EXHIBIT 4.8
CREDIT AGREEMENT
THE SAFE SEAL COMPANY, INC.
BORROWER
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
BANK
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.................................................. 1
1.1 DEFINITIONS.................................................. 1
1.2 OTHER DEFINITIONS............................................ 10
ARTICLE II LOANS........................................................ 11
2.1 LOANS........................................................ 11
2.2 BORROWING PROCEDURE.......................................... 11
2.3 USE OF PROCEEDS.............................................. 11
ARTICLE III NOTE......................................................... 12
3.1 NOTE......................................................... 12
3.2 INTEREST RATE OPTIONS........................................ 12
3.3 APPLICABLE MARGIN............................................ 13
3.4 DEFAULT RATE................................................. 13
3.5 MAXIMUM INTEREST............................................. 13
3.6 PAYMENTS ON THE NOTE......................................... 14
3.7 CALCULATION OF INTEREST RATES................................ 14
3.8 CONSEQUENTIAL LOSS........................................... 14
3.9 PREPAYMENTS.................................................. 15
3.10 MANNER AND APPLICATION OF PAYMENTS........................... 15
3.11 COMMITMENT FEE............................................... 15
3.12 PAYMENTS IN RESPECT OF INCREASED COSTS....................... 15
ARTICLE IV SPECIAL PROVISIONS FOR EURODOLLAR LOANS...................... 17
4.1 INADEQUACY OF EURODOLLAR LOAN PRICING........................ 17
4.2 ILLEGALITY................................................... 17
4.3 EFFECT ON INTEREST OPTIONS................................... 18
4.4 PAYMENTS NOT AT END OF INTEREST PERIOD....................... 18
4.5 SURVIVAL OF OBLIGATIONS...................................... 18
ARTICLE V COVENANTS.................................................... 18
5.1 AFFIRMATIVE COVENANTS........................................ 18
5.2 OTHER COVENANTS.............................................. 20
5.3 ERISA COMPLIANCE............................................. 21
5.4 INDEMNITY.................................................... 22
ARTICLE VI CONDITIONS PRECEDENT......................................... 23
6.1 INITIAL ADVANCES............................................. 23
6.2 SUBSEQUENT ADVANCES.......................................... 24
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ARTICLE VII REPRESENTATIONS AND WARRANTIES............................... 25
7.1 REPRESENTATIONS AND WARRANTIES CONCERNING BORROWER........... 25
7.2 REGULATORY MATTERS........................................... 26
7.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................... 28
ARTICLE VIII DEFAULTS AND REMEDIES........................................ 29
8.1 EVENTS OF DEFAULT............................................ 29
8.2 REMEDIES..................................................... 31
8.3 OTHER NOTICES................................................ 31
ARTICLE IX MISCELLANEOUS................................................ 31
9.1 NOTICES...................................................... 31
9.2 SEVERABILITY................................................. 32
9.3 CAPTIONS..................................................... 32
9.4 SUCCESSORS AND ASSIGNS....................................... 32
9.5 PARTICIPATION................................................ 32
9.6 NON-LIABILITY OF BANK........................................ 32
9.7 LIST OF EXHIBITS............................................. 32
9.8 MODIFICATION................................................. 32
9.9 WAIVER....................................................... 33
9.10 GOVERNING LAW................................................ 33
9.11 CHOICE OF FORUM, SERVICE OF PROCESS AND JURISDICTION......... 33
9.12 WAIVER OF JURY TRIAL. ...................................... 33
9.13 AGENCY....................................................... 34
9.14 NO THIRD PARTY BENEFICIARY................................... 34
9.15 PAYMENT OF EXPENSES.......................................... 34
9.16 CONFLICTS.................................................... 34
9.17 DECEPTIVE TRADE PRACTICES ACT................................ 34
9.18 ENTIRETY..................................................... 34
9.19 MULTIPLE COUNTERPARTS........................................ 34
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CREDIT AGREEMENT
This Credit Agreement (the "AGREEMENT") is made and entered into effective
March 6, 1997 (the "EFFECTIVE DATE") by and between THE SAFE SEAL COMPANY, INC.
(the "BORROWER"); and, TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "BANK").
In consideration of the mutual promises, covenants and agreements herein
contained and for other valuable consideration, the parties agree as set out
herein.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. For the purposes of this Agreement, unless the context
requires otherwise, the following terms shall have the respective meanings
ascribed to them in this Article or in the Sections referred to below:
"ADJUSTED LIBOR RATE LOANS" means all, and "ADJUSTED LIBOR RATE LOAN" means any,
of the Loans, with respect to any Interest Period, which bears interest at a
rate of interest determined by reference to the LIBOR Rate for such Interest
Period.
"ADJUSTED LIBOR RATE" means, with respect to any Eurodollar Loan for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the product of (i) the LIBOR Rate in effect for
such Interest Period, and (ii) Statutory Reserves.
"ADVANCES" means all, and "ADVANCE" means any, of the disbursements by the Bank
of the sums loaned to the Borrower pursuant to this Agreement.
"AFFILIATE" of any Person means any other Person which, directly or indirectly,
controls or is controlled by or is under common control with such Person and,
without limiting the generality of the foregoing, includes, (i) any Person which
beneficially owns or holds five per cent or more of any class of Voting Shares
of such Person or five per cent or more of the equity interest in such Person,
(ii) any Person of which such Person beneficially owns or holds five per cent or
more of any class of Voting Shares or in which such Person beneficially owns or
holds five per cent or more of the equity interest in such Person and (iii) any
director, officer, member, manager or employee of such Person. For the purposes
of this definition, the term "CONTROL" (including, with correlative meanings,
the terms "CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with respect
to any Person, 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 Shares or by contract or otherwise.
"AGREEMENT" means this Agreement, as it may, from time to time, be amended.
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"ALLWASTE" means Allwaste, Inc., a Delaware corporation.
"ALTERNATE BASE RATE LOANS" means that portion of any Loan which bears interest
at a rate of interest determined by reference to the Alternate Base Rate.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the greater
of (i) the Base Rate in effect on such day, (ii) the Base CD Rate in effect on
such day PLUS one (1) per cent, or (iii) the Federal Funds Effective Rate in
effect on such day PLUS one-half (1/2) of one (1) per cent. If the Bank shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds Effective
Rate, or both, for any reason, including the inability or failure of the Bank to
obtain sufficient quotations in accordance with the terms hereof, the Alternate
Base Rate shall be determined without regard to clause (ii) or (iii), or both,
of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Base Rate, the Base CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Base Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"APPLICABLE MARGIN" shall have the meaning ascribed to such term in Section 3.3.
"ASSESSMENT RATE" means the annual assessment rate (net of refunds) estimated by
the Bank (in good faith, but in no event in excess of statutory or regulatory
maximums) to be payable by the Bank to the Federal Deposit Insurance Corporation
(or any successor) for insurance to such Governmental Authority (or such
successor) of time deposits made in Dollars during the current calendar year.
"BANK" shall have the meaning set out in the preamble hereof.
"BASE CD RATE" means the sum of (i) the product of the sum of, (a) the
Three-Month Secondary CD Rate, and (b) Statutory Reserves, multiplied by (ii)
the Assessment Rate.
"BASE RATE LOAN" means that portion of any Loan which bears interest at a rate
of interest determined by reference to the Base Rate.
"BASE RATE" means the variable rate of interest announced from time to time by
Chase as the prime rate, and used by Chase as a general reference rate of
interest, but which rate of interest may not be the lowest rate charged by the
Bank on similar loans. If Chase shall, during the term of this Agreement,
abolish or abandon the practice of announcing or publishing a "PRIME RATE", then
the "BASE RATE" used during the remaining term of this Agreement shall be that
interest rate or other general reference rate then in effect and used by the
Bank which, from time to time, in the judgment of the Bank, most effectively
approximates the initial definition of the "BASE RATE".
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"BOARD" means the Board of Governors of the Federal Reserve System of the U.S.
"BORROWER" shall have the meaning set out in the preamble hereof.
"BORROWING DATE" means the date specified in a Notice of Loan Advance, as a date
on which the Borrower requests the Bank make an Advance.
"BORROWING" means any amount disbursed by the Bank to or on behalf of the
Borrower under the Loan Documents, whether such amount advanced constitutes an
original disbursement of funds, the continuation of an amount outstanding or a
disbursement of funds in accordance with and to satisfy the Obligations.
"BUSINESS DAY" means a day on which the Bank is open for business, except for
Saturdays, Sundays and federal holidays recognized by the Bank, except that, if
any determination of a "BUSINESS DAY" shall relate to a Eurodollar Loan, the
term "BUSINESS DAY" shall, in addition, exclude any day on which banks are not
open for dealings in Dollar deposits in the London interbank market.
"CHANGE OF CONTROL" means (i) if any Person, or group of Persons acting together
shall acquire sufficient stock ownership of the Borrower or any of the
Consolidated Subsidiaries to permit such Person or group to elect a majority of
their respective Board of Directors or otherwise control the Borrower or any of
the Consolidated Subsidiaries, (ii) if there shall occur any merger,
consolidation or dissolution of the Borrower or any of the Consolidated
Subsidiaries with any other Person, or (iii) if there shall occur any sale,
lease or other disposition of all or substantially all of the assets or capital
stock of the Borrower or any of the Consolidated Subsidiaries to any other
Person.
"CHASE CREDIT AGREEMENT" means the Credit Agreement dated effective January 31,
1997, among HARLEY INDUSTRIES, INC. ("HARLEY"), the Borrower, VALVE REPAIR OF
SOUTH CAROLINA, INC. ("VALVE"), SPINSAFE CORPORATION ("SPINSAFE"), THE SAFE SEAL
COMPANY (Canada), INC. ("SAFE SEAL CANADA"), as the borrowers, the Bank and
Chase, as the lenders, and Chase as the agent for the lenders.
"CHASE" means The Chase Manhattan Bank.
"CODE" means the Internal Revenue Code of 1986, as amended from time to time.
"COMMITMENT TERMINATION DATE" means August 1, 1997, or, if such date is not a
Business Day, the Business Day preceding such date.
"COMMITTED SUM" means $10,000,000.00.
"CONSEQUENTIAL LOSS" shall have the meaning set forth in Section 3.8.
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"CONSOLIDATED SUBSIDIARIES" means Spinsafe and Safe Seal Canada as to Safe Seal,
and Valve as to Harley, and any other entity acquired by Safe Seal or Harley,
the capital stock of which is owned in its entirety by Safe Seal, Harley or a
wholly owned direct subsidiary of either of them, after the acquisition of the
GSV Stock, GSV, and after the acquisitions of the Plant Specialties Stock, Plant
Specialties, and "CONSOLIDATED SUBSIDIARY" means any of the Consolidated
Subsidiaries.
"CONTRACT RATE" means the rates of interest, as applicable, on the Loans
calculated as set out in Section 3.2.A.
"CONTROLLED GROUP" means (i) the controlled group of corporations as defined in
ss.1563 of the Code, or (ii) the group of trades or businesses under common
control as defined in ss.414(c) of the Code, of which the Borrower is or may
become a part.
"CONVERSION DATE" shall have the meaning ascribed to such term in Section
3.2.A.(4).
"DEBTOR LAWS" means all applicable liquidation, conservatorship, bankruptcy,
moratorium, arrangement, receivership, insolvency, reorganization or similar
laws, from time to time in effect, affecting the rights of creditors generally.
"DEFAULT" shall have the meaning ascribed to such term in Section 8.1.
"DIVIDENDS" means in respect of any Person, (i) cash distributions or any other
distributions (including distributions by tax-option corporations) on, or in
respect of, any class of capital stock of such Person, whether in cash,
property, securities or a combination thereof (whether by reduction of capital
or otherwise), except for distributions made solely in shares of stock of the
same class, and (ii) any and all funds, cash or other payments (or the setting
aside of any amounts for any such purpose) made in respect of the redemption,
repurchase or acquisition of such stock, unless such stock shall be redeemed or
acquired through the exchange of such stock with stock of the same class.
"DOLLARS" and the symbol "$" shall refer to currency of the U.S.
"EMPLOYEE PLAN" means any, and "EMPLOYEE PLANS" means all, employee benefit or
other plans maintained, in whole or in part, for the employees of the Borrower
and the Consolidated Subsidiaries or any ERISA Affiliate, and covered by Title
IV of ERISA, or subject to the minimum funding standards under ss.412 of the
Code.
"ERISA AFFILIATE" means any Person which, together with the Borrower or any
subsidiary, would be treated as a single employer under the provisions of Title
I or Title IV of ERISA.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended,
together with all regulations issued pursuant thereto.
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"EURODOLLAR LOANS" means all, and "EURODOLLAR LOAN" means any, of the Loans,
with respect to any Interest Period, which bears interest at a rate of interest
determined by reference to the Adjusted LIBOR Rate for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning ascribed to such term in Section 8.1.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Bank from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means, with respect to any Person, the chairman, the
president, the chief executive officer, or the chief financial officer of such
Person.
"FINANCIAL STATEMENTS" means all, and "FINANCIAL STATEMENT" means each, of the
balance sheets, profit and loss statements, reconciliations of capital and
surplus and statements of cash flow and contingent liabilities of the Borrower
and the other Loan Parties.
"FISCAL YEAR" means the fiscal year of the Borrower for accounting purposes
ending each December 31.
"GAAP" means those generally accepted accounting principles and practices which
are recognized as such by the American Institute of Certified Public Accountants
acting through its Accounting Principles Board or by the Financial Accounting
Standards Board ("FASB") or through other appropriate boards or committees
thereof and which are consistently applied for all periods after the Effective
Date so as to properly reflect the financial condition, and the results of
operations and changes in financial position, of the Borrower and the
Consolidated Subsidiaries, except that any accounting principle or practice
required to be changed by the Accounting Principles Board or FASB (or other
appropriate board or committee of the boards) in order to continue as a
generally accepted accounting principle or practice, may be so changed. In the
event of a change in GAAP, the Bank and the Borrower will thereafter negotiate
in good faith to revise any covenants of this Agreement affected thereby in
order to make such covenants consistent with GAAP then in effect.
"GOVERNMENTAL AUTHORITY" means any government (or any political sub division or
jurisdiction thereof), court, bureau, agency or other governmental authority
having jurisdiction over the Borrower or any other Loan Party or the Borrower's
or any other Loan Party's business or properties.
"GSV STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement dated February
26, 1997, among the Borrower, Pliny X. Xxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxx X. Xxxxx,
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Trustee for the Xxxxx X. Xxxxxx - GSV Voting Trust, pursuant to the terms of
which the Borrower will acquire the GSV Stock.
"GSV STOCK" means all of the outstanding and issued capital stock of GSV.
"GSV" means GSV, Inc., a Florida corporation, with chief executive office and
principal place of business at 0000 Xxxx Xxxx, Xxxxx, Xxxxxxx 00000.
"GUARANTY AGREEMENT" means the guaranty agreement executed by Allwaste pursuant
to Section 6.1.C for the benefit of the Bank.
