR FIXED ASSETS. Shall not exceed the sum of consolidated
net income, plus depreciation and amortization, plus the cash proceeds
received during the period from asset sales, net of gain or loss on
sale, plus the net cash proceeds from the issuance of stock, less the
amount of all current maturities of long term Debt required to have
been paid during the year;
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10. SALE OR ISSUANCE OF CORPORATE STOCK. If the Borrower is a corporation,
sell, issue, or agree to sell or issue, any shares (voting, non-
voting, preferred or common) of the Borrower, or purchase any such
shares;
11. INVESTMENTS. Purchase or make any investment in the stock,
securities, or evidence of indebtedness of or loan to any other person
or entity (including, without limitation, entities owned or controlled
by any officers, directors, shareholders, principals, partners or
affiliates of the Borrower) except (i) the United States Government or
its agencies, or (ii) certificates of deposit of United States
domestic banks having a ratio of qualifying total capital to weighted
risk assets of not less than eight percent (8%), at least four percent
(4%) of which is Tier 1 capital, and having total capital and surplus
in excess of $50,000,000. "Qualifying total capital" and "Tier 1
capital" shall be defined from time to time pursuant to regulations
published by the Office of the Comptroller of the Currency and the
Federal Deposit Insurance Corporation;
12. HAZARDOUS SUBSTANCES. Cause or permit to exist a dumping of hazardous
substances or wastes into the atmosphere or waters or onto lands
resulting in damage to the natural resources unless the dumping is
pursuant to and in compliance with the conditions of a permit issued
by the appropriate federal, state, or local governmental authorities;
13. CONSOLIDATED LEVERAGE RATIO. Permit the ratio of Consolidated Total
Liabilities to Consolidated Tangible Net Worth at any time to exceed
1:1 until and including June 30, 1995, and 1:1 thereafter, "Total
Liabilities" is defined at any date as all liabilities of the Borrower
which would properly appear on the liabilities side of a balance
sheet, other than capital stock, capital surplus, retained earnings,
minority interests, deferred credit, Approved Subordinated Debt and
contingency reserves under GAAP.
14. CONSOLIDATED TANGIBLE NET WORTH. Permit Consolidated Tangible Net
Worth at any time to be less than $7,750,000 for the fiscal year
ending June 30, 1995; $8,500,000.00 for the fiscal year ending June
30, 1996; $9,000,000.00 for the fiscal year ending June 30, 1997; and
$10,000,000.00 for the fiscal year ending June 30, 1998; "Tangible Net
Worth" is defined, at any date, as (i) the aggregate amount at which
all assets of the Borrower would be shown on a balance sheet at such
date after deducting capitalized research and development costs,
capitalized interest, debt discount and expense, goodwill, patents,
trademarks, copyrights, franchises, licenses, amounts owing from
officers, directors, shareholders, principals, partners or affiliates
of the Borrower and any investments in any entities owned or
controlled by any of the foregoing, and such other assets as are
properly classified as "intangible assets" less (ii) the aggregate
amount of indebtedness, liabilities (including tax and other proper
accruals) and reserves of the Borrower and its consolidated
subsidiaries (excluding Approved Subordinated Debt); "Approved
Subordinated Debt" means any indebtedness for borrowed money that is
- 12 -
permitted by this Agreement and that is owing on the date hereof or is
subordinated to the Liabilities on terms approved in writing by the
Bank;
15. CONSOLIDATED DEBT COVERAGE RATIO REQUIREMENTS. Permit the ratio of
cash after operations divided by current portion of debt plus interest
at any time to be less than 1.15 for the fiscal year ending June 30,
1995; and 1.5 for the fiscal year ending June 30, 1996 and thereafter;
or
16. ADDITIONAL NEGATIVE COVENANTS. The Borrower and its subsidiaries
shall not undertake any activities prohibited by any other negative
covenants set forth in the Schedule.
17. ESTABLISHMENT OF CLOSURE TRUST FUND. The Borrower shall establish,
commencing on or about November 1, 1995, yearly estimated landfill
closure costs, by depositing cash monthly into a First Fidelity Bank,
N.A. Trust Escrow Account. The monthly contribution shall be equal to
or greater than the dollar amount of landfill closure costs, expensed
at each landfill of Borrower.
