Exhibit 10.1.2
Annex A (Recitals)
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to
CREDIT AGREEMENT
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DEFINITIONS
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Capitalized terms used in the Loan Documents shall have
(unless otherwise provided elsewhere in the Loan Documents) the
following respective meanings and all references to Sections,,
Exhibits, Schedules or Annexes in the following definitions shall
refer to Sections, Exhibits, Schedules or Annexes of or to the
Agreement:
"Account Debtor" shall mean any Person who may become
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obligated to any Credit Party under, with respect to, or on
account of, an Account.
"Accounting Changes" has the meaning ascribed thereto
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in Annex G.
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"Accounts" shall mean collectively the Canadian
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Accounts and US Accounts.
"Acquisition Pro Forma" shall have the meaning assigned
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to it in Section 6.1(ix)(A).
"Acquisition Projections" shall have the meaning
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assigned to it in Section 6.1(ix)(B).
"Advance" shall mean any Revolving Credit Advance.
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"AEC Funding" shall mean AEC Funding Corp., a Delaware
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corporation.
"AEC Funding Borrowing Base" shall mean for AEC Funding
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only, as of any date of determination by Agent, from time to
time, an amount equal to the sum, expressed in Canadian Dollars
(except as otherwise provided for in the Agreement) at such time
of:
(a) up to eighty-five percent (85%) of the book value
of Eligible Accounts (other than Eligible Incomplete Cost Plus
Contract Accounts) owned by the Canadian Subsidiaries, less any
Reserves established by Agent at such time; and
(b) up to fifty percent (50%) of the book value of the
Eligible Incomplete Cost Plus Contract Accounts owned by the
Canadian Subsidiaries, less any Reserves established by Agent at
such time.
"Affected Lender" shall have the meaning assigned to it
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in Section 1.15(c).
"Affiliate" shall mean, with respect to any Person, (a)
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each Person that, directly or indirectly, owns or controls,
whether beneficially, or as a trustee, guardian or other
fiduciary, ten percent (10%) or more of the Stock having ordinary
voting power in the election of directors of such Person, (b)
each Person that controls, is controlled by or is under common
control with such Person, (c) each of such Person's officers,
directors, joint venturers and partners and (d) in the case of
any Credit Party, the immediate family members, spouses and
lineal descendants of individuals who are Affiliates of any
Credit Party. For the purposes of this definition, "control" of
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a Person shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by
contract or otherwise; provided, however, that the term
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"Affiliate" shall specifically exclude Agent and each Lender.
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"Agent" shall mean GE Capital or its successor
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appointed pursuant to Section 9.7.
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"Aggregate Borrowing Base" shall mean, as of any date
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of determination, an amount equal to the sum of the Domestic
Borrowers Borrowing Base and the US Dollar Amount of the AEC
Funding Borrowing Base.
"Agreement" shall mean the Credit Agreement by and
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among Borrowers, the other Credit Parties named therein, GE
Capital, as Agent and Lender and the other Lenders signatory from
time to time to the Agreement.
"Appendices" shall have the meaning assigned to it in
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the recitals to the Agreement.
"Applicable BA Rate Margin" shall mean the per annum
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interest rate from time to time in effect and payable in addition
to the BA Rate applicable to the Revolving Loan, as determined by
reference to Section 1.5(a).
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"Applicable L/C Margin" shall mean the per annum fee,
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from time to time in effect, payable with respect to outstanding
Letter of Credit Obligations as determined by reference to
Section 1.5(a).
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"Applicable Margins" means collectively the Applicable
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L/C Margin, the Applicable Unused Line Fee Margin, the Applicable
BA Rate Margin and the Applicable Revolver Index Margin.
"Applicable Percentage" shall have the meaning assigned
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to it in Section 1.8(c).
"Applicable Revolver Index Margin" shall mean the per
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annum interest rate margin from time to time in effect and
payable in addition to the Index Rate applicable to the Revolving
Loan, as determined by reference to Section 1.5(a) of the
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Agreement.
"Applicable Unused Line Fee Margin" shall mean the per
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annum fee, from time to time in effect, payable in respect to
Borrowers' non-use of committed funds pursuant to Section 1.8(b),
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which fee is determined by reference to Section 1.5(a).
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"Assignment Agreement" shall have the meaning assigned
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to it in Section 9.1(a).
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"Bankruptcy Code" shall mean the provisions of Title 11
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of the United States Code, 11 U.S.C. Sections 101 et. seq.
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"BA Rate" shall mean the rate per annum determined by
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Agent by reference to the average rate quoted on the Reuters
Monitor Screen (Page CDOR, or such other Page as may replace such
Page on such Screen for the purpose of displaying Canadian
interbank bid rates for Canadian dollar bankers' acceptances)
applicable to Canadian dollar bankers' acceptances with a term of
30 days as of 10:00 a.m. (Toronto time) one Business Day before
the Closing Date in respect of the period from and including the
Closing Date to the last day of the month in which the Closing
Date occurs, and, thereafter, one Business Day before the first
day of each month in respect of that month. If for any reason
the Reuters Monitor Screen rates are unavailable, BA Rate means
the rate of interest determined by Agent which is equal to the
arithmetic mean (rounded upwards to the nearest basis point) of
the rates quoted by The Bank of Nova Scotia, Royal Bank of Canada
and Canadian Imperial Bank of Commerce in respect of Canadian
Dollar bankers' acceptances with a term comparable to such BA
Period as of 10:00 a.m. (Toronto time) one Business Day before
the Closing Date in respect of the period from and including the
Closing Date to the last day of the month in which the Closing
Date occurs, and, thereafter, one Business Day before the first
day of each month in respect of that month. For greater
certainty, no adjustment shall be made to account for the
difference between the number of days in a year on which the
rates referred to in this definition are based and the number of
days in a year on the basis of which interest is calculated in
the Agreement.
"BA Rate Loans" shall mean a Loan or portion thereof
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bearing interest by reference to the BA Rate.