"GUARANTY" means any contract, agreement or understanding of any Person pursuant
to which such Person guarantees, or in effect guarantees, any Indebtedness of
any other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, agreements: (i) To purchase such
Indebtedness or any property constituting security therefor; (ii) to advance or
supply funds (a) for the purchase or payment of such Indebtedness, or (b) to
maintain net worth or working capital or other balance sheet conditions, or
otherwise to advance or make available funds for the purchase or payment of such
Indebtedness; (iii) to purchase property, securities or service primarily for
the purpose of assuring the holder of such Indebtedness of the ability of the
Primary Obligor to make payment of the Indebtedness; or, (iv) otherwise to
assure the holder of the Indebtedness of the Primary Obligor against loss in
respect thereof. "GUARANTY" shall not include, however, the indorse- ment of
negotiable instruments or documents for deposit or collection by the Borrower or
any other Loan Party in the ordinary course of business.
"INDEBTEDNESS" means, with respect to any Person, all indebtedness, obligations
and liabilities of such Person, including, without limitation: (i) All
liabilities which would be reflected on a balance sheet of such Person prepared
in accordance with GAAP; (ii) all obligations of such Person in respect of any
Guaranty; (iii) all obligations of such Person in respect of any capital lease;
(iv) all obligations, indebtedness and liabilities secured by any Lien or any
security interest on any property or assets of such Person; and, (v) all
preferred stock, which is redeemable by the holder of such stock, of such Person
valued at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends.
"INTEREST OPTION" shall have the meaning assigned to such term in Section 3.2.
"INTEREST PAYMENT DATE" means the Maturity Date.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan, the period
commencing on the Borrowing Date and ending on the Commitment Termination Date,
consistent with the following provisions. The duration of each Interest Period
shall be selected by the Borrower in a Notice of Loan Advance as provided in
Section 2.2.A or a Rollover Notice as provided in Section 3.2.A.(3):
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A. With respect to Eurodollar Loans requested by the Borrower:
(1) Initially, the period commencing on the Borrowing Date or Conversion
Date with respect to such Eurodollar Loan and ending one (1), two (2) or
three (3) months thereafter; and,
(2) If the last day of an Interest Period would be a day other than a
Business Day, the Interest Period shall end on the next succeeding
Business Day (unless the Interest Period relates to a Eurodollar Loan
and the next succeeding Business Day is in a different calendar month
than the day on which the Interest Period would otherwise end, in which
event the Interest Period shall end on the preceding Business Day).
B. Each Interest Period shall be as selected by the Borrower, subject to
the Bank's consent, at the Bank's sole discretion. The Borrower's choice
of Interest Period is also subject to the following limitations:
(1) No Interest Period shall end on a date after the Commitment
Termination Date; and,
(2) Thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar Loan
and ending one (1), two (2) or three (3) months thereafter, as selected
by the Borrower in a Rollover Notice.
"INVESTMENT" means any investment in any period, whether by means of share
purchase, loan, advance, extension of credit, capital contribution or otherwise,
in or to a Person, the Guaranty of any Indebtedness of such Person, or the
subordination of any claim against such Person to other Indebtedness of such
Person.
"IRS" means the Internal Revenue Service, Department of the U.S. Treasury, an
agency of the U.S. government.
"LIBOR RATE" means, with respect to any Eurodollar Loan for any Interest Period,
an interest rate per annum equal to the rate at which Dollar deposits
approximately equal in principal amount to the Eurodollar Loan requested and for
a maturity equal to the applicable Interest Period are offered for Eurodollars
in immediately available funds to the Bank by leading banks in whatever
Eurodollar interbank market may be selected by the Bank, in its sole discretion,
at approximately 11:00 A.M., London time, two (2) Business Days prior to the
first day of such Interest Period.
"LIEN" means any lien, mortgage, security interest, tax lien, pledge,
encumbrance, conditional sale or title retention arrangement, or any other
interest in property designed to secure the
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repayment of Indebtedness, whether arising by agreement, under any statute or
law, or otherwise.
"LOAN DOCUMENTS" means this Agreement, the Note, including any renewals,
extensions and modifications thereof, the Guaranty Agreement and any agreements
or documents executed or delivered pursuant to the terms of this Agreement, and
with respect to this Agreement, and such other agreements and documents, any
amendments or supplements thereto or modifications thereof.
"LOAN PARTIES" means the Borrower and the Consolidated Subsidiaries, and the
term "LOAN PARTY" means any of them.
"LOANS" means the aggregate unpaid principal balance of all Borrowing made under
Section 2.1.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on (i) the validity,
performance, or enforceability of any of the Loan Documents, (ii) the financial
condition or business operations of the Borrower, and/or (iii) the ability of
the Borrower to fulfill the Obligations.
"MATURITY DATE" means August 1, 1997.
"MAXIMUM RATE" and "MAXIMUM AMOUNT" respectively mean the maximum non-usurious
rate and the maximum non-usurious amount of interest permitted by applicable
laws that, at any time or from time to time, may be contracted for, taken,
reserved, charged or received on the Obligations under the laws which are
presently in effect of the U.S. and the State of Texas and applicable to the
holders of the Note or, to the extent permitted by law, under such applicable
laws of the U.S. and the State of Texas which may hereafter be in effect and
which allow a higher maximum non-usurious interest rate than applicable laws now
allow.
"NOTE" shall have the meaning ascribed to such term in Section 3.1.
"NOTICE OF LOAN ADVANCE" shall have the meaning ascribed to such term in Section
2.1.
"OBLIGATIONS" mean:
A. All present and future indebtedness, obligations and liabilities of the
Borrower to the Bank arising pursuant to any of the Loan Documents,
regardless of whether such indebtedness, obligations and liabilities are
direct, indirect, fixed, contingent, joint, several, or joint and
several;
B. All other Indebtedness of whatever kind or character owing, or which may
hereafter become owing, by the Borrower to the Bank, whether the
Indebtedness is direct or indirect, primary or secondary, fixed or
contingent, or arises out of or is evidenced by note, deed of trust,
open account, overdraft, endorsement, surety
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agreement, guaranty, or otherwise, and it is specifically contemplated
that the Borrower may hereafter become indebted to the Bank in further
sum or sums; and,
C. All renewals, extensions and modifications of the Indebtedness referred
to in the foregoing clauses, or any part thereof.
"PBGC" means the Pension Benefit Guaranty Corporation, and any successor to all
or any of the Pension Benefit Guaranty Corporation's functions under ERISA.
"PENSION PLAN" means any Employee Plan which is subject to the provisions of
Title IV of ERISA.
"PERSON" shall include an individual, a corporation, non-profit corporation, a
professional association, a joint venture, a general partnership, a limited
partnership, a limited liability company, a limited liability partnership, a
trust, an unincorporated organization or a government or any agency or political
subdivision thereof.
"PLANT SPECIALTIES STOCK PURCHASE AGREEMENT" means the Stock and Real Estate
Purchase Agreement proposed to be entered into among the Borrower, Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx Xxxxxxx, Xxxxx X. Xxxxxx III, Xxxxxx
Xxxx Xxxxxx, Xxxxx Xxx Xxxxxx and Plant Specialties, pursuant to the terms of
which the Borrower proposes to acquire the Plant Specialties Stock and certain
real estate.
"PLANT SPECIALTIES STOCK" means all of the outstanding and issued capital stock
of Plant Specialties.
"PLANT SPECIALTIES" means Plant Specialties, Inc., a Louisiana corporation, with
chief executive office and principal place of business at 0000 Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000.
"REGULATION D" means Regulation D of the Board, 12 C.F.R. Part 204, or any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"REGULATION G" means Regulation G of the Board, 12 C.F.R. Part 207, or any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"REGULATION U" means Regulation U promulgated by the Board, 12 C.F.R. Part 221,
or any successor or other regulation hereafter promulgated by the Board to
replace the prior Regulation U and having substantially the same function.
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"REGULATION X" means Regulation X promulgated by the Board, 12 C.F.R. Part 224,
or any successor or other regulation hereafter promulgated by the Board to
replace the prior Regulation X and having substantially the same function.
"REGULATORY DEFECTS" means the failure by the Borrower or any other Loan Party
to comply with all laws, statutes, orders, rules and regulations of any
Governmental Authority, and such failure to comply has a Material Adverse
Effect.
"REPORTABLE EVENT" shall have the meaning ascribed to such term in Title IV of
ERISA.
"REQUIREMENTS" means (i) any and all present and future judicial decisions,
statutes, rulings, rules, regulations, orders, permits, certificates or
ordinances of any Governmental Authority in any manner applicable to the
Borrower, and (ii) any and all contracts, written or oral, of any nature to
which the Borrower may be bound.
"RESPONSIBLE OFFICER" means, with respect to any Person, the chief executive
officer, the president, the chief financial officer or the controller, of such
Person.
"SOLVENT" means, with respect to any Person on a particular date, that on such
date (i) the fair value of the property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities, of
such Person, (ii) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on the Person's debts as they become absolute and matured, (iii)
such Person is able to realize upon the Person's assets and pay the Person's
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (iv) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"STATUTORY RESERVES" shall, on any day, mean the difference (expressed as a
decimal) of the number one minus the aggregate of the maximum reserve
percentages (including, without limitation, any basic, marginal, special,
emergency, or supplemental reserves) expressed as a decimal established by the
Board (or any successor governmental body) and any other banking authority to
which the Bank is subject, however:
A. With respect to the Base CD Rate for new negotiable non-personal time
deposits in Dollars of over $100,000.00 and with maturities
approximately equal to three (3) months, the actual reserves established
by the Board; and,
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B. With respect to the Adjusted LIBOR Rate for Eurocurrency Liabilities, as
defined in Regulation D, such reserve percentages ("EURODOLLAR RESERVE
REQUIREMENT") shall include, without limitation, those imposed under
Regulation D or under any similar or successor regulation with respect
to Eurocurrency Liabilities or Eurocurrency funding. Eurodollar Loans
shall be deemed to constitute Eurocurrency Liabilities and as such shall
be deemed to be subject to such reserve requirements without benefit of
or credit for proration, exceptions or setoffs which may be available
from time to time to any bank under Regulation D. Each determination by
the Bank of the Euro- dollar Reserve Requirement shall, in the absence
of manifest error, be conclusive and binding.
C. Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBSIDIARY" means, with respect to any Person, the parent of such Person, any
corporation, association or other business entity of which securities or other
ownership interests representing more than fifty (50) per cent of the Voting
Shares or the ordinary voting power are, at the time as of which any
determination is being made, owned or controlled, directly or indirectly, by the
parent or one or more Subsidiaries of the parent.
"TEMPORARY CASH INVESTMENT" shall mean any Investment maturing within one (1)
year of the date of acquisition thereof, (i) in direct, readily marketable
obligations of the U.S. or obligations fully guaranteed by the U.S., (ii)
commercial paper rated in the highest grade by Standard & Poor's Corporation or
Xxxxx'x Investor Service, Inc. (collectively, the "RATING AGENCIES"), and (iii)
Dollar time deposits with, and certificates of deposit and banker's acceptances
issued by, Chase, Texas Commerce or any domestic U.S. bank having capital
surplus and undivided profits aggregating at least $5,000,000,000.00 and whose
long-term debt rating is at least investment grade as determined by the Rating
Agencies.
"THREE-MONTH SECONDARY CD RATE" means, for any day, the secondary market rate
for three-month certificates of deposit reported as being in effect on such day
(or, if such day shall not be a Business Day, the next preceding Business Day)
by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York, New York, received at approximately 10:00 a.m., New York, New York,
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Bank from three New York, New York negotiable
certificate of deposit dealers of recognized standing selected by it.
"TRANSACTIONS" shall have the meaning ascribed to such term in Section 7.1.B.
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"UNITED STATES" and "U.S." each means the United States of America.
"VOTING SHARES" of any corporation means shares, of any class or classes,
however designated, having ordinary voting power for the election of at least a
majority of the members of the Board of Directors of such corporation.
1.2 OTHER DEFINITIONS.
A. All terms defined in this Agreement shall have the above-defined
meanings when used in any of the Loan Documents, certificates, reports
or other documents made or delivered pursuant to this Agreement, unless
the context therein shall require otherwise.
B. Defined terms used herein in the singular shall import the plural and
vice versa.
C. The words "HEREOF," "HEREIN," "HEREUNDER" and similar terms when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
D. Unless specifically otherwise noted, references to statutes by Popular
Names are reference to the United States Code Annotated, including the
regulations promulgated thereunder, and all amendments thereof.
E. References to any obligations or liabilities of the "BORROWER AND
GUARANTOR" or the "BORROWER OR GUARANTOR" shall refer to the joint and
several obligations of such Persons.
ARTICLE II
LOANS
2.1 LOANS. Subject to the terms and conditions of this Agreement, the Bank
agrees to lend to the Borrower, in one or more Advances from time to time prior
to the Commitment Termination Date, an amount equal to the amounts requested by
the Borrower in a Notice of Loan Advance in the form of Exhibit 2.1 attached
hereto. The Bank shall not be obligated to make Loan Advances, however, (i) in
excess of the Committed Sum, and/or (ii) if a Event of Default shall exist.
2.2 BORROWING PROCEDURE. All Advances on the Loans will be deposited into
the Borrower's Account No. 01400015495 maintained with the Bank.
A. Advances on the Loans shall be made pursuant to a Notice of Loan Advance
signed by a Responsible Officer of the Borrower, which shall specify,
(i) the aggregate amount of the Borrowing, (ii) the requested Borrowing
Date of the Borrowing, and (iii) the Interest Option selected in
accordance with Section 3.2. If the Borrower
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shall specify a Eurodollar Loan, the Notice of Loan Advance shall also
specify the length of the Interest Period for such Borrowing. The
Borrower will give the Bank the Notice of Loan Advance not later than
12:00 noon (Houston, Texas time), (i) at least three (3) Business Days
prior to a proposed Eurodollar Loan Advance or conversion, and (ii) one
(1) Business Day prior to a proposed Alternate Base Rate Loan Advance or
conversion. If no election as to the type of Loan is specified in any
such notice, all such Loans shall be Alternate Base Rate Loans. If no
Interest Period with respect to any Eurodollar Loan is specified in any
such notice, then an Interest Period of three (3) months duration shall
be deemed to have been selected (subject to the provisions of the
definition of "INTEREST PERIOD").
B. The Bank shall be entitled to rely and act upon requests made or
purportedly made by any Responsible Officer of the Borrower and each
Notice of Loan Advance shall be irrevocable and binding on the Borrower.
The Borrower will be unconditionally and absolutely estopped from
denying, (i) the authenticity and validity of any transaction so acted
upon by the Bank once the Bank has made an Advance and has deposited or
transferred such funds as requested in any such Notice of Loan Advance,
and (ii) the Borrower's liability and responsibility therefor. The
Borrower covenants and agrees to assume liability for and to protect,
indemnify and save the Bank harmless from any and all liabilities,
obligations, damages, penalties, claims, causes of action, costs,
charges and expenses, including attorneys' fees, which may be imposed
upon, incurred by or asserted against the Bank by reason of any loss,
damage or claim howsoever arising or incurred because of, out of or in
connection with (i) any action of the Bank pursuant to a Notice of Loan
Advance, (ii) the breach of any provisions of this Agreement by the
Borrower, or (iii) the transfer of funds pursuant to (i) and/or (ii)
above.