18. MINIMUM CONSOLIDATED CURRENT ASSETS/CURRENT LIABILITIES RATIO. Permit
the ratio of the Current Assets divided by Current Liabilities to less
than .65 for the fiscal year ending June 30, 1995; less than .65 for
the fiscal year ending June 30, 1996; and less than .70 for the fiscal
year ending June 30, 1997 and thereafter.
G. ADDITIONAL COLLATERAL. As additional collateral security for the payment
of the Borrower's Liabilities to the Bank hereunder, under the other Loan
Documents, and/or otherwise, the Borrower hereby assigns, pledges,
transfers and grants to the Bank a continuing, first priority security
interest in and lien upon all funds, balances, deposits, accounts,
certificates of deposit, securities and/or other property of any kind of
the Borrower and/or in which the Borrower has an interest, now or hereafter
in the possession, custody, or control of the Bank or any Affiliate.
H. EVENTS OF DEFAULT. Each of the following shall constitute an event of
default ("Event of Default") hereunder:
1. BREACH. As to other than monetary defaults for which no notice shall
be required, a breach by any Obligor, after ten (10) days notice from
Bank to Obligor of the alleged breach and opportunity to cure, of any
term, provision, obligation, covenant, representation, or warranty
arising under (i) this Agreement or any other Loan Document,
including, without limitation, failure to make any payment when due;
(ii) any present or future agreement or instrument with or in favor of
the Bank, including, without limitation, the failure to make any
payment when due; or (iii) any present or future agreement or
instrument for borrowed money or other financial accommodations with
any other person or entity;
- 13 -
2. BANKRUPTCY; INSOLVENCY. (i) Any Obligor commences any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under
the United States Bankruptcy Code or under any similar foreign,
federal, state, or local statute, or any dissolution or liquidation
proceeding, or makes a general assignment for the benefit of
creditors, or takes any action for the purpose of effecting any of the
foregoing; (ii) any bankruptcy, reorganization, debt arrangement, or
other case or proceeding under the United States Bankruptcy Code or
under any similar foreign, federal, state or local statute, or any
dissolution or liquidation proceeding, is involuntarily commenced
against or in respect of any Obligor or an order for relief is entered
in any such proceeding; (iii) the appointment, or the filing, of a
petition seeking the appointment, of a custodian, receiver, trustee,
or liquidator for any Obligor or any of its property, or the taking of
possession of any part of the property of any Obligor at the instance
of any governmental authority; or (iv) any Obligor becomes insolvent
(however defined), is generally not paying its debts as they become
due, or has suspended transaction of its usual business;
3. DEATH; REORGANIZATION. The death, dissolution, merger, consolidation,
or reorganization of any Obligor;
4. MATERIAL MISSTATEMENT. Any statement, representation or warranty made
in or pursuant to this Agreement or any other Loan Document or to
induce the Bank to enter into this Agreement shall prove to be untrue
or misleading in any material respect;
5. DEBT, LIENS, LOANS, LEASE PAYMENTS. Except as set forth in Paragraph
F.1, and F.6, any Obligor (i) incurs or assumes additional debt other
than debt to the Bank and/or an Affiliate and/or trade debt in the
ordinary course of its business; (ii) makes any loans or advances to
officers, directors, shareholders, principals, partners or affiliates
of the Borrower or any Obligor; (iii) creates, permits or grants any
lien or security interest in any of its property on which the Bank has
a lien and/or security interest; or (iv) incurs, creates or assumes
any commitment, either directly or indirectly, for rent, service fees
or charges or finance charges under any lease, rental, sale-lease back
or other agreement for use of the property of any person and/or entity
other than the Borrower;
6. ENTRY OF JUDGMENT. The filing, entry, or issuance of any judgment,
execution, garnishment, attachment, distraint, or lien in excess of
Twenty-five Thousand and 00/100 ($25,000.00) Dollars against any
Obligor or its property, or the entry of any order enjoining or
restraining any Obligor and/or restraining or seizing any property of
any Obligor; or
7. TRANSFER OF ASSETS. Any Obligor transfers or sells all or
substantially all of its assets, without the prior written consent of
the Bank.