"Borrower" and "Borrowers" shall have the respective
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meanings assigned thereto in the recitals to the Agreement.
"Borrower Accounts" shall have the meaning assigned to
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it in Annex C.
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"Borrower Groups" shall mean, individually and
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collectively, the Xxxxxx Group; the United Eco Group; the
Industra Service Group and the Chempower Group.
"Borrower Representative" shall mean Holdings in its
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capacity as Borrower Representative pursuant to the provisions of
Section 1.1(b).
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"Borrowing Availability" shall have the meaning
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assigned to it in Section 1.1(a)(i).
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"Borrowing Base" shall mean, as the context may
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require, each of the Domestic Borrowers Borrowing Base, the AEC
Funding Borrowing Base or any or all of them.
"Borrowing Base Certificate" shall mean a certificate
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to be executed and delivered from time to time by each Borrower
Group, AEC Funding and Specialty, respectively, in the form
attached to the Agreement as Exhibit 4.1(b).
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"Business Day" shall mean any day that is not a
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Saturday, a Sunday or a day on which banks are required or
permitted to be closed in the State of New York.
"Canadian Accounts" shall mean all "accounts," as such
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term is defined in the PPSA, now owned or hereafter acquired by
any Credit Party and, in any event, including (a) all accounts
receivable, other receivables, book debts, claims and other forms
of obligations (other than forms of obligations evidenced by
chattel paper, securities or Instruments) now owned or hereafter
received or acquired by or belonging or owing to any Credit
Party, whether arising out of goods sold or services rendered by
it or from any other transaction (including any such obligations
which may be characterized as an account or contract right under
the PPSA), (b) all of each Credit Party's rights in, to and under
all purchase orders or receipts now owned or hereafter acquired
by it for goods or services, (c) all of each Credit Party's
rights to any goods represented by any of the foregoing
(including unpaid sellers' rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned,
reclaimed or repossessed goods), (d) all monies due or to become
due to any Credit Party, under all purchase orders and contracts
for the sale of goods or the performance of services or both by
such Credit Party or in connection with any other transaction
(whether or not yet earned by performance on the part of such
Credit Party) now or hereafter in existence, including the right
to receive the proceeds of said purchase orders and contracts,
and (e) all collateral security and guarantees of any kind, now
or hereafter in existence, given by any Person with respect to
any of the foregoing.
"Canadian Benefit Plans" shall mean all material
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employee benefit plans of any nature of kind whatsoever that are
not Canadian Pension Plans and are maintained or contributed to
by any Credit Party having employees in Canada.
"Canadian Collateral Documents" shall mean each
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Security Agreement of even date herewith entered into between
Agent, on behalf of itself and Lenders, and each of the Canadian
Subsidiaries, Holdings, Nucon and Energy, respectively.
"Canadian Collection Account" shall mean that certain
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account of Agent, account number 101527 in the name of Agent at
Royal Bank of Canada in Toronto, Ontario or such other account as
may be specified in writing by Agent as the "Canadian Collection
Account".
"Canadian Dollars" or "C$" shall mean the lawful
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currency of Canada.
"Canadian Pension Plans" shall mean each plan which is
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considered to be a pension plan for the purposes of any
applicable pension benefits standards statute and/or regulation
in Canada established, maintained or contributed to by any Credit
Party for its employees or former employees.
"Canadian Subsidiaries" shall mean, individually and
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collectively, MM Industra Limited, a Nova Scotia corporation;
Industra Service Corporation, a British Columbia corporation; and
Industra Thermal Service Corporation, a British Columbia
corporation.
"Capital Expenditures" shall mean, with respect to any
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Person, all expenditures (by the expenditure of cash or the
incurrence of Indebtedness) by such Person during any measuring
period for any fixed assets or improvements or for replacements,
substitutions or additions thereto, that have a useful life of
more than one year and that are required to be capitalized under
GAAP.
"Capital Lease" shall mean, with respect to any Person,
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any lease of any property (whether real, personal or mixed) by
such Person as lessee that, in accordance with GAAP, would be
required to be classified and accounted for as a capital lease on
a balance sheet of such Person.
"Capital Lease Obligation" shall mean, with respect to
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any Capital Lease of any Person, the amount of the obligation of
the lessee thereunder that, in accordance with GAAP, would appear
on a balance sheet of such lessee in respect of such Capital
Lease.
"Cash Collateral Account" has the meaning assigned to
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it in Annex B.
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"Cash Equivalents" has the meaning assigned to it in
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Annex B.
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"Cash Management Systems" shall have the meaning
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assigned to it in Section 1.7.
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"Change of Control" means any of the following: (a)
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any person or group of persons (within the meaning of the
Securities Exchange Act of 1934), shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934,) of twenty percent (20%) or more of the issued and
outstanding shares of capital Stock of Holdings having the right
to vote for the election of directors of Holdings under ordinary
circumstances; (b) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period
constituted the board of directors of Holdings (together with any
new directors whose election by the board of directors of
Holdings or whose nomination for election by the Stockholders of
Holdings was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose elections or nomination for
election was previously so approved) cease for any reason other
than death or disability to constitute a majority of the
directors then in office, (c) except as expressly permitted
hereunder, Holdings shall cease to directly or indirectly own and
control all of the economic and voting rights associated with all
of the outstanding capital Stock of any of its Subsidiaries or
(d) except as expressly permitted hereunder, any Borrower shall
cease to directly or indirectly own and control all of the
economic and voting rights associated with all of the outstanding
capital Stock of any of its Subsidiaries or (e) the occurrence of
a "Change of Control" as said quoted term is defined in the
Indenture.
"Charges" shall mean all federal, state, county, city,
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municipal, local, foreign or other governmental taxes (including
taxes owed to the PBGC at the time due and payable), levies,
assessments, charges, liens, claims or encumbrances upon or
relating to (a) the Collateral, (b) the Obligations, (c) the
employees, payroll, income or gross receipts of any Credit Party,
(d) any Credit Party's ownership or use of any properties or
other assets, or (e) any other aspect of any Credit Party's
business.