C. The initial funding of the Loans shall be an Alternate Base Rate Loan.
At any time after the Effective Date, the Borrower may convert to
Alternate Base Rate Loans or Eurodollar Loans, subject to and pursuant
to the provisions of Section 3.2.
2.3 USE OF PROCEEDS. The proceeds of a Borrowing under the Commitment on the
Effective Date shall be solely used to pay transaction costs and fees in
connection herewith, to pay the acquisition costs of the GSV Stock, to pay
transaction costs and fees in connection with the acquisition of the GSV Stock,
to repay Indebtedness owing by GSV and to provide for working capital
requirements of the Borrower. All proceeds of each subsequent Borrowing under
the Commitment after the Effective Date shall be solely used to pay the
acquisition costs of the Plant Specialties Stock, to pay transaction costs and
fees in connection with the acquisition of the Plant Specialties Stock, to repay
Indebtedness owing by Plant Specialities and to provide for working capital
requirements of the Borrower.
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ARTICLE III
NOTE
3.1 NOTE. The Advances made under Section 2.1 by the Bank shall be evidenced
by the Note executed by the Borrower, which shall (i) be dated the Effective
Date, (ii) be in the amount of the Committed Sum, (iii) be payable to the order
of the Bank at the office of the Bank, (iv) bear interest in accordance with
Section 3.2, and (v) be in the form of Exhibit 3.1 attached hereto. The Borrower
will repay, and shall pay interest on, the unpaid principal amount of the Loans
in accordance with the terms of the Note and this Agreement.
3.2 INTEREST RATE OPTIONS. Subject to the provisions of this Section, the
Borrower will elect an option (an "INTEREST OPTION") of having all or any
portion of the Loans bear interest at rates determined as follows:
A. After the initial funding, the Borrower will elect to have Loans bear
interest at a rate based upon the Alternate Base Rate or at the Adjusted
Libor Rate. Each change in an Interest Option made pursuant to this
Section shall be deemed both a payment of the Alternate Base Rate Loan
or the Adjusted Libor Rate Loan from which such change was made and a
Borrowing (notwithstanding that the unpaid principal amount of the Loan
is not thereby changed) as an Alternate Base Rate Loan or an Adjusted
Libor Rate Loan into which such change was made on the Date of such
change.
(1) Prior to Default, the unpaid principal of the Loans shall bear
interest from the date of Advance as follows:
(a) If an Alternate Base Rate Loan is chosen at a rate per annum
which shall, from day to day, be an amount equal to the lesser of:
(i) The Alternate Base Rate in effect from day to day, plus the
Applicable Margin; or, (ii) the Maximum Rate; or,
(b) If an Adjusted LIBOR Rate Loan is chosen, at a rate per annum
which shall, from day to day, be an amount equal to the lesser of:
(i) The Adjusted LIBOR Rate in effect from day to day, plus the
Applicable Margin; or, (ii) the Maximum Rate.
(2) The Borrower will, in each Notice of Loan Advance, give the Bank
notice of the initial Interest Option selected and the term thereof with
respect to each Borrowing made hereunder.
(3) Prior to the termination of each Interest Period with respect to
each Eurodollar Loan, the Borrower will give notice, also a "ROLLOVER
NOTICE," to the Bank of the Interest Option which shall be applicable to
such portion of the Loan upon the expiration of such Interest Period.
Such Rollover Notice shall be given to the Bank at least one (1)
Business Day, in the case of an Alternate Base Rate selection, or
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three (3) Business Days, in the case of an Adjusted Libor Rate
selection, prior to the termination of such Interest Period. If the
Borrower shall specify a Eurodollar Loan, such Rollover Notice shall
also specify the length of the succeeding Interest Period (subject to
the provisions of the definitions of such term), selected by the
Borrower with respect to such portion of the Loan. Each rollover notice
shall be irrevocable and effective upon notification thereof to the
Bank. If the required Rollover Notice shall not have been timely
received by the Bank (in accordance with the above provisions of this
Section) prior to the expiration of the then relevant Interest Period in
effect when such Notice was required to be given, the Borrower will be
deemed to have selected the rate set forth in Section 3.2.A.(1)(a) to be
applicable to such portion of the Loan upon expiration of such Interest
Period and the Borrower shall be deemed to have given the Bank notice of
such selection.
(4) With respect to an Alternate Base Rate Loan, the Borrower shall have
the right, on any Business Day, also a "CONVERSION DATE," to convert
such Alternate Base Rate Loan to a Eurodollar Loan by giving the Bank a
Rollover Notice of such election at least three (3) Business Days, in
the case of an Adjusted Libor Rate selection, prior to such Conversion
Date.
(5) Notwithstanding anything in this Section to the contrary, no
Alternate Base Rate Loan may be converted to an Adjusted Libor Rate Loan
and no Adjusted Libor Rate Loan may be continued as such when any
Default or Event of Default has occurred and is continuing, but each
such Loan shall be automatically converted to an Alternate Base Rate
Loan on the last day of each applicable Interest Period.
3.3 APPLICABLE MARGIN. The Applicable Margin for Adjusted LIBOR Rate Loans
shall be 1.25 % and for Alternate Base Rate Loans, the Applicable Margin shall
be 0.00 %.
3.4 DEFAULT RATE. If a Default or an Event of Default shall occur and be
continuing and not be waived, the Borrower will on demand from time to time pay
interest, to the extent permitted by law, on all Loans outstanding up to the
date such Default or Event of Default is cured at a rate per annum equal to two
(2) per cent in excess of the Alternate Base Rate (the "DEFAULT RATE"), but
never in excess of the Maximum Rate.
3.5 MAXIMUM INTEREST. It is the intention of the parties to comply with all
applicable usury laws. Accordingly, it is agreed that notwithstanding any
provision apparently to the contrary in the Loan Documents, no such provision
shall require the payment or permit the collection of interest in excess of the
Maximum Amount or the Maximum Rate. If any excess of interest in such respect is
provided for, or shall be adjudicated to be so provided for, in the Loan
Documents, then in such event the provisions of this Section shall govern and
control and (i) no Person liable for the payment of any sums to become due under
the Loan Documents shall be obligated to pay the amount of such interest to the
extent that it is in excess of the Maximum Amount or the Maximum Rate, and (ii)
any such excess which may have been collected shall be first applied as a credit
against the then unpaid principal amount
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on the Note and the excess, if any, refunded to the Borrower or the Guarantor
and the effective rate of interest shall be automatically reduced to the Maximum
Rate. Without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received under the Loan Documents which are
made for the purpose of determining whether such rate exceeds the Maximum Rate,
shall be made, to the extent permitted by applicable usury laws, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full
stated term of the Loans, all interest at any time contracted for, charged or
received by the holder or holders of the Note in connection with the Loans. The
Bank notifies and discloses to the Borrower that, for purposes of TEX. REV. CIV.
STAT. XXX. Art. 5069-1.04 (Xxxxxx 1989), as it may, from time to time, be
amended, the "APPLICABLE RATE CEILING" shall be the "INDICATED RATE" ceiling,
from time to time, in effect as limited by Art. 5069-1.04(b). To the extent
provided by applicable law, however, the Bank reserves the right to change the
"APPLICABLE RATE CEILING," from time to time, by further notice and disclosure
to the Borrower. The "HIGHEST NON-USURIOUS RATE OF INTEREST PERMITTED BY
APPLICABLE LAW" for purposes of this Agreement and the Note shall not be
limited to the applicable rate ceiling under Art. 5069-1.04 if federal laws or
other state laws now or hereafter in effect and applicable to this Agreement and
the Note (and the interest contracted for, charged and collected hereunder or
thereunder) shall permit a higher rate of interest. The Borrower and the Bank
agree that, except for ss.15.10(b), the provisions of TEX. REV. CIV. STA. XXX.
Art. 5069-15.01 ET.SEQ. Xxxxxx (1987), as amended (regulating certain revolving
credit loans and revolving tri-party accounts) shall not apply to the Loan
Documents.
3.6 PAYMENTS ON THE NOTE. The unpaid principal amount of the Note shall be
due and payable on the Maturity Date, on which date all principal on the Note
shall be payable in full. Interest on the Note shall be due and payable on the
Interest Payment Date.
3.7 CALCULATION OF INTEREST RATES. Interest on the unpaid principal of the
Note shall be calculated on the basis of the actual days elapsed in a year
consisting of three hundred sixty (360) days. The Bank shall determine each
Contract Rate applicable to the Loans and shall advise the Borrower of the
Contract Rates so determined.
3.8 CONSEQUENTIAL LOSS. The Borrower agrees to reimburse the Bank for and
against any loss or reasonable expense (including, but not limited to, any loss
or expense sustained or incurred or to be sustained or incurred in liquidating
or employing deposits from third parties acquired to affect or maintain any Loan
or part thereof as a Eurodollar Loan) which the Bank may sustain or incur as a
consequence of any of the following events (regardless of whether such events
occur as a result of the occurrence of an Event of Default or the exercise of
any right or remedy of the Bank under this Agreement or any other Loan Document,
or at law): (i) any failure of the Borrower to fulfill on the date of any
Borrowing hereunder the applicable conditions set forth in Article VI applicable
to it; (ii) any failure of the Borrower to borrow hereunder after irrevocable
Notice of Loan Advance pursuant to Section 2.1 has been given; (iii) any
payment, prepayment or conversion of a Eurodollar Loan on a date other than the
last day of the relevant Interest Period; (iv) any Default in payment or
prepayment of the principal amount of any Loan or any part thereof or interest
accrued thereon, as and when
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due and payable (at the due date thereof, by notice of prepayment or otherwise);
or, (v) the occurrence of an Event of Default (collectively, "CONSEQUENTIAL
LOSS"). Such loss or expense shall include, without limitation, an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount so paid, prepaid or converted or not borrowed for the
period from the date of such payment, prepayment or conversion or failure to
borrow to the last day of the Interest Period for such Loan (or, in the case of
a failure to borrow, the Interest Period for such Loan which would have
commenced on the date of such failure to borrow), at the applicable rate of
interest for such Loan provided for herein over (ii) the amount of interest (as
determined by the Bank) that would be realized by the Bank in reemploying the
funds so paid, prepaid or converted or not borrowed in U.S. Treasury obligations
with comparable maturities for comparable periods. The Bank shall provide to the
Borrower a statement, signed by an officer of the Bank, explaining any loss or
expense and setting forth, if applicable, the computation pursuant to the
preceding sentence, and such statement shall be conclusive absent manifest
error. The Borrower will pay the Bank the amount shown as due on any such
statement within ten (10) days after the receipt of the same.
3.9 PREPAYMENTS. Except as specified in this Section, the Borrower shall have
no right to prepay any Loan. The Borrower may, upon five (5) days' prior notice
to the Bank, make prepayments on the Note in whole at any time or in part, from
time to time, however, the following provisions shall be applicable.
A. Partial prepayments shall be in an aggregate principal amount of
$500,000.00, or a greater integral multiple of $100,000.00.
B. The Borrower may, on any Business Day, prepay the outstanding principal
amount of any Alternate Base Rate Loan, in whole or in part, without
premium or penalty.
C. The Borrower will pay to the Bank an amount equal to the Consequential
Loss if the Borrower shall, in any manner, prepay any Eurodollar Loan.
D. If no Default shall have occurred, prepayments shall be applied (i)
first to the dis- charge of any expenses for which the Bank may be
entitled to receive reimbursement under any agreement with the Borrower,
(ii) next, to the Consequential Loss, (iii) next, to accrued interest on
the Note, (iv) next, to the reduction of principal on the Alternate Base
Rate Loans, and (v) the balance remaining, if any, shall be applied to
the reduction of installments of principal on the Eurodollar Loans.
Prepayments shall be applied to the Eurodollar Loans as the Borrower
shall select; provided, however, the Borrower shall select Eurodollar
Loans to be prepaid in a manner designed to minimize the Consequential
Loss resulting from such prepayments.
E. If, however, the Borrower shall fail to select the Eurodollar Loan to
which such prepayments are to be applied, or a Default has occurred and
is continuing at the time
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of a prepayment, the Bank shall be entitled to apply the prepayment in
any manner the Bank shall deem appropriate.
3.10 MANNER AND APPLICATION OF PAYMENTS. All payments and prepayments of
principal of, and interest on, the Note shall be made by the Borrower to the
Bank before 2:00 p.m. (Houston, Texas time) in immediately available funds at
the Bank's office. Any payment or prepayment received by the Bank after 2:00
p.m. (Houston, Texas time), shall be deemed to have been received by the Bank on
the next succeeding Business Day.
3.11 COMMITMENT FEE. The Borrower agrees to pay to the Bank a commitment fee
in the amount of $30,000.00, for the granting of the Loans which shall be due
and payable on the Effective Date.
3.12 PAYMENTS IN RESPECT OF INCREASED COSTS.
A. Notwithstanding any other provision hereof, if after the date of this
Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or
not having the force of law) or any change in GAAP or regulatory
accounting principles applicable to the Bank shall (i) impose, modify or
make applicable to the Bank any reserve, special deposit or similar
requirement with respect to its obligations hereunder, (ii) impose on
the Bank any other condition with respect to its obligations hereunder,
or (iii) subject the Bank to any tax (other than {a} taxes imposed on
the overall net income of the Bank, and {b} franchise taxes imposed on
the Bank, in either case by the jurisdiction in which the Bank has its
principal office or lending office or any political subdivision or
taxing authority of any such jurisdiction), charge, fee, deduction or
withholding of any kind whatsoever, and the result of any of the
foregoing shall be to increase the cost to the Bank hereunder or to
reduce the amount of principal, interest or any fee or compensation
receivable by the Bank hereunder, then such additional amount or amounts
as will compensate the Bank for such additional costs or reduction shall
be paid to the Bank by the Borrower. The Bank agrees to give notice to
the Borrower of any such change in law, regulation, interpretation or
administration with promptness after becoming actually aware thereof and
of the applicability thereof to the Transactions.
B. If, after the date of this Agreement, the Bank shall have determined
that the adoption of any applicable law, rule, regulation or guideline
regarding capital adequacy, 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 the Bank (or its lending
office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the
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Bank's capital as a consequence of its obligations hereunder to a level
below that which the Bank could have achieved but for such adoption,
change or compliance (taking into consideration the Bank's policies with
respect to capital adequacy) then from time to time, the Borrower will
pay to the Bank such additional amount or amounts as will compensate the
Bank for such reduction. The Bank agrees to give notice to the Borrower
of any adoption of, change in, or change in interpretation or
administration of, any such law, rule, regulation or guideline with
promptness after becoming actually aware thereof and of the
applicability thereof to the Transactions.