- 14 -
I. REMEDIES.
1. ACCELERATION OF LIABILITIES; RIGHTS OF BANK. Upon the occurrence of an
Event of Default described in Section H (other than the Events of
Default described in Paragraph H.2.), at the Bank's sole option, the
Bank's commitment, if any, to make any further advances or loans to
the Borrower under any Loan Document shall terminate and all
Liabilities shall immediately become due and payable in full, all
without protest, presentment, demand or further notice of any kind to
the Borrower or any other Obligor, all of which are expressly waived.
Upon the occurrence of any Event of Default described in Paragraph
H.2., immediately and automatically, the Bank's commitment, if any, to
make any further advances or loans to the Borrower under any Loan
Document, shall terminate and all Liabilities shall immediately become
due and payable in full, all without protest, presentment, demand or
further notice of any kind to the Borrower or any other Obligor, all
of which are expressly waived. Upon and following an Event of Default,
the Bank may, at its option, exercise any and all rights and remedies
it has under this Agreement, any other Loan Document and/or applicable
law, including, without limitation, the right to charge and collect
interest on the principal portion of the Liabilities at a rate equal
to the lesser of (i) the highest rate of interest set forth in the
Loan Documents, or (ii) the highest rate of interest allowed by law,
such rate of interest to apply to the Liabilities, at the Bank's
option, upon and after an Event of Default, maturity, whether by
acceleration or otherwise, and the entry of a judgment in favor of the
Bank with respect to any or all of the Liabilities. Upon and following
an Event of Default, the Bank may proceed to protect and enforce the
Bank's rights under any Loan Document and/or under applicable law by
action at law, in equity or other appropriate proceeding including,
without limitation, an action for specific performance of any
provision contained herein or in any other Loan Document.
2. RIGHT OF SET-OFF. If any of the Liabilities shall be due and payable
or any one or more Events of Default shall have occurred, whether or
not the Bank shall have made demand under any Loan Document and
regardless of the adequacy of any collateral for the Liabilities or
other means of obtaining repayment of the Liabilities, the Bank shall
have the right, without notice to the Borrower or to any other
Obligor, and is specifically authorized hereby to set-off against and
apply to the then unpaid balance of the Liabilities any items or funds
of the Borrower and/or any Obligor held by the Bank or any Affiliate,
any and all deposits (whether general or special, time or demand,
matured or unmatured) or any other property of the Borrower and/or any
Obligor, including, without limitation, securities and/or certificates
of deposit, now or hereafter maintained by the Borrower and/or any
Obligor for its or their own account with the Bank or any Affiliate,
and any other indebtedness at any time held or owing by the Bank or
any Affiliate, to or for the credit or the account of the Borrower
and/or any Obligor, even if effecting such set-off
- 15 -
results in a loss or reduction of interest or the imposition of a
penalty applicable to the early withdrawal of time deposits. For such
purpose, the Bank shall have, and the Borrower hereby grants to the
Bank, a first lien on and security interest in such deposits,
property, funds, and accounts, and the proceeds thereof. The Borrower
further authorizes any Affiliate, upon and following the occurrence of
an Event of Default, at the request of the Bank, and without notice to
the Borrower, to turn over to the Bank any property of the Borrower,
including, without limitation, funds and securities, held by the
Affiliate for the Borrower's account and to debit any deposit account
maintained by the Borrower with such Affiliate (even if such deposit
account is not then due or there results a loss or reduction of
interest or the imposition of a penalty in accordance with law
applicable to the early withdrawal of time deposits), in the amount
requested by the Bank up to the amount of the Liabilities, and to pay
or transfer such amount or property to the Bank for application to the
Liabilities.