"Chattel Paper" shall mean any "chattel paper," as such
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term is defined in the Code, now owned or hereafter acquired by
any Credit Party, wherever located.
"Chempower Group" shall mean collectively, Chempower,
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Inc., an Ohio corporation; Global Power Company, an Ohio
corporation; Brookfield Corporation, an Ohio corporation;
Southwick Corporation, an Ohio corporation; and Controlled Power
Limited Partnership, an Illinois limited partnership.
"Closing Date" shall mean May 7, 1999.
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"Closing Checklist" shall mean the schedule, including
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all appendices, exhibits or schedules thereto, listing certain
documents and information to be delivered in connection with the
Agreement, the other Loan Documents and the transactions
contemplated thereunder, substantially in the form attached
hereto as Annex D.
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"Code" shall mean the Uniform Commercial Code as the
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same may, from time to time, be enacted and in effect in the
State of New York; provided, however, in the event that, by
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reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect
to, Agent's or any Lender's security interest in any Collateral
is governed by the Uniform Commercial Code as enacted and in
effect in a jurisdiction other than the State of New York, the
term "Code" shall mean the Uniform Commercial Code as enacted and
in effect in such other jurisdiction solely for purposes of the
provisions hereof relating to such attachment, perfection,
priority or remedies and for purposes of definitions related to
such provisions.
"Collateral" shall mean the property covered by the
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Security Agreement and the other Collateral Documents, and any
other property, tangible or intangible, now existing or hereafter
acquired, that may at any time be or become subject to a security
interest or Lien in favor of Agent, on behalf of itself and
Lenders, to secure the Obligations.
"Collateral Documents" shall mean the Security
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Agreement, the Canadian Collateral Documents, the Guaranties and
all similar agreements entered into guaranteeing payment of, or
granting a Lien upon property as security for payment of, the
Obligations.
"Collateral Reports" shall mean the reports with
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respect to the Collateral referred to in Annex F.
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"Collection Account" shall mean the Canadian Collection
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Account or the US Collection Account or both of them.
"Commitment Termination Date" shall mean the earliest
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of (a) the Stated Expiry Date, (b) the date of termination of
Lenders' obligations to make Advances and/or incur Letter of
Credit Obligations or permit existing Loans to remain outstanding
pursuant to Section 8.2(b), and (c) the date of indefeasible
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prepayment in full by Borrowers of the Loans and the cancellation
and return (or stand-by guarantee) of all Letters of Credit or
the cash collateralization of all Letter of Credit Obligations
pursuant to Annex B, and the permanent reduction of the Revolving
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Loan Commitment to zero dollars ($0).
"Commitments" shall mean (a) as to any Lender, the
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aggregate of such Lender's Revolving Loan Commitment or in the
most recent Assignment Agreement executed by such Lender and (b)
as to all Lenders, the aggregate of all Lenders' Revolving Loan
Commitments, which aggregate commitment shall be Thirty Million
US Dollars ($30,000,000) on the Closing Date, as to each of
clauses (a) and (b), as such Commitments may be reduced or
adjusted from time to time in accordance with the Agreement.
"Compliance Certificate" shall have the meaning
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assigned to it in Annex E.
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"Concentration Accounts" shall have the meaning
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assigned to it in Annex C.
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"Consultants" shall mean Industra Engineers &
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Consultants, Inc., a British Columbia corporation.
"Contracts" shall mean all "contracts," as such term is
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defined in the Code, now owned or hereafter acquired by any
Credit Party, in any event, including all contracts,
undertakings, or agreements (other than rights evidenced by
Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or
interest, including any agreement relating to the terms of
payment or the terms of performance of any Account.
"Copyrights" shall mean all of the following now owned
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or hereafter adopted or acquired by any Credit Party: (a) all
copyrights and General Intangibles of like nature (whether
registered or unregistered), all registrations and recordings
thereof, and all applications in connection therewith, including
all registrations, recordings and applications in the United
States Copyright Office or in any similar office or agency of the
United States, any state or territory thereof, or any other
country or any political subdivision thereof, and (b) all
reissues, extensions or renewals thereof.
"Credit Parties" shall mean each Borrower and the
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Guarantors.
"Current Assets" shall mean, with respect to any
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Person, all current assets of such Person as of any date of
determination calculated in accordance with GAAP, but excluding
cash, cash equivalents and debts due from Affiliates.
"Current Liabilities" shall mean, with respect to any
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Person, all liabilities which should, in accordance with GAAP, be
classified as current liabilities, and in any event shall include
all Indebtedness payable on demand or within one year from any
date of determination without any option on the part of the
obligor to extend or renew beyond such year, all accruals for
federal or other taxes based on or measured by income and payable
within such year, and the current portion of long-term debt
required to be paid within one year, but excluding, in the case
of Borrowers, the aggregate outstanding principal balances of the
Revolving Loan.
"Default" shall mean any event which, with the passage
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of time or notice or both, would, unless cured or waived, become
an Event of Default.
"Default Rate" shall have the meaning assigned to it in
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Section 1.5(d).
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"Disbursement Accounts" shall have the meaning assigned
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to it on Annex C.
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"Disclosure Schedules" shall mean the Schedules
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prepared by Borrowers and denominated as Disclosure Schedules
herein and as Schedules in the Index to the Agreement.
"Documents" shall mean any "documents," as such term is
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defined in the Code, now owned or hereafter acquired by any
Credit Party, wherever located.
"Dollars" or "US Dollars" or "$" shall mean lawful
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currency of the United States of America.
"Domestic Borrowers" shall mean, individually and
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collectively, the Borrower Groups, Specialty and SRS.
"Domestic Borrowers Borrowing Base" shall mean for each
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respective Borrower Group (determined, as to each such Borrower
Group, on a consolidated basis), SRS and Specialty, as of any
date of determination by Agent, from time to time, an amount
equal to the sum at such time of:
(a) up to eighty-five percent (85%) of the book value
of each such respective Domestic Borrower's Eligible Accounts
(other than Eligible Incomplete Cost Plus Contract Accounts),
less any Reserves established by Agent at such time; and
(b) up to fifty percent (50%) of the book value of
each such respective Domestic Borrower's Eligible Incomplete Cost
Plus Contract Accounts less any Reserves established by Agent at
such time.