C. A certificate of the Bank setting forth such amount or amounts,
supported by calculations as shall be necessary to compensate the Bank
as specified in Section 3.12.A and Section 3.12.B shall be delivered to
the Borrower and shall be conclusive and binding upon the Borrower
absent manifest error. The Borrower will pay the Bank the amount shown
as due on any such certificate within ten (10) Business Days after its
receipt of the same.
D. Failure on the part of the Bank to demand compensation for any increased
costs, reduction in amounts received or receivable hereunder or
reduction in the rate of return earned on the Bank's capital, in each
case pursuant to Section 3.12.A or Section 3.12.B, shall not constitute
a waiver of the Bank's rights to demand com- pensation for any increased
costs or reduction in amounts received or receivable or reduction in
rate of return pursuant to Section 3.12.A and Section 3.12.B. The
protection under this Section shall be available to the Bank regardless
of any possible contention of the invalidity or inapplicability of any
law, regulation or other condition which shall give rise to any demand
by the Bank for compensation (but if such law, regulation or other
condition is finally determined to be invalid or inapplicable, the Bank
shall promptly refund (without interest) all amounts paid under this
Section arising from such invalid or inapplicable law, regulation or
other condition).
ARTICLE IV
SPECIAL PROVISIONS FOR EURODOLLAR LOANS
4.1 INADEQUACY OF EURODOLLAR LOAN PRICING. If with respect to any Interest
Period for any Eurodollar Loan:
A. The Bank determines (which determination shall be conclusive) that, by
reason of circumstances affecting the interbank Eurodollar market
generally, deposits in Dollars (in the applicable amounts) are not being
offered to Bank in the interbank Eurodollar market for such Interest
Period; or,
B. The Bank determines in good faith (which determination shall be
conclusive absent manifest error) that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Bank of maintaining or
funding such Eurodollar Loan for such Interest Period, then the Bank
shall give notice thereof to the Borrower, whereupon until the Bank
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notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the obligation of the Bank to make
Eurodollar Loans shall be suspended, and (ii) the Borrower will either
(a) repay in full the then outstanding principal amount of the
Eurodollar Loans, together with accrued interest thereon on the last day
of the then current Interest Period applicable to such Eurodollar Loans,
or (b) convert such Eurodollar Loans to Alternate Base Rate Loans in
accordance with Section 3.2.A.(3) on the last day of the then current
Interest Period applicable to each such Eurodollar Loan.
4.2 ILLEGALITY. If with respect to any Interest Period for any Eurodollar
Loan:
A. The Bank determines in good faith (which determination shall be
conclusive absent manifest error) that any change in any applicable law,
rule or regulation or in the interpretation, application or
administration thereof makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful for the Bank to
maintain or fund any Loan by means of Dollar deposits obtained in any
Eurodollar interbank market (any of the above being described as a
"EURODOLLAR EVENT"), then, at the option of the Bank, the aggregate
principal amount of the Eurodollar Loans then outstanding, which Loans
are directly affected by such Eurodollar Event, shall be prepaid by the
Borrower. Upon the occurrence of any Eurodollar Event, and at any time
thereafter so long as such Eurodollar Event shall continue, the Bank may
exercise the aforesaid option by giving notice thereof to the Borrower.
B. Any prepayment of any Eurodollar Loan which is required under the
preceding Section shall be made, together with accrued and unpaid
interest and all other amounts payable to the Bank under this Agreement
with respect to such prepaid Eurodollar Loan on the date stated in the
notice to the Borrower referred to above, which date ("REQUIRED
PREPAYMENT DATE") shall be not less than fifteen (15) days from the date
of such notice. Upon receipt of such notice, the Borrower will either
(i) prepay in full the then outstanding principal amount of the
Eurodollar Loan, together with accrued interest thereon, or (ii) convert
the Eurodollar Loan to another Interest Option on either (a) the last
day of the then current Interest Period applicable to each affected
Eurodollar Loan, if the Bank may lawfully continue to maintain and fund
such Eurodollar Loan to such day, or (b) immediately if the Bank may not
lawfully continue to fund and maintain such Eurodollar Loan to such day.
4.3 EFFECT ON INTEREST OPTIONS. If notice has been given pursuant to Section
4.1 requiring a type of Eurodollar Loan to be repaid or converted, then unless
and until the Bank notifies the Borrower that the circumstances giving rise to
such repayment no longer apply requiring such repayment or conversion, all Loans
shall thereafter be Alternate Base Rate Loans. If the Bank notifies the Borrower
that the circumstances giving rise to such repayment no longer apply, the
Borrower may thereafter select Loans to be Eurodollar Loans in accordance with
Section 3.2.A.(1).
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4.4 PAYMENTS NOT AT END OF INTEREST PERIOD. If the Borrower makes any payment
of principal with respect to any Adjusted LIBOR Rate Loan on any day other than
the last day of the Interest Period applicable to such Adjusted LIBOR Rate Loan,
the Borrower will reimburse the Bank on demand the Consequential Loss incurred
by the Bank as a result of the timing of such payment. A certificate of the Bank
setting forth the basis for the determination of the amount of Consequential
Loss shall be delivered to the Borrower and shall, in the absence of manifest
error, be conclusive and binding. Any conversion of an Adjusted LIBOR Rate Loan
to a different Interest Option on any day other than the last day of the
Interest Period for such Adjusted Libor Rate shall be deemed a payment for
purposes of this Section.
4.5 SURVIVAL OF OBLIGATIONS. Failure on the part of the Bank to demand
compensation pursuant to this Article for any increased costs or reduction in
amounts received or receivable with respect to any Interest Period, shall not
constitute a waiver of the Bank's rights to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
rate of return in such Interest Period or in any other Interest Period. The
protection under this Article shall be available to the Bank regardless of any
possible contention of the invalidity or inapplicability of any law, regulation
or other condition which shall give rise to any demand by the Bank for
compensation.
ARTICLE V
COVENANTS
5.1 AFFIRMATIVE COVENANTS. Until the fulfillment of all Obligations, unless
the Bank shall otherwise consent in writing, the Borrower will, and will cause
each other Loan Party to, perform and comply with the following covenants:
A. The Borrower will furnish to the Bank:
(1) As soon as possible, but in any event within one hundred twenty
(120) days after the end of each Fiscal Year, audited, consolidated
Financial Statements of the Borrower and the Consolidated Subsidiaries
consisting of statements of income, stockholder's equity and cash flow
for such Fiscal Year and a balance sheet as of the end of such Fiscal
Year, setting forth, in each case, in comparative form, corresponding
figures from the immediately preceding annual audit, accompanied by
supporting schedules required by GAAP, all in reasonable detail and
satisfactory in scope to the Bank, as fairly presenting the financial
position of the Borrower and the Consolidated Subsidiaries as of the
dates indicated in accordance with GAAP, together with an opinion
thereon, without material qualifications or exceptions certified by
independent certified public accountants selected by the Borrower and
satisfactory to the Bank, and the consolidating Financial Statements of
each Consolidated Subsidiary;
(2) As soon as possible, but in any event within one hundred twenty
(120) days after the end of each Fiscal Year, the auditors' management
report;
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(3) Within forty-five (45) days after the end of each calendar month, an
unaudited, consolidated balance sheet as of the end of such calendar
month and the related statements of income, stockholder's equity and
cash flow, and setting forth, in comparative form, the amounts for such
calendar month and the Fiscal Year to date, and the amounts for the
corresponding periods in the prior Fiscal Year, prepared in accordance
with GAAP, and certified by a Financial Officer of the Borrower as
fairly presenting the consolidated financial position of the Borrower
and the Consolidated Subsidiaries as of the dates indicated, subject to
changes resulting from audit and normal year-end adjustment;
(4) As soon as possible, a copy of the federal income tax return of the
Borrower for the current Fiscal Year then ended, certified as being true
and correct by a Financial Officer of the Borrower; and,
(5) From time to time, such further information regarding the business,
affairs and financial condition of the Borrower and the Consolidated
Subsidiaries as the Bank may request.
B. The Borrower will comply, and shall cause each other Loan Party to
comply, with all Requirements of any Governmental Authority.
C. The Borrower will act prudently and in accordance with customary
industry standards in managing or operating the Borrower's assets,
properties, business and investments. The Borrower will keep in good
working order and condition, ordinary wear and tear excepted, all of the
Borrower's assets and properties which are necessary to the conduct of
the Borrower's business. The Borrower will obtain and maintain at the
Borrower's expense, all governmental licenses, authorizations, consents,
permits and approvals as may be required to enable the Borrower to
operate the Borrower's business and to comply with the Borrower's
obligations hereunder and under the other Loan Documents.
D. The Borrower will continue to be a corporation duly incorporated and
existing in good standing under the laws of the State of Texas and will
continue to be duly licensed or qualified in all jurisdictions wherein
the character of the property owned or leased by the Borrower or the
nature of the business transacted by the Borrower makes licensing or
qualification necessary, and the failure to do so would have a Material
Adverse Effect.
E. The Borrower will, and the Borrower will cause each other loan party to
the Chase Credit Agreement to, comply with the terms of the Chase Credit
Agreement.
F. The Borrower will, and the Borrower will cause each other Loan Party to,
pay and discharge all taxes, assessments and governmental charges or
levies including, but expressly not limited to, income, excise and ad
valorem taxes, prior to the date on
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which penalties or liens attach thereto and become of public record,
except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided.
G. The Borrower will, and the Borrower will cause each other Loan Party to,
promptly give notice in writing to the Bank of (i) any IRS audit of the
Borrower or such other Loan Party, (ii) the filing or commencement of
any action, suit, or administrative proceeding against the Borrower or
such other Loan Party, whether at law or in equity or by or before any
Governmental Authority, (iii) violations of any Require- ment, or (iv)
any Reportable Event, any of which events (a) is material and is brought
by or on behalf of any Person, or in which injunctive or other equitable
relief is sought, and (b) it is probable (within the meaning of
Statement of Financial Accounting Standards No. 5 promulgated by FASB)
that there will be an adverse determination and which, if adversely
determined, would materially impair the ability of such Person to
perform its obligations under any of the Loan Documents to which it is a
party.
H. The Borrower will, and the Borrower will cause each other Loan Party to,
furnish to the Bank immediately upon becoming aware of the existence of
any condition or event which constitutes a Default or would become a
Default or an Event of Default, notice specifying the nature and period
of existence thereof and the action which the Borrower and the other
Loan Party are taking or propose to take with respect thereto.
I. The Borrower will pay in full all expenses, including reasonable legal
expenses and attorney's fees, of the Bank which have been or may be
incurred by the Bank in connection with the preparation of the Loan
Documents, the lending hereunder, the collection or enforcement of the
Obligations and the recording and filing and rerecording and re-filing
of any such document.
J. The Borrower will comply with all Requirements of any Governmental
Authority, including, but expressly not limited to environmental laws
applicable to any property owned or occupied by the Borrower, or any
parts thereof, and the Occupational Safety and Health Act of 1970
("OSHA"), if the failure to be in compliance would have a Material
Adverse Effect.
5.2 OTHER COVENANTS. Until the fulfillment of all Obligations, unless the
Bank shall otherwise consent in writing, the Borrower will, and the Borrower
will cause each other Loan Party to, respectively as indicated, perform and
comply with the following covenants:
A. Neither the Borrower nor any of the Consolidated Subsidiaries will
create, incur, assume or suffer to exist Indebtedness, except, (i) the
Loans, and (ii) current accounts payable and other current obligations
(other than for borrowed money) arising out of transactions in the
ordinary course of business.
-23-
B. Neither the Borrower nor any of the Consolidated Subsidiaries will
execute a Guaranty (except in favor of the Bank).
C. Neither the Borrower nor any of the Consolidated Subsidiaries will pay
any Dividends, make any distribution on the Borrower's or the
Consolidated Subsidiaries' capital stock or purchase or retire any
capital stock, dissolve or liquidate, or become a party of any merger or
consolidation, or purchase, lease or otherwise acquire all or
substantially all of the assets or capital stock of any Person, or sell,
transfer, lease or otherwise dispose of all or any substantial part of
the Borrower's or a Consolidated Subsidiary's respective properties,
assets or business. Notwithstanding the foregoing, GSV may pay Dividends
as necessary to acquire GSV Stock not acquired at the closing of the GSV
Stock Purchase Agreement which shall not exceed three per cent of the
GSV Stock. Safe Seal may also pay to Allwaste Dividends on preferred
stock in an amount not to exceed $47,500.00 per quarter-annual period.
D. Neither the Borrower nor a Consolidated Subsidiary will, (i) lend or
advance any money, credit or property to any Person, or (ii) make or
have outstanding any Investments in any Person, except (i) Temporary
Cash Investments, (ii) such other "CASH EQUIVALENT" investments as the
Bank may, from time to time, approve, and (iii) the Borrower may
maintain the Investments in the Consolidated Subsidiaries.
E. Neither the Borrower nor a Consolidated Subsidiary will amend their
respective organizational documents, including but not limited to,
Articles or Certificate of Incorporation and bylaws.
F. Neither the Borrower nor a Consolidated Subsidiary will change its name,
Fiscal Year or method of accounting except as required by GAAP. A Loan
Party may change its name if the Borrower has given the Bank sixty (60)
days prior notice of such name change.
G. The Borrower and the Consolidated Subsidiaries will not enter into any
transaction with any Affiliates, other than transactions in the ordinary
course of business and upon fair and reasonable terms not materially
less favorable than could be obtained in an arm's-length transaction
with a Person that was not an Affiliate.
H. Neither the Borrower nor a Consolidated Subsidiary will increase the
compensation paid to any officer, director or employee, by way of direct
increase in salary, bonus, stock option or in any other manner except in
the ordinary course of business and in amounts not exceeding industry
standard compensation.
I. Neither the Borrower nor a Consolidated Subsidiary will engage in any
other line of business or business venture other than those presently
engaged or those which are directly related thereto, or change any
method of operation or manner of doing business in any material respect.
-24-
J. The Borrower will not use proceeds of any Loan to acquire any security
in any transaction which is subject to ss.13 or ss.14 of the Securities
Exchange Act of 1934, including particularly (but without limitation)
ss.13(d) and ss.14(d) thereof.
K. Neither the Borrower nor a Consolidated Subsidiary will sell, assign,
convey, exchange, lease or otherwise dispose of any of the Borrower's
respective properties, rights, assets or business, whether now owned or
hereafter acquired, except in the ordinary course of business and for a
fair consideration.