3. CONFESSION OF JUDGMENT.
a. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR ANY
ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER. IN GRANTING
THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE
BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION
NOT TO CONSULT) SEPARATE COUNSEL FOR THE BORROWER AND WITH
KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY,
INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND
LAWS OF THE UNITED STATES OF AMERICA, THE COMMONWEALTH OF
PENNSYLVANIA, OR ELSEWHERE. IT IS SPECIFICALLY ACKNOWLEDGED BY
THE BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY
IN RECEIVING THIS AGREEMENT AND AS AN INDUCEMENT TO GRANT
FINANCIAL ACCOMMODATIONS CONTAINED HEREIN.
b. Upon and following the occurrence of an Event of Default, the
Borrower hereby jointly and severally authorizes and empowers any
attorney of any court of record or the prothonotary or clerk of
any county in the Commonwealth of Pennsylvania, or in any
jurisdiction where permitted by law or the clerk of any United
States District Court, to appear for the Borrower or any of them
in any and all actions which may be brought hereunder and enter
and confess judgment against the Borrower or any of them in favor
of the Bank for such sums as are due or may become due hereunder
or under any other Loan Document, together with costs of suit and
actual collection costs including, without limitation, reasonable
attorneys' fees, with or without declaration, without prior
notice, without stay of execution and with release of all
procedural errors and the right to issue executions forthwith.
To the extent permitted by law, the Borrower
- 16 -
waives the right of inquisition on any real estate levied on,
voluntarily condemns the same, authorizes the prothonotary or
clerk to enter upon the writ of execution this voluntary
condemnation and agrees that such real estate may be sold on a
writ of execution; and also waives any relief from any
appraisement, stay or exemption law of any state now in force or
hereafter enacted. If a copy of this Agreement verified by
affidavit of any officer of the Bank shall have been filed in
such action, it shall not be necessary to file the original
thereof as a warrant of attorney, any practice or usage to the
contrary notwithstanding. The authority herein granted to confess
judgment shall not be exhausted by any single exercise thereof,
but shall continue and may be exercised from time to time as
often as the Bank shall find it necessary and desirable and at
all times until full payment of all amounts due hereunder and
under the other Loan Documents. The Bank may confess one or more
judgments in the same or different jurisdictions for all or any
part of the obligations arising hereunder or under any other Loan
Document, without regard to whether judgment has theretofore been
confessed on more than one occasion for the same obligations. In
the event that any judgment confessed against the Borrower is
stricken or opened upon application by or on behalf of the
Borrower or any Obligor for any reason, the Bank is hereby
authorized and empowered to again appear for and confess judgment
against the Borrower for any part or all of the obligations due
and owing under this Agreement, as herein provided.
4. REMEDIES CUMULATIVE; NO WAIVER. The rights, powers and remedies of
the Bank provided in this Agreement and in any of the Loan Documents
are cumulative and not exclusive of any right, power or remedy
provided by law or equity. No failure or delay on the part of the
Bank in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise preclude any
other or further exercise thereof, or the exercise of any other right,
power or remedy.
5. CONTINUING ENFORCEMENT OF THE LOAN DOCUMENTS. If, after receipt of
any payment of all or any part of the Liabilities, the Bank is
compelled or agrees, for settlement purposes, to surrender such
payment to any person or entity for any reason, then this Agreement
and the other Loan Documents shall continue in full force and effect
or be reinstated, as the case may be. The provisions of this
Paragraph shall survive the termination of this Agreement and the
other Loan Documents and shall be and remain effective notwithstanding
the payment of the Liabilities, the cancellation of the Agreement, the
release of any security interest, lien or encumbrance securing the
Liabilities or any other action which the Bank may have taken in
reliance upon its receipt of such payment.
- 17 -
J. MISCELLANEOUS.
1. WAIVER OF DEMAND. The Borrower (i) waives demand, presentment,
protest, notice of protest, and notice of dishonor of this Agreement;
(ii) consents to any and all extensions of time, renewals, waivers, or
modifications that may be granted by the Bank with respect to the
payment or other provisions of this Agreement; and (iii) agrees that
makers, endorsers, guarantors, and sureties for the indebtedness
evidenced hereby may be added or released without notice to the
Borrower and without affecting the Borrower's liability hereunder.
The liability of the Borrower hereunder shall be absolute and
unconditional.