"EBITDA" shall mean, with respect to any Person for any
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fiscal period, without duplication, an amount equal to (a)
consolidated net income of such Person for such period, minus (b)
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the sum of (i) income tax credits, (ii) interest income, (iii)
gain from extraordinary items for such period, (iv) any aggregate
net gain (but not any aggregate net loss) during such period
arising from the sale, exchange or other disposition of capital
assets by such Person (including any fixed assets, whether
tangible or intangible, all inventory sold in conjunction with
the disposition of fixed assets and all securities), and (v) any
other non-cash gains which have been added in determining
consolidated net income, in each case to the extent included in
the calculation of consolidated net income of such Person for
such period in accordance with GAAP, but without duplication,
plus (c) the sum of (i) any provision for income taxes, (ii)
Interest Expense, (iii) loss from extraordinary items for such
period, (iv) the amount of non-cash charges (including
depreciation and amortization) for such period, (v) amortized
debt discount for such period, and (vi) the amount of any
deduction to consolidated net income as the result of any grant
to any members of the management of such Person of any Stock, in
each case to the extent included in the calculation of
consolidated net income of such Person for such period in
accordance with GAAP, but without duplication. For purposes of
this definition, the following items shall be excluded in
determining consolidated net income of a Person: (1) the income
(or deficit) of any other Person accrued prior to the date it
became a Subsidiary of, or was merged or consolidated into, such
Person or any of such Person's Subsidiaries; (2) the income (or
deficit) of any other Person (other than a Subsidiary) in which
such Person has an ownership interest, except to the extent any
such income has actually been received by such Person in the form
of cash dividends or distributions; (3) the undistributed
earnings of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by
such Subsidiary is not at the time permitted by the terms of any
contractual obligation or requirement of law applicable to such
Subsidiary; (4) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was
made out of income accrued during such period; (5) any write-up
of any asset; (6) any net gain from the collection of the
proceeds of life insurance policies; (7) any net gain arising
from the acquisition of any securities, or the extinguishment,
under GAAP, of any Indebtedness, of such Person, (8) in the case
of a successor to such Person by consolidation or merger or as a
transferee of its assets, any earnings of such successor prior to
such consolidation, merger or transfer of assets, and (9) any
deferred credit representing the excess of equity in any
Subsidiary of such Person at the date of acquisition of such
Subsidiary over the cost to such Person of the investment in such
Subsidiary.
"Eligible Accounts" shall have the meaning assigned to
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it in Section 1.6.
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"Eligible Incomplete Cost Plus Contract Accounts" shall
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mean all Accounts that arise under a Contract for a specific
project, (a) which Contract provides for periodic billing for
time and materials, (b) which specific project is not yet
complete, and (c) which Accounts, notwithstanding the criteria
set forth in Section 1.6(b) of the Agreement, Agent, in its
reasonable credit judgment, determines to be an Eligible Account
under Section 1.6 of the Agreement.
"Energy" shall mean Canadian Energy Service Limited, a
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British Columbia corporation.
"Energy Guaranty" shall mean the guaranty of even date
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herewith executed by Energy in favor of Agent and Lenders.
"Environmental Laws" shall mean all applicable federal,
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state, local and foreign laws, statutes, ordinances, codes,
rules, standards, orders-in-council and regulations, now or
hereafter in effect, and any applicable judicial or
administrative interpretation thereof, including any applicable
judicial or administrative order, consent decree, order or
judgment, imposing liability or standards of conduct for or
relating to the regulation and protection of human health,
safety, the environment and natural resources (including ambient
air, surface water, groundwater, wetlands, land surface or
subsurface strata, wildlife, aquatic species and vegetation).
Environmental Laws include the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
Sections 9601 et seq.) ("CERCLA"); the Hazardous Materials
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Transportation Authorization Act of 1994 (49 U.S.C. Section 5101
et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act
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(7 U.S.C. Sections 136 et seq.); the Solid Waste Disposal Act (42
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U.S.C. Sections 6901 et seq.); the Toxic Substance Control Act
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(15 U.S.C. Sections 2601 et seq.); the Clean Air Act (42 U.S.C.
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Sections 7401 et seq.); the Federal Water Pollution Control Act
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(33 U.S.C. Sections 1251 et seq.); the Occupational Safety and
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Health Act (29 U.S.C. Sections 651 et seq.); and the Safe
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Drinking Water Act (42 U.S.C. Sections 300(f) et seq.), and any
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and all regulations promulgated thereunder, and all analogous
state, local and foreign counterparts or equivalents and any
transfer of ownership notification or approval statutes.
"Environmental Liabilities" shall mean, with respect to
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any Person, all liabilities, obligations, responsibilities,
response, remedial and removal costs, investigation and
feasibility study costs, capital costs, operation and maintenance
costs, losses, damages, punitive damages, property damages,
natural resource damages, consequential damages, treble damages,
costs and expenses (including all fees, disbursements and
expenses of counsel, experts and consultants), fines, penalties,
sanctions and interest incurred as a result of or related to any
claim, suit, action, investigation, proceeding or demand by any
Person, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute or common
law, including any arising under or related to any Environmental
Laws, Environmental Permits, or in connection with any Release or
threatened Release or presence of a Hazardous Material whether
on, at, in, under, from or about or in the vicinity of any real
or personal property.
"Environmental Permits" shall mean all permits,
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licenses, authorizations, certificates, approvals or
registrations required by any Governmental Authority under any
Environmental Laws.