5.3 ERISA COMPLIANCE. The Borrower and the Consolidated Subsidiaries shall,
and shall cause each ERISA Affiliate to:
A. At all times, make prompt payment of all contributions required under
all Employee Plans and required to meet the minimum funding standard set
forth in ERISA with respect to all Employee Plans;
B. With respect to any Pension Plan, not permit to exist any material
"ACCUMULATED FUNDING DEFICIENCY" (within the meaning of ss.302 of ERISA
and ss.412 of the Code), whether or not waived, with respect thereto;
C. Not engage in any transaction in connection with which the Borrower or
any ERISA Affiliate could be subject to either a material civil penalty
assessed pursuant to the provisions of ss.502 of ERISA or a material tax
imposed under the provisions of ss.4975 of the Code;
D. Not terminate any Pension Plan in a "DISTRESS TERMINATION" under ss.4041
of ERISA, or take any other action which could result in a material
liability of the Borrower or any ERISA Affiliate to the PBGC;
E. Not adopt an amendment to any Pension Plan requiring the provision of
security under ss.307 of ERISA or ss.40(a)(29) of the Code;
F. Within thirty (30) days after the filing thereof, furnish to the Bank
each annual report/return (Form 5500 Series), as well as all schedules
and attachments required to be filed with the Department of Labor and/or
the IRS pursuant to ERISA, and the regulations promulgated thereunder,
in connection with each Employee Plan for each Employee Plan year;
G. Notify the Bank immediately of any fact, including, but not limited to,
any Reportable Event arising in connection with any Employee Plan, which
might constitute grounds for termination thereof by the PBGC or for the
appointment by the appropriate U.S. District Court of a trustee to
administer an Employee Plan, together with a statement, if requested by
the Bank, as to the reason therefor and the action, if any, proposed to
be taken with respect thereto; and,
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H. Furnish to the Bank, upon request, such additional information
concerning any Employee Plan as may be reasonably requested.
5.4 INDEMNITY. THE BORROWER WILL, AND THE BORROWER WILL CAUSE EACH OTHER LOAN
PARTY TO, JOINTLY AND SEVERALLY, INDEMNIFY AND SAVE, AND HOLD THE BANK AND THE
BANK'S DIRECTORS, OFFICERS, ATTORNEYS, AND EMPLOYEES (INDIVIDUALLY, AN
"INDEMNITEE" AND COLLECTIVELY, THE "INDEMNITEES") HARMLESS FROM AND AGAINST THE
FOLLOWING (EACH A "CLAIM"): (I) ANY AND ALL CLAIMS, DEMANDS, ACTIONS, OR CAUSES
OF ACTION THAT ARE ASSERTED AGAINST ANY INDEMNITEE BY ANY PERSON IF THE CLAIM,
DEMAND, ACTION, OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY RELATES TO A CLAIM,
DEMAND, ACTION, OR CAUSE OF ACTION THAT THE PERSON ASSERTS OR MAY ASSERT AGAINST
A LOAN PARTY (II) ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION THAT
ARE ASSERTED AGAINST ANY INDEMNITEE IF THE CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION DIRECTLY OR INDIRECTLY RELATES TO THE TOTAL COMMITMENT, THE USE OF
PROCEEDS OF THE LOANS, OR THE RELATIONSHIP OF A LOAN PARTY AND THE BANK UNDER
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED PURSUANT TO THIS AGREEMENT; (III)
ANY ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANY GOVERNMENTAL AUTHORITY
DIRECTLY OR INDIRECTLY RELATED TO A CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
DESCRIBED IN CLAUSES (I) OR (II) ABOVE; AND, (IV) ANY AND ALL LIABILITIES,
LOSSES, COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES AND DISBURSEMENTS) THAT ANY
INDEMNITEE SUFFERS OR INCURS AS A RESULT OF ANY OF THE FOREGOING. If any claim
is asserted against any Indemnitee, the Indemnitee shall promptly notify the
Borrower, but the failure to so promptly notify the Borrower shall not affect
the Loan Parties' obligations under this Section unless such failure materially
prejudices the Loan Parties' right to participate in the contest of the Claim.
The obligations and liabilities of the Loan Parties to any Indemnitee under this
Section shall survive the expiration or termination of this Agreement and the
repayment of the Obligations.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 INITIAL ADVANCES. The obligation of the Bank to make any Advance on the
Loans is subject to the conditions precedent that, on or before the date of the
initial Advance, the Bank shall have received the following:
A. The duly executed Note.
B. A duly executed Notice of Loan Advance.
C. A Guaranty Agreement in the form of Exhibit 6.1.C duly executed by
Allwaste in favor of the Bank.
D. An Officers Certificate in the form of Exhibit 6.1.D certified by the
President and the Secretary or Assistant Secretary of the Borrower,
stating that (i) no litigation is
-26-
pending or threatened which would have a Material Adverse Effect; (ii)
no investigation or proceeding before any Governmental Authority is
continuing or threatened against the Borrower or a Consolidated
Subsidiary, or any officer, director or Affiliate of the Borrower or a
Consolidated Subsidiary with respect to this Agreement, the Loan
Documents or any of the Transactions which could have a Material Adverse
Effect; and, (iii) to the best knowledge and belief of such Persons,
after reasonable and due investigation and review of matters pertinent
to the subject matter of such certificate (a) all of the representations
and warranties contained herein and the other Loan Documents are true
and correct as of the date of the Advance, and (b) no event has occurred
and is continuing, or would result from the Advance, which constitutes a
Default or an Event of Default. The Bank shall also receive either a
summary and analysis of all litigation in which the Borrower or a
Consolidated Subsidiary is involved or an opinion of counsel, in form
and substance acceptable to the Bank, to the effect that no litigation
in which the Borrower or a Consolidated Subsidiary is involved would, in
the event of an adverse determination, have a Material Adverse Effect.
E. Resolutions of the Borrower approving the execution, delivery and
performance of this Agreement, the other Loan Documents and the
transactions contemplated herein and therein, duly adopted by the
Borrower's board of directors and accompanied by a certificate of the
Secretary or Assistant Secretary of the Borrower stating that the
resolutions are true and correct, have not been altered or repealed and
are in full force and effect. The resolutions shall certify the name of
each officer of the- Borrower authorized to sign the Loan Documents to
be executed by the Borrower and the other documents or certificates to
be delivered by the Borrower pursuant to the Loan Documents, together
with the true signature of each such officer. The Bank may conclusively
rely on the certificate of the Borrower until the Bank receives a
further certificate of the Secretary or Assistant Secretary of the
Borrower canceling or amending the prior certificate and submitting the
name and signature of each officer named in such further certificate.
F. A Certificate of Incorporation, Certificate of Existence and Certificate
of Account Status (or other similar instruments) for the Borrower issued
by the appropriate official of the state of incorporation of the
Borrower, and Certificates of Qualification, Certificates of
Authorization or other similar instruments for the Borrower, issued by
the Secretary of State of each of the states wherein the Borrower is
qualified to do business, each dated within ten (10) days of the
Effective Date.
G. A copy of the Articles or Certificate of Incorporation of the Borrower
and all amendments thereto, certified by the Secretary of State of the
state of the Borrower's incorporation, and dated within ten (10) days of
Effective Date, and a copy of the bylaws of the Borrower, and all
amendments thereto, certified by the Secretary of theBorrower, as being
true, correct and complete as of the date of such certification.
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H. Resolutions of Allwaste approving the execution, delivery and
performance of the Guaranty Agreement, and the transactions contemplated
therein, duly adopted by the board of directors of Allwaste and
accompanied by a certificate of the Secretary or Assistant Secretary of
Allwaste stating that such resolutions are true and correct, have not
been altered or repealed and are in full force and effect. The
resolutions shall certify the name of each officer authorized to sign
each of the Loan Documents to be executed and the other documents or
certificates to be delivered pursuant to the Loan Documents, together
with the true signature of each such officer. The Bank may conclusively
rely on the certificate until the Bank receives a further certificate
canceling or amending the prior certificate and submitting the name and
signature of each officer named in such further certificate.
I. A true and correct, fully executed copy of the GSV Stock Purchase
Agreement.
J. Such other information and documents as may be required by the Bank and
the Bank's counsel.
6.2 SUBSEQUENT ADVANCES. The obligation of the Bank to make any subsequent
Advance under this Agreement shall be subject to the following additional
conditions precedent:
A. As of the date of the making of such Advance, there shall not exist any
Default or Event of Default.
B. The Borrower shall have performed and complied with all agreements and
conditions contained herein and in each of the Loan Documents which are
required to be performed or complied with before or on the date of such
Advance.
C. As of the date of making such Advance, no change that would cause a
Material Adverse Effect shall have occurred.
D. In the case of any Borrowing, the Bank shall have received an
appropriate Notice of Loan Advance dated as of the date of a Borrowing
signed by the Borrower.
E. The representations and warranties contained in each of the Loan
Documents shall be true in all respects on the date of making of such
Advance, with the same force and effect as though made on and as of that
date.
F. As the Advance relating to the acquisition of the Plant Specialties
Stock, a true and correct, fully executed copy of the Plant Specialties
Stock Purchase Agreement.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES CONCERNING BORROWER. The Borrower
represents and warrants the following matters concerning the Borrower.
A. The Borrower is a corporation duly incorporated and existing in good
standing under the laws of the State of Texas. The Borrower is duly
licensed or qualified in all jurisdictions wherein the character of the
property owned or leased by the Borrower or the nature of the business
transacted by the Borrower makes licensing or qualification necessary by
foreign corporations and where failure to become so licensed or
qualified would have a Material Adverse Effect.
B. The execution of the Loan Documents and the performance of the
Obligations thereunder by the Borrower (collectively, the
"TRANSACTIONS") have been duly autho- rized by all necessary corporate
action. Such actions will not (i) violate any provision of law, the
Borrower's Articles or Certificate of Incorporation or the Borrower's
Bylaws, or (ii) result in the breach of or constitute a default under
other agreement or instrument to which the Borrower is a party. No
consent of the- Borrower's shareholders or any holder of Indebtedness of
the Borrower is required as a condition to the validity of this
Agreement.
C. The Loan Documents, when duly executed and delivered in accordance with
this Agreement, will constitute legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms.
D. The Borrower has furnished to the Bank an audited Fiscal Year-end
consolidated balance sheet as of December 31, 1995, and related
statements of income, retained earnings and changes in financial
condition of the Borrower and the Consolidated Subsidiaries as of such
date, and an interim, year-to-date balance sheet and the income and
surplus statements as of November 30, 1996, and related statements of
income, retained earnings and changes in financial condition as of such
date. The Financial Statements are true and correct and have been
prepared in accordance with GAAP throughout the periods involved. The
balance sheets fairly present the financial condition of the Borrower
and the Consolidated Subsidiaries as of the dates thereof, and the
income and surplus statements fairly present the results of the opera-
tions of the Borrower and the Consolidated Subsidiaries for the periods
indicated. There have been no changes in the condition, financial or
otherwise, of the Borrower and the Consolidated Subsidiaries since the
dates of such Financial Statements which would have a Material Adverse
Effect.
E. Except as disclosed in the Financial Statements referenced in Section
7.1.D, neither the Borrower nor any Consolidated Subsidiary has any (i)
Investment in any other
-29-
Person, or (ii) agreements in effect providing for or relating to
extensions of credit in respect of which such Person is or may become
directly or contingently obligated.
F. There is no material fact that the Borrower has failed to disclose to
the Bank which could reasonably be expected to have a Material Adverse
Effect. Neither the Financial Statements referenced in Section 7.1.D,
nor any certificate or statement delivered herewith or heretofore by the
Borrower to the Bank in connection with negotiations of the Loan
Documents, contains any untrue statement of a material fact or omits to
state any material fact necessary to keep the statements contained
herein or therein from being misleading.
G. Exhibit 7.1.G hereto, which sets out the authorized and the issued
capital stock of the Borrower, is a complete and accurate list of all
shareholders of the Borrower as of the Effective Date and the number of
shares of each class of capital stock owned by each. There are no
outstanding warrants or options to purchase any of the capital stock of
the Borrower except as disclosed to the Bank with respect to options
granted to certain employees of the Borrower. All of the outstanding
capital stock of the Borrower has been validly issued, is fully paid and
non-assessable and is owned by the shareholders free and clear of all
Liens.
H. The Borrower is and, after consummation of this Agreement and after
giving effect to all Indebtedness incurred will be Solvent.
I. Except as disclosed in writing to the Bank, the Borrower is not a party
to a transaction with any Affiliate. All such transactions are in the
ordinary course of business and upon fair and reasonable terms not
materially less favorable than could be obtained in an arm's-length
transaction with a Person that was not an Affiliate.
J. The Borrower is not in default in any material respect under any
contract, lease, loan agreement, indenture, mortgage, security agreement
or other material agreement or obligation to which the Borrower is a
party or by which any of the Borrower's property is bound.
K. Neither the business nor the property of the Borrower are, affected by
any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
(whether or not covered by insurance), which could have a Material
Adverse Effect.
L. Except as has been previously disclosed to the Bank, the Borrower has
not during the preceding five (5) years, been known as or used any
fictitious, assumed or trade names except as disclosed in writing to the
Bank. The principal office, chief executive office and principal place
of business of the Borrower is at the address set out in Section 9.1.
The Borrower maintains the Borrower's principal records and books at
such address.
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M. The Borrower does not own any Subsidiary, except for the Consolidated
Subsidiaries.
N. The Borrower possesses all licenses, permits, approvals and consents,
including, without limitation, all environmental, health and safety
licenses and permits, approvals and consents (collectively, the
"PERMITS") of all Governmental Authority as required to conduct its
business. Each such Permit is and will be in full force and effect. The
Borrower is in compliance in all material respects with all Permits, and
to its knowledge no event, including, without limitation, any violation
of any law, rule or regulation, has occurred which allows the revocation
or termination of any Permit or any restriction thereon.
7.2 REGULATORY MATTERS. The Borrower represents and warrants that as of the
Effective Date, no Regulatory Defects exist, and specifically the following
matters.
A. The proceeds of the Loans will be used by the Borrower solely for the
purposes here- in set out and for no other purpose whatsoever. None of
such proceeds will be used for the purpose of purchasing or carrying any
"MARGIN STOCK" as defined in Regu- lation U, Regulation X, or Regulation
G, or for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry a "MARGIN STOCK" or for any
other purpose which might constitute this transaction a "PURPOSE CREDIT"
within the meaning of such Regulation U, Regulation X, or Regulation G.
The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stocks. Neither the Borrower
nor any Person acting on behalf of the Borrower has taken or will take
any action which might cause the Note or any of the other Loan
Documents, including this Agreement, to violate Regu- lation U,
Regulation X, or Regulation G or any other regulations of the board of
governors of the Federal Reserve System or to violatess.8 of the
Securities Exchange Act of 1934 or any rule or regulation thereunder, in
each case as now in effect or as the same may hereafter be in effect.
B. Neither the Borrower nor any other Loan Party or any Person having
"CONTROL" (as that term is defined in 12 U.S.C.ss.375(b)(5) or in
regulations promulgated pursuant thereto) of the Borrower or any other
Loan Party, is an "EXECUTIVE OFFICER," "DIRECTOR," or "PRINCIPAL
SHAREHOLDER" (as those terms are defined in 12 U.S.C. ss.375(b) or in
regulations promulgated pursuant thereto) of the Bank, of a bank holding
company of which the Bank is a subsidiary, or of any subsidiary of a
bank holding company of which the Bank is a subsidiary, or of any bank
at which the Bank maintains a "CORRESPONDENT ACCOUNT" (as such term is
defined in such statute or regulations), or of any bank which maintains
a correspondent account with the Bank.