2. NOTICES. Notices and communications under this Agreement shall be in
writing and shall be given by (i) hand-delivery, (ii) first class
mail (postage prepaid), or (iii) reliable overnight commercial courier
(charges prepaid) to the addresses listed in this Agreement. Notice
by overnight courier shall be deemed to have been given and received
on the date scheduled for delivery. Notice by mail shall be deemed to
have been given and received three (3) calendar days after the date
first deposited in the United States Mail. Notice by hand-delivery
shall be deemed to have been given and received upon delivery. A
party may change its address and/or by giving written notice to the
other party as specified herein.
3. COSTS AND EXPENSES. Whether or not the transactions contemplated by
the Loan Documents are fully consummated, the Borrower shall promptly
pay (or reimburse, as the Bank may elect) all costs and expenses which
the Bank has incurred or may hereafter incur in connection with the
negotiation, preparation, reproduction, interpretation, perfection,
protection of collateral, administration and enforcement of this
Agreement and the other Loan Documents, the collection of all amounts
due under this Agreement and the other Loan Documents, and all
amendments, modifications, consents or waivers, if any, to the Loan
Documents. The Borrower's reimbursement obligations under this
Paragraph shall survive any termination of this Agreement or any other
Loan Document.
4. PAYMENT DUE ON A DAY OTHER THAN A BUSINESS DAY. If any payment due or
action to be taken under this Agreement or any other Loan Document
falls due or is required to be taken on a day that the Bank is not
open for business, such payment or action shall be made or taken on
the next succeeding day when the Bank is open for business and such
extended time shall be included in the computation of interest.
5. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the substantive laws of the Commonwealth of
Pennsylvania without reference to conflict of laws principles.
- 18 -
6. INTEGRATION; AMENDMENT. This Agreement and the other Loan Documents
constitute the sole agreement of the parties with respect to the
subject matter hereof and thereof and supersede all oral negotiations
and prior writings with respect to the subject matter hereof and
thereof. No amendment of this Agreement, and no waiver of any one or
more of the provisions hereof shall be effective unless set forth in
writing and signed by the parties hereto.
7. SUCCESSORS AND ASSIGNS. This Agreement (i) shall be binding upon the
Borrower and the Bank and, where applicable, their respective heirs,
executors, administrators, successors and permitted assigns, and (ii)
shall inure to the benefit of the Borrower and the Bank and, where
applicable, their respective heirs, executors, administrators,
successors and permitted assigns; provided, however, that the Borrower
may not assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Bank, and any such
assignment or attempted assignment by the Borrower shall be void and
of no effect with respect to the Bank. The Bank may from time to time
sell or assign, in whole or in part, or grant participations in the
Loan and/or the Agreement and/or the obligations evidenced thereby.
The Borrower authorizes the Bank to provide information concerning the
Borrower to any prospective purchaser, assignee or participant.
8. SEVERABILITY AND CONSISTENCY. The illegality, unenforceability or
inconsistency of any provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of
this Agreement or any instrument or agreement required hereunder. The
Loan Documents are intended to be consistent. However, in the event
of any inconsistencies among any of the Loan Documents, such
inconsistency shall not affect the validity or enforceability of any
Loan Document. The Borrower agrees that in the event of any
inconsistency or ambiguity in any of the Loan Documents, the Loan
Documents shall not be construed against any one party but shall be
interpreted consistent with the Bank's policies and procedures.
9. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. The Borrower
irrevocably appoints each and every owner, partner and/or officer of
the Borrower as its attorneys upon whom may be served, by regular or
certified mail at the address set forth in this Agreement, any notice,
process or pleading in any action or proceeding against it arising out
of or in connection with this Agreement or any of the other Loan
Documents. The Borrower hereby consents and agrees that (i) any
action or proceeding against it may be commenced and maintained in any
court within the Commonwealth of Pennsylvania or in the United States
District Court for any District of Pennsylvania by service of process
on any such owner, partner and/or officer, and (ii) the courts of the
Commonwealth of Pennsylvania an the United States
- 00 -
Xxxxxxxx Xxxxx for any District of Pennsylvania shall have
jurisdiction with respect to the subject matter hereof and the person
of the Borrower and all collateral for the Liabilities. The Borrower
agrees that any action brought by the Borrower shall be commenced and
maintained only in a court in the federal judicial district or county
in which the Bank has its principal place of business in Pennsylvania.