"Equipment" shall mean all "equipment," as such term is
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defined in the Code, now owned or hereafter acquired by any
Credit Party, wherever located and, in any event, including all
such Credit Party's machinery and equipment, including processing
equipment, conveyors, machine tools, data processing and computer
equipment with software and peripheral equipment, and all
engineering, processing and manufacturing equipment, office
machinery, furniture, materials handling equipment, tools,
attachments, accessories, automotive equipment, trailers, trucks,
forklifts, molds, dies, stamps, motor vehicles, rolling stock and
other equipment of every kind and nature, fixtures and fixtures
not forming a part of real property, together with all additions
and accessions thereto, replacements therefor, all parts
therefor, all substitutes for any of the foregoing, fuel
therefor, and all manuals, drawings, instructions, warranties and
rights with respect thereto, and all products and proceeds
thereof and condemnation awards and insurance proceeds with
respect thereto.
"Equivalent Amount" shall mean, on any date of
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determination, with respect to obligations or valuations
denominated in one currency (the "first currency"), the amount of
another currency (the "second currency") which would result from
the conversion of the relevant amount of the first currency into
the second currency at the 12:00 noon rate quoted on the Reuters
Monitors Screen (Page BOFC or such other Page as may replace such
Page for the purpose of displaying such exchange rates) on such
date or, if such date is not a Business Day, on the Business Day
immediately preceding such date of determination, or at such
other rate as may have been agreed in writing between Borrower
Representative and Agent.
"ERISA" shall mean the Employee Retirement Income
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Security Act of 1974 (or any successor legislation thereto), as
amended from time to time, and any regulations promulgated
thereunder.
"ERISA Affiliate" shall mean, with respect to any
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Credit Party, any trade or business (whether or not incorporated)
which, together with such Credit Party, are treated as a single
employer within the meaning of Sections 414(b), (c), (m) or (o)
of the IRC.
"ERISA Event" shall mean, with respect to any Credit
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Party or any ERISA Affiliate, (a) any event described in Section
4043(c) of ERISA with respect to a Title IV Plan; (b) the
withdrawal of any Credit Party or ERISA Affiliate from a Title IV
Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (c) the complete or partial withdrawal of any Credit
Party or any ERISA Affiliate from any Multiemployer Plan; (d) the
filing of a notice of intent to terminate a Title IV Plan or the
treatment of a plan amendment as a termination under Section 4041
of ERISA; (e) the institution of proceedings to terminate a Title
IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any
Credit Party or ERISA Affiliate to make when due required
contributions to a Multiemployer Plan or Title IV Plan unless
such failure is cured within 30 days; (g) any other event or
condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Title IV Plan or
Multiemployer Plan or for the imposition of liability under
Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section 4041A of ERISA or the
reorganization or insolvency of a Multiemployer Plan under
Section 4241 of ERISA; or (i) the loss of a Qualified Plan's
qualification or tax exempt status; or (j) the termination of a
Plan described in Section 4064 of ERISA.
"ESOP" shall mean a Plan which is intended to satisfy
----
the requirements of Section 4975(e)(7) of the IRC.
"Event of Default" shall have the meaning assigned to
----------------
it in Section 8.1.
-----------
"Fair Labor Standards Act" shall mean the Fair Labor
------------------------
Standards Act, 29 U.S.C. Section 201 et seq.
------
"Federal Funds Rate" shall mean, for any day, a
------------------
floating rate equal to the weighted average of the rates on
overnight Federal funds transactions among members of the Federal
Reserve System, as determined by Agent.
"Federal Reserve Board" means the Board of Governors of
---------------------
the Federal Reserve System, or any successor thereto.
"Fees" shall mean any and all fees payable to Agent or
----
any Lender pursuant to the Agreement or any of the other Loan
Documents.
"Financial Covenants" means the financial covenants set
-------------------
forth in Annex G.
-------
"Financial Statements" shall mean the consolidated and
--------------------
consolidating income statements, statements of cash flows and
balance sheets of Borrowers delivered in accordance with Section
-------
3.4 of the Agreement and Annex E to the Agreement.
--- -------
"Fiscal Month" shall mean any of the monthly accounting
------------
periods of Borrowers.
"Fiscal Quarter" shall mean any of the quarterly
--------------
accounting periods of Borrowers, ending on February 28, May 31,
August 31 and November 30 of each year.
"Fiscal Year" shall mean any of the annual accounting
-----------
periods of Borrowers ending on November 30 of each year.
"Fixtures" shall mean any "fixtures" as such term is
--------
defined in the Code, now owned or hereafter acquired by any
Credit Party.
"Funded Debt" shall mean, with respect to any Person,
-----------
without duplication, all Indebtedness for borrowed money
evidenced by notes, bonds, debentures, or similar evidences of
Indebtedness and which by its terms matures more than one year
from, or is directly or indirectly renewable or extendible at
such Person's option under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over
a period of more than one year from the date of creation thereof,
and specifically including Capital Lease Obligations, current
maturities of long-term debt, revolving credit and short-term
debt extendible beyond one year at the option of the debtor, and
also including, in the case of Borrowers, the Obligations and,
without duplication, Guaranteed Indebtedness consisting of
guaranties of Funded Debt of other Persons.
"GAAP" shall mean generally accepted accounting
----
principles in Canada consistently applied, as such term is
further defined in Annex G to the Agreement.
-------
"GE Capital" shall mean General Electric Capital
----------
Corporation, a New York corporation.
"GE Capital Fee Letter" shall mean that certain letter,
---------------------
dated as of May 7, 1999, between GE Capital and Borrowers with
respect to certain Fees to be paid from time to time by Borrowers
to GE Capital.
"General Intangibles" shall mean any "general
-------------------
intangibles," as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, and, in any event,
including all right, title and interest which such Credit Party
may now or hereafter have in or under any Contract, all customer
lists, Licenses, Copyrights, Trademarks, Patents, and all
applications therefor and reissues, extensions or renewals
thereof, rights in Intellectual Property, interests in
partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or
confidential information, inventions (whether or not patented or
patentable), technical information, procedures, designs,
knowledge, know-how, software, data bases, data, skill,
expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any
Trademark or Trademark License), all rights and claims in or
under insurance policies (including insurance for fire, damage,
loss and casualty, whether covering personal property, real
property, tangible rights or intangible rights, all liability,
life, key man and business interruption insurance, and all
unearned premiums), uncertificated securities, choses in action,
deposit, checking and other bank accounts, rights to receive tax
refunds and other payments, rights of indemnification, all books
and records, correspondence, credit files, invoices and other
papers, including without limitation all tapes, cards, computer
runs and other papers and documents in the possession or under
the control of such Credit Party or any computer bureau or
service company from time to time acting for such Credit Party.