C. There are no suits or proceedings pending, or to the knowledge of the
Borrower or any other Loan Party, threatened, in any court or before any
Governmental Authority against or affecting the Borrower or any other
Loan Party which, if adversely determined, would have a Material Adverse
Effect.
-31-
D. The Borrower and each other Loan Party has filed all U.S. tax returns
and all state and foreign tax returns which are required to be filed.
The returns properly reflect the U.S. income tax, foreign tax and/or
state taxes of the Borrower and the other Loan Party for the period
covered thereby. The Borrower and each other Loan Party has paid, or
made provisions for the payment of, all taxes which have become due
pursuant to the returns or pursuant to any assessment received by the
Borrower or any other Loan Party, except such taxes, if any, as are
being contested in good faith and as to which, adequate reserves have
been provided. Except for Harley, no Federal income tax returns of the
Borrower or any other Loan Party have been audited by the IRS. Neither
the Borrower nor any other Loan Party has, as of the Effective Date,
requested or been granted any extension of time to file any Federal,
state, local or foreign tax return. The Borrower is not a party to or
has any obligation under any tax sharing agreement.
E. (i) No Reportable Event has occurred and is continuing with respect to
any Employee Plan; (ii) PBGC has not instituted proceedings to terminate
any Employee Plan; (iii) neither the Borrower, any member of the
Controlled Group, nor any duly-appointed administrator of an Employee
Plan has (a) incurred any liability to PBGC with respect to any Employee
Plan other than for premiums not yet due or payable, or (b) instituted
or intends to institute proceedings to terminate any Employee Plan under
ss.4041 orss.4041A of ERISA or withdraw from any Multi-Employer Plan (as
that term is defined inss.3(37) of ERISA); and, (iv) each Employee Plan
has been maintained and funded in all material respects in accordance
with its terms and with all provisions of ERISA applicable thereto.
F. The Borrower is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act of 1940, the Interstate Commerce Act (as any of the
preceding acts have been amended), or any other law (other than
Regulation X) which regulates the incurring by the Borrower of
Indebtedness, including but not limited to laws relating to common
contract carriers or the sale of electricity, gas, steam, water, or
other public utility services.
G. The Borrower has complied with, and will continue to comply with, the
provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. ss.ss.200
ET.SEQ., as amended from time to time (the "FLSA"), including
specifically, but without limitation, 29 U.S.C. ss.215(a). This
representation and warranty, and each reconfirmation thereof, shall
constitute assurance from the Borrower, given as of the Effective Date
and as of the date of each re-confirmation, that the Borrower has
complied with the requirements of the FLSA, in general, and 29 U.S.C.
ss.215(a)(1), thereof, in particular.
H. Neither the Borrower nor any other Loan Party has been accused of being
in violation of Title IX, of the Organized Crime Control Act of 1970,
entitled "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS" (RICO), 18
U.S.C. ss.ss.1961 ET.SEQ.
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I. The operations of the Borrower comply in all material respects with all
applicable environmental laws (except as disclosed in writing to the
Bank) and with OSHA. The Borrower and all of Borrower's present
facilities or operations, as well as, to the knowledge of the Borrower,
Borrower's past facilities or operations, are not subject to any
judicial or administrative proceeding or any outstanding written order
or agree- ment with any Governmental Authority or private party
respecting (i) environmental laws, (ii) any remedial work (except as
disclosed in writing to the Bank), or (iii) any environmental claims
arising from the release of hazardous materials, as defined in any
environmental laws, into the environment. To the best of the knowledge
of the Borrower, none of Borrower's operations is the subject of any
Federal or state investigation evaluating whether any remedial work is
needed to respond to a release of any hazardous materials into the
environment in violation of environmental laws. The Borrower has not
filed any notice under any environmental laws indicating past or present
treatment, storage, or disposal of hazardous materials or reporting a
spill or release of hazardous materials into the environment in
violation of environmental laws. To the best knowledge of the Borrower,
the Borrower does not have any contingent liability in connection with
any release of any hazardous materials and none of the Borrower's
operations involve the generation, transportation, treatment or disposal
of hazardous materials.
7.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties shall survive delivery of the Loan Documents. Any investigation at
any time made by or on behalf of the Bank shall not diminish the Bank's right to
rely on the representations and warranties made by the Borrower or any other
Loan Party.
ARTICLE VIII
DEFAULTS AND REMEDIES
8.1 EVENTS OF DEFAULT. The Borrower will be in Default hereunder if any one
of the following shall occur:
A. If any installment of principal or interest on the Note, shall not be
paid when due and payable, or if there shall occur a failure to pay,
when due, any Obligations owed to the Bank.
B. If any representation, statement, warranty or certification made by the
Borrower or any other Loan Party in the Loan Documents, or furnished to
the Bank in connection with the Loans, shall prove to have been
incorrect in any material respect at the time of making or issuance
thereof.
C. If there shall occur any one of the following events, and if the event
shall continue uncured after ten (10) days from the earlier to occur of
(i) the date such event becomes known to the Borrower or any other Loan
Party, or (ii) the date the Bank shall
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have given notice to the Borrower that such event has occurred;
provided, however, the Bank shall not be required to give notice of any
such failure or event:
(1) If the Borrower or the other Loan Party shall fail to comply with
any of the covenants and agreements set forth in Section 5.1; and/or,
(2) Both the following events shall occur: (i) Either (a) process shall
have been instituted to terminate, or a notice of termination shall have
been filed with respect to, any Employee Plan (other than a
Multi-Employer Plan as that term is defined in ss.3(37) of ERISA) by the
Borrower, any ERISA Affiliate, any subsidiary, any member of the
Controlled Group, PBGC or any representative of any thereof, or any such
Employee Plan shall be terminated in any such case under ss.4041 or
ss.4042 of ERISA, or (b) a Reportable Event, the occurrence of which
would cause the imposition of a lien under ss.4068 of ERISA, shall have
occurred with respect to any Employee Plan (other than a Multi-Employer
Plan as that term is defined in ss.3(37) of ERISA) and be continuing for
a period of sixty (60) days; and, (ii) the sum of the estimated
liability to PBGC under ss.4062 of ERISA and the currently payable
obligations of the Borrower or any ERISA Affiliate to fund liabilities
(in excess of amounts required to be paid to satisfy the minimum funding
standard of ss.412 of the Code) under the Employee Plan or Employee
Plans subject to such event shall exceed ten (10) per cent of tangible
net worth at such time; and/or,
(3) Any or all of the following events shall occur with respect to any
MultiEmployer Plan (as that term is defined in ss.3(37) of ERISA) to
which the Borrower or any ERISA Affiliate contributes or contributed on
behalf of its employees: (i) the Borrower or any ERISA Affiliate incurs
a withdrawal liability under ss.4201 of ERISA; (ii) any such plan is "IN
REORGANIZATION" as that term is defined in ss.4241 of ERISA; or, (iii)
any such Employee Plan is terminated under ss.4041A of ERISA and the
Bank determines in good faith that the aggregate liability likely to be
incurred by the Borrower or any ERISA Affiliate, as a result of all or
any of the events specified in subsections (i), (ii) and (iii) above
occurring, shall have a Material Adverse Effect.
D. If any event shall occur which would constitute an event of default or
be a default under the Chase Credit Agreement, as those terms are
defined therein.
E. If any event shall occur which would constitute an Event of Default
under Section 5.2 or Section 5.4.
F. If there shall occur any change in the condition (financial or
otherwise) of the Borrower, Allwaste or any other Loan Party which, in
the opinion of the Bank, has a Material Adverse Effect.
G. If any of the Loan Documents shall cease to be legal, valid and binding
agreements enforceable against the Borrower or if the Guaranty Agreement
shall cease to be
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legal, valid and binding agreements enforceable against Allwaste in
accordance with the respective terms thereof or shall in any manner be
terminated or become or be declared ineffective or inoperative or shall
in any manner whatsoever cease to give or provide the rights, interests,
remedies, powers or privileges intended to be created thereby.
H. If there shall occur a failure by the Borrower in the observance or
performance of any other provision of the Loan Documents.
I. If there shall occur a failure beyond any period of grace, if any, by
the Borrower, Allwaste or any other Loan Party in the payment, when due,
of the interest on or the principal of any Indebtedness in excess of
$10,000.00, other than accounts payable incurred in the ordinary course
of business, or (ii) any other Indebtedness and if the effect of any
such default shall be to accelerate, or to permit the holder or obligee
of any such Indebtedness, at its option to accelerate, the maturity of
such Indebtedness.
J. If there shall be any change in the ownership of the Voting Shares of
any Loan Party or if there shall be any other Change of Control of any
Loan Party.
K. If the Borrower, Allwaste or any other Loan Party shall:
(1) Apply for, consent to or acquiesce in the appointment of a receiver,
trustee or liquidator of such Person, or of such Person's property;
and/or,
(2) Admit in writing such Person's inability to pay debts as they
mature; and/or,
(3) Make a general assignment for the benefit of creditors; and/or,
(4) Be adjudicated to be bankrupt or insolvent by any court having
jurisdiction; and/or,
(5) File a voluntary petition in bankruptcy or a petition or answer
seeking reorganization, composition, readjustment, an arrangement or
similar relief with creditors under any present or future Debtor Laws or
file an answer admitting the material allegations of a petition filed
against such Person in bankruptcy, reorganization or insolvency
proceeding, or corporate action shall be taken for the purpose of
effecting any of the foregoing; and/or,
(6) Have a receiver or trustee or assignee in bankruptcy or insolvency
appointed for such Person or such Person's property without such
Person's application or consent.
L. If an involuntary petition or complaint shall be filed against the
Borrower, Allwaste or any other Loan Party seeking bankruptcy or
reorganization of such Person or the appointment of a receiver,
custodian, trustee, intervenor or liquidator of such Person,
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or of all or substantially all of such Person's assets, and such
petition or complaint shall not have been dismissed within sixty (60)
days of the filing thereof; or, if an order, order for relief, judgment
or decree shall be entered by any court of competent jurisdiction or
other competent authority approving a petition or complaint seeking
reorganization of the Borrower or any other Loan Party or appointing a
receiver, custodian, trustee, intervenor or liquidator of such Person,
or of all or substantially all of such Person's assets.
8.2 REMEDIES. Upon the occurrence of an Event of Default, and in any such
event, the obligation of the Bank to extend credit to the Borrower pursuant
hereto shall immediately terminate. If a Default shall occur, the Bank may, at
the Bank's option, without notice to the Borrower, declare the principal of and
interest accrued on the Obligations to be forthwith due and payable, whereupon
the same shall become due and payable without any presentment, demand, protest,
notice of protest, notice of intent to accelerate the maturity of the
Obligations, notice of acceleration of the maturity of the Obligations or notice
of any kind, all of which are hereby waived, and thereafter, the Bank may
exercise all remedies available to the Bank as provided in any of the Loan
Documents and at law or in equity. None of the provisions contained in any of
the Loan Documents shall, or shall be deemed to, give the Bank the right to
exercise control over the assets, including, without limitation, real property,
affairs, or management of the Borrower or any other Loan Party. The rights of
the Bank are limited to the exercise the remedies provided in this Agreement and
the other Loan Documents.
8.3 OTHER NOTICES. The Borrower will promptly notify the Bank of (i) any
change in the Borrower's and any other Loan Party's financial condition or
business which would have a Material Adverse Effect, (ii) any default under any
agreement, contract or other instrument of which such Person is a party or by
which any of such Person's properties are bound, or any acceleration of the
maturity of any Indebtedness, any of which would have a Material Adverse Effect,
(iii) any claim against or affecting the Borrower or any other Loan Party or any
of the Borrower's or the other Loan Party's property which would have a Material
Adverse Effect, and (iv) the commencement of, and any determination in, any
litigation with any third party or any proceeding before any Governmental
Authority affecting the Borrower or any other Loan Party which would have a
Material Adverse Effect.
ARTICLE IX
MISCELLANEOUS
9.1 NOTICES. Any notice required or permitted to be given hereunder shall be
in writing, shall be addressed to the parties hereto at the respective addresses
set out below, which may be changed by the giving of written notice to that
effect pursuant hereto, and shall be deemed effectively given if (i) delivered
personally, or (ii) upon being deposited with the United States Postal Service,
postage prepaid, certified mail, return receipt requested:
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If to Borrower: THE SAFE SEAL COMPANY, INC.
00000 Xxxxxxx Xxxxx, Xxxxx X000
Xxxxxxx, Xxxxx 00000
If to Bank: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
9.2 SEVERABILITY. In the event any one or more of the provisions contained in
the Loan Documents should be held to be invalid, illegal or unenforceable in any
respect, the validity, enforceability and legality of the remaining provisions
contained in the Loan Documents shall not in any manner be affected thereby and
shall be enforceable in accordance with their terms.
9.3 CAPTIONS. The captions, headings, and arrangements used in this Agreement
are for convenience only and do not in any manner affect, limit, amplify, or
modify the terms and provisions hereof.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Borrower, any ERISA Affiliate and the Bank and shall inure to the benefit of the
Borrower, any ERISA Affiliate and the Bank and the successors and assigns of the
Bank. The Borrower may not, without the prior consent of the Bank, assign any
rights, powers, duties or obligations hereunder.
9.5 PARTICIPATION. The Borrower recognizes and agrees that the Bank may, from
time to time, assign to one or more banks or other entities all or any part of,
or may grant a participation to one or more banks or other entities, in or to
all or any part of, the Loans, the Note and the Bank's rights in respect of the
Loan Documents. The Borrower will have no obligation for any costs incurred by
the Bank in the participation of the Loans.
9.6 NON-LIABILITY OF BANK. The relationship among the Borrower, any other
Loan Party and the Bank is, and shall at all times remain, solely that of
debtors and creditor. The Bank does not undertake or assume any responsibility
or duty to any Person to review, inspect, supervise, pass judgment upon, or
inform any Person of any matter in connection with any phase of such Person's
business, operations, or condition, financial or otherwise. Each Person shall
rely entirely upon such Person's own judgment with respect to such matters. Any
review, inspection, supervision, exercise of judgment, or information supplied
to any Person by the Bank in connection with any such matter is for the
protection of the Bank, and no Person is entitled to rely thereon.
9.7 LIST OF EXHIBITS. The following Exhibits are attached hereto and made a
part hereof for all purposes:
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Exhibit 2.1 Notice of Loan Advance
Exhibit 3.1 Note
Exhibit 6.1.C Guaranty Agreement
Exhibit 6.1.D Officers Certificate
9.8 MODIFICATION. All modifications, consents, amendments or waivers of any
provision of any Loan Document, or consent to any departure by the Borrower or
the other Loan Party therefrom, shall be effective only if the same shall be in
writing and agreed to by the Bank and then shall be effective only in the
specific instance and for the purpose for which given.
9.9 WAIVER. The acceptance by the Bank of any partial payment on the
Obligations shall not be deemed to be a waiver of any Event of Default then
existing. No waiver by the Bank of any Event of Default shall be deemed to be a
waiver of any other then existing or subsequent Event of Default, or Default. No
delay or omission by the Bank in exercising any right under the Loan Documents
shall impair that right or be construed as a waiver thereof or any acquiescence
therein, or shall any single or partial exercise of any right preclude other or
further exercise thereof or the exercise of any other right under the Loan
Documents or otherwise. The rights of the Bank hereunder and under the Loan
Documents shall be in addition to all other rights provided by law.