10. JOINT AND SEVERAL LIABILITY. In the event that the Borrower consists
of more than one person or entity, the Liabilities of each such person
or entity shall be joint and several and the word "Borrower" means
each of them, any of them and/or all of them.
11. JUDICIAL PROCEEDINGS; WAIVERS.
THE BORROWER AND THE BANK ACKNOWLEDGE AND AGREE THAT (i) ANY SUIT,
ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY THE BANK OR THE BORROWER OR ANY SUCCESSOR OR ASSIGN OF
THE BANK OR THE BORROWER, ON OR WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT
HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY
AND EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY; (ii) EACH WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND
(iii) THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT
AND THE BANK WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVERS
SET FORTH IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this Agreement, on
the day and year first above written.
ATTEST: EASTERN ENVIRONMENTAL SERVICES, INC.
/s/ Xxxxxxx X. Xxxxx
------------------------------ By:/s/ Xxxxxxx X. Xxxxx
----------------------------
Name : Xxxxxxx X. Xxxxx
Title: President
Address: XX #0, Xxx 0000
-----------------------
Drums, Pa 18222
-----------------------
- 20 -
ATTEST: PULASKI GRADING, INC.
/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxx
-------------------- --------------------
Name : Xxxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxxx Xxxxxxx
----------------------
000 Xxxxx Xxxx Xx.
----------------------
Xxxxxxxx, XX 00000
----------------------
ATTEST: S & S GRADING, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------- ----------------------------
Name : Xxxxxxx X. Xxxxx
Title: President
Address: Xxxxx 0 Xxx 000
----------------------
Clarskburg, W.V. 26301
----------------------
ATTEST: CAROLINA GRADING, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------- ----------------------------
Name : Xxxxxxx X. Xxxxx
Title: President
Address: 000 XxXxxxxx Xxxx
----------------------
Eastover, S.C. 29044
----------------------
ATTEST: NHD, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------- ----------------------------
Name : Xxxxxxx X. Xxxxx
Title: President
Address: XX #0, Xxx 0000
----------------------
Drums, PA 18222
----------------------
- 21 -
ATTEST: EASTERN REAL PROPERTY, INC.
/s/ Xxxxxxx X. Xxxxx
------------------------------ By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name : Xxxxxxx X. Xxxxx
Title: President
Address: XX #0, Xxx 0000
------------------------------
Drums, Pa 18222
--------------------------------------
First Fidelity Bank, National Association
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice - President
Address: 00 X. Xxxxxx Xxxxxx
Xxxxxx - Xxxxx, Xx 00000
- 22 -
EXHIBIT A
TO TERM LOAN AGREEMENT
DATED _________________, 19__,
BY AND BETWEEN THE BORROWER AND THE BANK
COMPLIANCE CERTIFICATE OF BORROWER
FOR THE FISCAL YEAR ENDING _________________, 19__ OR
FOR THE FISCAL QUARTER ENDING ________________, 19__
The Compliance Certificate, signed by _______________________________________
(if the Borrower is an individual) the Borrower, or (if the Borrower is not an
individual) the Chief Financial Officer of the Borrower, is delivered to the
Bank pursuant to Section E.2. of the Term Loan Agreement ("the Agreement").
The undersigned certifies that he/she is authorized to execute this Compliance
Certificate on behalf of the Borrower and hereby certifies on behalf of the
Borrower as follows:
(i) all representations and warranties set forth in the Agreement and in
any other Loan Document (as defined in the Agreement) remain true
and correct:
(ii) none of the covenants in the Agreement or in any of the other Loan
Documents has been breached; and
(iii) no event has occurred which, alone, or with the giving of notice or
the passage of time, or both, would constitute an event of default
(as defined in the Agreement) under the Agreement or under any of
the Loan Documents. No material adverse change has occurred in the
Borrower's financial condition.
The foregoing representations concerning the Borrower's financial condition are
made to the Bank with the understanding that the Bank will rely on these
representations.
Name of Borrower
By:
Name:
Title:
- 23 -