"Governmental Authority" shall mean any nation or
----------------------
government, any state, province, or other political subdivision
thereof, and any agency, department or other entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Indebtedness" shall mean, as to any Person,
-----------------------
any obligation of such Person guaranteeing any indebtedness,
lease, dividend, or other obligation ("primary obligations") of
any other Person (the "primary obligor") in any manner, including
any obligation or arrangement of such Person (a) to purchase or
repurchase any such primary obligation, (b) to advance or supply
funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor,
(c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation, or (d) to indemnify the owner of such primary
obligation against loss in respect thereof. The amount of any
Guaranteed Indebtedness at any time shall be deemed to be an
amount equal to the lesser at such time of (x) the stated or
determinable amount of the primary obligation in respect of which
such Guaranteed Indebtedness is made and (y) the maximum amount
for which such Person may be liable pursuant to the terms of the
instrument embodying such Guaranteed Indebtedness; or, if not
stated or determinable, the maximum reasonably anticipated
liability (assuming full performance) in respect thereof.
"Guaranties" shall mean, collectively, the Holdings
----------
Guaranty, each Subsidiary Guaranty, the Nucon Guaranty, the
Energy Guaranty, each guarantee of each Canadian Subsidiary and
any other guaranty executed by any Guarantor in favor of Agent
and Lenders in respect of the Obligations.
"Guarantors" shall mean Holdings, the Canadian
----------
Subsidiaries, the Subsidiary Guarantors, Nucon, Energy and each
other Person, if any, which executes a guarantee or other similar
agreement in favor of Agent and Lenders in connection with the
transactions contemplated by the Agreement and the other Loan
Documents.
"Hazardous Material" shall mean any substance, material
------------------
or waste which is regulated by or forms the basis of liability
now or hereafter under, any Environmental Laws, including any
material or substance which is (a) defined as a "solid waste,"
"hazardous waste," "hazardous material," "hazardous substance,"
"dangerous good", "extremely hazardous waste," "restricted
hazardous waste," "pollutant," "contaminant," "hazardous
constituent," "special waste," "toxic substance" or other similar
term or phrase under any Environmental Laws, (b) petroleum or any
fraction or by-product thereof, asbestos, polychlorinated
biphenyls (PCB's), or any radioactive substance.
"Holdings" shall mean American Eco Corporation, an
--------
Ontario corporation.
"Holdings Guaranty" shall mean the guaranty of even
-----------------
date herewith executed by Holdings in favor of Agent and Lenders.
"Indebtedness" of any Person shall mean without
------------
duplication (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property payment for
which is deferred six (6) months or more, but excluding
obligations to trade creditors incurred in the ordinary course of
business that are not overdue by more than six (6) months unless
being contested in good faith, (b) all reimbursement and other
obligations with respect to letters of credit, bankers'
acceptances and surety bonds, whether or not matured, (c) all
obligations evidenced by notes, bonds, debentures or similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations and the present
value (discounted at the Index Rate as in effect on the Closing
Date) of future rental payments under all synthetic leases, (f)
all obligations of such Person under commodity purchase or option
agreements or other commodity price hedging arrangements, in each
case whether contingent or matured, (g) all obligations of such
Person under any foreign exchange contract, currency swap
agreement, interest rate swap, cap or collar agreement or other
similar agreement or arrangement designed to alter the risks of
that Person arising from fluctuations in currency values or
interest rates, in each case whether contingent or matured, (h)
all Indebtedness referred to above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property or
other assets (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, and (i) the
Obligations.
"Indemnified Liabilities" shall have the meaning
-----------------------
assigned to it in Section 1.12.
------------
"Indemnified Person" shall have the meaning assigned to
------------------
in Section 1.12.
------------
"Indenture" shall mean that certain Indenture dated as
---------
of May 21, 1998 by and among Holdings, the guarantors listed on
the signature page thereto and State Street Bank and Trust
Company, as trustee.
"Indenture Debt" shall mean the Indebtedness of any
--------------
Credit Party under the Indenture whether evidenced by the
Original Notes (as defined in the Indenture) or otherwise.
"Index Rate" shall mean the latest rate for 30-day
----------
dealer placed commercial paper (which for purposes hereof shall
mean high grade unsecured notes sold through dealers by major
corporations in multiples of $1,000) which normally is published
in the "Money Rates" section of The Wall Street Journal (or if
-----------------------
such rate ceases to be so published, as quoted from such other
generally available and recognizable source as Lender may
select). The Index Rate shall be determined based upon the Index
Rate as in effect each day and each change in any interest rate
provided for in the Agreement based upon the Index Rate shall
take effect at the time of such change in the Index Rate.
"Index Rate Loan" shall mean a Loan or portion thereof
---------------
bearing interest by reference to the Index Rate.
"Industra Service Group" shall mean, collectively,
----------------------
Industra, Inc., a Washington corporation; and Industra Service
Corp., a Washington corporation.
"Insolvency Laws" shall mean any of the Bankruptcy and
---------------
Insolvency Act (Canada), the Companies' Creditors Arrangement Act
(Canada), and Title 11 of the United States Code, each as now and
hereafter in effect, any successors to such statutes and any
other applicable insolvency or other similar law of any
jurisdiction permitting a debtor to obtain a stay or a compromise
of the claims of its creditors against it.
"Instruments" shall mean any "instrument," as such term
-----------
is defined in the Code, now owned or hereafter acquired by any
Person, wherever located, and, in any event, including all
certificated securities, all certificates of deposit, and all
notes and other, without limitation, evidences of indebtedness,
other than instruments that constitute, or are a part of a group
of writings that constitute, Chattel Paper.