9.10 GOVERNING LAW. THIS AGREEMENT AND THE LOAN DOCUMENTS HAVE BEEN PREPARED,
ARE BEING EXECUTED AND DELIVERED, AND ARE INTENDED TO BE PERFORMED IN THE STATE
OF TEXAS, AND THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT
TO THE CONFLICTS-OF-LAW RULES AND PRINCIPLES OF THE STATE OF TEXAS, AND THE
APPLICABLE LAWS OF THE UNITED STATES SHALL GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND ALL OF THE LOAN DOCUMENTS.
9.11 CHOICE OF FORUM, SERVICE OF PROCESS AND JURISDICTION. Any suit, action
or proceeding against any Loan Party with respect to the Loan Documents, or the
enforcement of any judgment entered by any court in respect thereof, shall be
brought in the courts of the State of Texas, Xxxxxx County, Texas, or in the
U.S. courts located in Southern District of Texas as the Bank, in the Bank's
sole discretion, may elect. The Bank and the Borrower each submit to the
non-exclusive jurisdiction of such courts for the purpose of any such suit,
action or proceeding.
A. The Bank and the Borrower and each irrevocably waives, in connection
with any such suit, action or proceeding, any objection, including,
without limitation, any objection to the laying of venue or based on the
grounds of forum non conveniens, which it may now or hereafter have to
the bringing of any such action or proceeding in such respective
jurisdictions.
B. The Bank and the Borrower each irrevocably consents to the service of
process of any of the aforementioned courts in any such action or
proceeding by the mailing of
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copies thereof by registered or certified mail, postage prepaid, to each
such Person, as the case may be, at its address set forth in Section
9.1.
C. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law.
9.12 WAIVER OF JURY TRIAL. Each party hereto hereby waives any right it may
have to a trial by jury in respect of any legal proceeding directly or
indirectly arising out of, under or in connection with or relating to any of the
Loan Documents or the Transactions. Except as prohibited by law, each party
hereto hereby waives any right it may have to claim or recover in any litigation
referred to in this Section any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages. Each party
hereto (i) certifies that no representative, agent or attorney of the Bank has
represented, expressly or otherwise, that the Bank would not, in the event of
litigation, seek to enforce the foregoing waivers, and (ii) acknowledges that it
has been induced to enter into this Agreement and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications
herein.
9.13 AGENCY. Nothing herein contained shall be construed to constitute the
Borrower or any other Loan Party as the Bank's agent for any purpose whatsoever.
9.14 NO THIRD PARTY BENEFICIARY. The parties do not intend for this Agreement
to inure to the benefit of any third party, or for this Agreement to be
construed to make or render the Bank liable to any mechanic, materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property owned
by the Borrower or any other Loan Party for debts or claims accruing to any such
Persons against the Borrower or any other Loan Party. The Bank does not, by
anything herein or in any of the other Loan Documents, assume any Indebtedness
of the Borrower or any other Loan Party under any contract or agreement assigned
to the Bank, and the Bank shall not be responsible in any manner for the
performance by the Borrower or any other Loan Party of any of the terms and
conditions thereof.
9.15 PAYMENT OF EXPENSES. The Borrower will pay all expenses, charges, costs
and fees provided for in this Agreement or relating to the Loans or the
Collateral, including fees, charges, and taxes in connection with recording or
filing any of the Loan Documents, title insurance premiums and charges, fees of
any consultants, fees and expenses of the Bank's counsel (which attorneys may be
employees of the Bank), fees and expenses of the Bank's special counsel, which
may include fees billed for law clerks, paralegals and other persons not
admitted to the Bar but performing services under the supervision of an
attorney, printing, photocopying and duplicating expenses, air freight charges,
escrow fees, costs of surveys, premiums of insurance policies and surety bonds
and fees for any appraisal, market or feasibility study required by the Bank.
All such expenses, charges, costs and fees shall be the Borrower's obligations
regardless of whether or not the Borrower has requested and met the conditions
for the Loans. This obligation on the part of the Borrower shall survive the
execution and delivery of the Loan Documents and the repayment of the
Obligations. The
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Borrower authorizes the Bank, in its discretion, to pay such expenses, charges,
costs and fees at any time by a disbursement of the Loans.
9.16 CONFLICTS. If there shall exist any conflict among this Agreement and
any of the other Loan Documents, the provisions of this Agreement shall control.
9.17 DECEPTIVE TRADE PRACTICES ACT. The Borrower acknowledges that the
Borrower is a "BUSINESS CONSUMER" as defined under the Deceptive Trade
Practices-Consumer Protection Act, Subchapter E of Chapter 17 of the Texas
Business and Commerce Code, a law that gives consumers special rights and
protections. The Borrower acknowledges that the Deceptive Trade
Practices-Consumer Protection Act is not applicable to the Transactions.
9.18 ENTIRETY. The Loan Documents embody the entire agreement among the
parties and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof and thereof. Any previous agreement among the
parties hereto with respect to the Transactions is superseded by the Loan
Documents. Except as expressly provided herein or the Loan Documents (other than
this Agreement), nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party, other than the
parties hereto, any rights, remedies, obligations or liabilities under or by
reason of this Agreement or the other Loan Documents.
9.19 MULTIPLE COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
A CREDIT AGREEMENT IN WHICH THE AMOUNT INVOLVED EXCEEDS $50,000 IN VALUE
IS NOT ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING AND SIGNED BY THE
PARTY TO BE BOUND OR BY THAT PARTY'S AUTHORIZED REPRESENTATIVE. THE
RIGHTS AND OBLIGATIONS OF BORROWER, ANY OTHER LOAN PARTY AND THE BANK
SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS, AND
INSTRUMENTS. ANY PRIOR ORAL AGREEMENTS AMONG THE PARTIES ARE SUPERSEDED
BY AND MERGED INTO THOSE WRITINGS. THIS AGREEMENT AND THE OTHER WRITTEN
LOAN DOCUMENTS (AS SAME MAY, FROM TIME TO TIME, BE AMENDED IN WRITING)
EXECUTED BY BORROWER, ANY LOAN PARTY OR THE BANK REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. THIS PARAGRAPH
IS INCLUDED IN THIS AGREEMENT UNDER ss.26.02 OF
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THE TEXAS BUSINESS AND COMMERCE CODE, AS AMENDED FROM TIME TO TIME.
In witness whereof, the parties have duly executed this Agreement on the day
and year hereinabove first set forth.
THE SAFE SEAL COMPANY, INC.
BY: /S/XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX, PRESIDENT
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
BY: /S/XXXXX XXXXXX
NAME: XXXXX XXXXXX , V.P.
VICE PRESIDENT
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AMENDMENT TO CREDIT AGREEMENT
This Amendment to Credit Agreement (the "First Amendment") is made and
entered into effective August 8, 1997, by and among THE SAFE SEAL COMPANY, INC.
(the "Borrower"); and, TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "Bank").
RECITALS
The Borrower and the Bank entered into a Credit Agreement (the "Credit
Agreement") dated March 6, 1997, pursuant to the terms of which the Bank agreed
to loan and the Borrower agreed to borrow, all as set out therein. The parties
desire to amend and modify the Credit Agreement as herein set out.
AGREEMENT
In consideration of the premises, the mutual covenants and agreements
herein contained and other good and valuable considerations, the parties amend
and modify the Credit Agreement and agree as provided herein.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms used in this First Amendment, to the
extent not otherwise defined herein, shall have the meanings ascribed to them in
the Credit Agreement. The following definitions modify, replace or supplement
the definitions used in the Loan Documents.
"Commitment Termination Date" means December 15, 1997, or, if such date is
not a Business Day, the Business Day preceding such date.
"Committed Sum" means $7,000,000.00.
"Loan Documents" is amended to mean the Credit Agreement, this First
Amendment to Credit Agreement, and all instruments executed in connection with
any of the same.
"Maturity Date" means December 31, 1997.
"Note" shall mean the Note in the form of Exhibit 3.1 to this First
Amendment executed by the Borrower, together with any renewals, extensions or
modifications thereof.
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ARTICLE II
AMENDMENTS
2.1 AMENDMENT TO SECTION 3.1. Section 3.1 is deleted in its entirety and
there is substituted therefor the following:
"3.1 NOTE. The Advances made under Section 2.1 by the Bank shall be
evidenced by the Note executed by the Borrower, which shall (i) be dated
the Effective Date of this First Amendment, (ii) be in the amount of the
Committed Sum, (iii) be payable to the order of the Bank at the office of
the Bank, (iv) bear interest in accordance with Section 3.2, and (v) be in
the form of Exhibit 3.1 attached to this First Amendment. The Borrower
will repay, and shall pay interest on, the unpaid principal amount of the
Loans in accordance with the terms of the Note and this Agreement."
2.2 AMENDMENT TO SECTION 3.6. Section 3.6 is deleted in its entirety and
there is substituted therefor the following:
"3.6 PAYMENTS ON THE NOTE. The unpaid principal amount of the Note
shall be due and payable on the Maturity Date, on which date all principal
on the Note shall be payable in full. Interest on the Note shall be due
and payable monthly on the Interest Payment Dates in each month commencing
on the Interest Payment Date in July 1997."
2.3 AMENDMENT TO SECTION 6.1.C. Section 6.1.C is deleted in its entirety
and there is substituted therefor the following:
"C. A confirmation of Guaranty Agreement in the form of Exhibit
6.1.C to this First Amendment duly executed by Allwaste in favor of the
Bank."
2.4 AMENDMENT TO SECTION 6.1.H. Section 6.1.H is deleted in its entirety
and there is substituted therefor the following:
"H. Resolutions of Allwaste approving the execution, delivery and
performance of the confirmation of the Guaranty Agreement, and the
transactions contemplated therein, duly adopted by the board of directors
of Allwaste and accompanied by a certificate of the secretary of Allwaste
stating that such resolutions are true and correct, have not been altered
or repealed and are in full force and effect. The resolutions shall
certify the name of each officer authorized to sign each of the Loan
Documents to be executed and the other documents or certificates to be
delivered pursuant to the Loan Documents, together with the true signature
of each such officer. The Bank may conclusively rely on the certificate
until the Bank receives a further certificate canceling or amending the
prior certificate and submitting the name and signature of each officer
named in such further certificate."
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ARTICLE III
RENEWAL AND CONFIRMATION OF OBLIGATIONS
3.1 RENEWAL OF OBLIGATIONS. The Borrower acknowledges and agrees that as
of the execution date of this First Amendment:
A. The outstanding principal balance of the Note is $5,925,827.76.
B. The Loan Documents are in full force and effect as therein written
and as herein modified.
C. The Borrower does not have any (i) rights of set-off against the
Obligations, (ii) defenses to the payment or the performance of any
of the Obligations, or (iii) claims or causes of action against the
Bank.
D. The Borrower promises to pay to the order of the Bank, in the City
of Houston, Xxxxxx County, Texas, the sum of $7,000,000.00, pursuant
to the terms of the renewal Note, same being executed and delivered
by the Borrower contemporaneously herewith.
3.2 RATIFICATION BY THE BORROWER. The terms and provisions set forth in
this First Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Loan Documents and except as expressly modified and
superseded by this First Amendment, the terms and provisions of the Loan
Documents are ratified and confirmed and shall continue in full force and
effect. The Borrower and the Bank agree that the Loan Documents, as amended
hereby, shall continue to be legal, valid, binding and enforceable in accordance
with their respective terms.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS. The effectiveness of this First Amendment is subject to
the satisfaction of the following conditions precedent:
A. The Bank shall have received all of the following duly executed by
the proper party, in form and substance satisfactory to the Bank:
(1) This First Amendment;
(2) The renewal Note, executed by the Borrower;
(3) The confirmation of Guaranty Agreement, executed by Allwaste;
(4) The resolutions of Allwaste as set out in Section 6. I. H;
and,
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(5) Such additional documents, instruments and information as the
Bank may request;
(6) The Borrower shall pay to the Bank all sums due by the
Borrower to the Bank pursuant to the Loan Documents, as
modified hereby, as of the execution date hereof, together
with all legal fees and other fees incurred by the Bank in
connection with the preparation hereof and the documents
executed in connection herewith; and,
B. The representations and warranties contained herein and the Loan
Documents, as amended hereby, shall be true and correct as of the
date hereof as if made on the date hereof.
C. No Event of Default shall have occurred and be continuing and no
event or condition shall have occurred which, with the giving of
notice or lapse of time or both, would be an Event of Default.
ARTICLE V
AGREEMENTS, REPRESENTATIONS AND WARRANTIES
5.1 AGREEMENTS. The Borrower expressly agrees with the Bank that, (i) the
extension of the Obligations pursuant to this First Amendment do not constitute
a novation or discharge of the Obligations, (ii) any and all representations,
warranties, covenants, and agreements contained in the Loan Documents shall
remain in full force and effect, (iii) all rights, and privileges described,
granted, or made to or for the benefit of the Bank by the Borrower, Allwaste or
either of them, shall be carried forward and shall continue in full force and
effect to secure the payment of all Obligations under the Loan Documents, as
amended hereby, and (iv) any and all Guaranty Agreements, en dorsements, or any
other agreement to pay, secure or guaranty payment of the Obligations by the
Borrower or Allwaste or either of them, shall remain in full force and effect
and shall be carried forward to secure payment of the Obligations, as they have
been extended pursuant to this First Amendment.
5.2 REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Bank that, (i) the execution, delivery, and performance of this First
Amendment and any and all other Loan Documents executed or delivered in
connection with this First Amendment have been authorized by all requisite
action on the part of the Borrower and will not violate the Articles of
Incorporation and bylaws of the Borrower, (h) the representations and warranties
contained in the Loan Documents, as amended hereby, are true and correct as
though made on and as of the date hereof, (iii) no Event of Default has occurred
or has any other event occurred which, with the giving of notice or lapse of
time or both, would be an Event of Default, and (iv) the Borrower is in full
compliance with all covenants and agreements contained in the Loan Documents, as
amended hereby.
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ARTICLE VI
MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this First Amendment or any other Loan Document including any
Loan Document furnished in connection with this First Amendment, shall survive
the execution and delivery of this First Amendment, and no investigation by the
Bank or any closing shall affect the representations and warranties or the right
of the Bank to rely upon them.
6.2 REFERENCE TO CREDIT AGREEMENT. Each of the Loan Documents, including
the Credit Agreement and any and all other agreements, documents, or instruments
now or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Credit Agreement, as amended hereby, are amended so that any
reference in such Loan Documents to the Credit Agreement shall mean a reference
to the Credit Agreement, as amended hereby.