"Intellectual Property" shall mean any and all
---------------------
Licenses, Patents, Copyrights, Trademarks,and the good will
associated with such Trademarks.
"Interest Coverage Ratio" shall mean, with respect to
-----------------------
any Person for any period, the ratio of EBITDA to Interest
Expense.
"Interest Expense" shall mean, with respect to any
----------------
Person for any fiscal period, interest expense (whether cash or
non-cash) of such Person determined in accordance with GAAP for
the relevant period ended on such date, including, in any event,
interest expense with respect to any Funded Debt of such Person
and interest expense for the relevant period that has been
capitalized on the balance sheet of such Person.
"Interest Payment Date" means the first Business Day of
---------------------
each month to occur while such Loan is outstanding, and provided
--------
that, in addition to the foregoing, each of (a) the date upon
----
which all of the Commitments have been terminated and the Loans
have been paid in full and (b) the Commitment Termination Date
shall be deemed to be an "Interest Payment Date" with respect to
any interest which is then accrued under the Agreement.
"Inventory" shall mean any "inventory," as such term is
---------
defined in the Code, now or hereafter owned or acquired by any
Credit Party, wherever located, and in any event including
inventory, merchandise, goods and other personal property which
are held by or on behalf of any Credit Party for sale or lease or
are furnished or are to be furnished under a contract of service,
or which constitute raw materials, work in process or materials
used or consumed or to be used or consumed in such Credit Party's
business or in the processing, production, packaging, promotion,
delivery or shipping of the same, including other supplies.
"Investment Property" shall mean all "investment
-------------------
property" as such term is defined in Section 9-115 of the Code in
those jurisdictions in which such definition has been adopted now
owned or hereafter acquired by any Credit Party, wherever
located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited
liability companies, partnership interests, treasuries,
certificates of deposit, and mutual fund shares; (ii) all
securities entitlements of any Credit Party, including the rights
of any Credit Party to any securities account and the financial
assets held by a securities intermediary in such securities
account and any free credit balance or other money owing by any
securities intermediary with respect to that account; (iii) all
securities accounts held by any Credit Party; (iv) all commodity
contracts held by any Credit Party; and (v) all commodity
accounts held by any Credit Party.
"IRC" shall mean the Internal Revenue Code of 1986, as
---
amended, and all regulations promulgated thereunder.
"IRS" shall mean the Internal Revenue Service.
---
"ITA" shall mean the Income Tax Act (Canada), as
---
amended, and all regulations promulgated thereunder.
""L/C Issuer" shall have the meaning assigned to such
-----------
term in Annex B.
-------
"L/C Sublimit" shall have the meaning assigned to such
------------
term in Annex B.
-------
"Lease Expenses" shall mean, with respect to any Person
--------------
for any fiscal period, the aggregate rental obligations of such
Person determined in accordance with GAAP which are payable in
respect of such period under leases of real and/or personal
property (net of income from subleases thereof, but including
taxes, insurance, maintenance and similar expenses which the
lessee is obligated to pay under the terms of such leases),
whether or not such obligations are reflected as liabilities or
commitments on a consolidated balance sheet of such Person or in
the notes thereto, excluding, however, any such obligations under
Capital Leases.
"Lenders" shall mean GE Capital, the other Lenders
-------
named on the signature page of the Agreement, and, if any such
Lender shall decide to assign all or any portion of the
Obligations, such term shall include any assignee of such Lender.
"Letter of Credit Fee" has the meaning ascribed thereto
--------------------
in Annex B.
-------
"Letter of Credit Obligations" shall mean all
----------------------------
outstanding obligations incurred by Agent and Lenders at the
request of Borrower Representative, whether direct or indirect,
contingent or otherwise, due or not due, in connection with the
issuance of a reimbursement agreement or guaranty by Agent or
purchase of a participation as set forth in Annex B with respect
-------
to any Letter of Credit. The amount of such Letter of Credit
Obligations shall equal the maximum amount which may be payable
by Agent or Lenders thereupon or pursuant thereto.
"Letters of Credit" shall mean commercial or standby
-----------------
letters of credit issued for the account of any Borrower by any
L/C Issuer, and bankers' acceptances issued by any Borrower, for
which Agent and Lenders have incurred Letter of Credit
Obligations.
"License" shall mean any license of rights or interests
-------
now held or hereafter acquired by any Credit Party.
"Lien" shall mean any mortgage or deed of trust,
----
pledge, hypothecation, assignment, deposit arrangement, lien,
charge, claim, security interest, easement or encumbrance, or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing,
and the filing of, or agreement to give, any financing statement
perfecting a security interest under the Code or comparable law
of any jurisdiction).
"Litigation" shall have the meaning assigned to it in
----------
Section 3.13.
------------
"Loan Account" shall have the meaning assigned to it in
------------
Section 1.11.
------------
"Loan Documents" shall mean the Agreement, the Notes,
--------------
the Collateral Documents and all other agreements, instruments,
documents and certificates identified in the Closing Checklist
executed and delivered to, or in favor of, Agent and/or Lenders
and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, and all other written matter
whether heretofore, now or hereafter executed by or on behalf of
any Credit Party, or any employee of any Credit Party, and
delivered to Agent or any Lender in connection with the Agreement
or the transactions contemplated thereby. Any reference in the
Agreement or any other Loan Document to a Loan Document shall
include all appendices, exhibits or schedules thereto, and all
amendments, restatements, supplements or other modifications
thereto, and shall refer to the Agreement or such Loan Document
as the same may be in effect at any and all times such reference
becomes operative.
"Loans" shall mean the Revolving Loan.
-----
"Lock Boxes" shall have the meaning assigned to it in
----------
Annex C.
-------
"Margin Stock" shall have the meaning assigned to it in
------------
Section 3.10.