6.3 FURTHER RENEWAL. Notwithstanding anything to the contrary contained
herein or in any other instrument executed by the Borrower, Allwaste or the Bank
and any other action or conduct undertaken by the Borrower, Allwaste and/or the
Bank on or before the date hereof, the agreements, covenants and provisions
contained herein shall constitute the only evidence of the Bank's consent to
modify the terms and provisions of the Obligations in the manner set forth
herein. Accordingly, no express or implied consent to any further modifications
of the Obligations and the Loan Documents, whether any such modifications
involve any of the matters set forth in this First Amendment or otherwise, shall
be inferred or implied from the Bank's execution of this First Amendment.
Further, the Bank's execution of this First Amendment shall not constitute a
waiver, either express or implied, of the requirement that any further
modification of the Obligations or any of the Loan Documents shall require the
express written approval of the Bank and no such approval (either express or
implied) has been given as of the date hereof.
6.4 EXPENSES OF BANK. The Borrower agrees to pay on demand all costs and
expenses incurred by the Bank in connection with the preparation, negotiation,
and execution of this First Amendment and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
the Bank's legal counsel and all costs and expenses incurred by the Bank in
connection with the enforcement or preservation of any rights under the Loan
Documents, including, without limitation, the costs and fees of the Bank's legal
counsel.
6.5 INDEPENDENT DETERMINATION. The parties hereto acknowledge:
A. They have carefully reviewed this First Amendment;
B. They have had the opportunity to review all of the terms contained
herein and the other Loan Documents executed in connection herewith
with their respective legal counsel;
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C. They understand the meaning and effect hereof and have willingly
entered into and executed this First Amendment for the herein stated
consideration, which is contractual and not merely recital;
D. They have relied wholly upon their own judgment and knowledge and
that of their respective legal counsel, and have not been influenced
to any extent whatsoever in the making of this First Amendment by
any representation or statement made by the Bank, any of the Bank's
officers, directors, employees, attorneys or agents, or anyone
acting on their behalf;
E. This First Amendment and the other Loan Documents executed in
connection herewith, as well as the Credit Agreement and the Loan
Documents previously executed in connection with the Credit
Agreement, state the entire agreement of the parties hereto and
supersede any and all prior and contemporaneous negotiations and
agreements, and all prior and contemporaneous negotiations, oral or
written, are deemed incorporated herein or are deemed to have been
abandoned if not so incorporated herein;
F. This First Amendment may be amended only by written instrument
signed by all of the parties hereto and a breach hereof may be
waived only by written waiver signed by the party granting the
waiver; and,
G. The waiver of any breach hereof shall not operate or be construed as
a waiver of any other similar or prior or subsequent breach hereof.
6.6 RELEASE. The Borrower, for the Borrower and Allwaste, and their
respective legal representatives, attorneys, agents, successors and
assigns, fully release, acquit and forever discharge the Bank, the Bank's
officers, directors, shareholders, employees, agents, attorneys, legal
representatives, successors and assigns, of and from any and all rights,
liabilities, claims, demands, suits, controversies, debts, damages,
attorneys' fees, penalty or interest, court costs, and/or causes of
action, known or unknown, including, but not limited to, the payment of
any money, for the performance or furnishing of any consideration, for
damages relating to, or resulting from and arising out of, all matters,
facts, circumstances relating to the business relationship among the
Borrower, Allwaste and the Bank, accrued to the date hereof in favor of
the Borrower, Allwaste or their respective heirs, executors,
administrators, legal representatives, attorneys, agents, successors
and/or assigns, except those arising hereunder. The foregoing release
shall, however, be effective as to Allwaste only to the extent of the
business relationship arising out of the loans from the Bank to the
Borrower.
6.7 SEVERABILITY. Any provision of this First Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this First
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Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
6.8 APPLICABLE LAW. THIS FIRST AMENDMENT AND ALL OTHER LOAN DOCUMENTS HAVE
BEEN PREPARED, ARE BEING EXECUTED AND DELIVERED, AND ARE INTENDED TO BE
PERFORMED IN THE STATE OF TEXAS, AND THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS,
WITHOUT GIVING EFFECT TO THE CONFLICTS-OF-LAW RULES AND PRINCIPLES OF THE STATE
OF TEXAS, AND THE APPLICABLE LAWS OF THE U.S. SHALL GOVERN THE VALIDITY,
CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS FIRST AMENDMENT AND THE
OTHER LOAN DOCUMENTS.
6.9 SUCCESSORS AND ASSIGNS. This First Amendment is binding upon and shall
inure to the benefit of the Bank, the Borrower and their respective successors
and assigns, except the Borrower may not assign or transfer any of the
Borrower's rights or obligations hereunder without the prior written consent of
the Bank.
6.10 LIST OF EXHIBITS. The following Exhibits are attached hereto and made
a part hereof for all purposes:
Exhibit 3.1 Note
Exhibit 6.1.C Confirmation of Guaranty Agreement
6.11 COUNTERPARTS. This First Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.12 EFFECT OF WAIVER. No consent or waiver, express or implied, by the
Bank to or for any breach of or deviation from any covenant, condition or duty
by the Borrower or Allwaste shall be deemed a consent or waiver to or of any
other breach of the same or any other covenant, condition or duty.
6.13 HEADINGS. The headings, captions, and arrangements used in this First
Amendment are for convenience only and shall not affect the interpretation of
this First Amendment.
6.14 NON-APPLICATION OF CHAPTER 15 OF TEXAS CREDIT CODE. The provisions of
Chapter 15 of the Texas Credit Code (Vernon's Annotated Texas Statutes, Article
5069-15) are specifically declared by the parties not to be applicable to this
First Amendment, any of the Loan Documents or the transactions contemplated
hereby.
A CREDIT AGREEMENT IN WHICH THE AMOUNT INVOLVED EXCEEDS $50,000 IN VALUE
IS NOT ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING AND SIGNED BY THE
PARTY TO BE BOUND OR BY THAT PARTY'S
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AUTHORIZED REPRESENTATIVE. THE RIGHTS AND OBLIGATIONS OF THE LOAN PARTIES
AND THE BANK SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS,
DOCUMENTS, AND INSTRUMENTS. ANY PRIOR ORAL AGREEMENTS AMONG THE PARTIES
ARE SUPERSEDED BY AND MERGED INTO THOSE WRITINGS. THIS AGREEMENT AND THE
OTHER WRITTEN LOAN DOCUMENTS (AS SAME MAY, FROM TIME TO TIME, BE AMENDED
IN WRITING) EXECUTED BY ANY LOAN PARTY OR THE BANK REPRESENT THE FINAL
AGREEMENT AMONG THE LOAN PARTIES AND THE BANK AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY
THE PAR TIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
THIS PARAGRAPH IS INCLUDED IN THIS AGREEMENT UNDER SS.26.02 OF THE TEXAS
BUSINESS AND COMMERCE CODE, AS AMENDED FROM TIME TO TIME.
This First Amendment is executed and delivered effective the day and year
first above written.
THE SAFE SEAL COMPANY, INC.
BY: /s/ XXXXXXX X. XXXXXXXX
XXXXXXX X. XXXXXXXX
SENIOR VICE PRESIDENT
"BORROWER"
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
BY: /s/ XXXXXXX X. XXXXX
XXXXXXX X. XXXXX
VICE PRESIDENT
"BANK"
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Exhibit 3.1
Note
-1-
PROMISSORY NOTE
$7,000,000.00 August 8, 1997
-1-
This note is the renewal Note issued pursuant to the terms of the
Amendment to Credit Agreement (the "First Amendment") dated August 8, 1997,
amending a Credit Agreement dated March 6, 1997 (collectively, the "Credit
Agreement") by and between THE SAFE SEAL COMPANY, INC. (the "Maker") and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION (the "Payee"). All capitalized terms used
herein shall have the meanings ascribed to them in the Credit Agreement unless
the context hereof requires otherwise.
For value received, after date, without grace and in the manner, on the
dates and in the amounts herein stipulated, Maker promises to pay to the order
of Payee at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, or at such other
place in Houston, Xxxxxx County, Texas, designated in writing by Payee or other
holder hereof:
1. The sum of Seven Million Dollars ($7,000,000.00) in lawful money of
the U.S., which shall be due and payable on December 31, 1997 (the
"Maturity Date"), on which date the unpaid balance of all principal
hereon shall be payable in full; together with,
2. Interest from the date hereof on the principal amount outstanding
hereunder from time to time, at the lesser of (a) the Contract Rate,
or, (b) the Maximum Rate; and, interest on the outstanding balance
of principal shall be due and payable on the Maturity Date; and,
3. Notwithstanding the foregoing, if at any time the Contract Rate
shall exceed the Maximum Rate and thereafter, the Contract Rate
shall become less than the Maximum Rate, the rate of interest
payable hereunder shall, at the option of Payee, be the Maximum Rate
until the cumulative interest received by Payee or other holder
hereof equals the interest which would have been received at the
Contract Rate; and,
4. All past due principal and interest shall bear interest at the
Default Rate from maturity until paid.
5. This note may be prepaid pursuant to the terms of the Credit
Agreement.
THIS NOTE SHALL BE PAYABLE IN FULL ON DECEMBER 31, 1997. ON THE
MATURITY DATE, MAKER MUST REPAY THE ENTIRE UNPAID PRINCIPAL BALANCE
_________________________________
Signed for Identification
PROMISSORY NOTE
$7,000,000.00 August 8, 1997
-2-
AND ALL ACCRUED INTEREST ON THIS NOTE THEN DUE AND PAYABLE. PAYEE SHALL BE UNDER
NO OBLIGATION TO REFINANCE THIS NOTE AT THAT TIME. MAKER SHALL THEREFORE BE
REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS MAKER MAY OWN, OR MAKER SHALL HAVE
TO FIND A LENDER WILLING TO LEND MAKER SUCH AMOUNTS AT PREVAILING MARKET RATES,
WHICH MAY BE CONSIDERABLY HIGHER THAN THE INTEREST RATE ON THIS NOTE.
It is agreed that if default be made in any of the payments of principal
and/or interest due hereon or if there is a Default under the provisions in the
Credit Agreement, then, in any such event, at the option of the holder hereof,
at any time thereafter, without notice, the unpaid principal of this note and,
all accrued interest, shall at once become due and payable and shall bear
interest at the Default Rate from the date of such Default or event. Failure to
exercise any of the options shall not constitute a waiver on the part of holder
hereof of the right to exercise the same at any other time.
It is agreed that if this note be placed in the hands of an attorney for
collection, for the purposes of being sued upon or established in any manner in
any court, then in any of such events, Maker, all endorsers and guarantors
hereof, promise to pay Payee's or other holder's reasonable attorneys' fees and
costs of collection, which sums shall become a part of the principal hereof.
The Loan Documents are intended to be performed in accordance with, and
only to the extent permitted by, all applicable Requirements. This note is
subject to the provisions set out in the Credit Agreement relating to the
payment of interest at the Maximum Rate and to payment or collection of interest
in excess of the Maximum Amount, all of which provisions are incorporated herein
for all purposes.
This note and the maximum rate of nonusurious interest applicable to the
loan evidenced hereby shall be governed by the laws of the U.S. and the State of
Texas in effect on the date of the loan evidenced hereby, and, to the extent
allowed by law, as now or as may hereafter be in effect, but in any event Tex.
Rev. Civ. Stat. Xxx. Art. 0000 Xx. 15 (which regulates certain revolving credit
loan accounts and revolving triparty accounts) shall not apply to the loan
evidenced hereby.
It is further agreed that any funds at any time in the possession of any
holder hereof which belong to Maker, any endorser or guarantor hereof, and any
deposits or other sums at any time credited by or due from any holder hereof to
any of such parties shall be held and treated as security for the payment of
this note, and the holder hereof, at the holder's option may, at any time
without notice, and without liability, apply such funds or deposits or any sums
credited by or due from the
_________________________________
Signed for Identification
PROMISSORY NOTE
$7,000,000.00 August 8, 1997
-3-
holder against any sums owing, whether due or not, under this note and in any
manner and in any order of preference which the holder, in the holder's
discretion, chooses.
Maker, all endorsers and guarantors hereof, and all other persons who may
become liable for all or any part of the obligations represented by this note,
shall be considered as principals as to the making of this note and shall have
joint and several liability. Except as may be set out in the Credit Agreement,
Maker, all endorsers and guarantors, severally waive presentment for payment,
protest, notice of protest, and of nonpayment, notices of intention to
accelerate the maturity and notice of acceleration, as to this note and as to
each, every and all installments hereof, and consent to the renewal or extension
of the time of payment hereof and to the release of any person liable hereon
upon the terms deemed by the holder hereof, in the holder's sole discretion, to
be adequate. Any renewal or extension or release of any person, may be made
without notice to any of such parties and without affecting their liability.
THE LOAN DOCUMENTS, INCLUDING THIS NOTE, HAVE BEEN PREPARED, ARE BEING
EXECUTED AND DELIVERED, AND ARE INTENDED TO BE PERFORMED IN THE STATE OF TEXAS,
AND THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE
CONFLICTS-OF-LAW RULES AND PRINCIPLES OF THE STATE OF TEXAS, AND THE APPLICABLE
LAWS OF THE U.S. SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF THIS NOTE, AND THE LOAN DOCUMENTS.
This note shall become due and payable, at the option of the holder
hereof, on the occurrence of a Default under the Credit Agreement or any other
Loan Document.
This note is given in renewal and extension, and not in novation, of the
note described in the Credit Agreement dated March 6, 1997.
_________________________________
Signed for Identification
PROMISSORY NOTE
$7,000,000.00 August 8, 1997
-4-
THE WRITTEN CREDIT AGREEMENT, THE LOAN DOCUMENTS DESCRIBED THEREIN AND
THIS NOTE REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
THE SAFE SEAL COMPANY, INC.
BY: _____________________________
XXXXXXX X. XXXXXXXX
SENIOR VICE PRESIDENT
_________________________________
Signed for Identification
Exhibit 6.1.C
Confirmation of Guaranty Agreement
August 8, 0000
Xxxxx Xxxxxxxx Bank National Association
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Re: Guaranty Agreement (the "Guaranty Agreement") dated March 6, 1997,
executed by ALLWASTE, INC. in favor of Texas Commerce Bank National
Association (the "Bank") of loans (the "Loans") by the Bank to The
Safe Seal Company, Inc. (the "Borrower")
Gentlemen:
Reference is made to the Guaranty Agreement pursuant to which the Guarantor
guaranteed the performance and payment of the Obligations therein described. It
is understood and agreed that the Borrower and the Bank are entering into an
Amendment to Credit Agreement (the "First Amendment").
The Borrower has executed and delivered to the Bank and, the Bank, in reliance
upon the terms of the Guaranty Agreement, has accepted a renewal promissory note
(the "Renewal Note") dated August 8, 1997. Pursuant to and in accordance with
the terms of the Guaranty Agreement, ALLWASTE, INC. confirms and agrees that the
Guaranty Agreement applies and shall continue to apply to all Obligations of the
Borrower in connection with the Loans, as modified in the First Amendment and
the Renewal Note, limited only as set out in the Guaranty Agreement.
Respectfully,
ALLWASTE, INC.
BY: _______________________
XXXXXXX X. XXXXXXX
VICE PRESIDENT