------------
"Material Adverse Effect" shall mean a material adverse
-----------------------
effect on (a) the business, assets, operations, prospects or
financial or other condition of the Credit Parties considered as
a whole, (b) any Borrower's ability to pay any of the Loans or
any of the other Obligations in accordance with the terms of the
Agreement, (c) the Collateral or Agent's Liens, on behalf of
itself and Lenders, on the Collateral or the priority of such
Liens, (d) any other Credit Party's ability to pay any of the
Obligations in accordance with any Loan Documents to which it is
a party, or (e) Agent's or any Lender's rights and remedies under
the Agreement and the other Loan Documents. Without limiting the
foregoing, any event or occurrence adverse to one or more Credit
Parties which results or could reasonably be expected to result
in costs and/or liabilities and/or loss of revenues, individually
or in the aggregate, to any Credit Party in any 30-day period in
excess of the lesser of $3,000,000 and twenty percent 20% of
Borrowing Availability as of any date of determination shall be
deemed to have had Material Adverse Effect.
"Maximum Amount" shall mean, as of any date of
--------------
determination, an amount equal to the Revolving Loan Commitment
of all Lenders as of that date.
"Maximum Lawful Rate" shall have the meaning assigned
-------------------
to it in Section 1.5(e).
--------------
"Multiemployer Plan" shall mean a "multiemployer plan"
------------------
as defined in Section 4001(a)(3) of ERISA, and to which any
Credit Party or ERISA Affiliate is making, is obligated to make,
has made or been obligated to make, contributions on behalf of
participants who are or were employed by any of them.
"Net Borrowing Availability" shall mean as of any date
--------------------------
of determination (a) as to all Borrowers, the lesser of (i) the
Maximum Amount and (ii) the Aggregate Borrowing Base, in each
such case, less the sum of Aggregate Revolving Loans then
outstanding, or (b) as to an individual Borrower, the lesser of
(i) the Maximum Amount less the sum of the Revolving Loan
----
outstanding to all other Borrowers and (ii) that Borrower's
separate Borrowing Base, less the sum of the Revolving Loan
----
outstanding to that Borrower. The US Dollar Amount of the
Revolving Loan outstanding to AEC Funding shall be used for the
purposes of calculating Net Borrowing Availability.
"Net Worth" shall mean, with respect to any Person as
---------
of any date of determination, the book value of the assets of
such Person, minus the sum of (a) reserves applicable thereto,
-----
and (b) all of such Person's liabilities on a consolidated basis
(including accrued and deferred income taxes), all as determined
in accordance with GAAP.
"Non-Consenting Lender" shall have the meaning assigned
---------------------
to it in Section 11.2(d).
---------------
"Non-Funding Lender" shall have the meaning assigned to
------------------
it in Section 9.9(a)(ii).
------------------
"Notes" shall mean, collectively, the Revolving Notes.
-----
"Notice of Revolving Credit Advance" shall have the
----------------------------------
meaning assigned to it in Section 1.1(a).
--------------
"Nucon" shall mean Nucon, Ltd. an Alberta corporation.
-----
"Nucon Guaranty" shall mean the guaranty executed by
--------------
Nucon in favor of Agent and Lenders in respect of Holdings'
Obligations arising under or in connection with the Holdings
Guaranty.
"Obligations" shall mean all loans, advances, debts,
-----------
liabilities and obligations, for the performance of covenants,
tasks or duties or for payment of monetary amounts (whether or
not such performance is then required or contingent, or such
amounts are liquidated or determinable) owing by any Credit Party
to Agent or any Lender, and all covenants and duties regarding
such amounts, of any kind or nature, present or future, whether
or not evidenced by any note, agreement or other instrument,
arising under the Agreement or any of the other Loan Documents.
This term includes all principal, interest (including all
interest which accrues after the commencement of any case or
proceeding by or against any Credit Party in bankruptcy, whether
or not allowed in such proceeding), Fees, Charges, expenses,
attorneys' fees and any other sum chargeable to any Credit Party
under the Agreement or any of the other Loan Documents.
"Patents" shall mean all of the following in which any
-------
Credit Party now holds or hereafter acquires any interest: (a)
all letters patent of the United States or any other country, all
industrial designs and design patents of Canada or any other
country, all registrations and recordings of the foregoing, and
all applications for industrial designs and design patents of
Canada and all applications for letters patent of the United
States or any other country, including registrations, recordings
and applications in the United States Patent and Trademark Office
or in any similar office or agency of the United States, any
State, or any other country, and (b) all reissues, continuations,
continuations-in-part or extensions thereof.
"PBGC" shall mean the Pension Benefit Guaranty
----
Corporation or any successor thereto.
"Pension Plan" shall mean a Plan described in Section
------------ -------
3(2) of ERISA.
----
"Permitted Acquisition" shall have the meaning assigned
---------------------
to it in Section 6.1.
-----------
"Permitted Encumbrances" shall mean the following
----------------------
encumbrances: (a) Liens for taxes or assessments or other
governmental Charges not yet due and payable, or which are being
contested in accordance with Section 5.2(b), (b) pledges or
deposits of money securing statutory obligations under workmen's
compensation, unemployment insurance, social security or public
liability laws or similar legislation (excluding Liens under
ERISA); (c) pledges or deposits of money securing bids, tenders,
contracts (other than contracts for the payment of money) or
leases to which any Credit Party is a party as lessee made in the
ordinary course of business; (d) inchoate and unperfected
workers', mechanics' or similar liens arising in the ordinary
course of business, so long as such Liens attach only to
Equipment, Fixtures and/or Real Estate; (e) carriers',
warehousemen's, suppliers' or other similar possessory liens
arising in the ordinary course of business and securing
liabilities in an outstanding aggregate amount not in excess of
$1,000,000 at any time, so long as such Liens attach only to
Inventory; (f) deposits securing, or in lieu of, surety, appeal
or customs bonds in proceedings to which any Credit Party is a
party; (g) any attachment or judgment lien not constituting an
Event of Default under Section 8.1(j); (h) zoning restrictions,
--------------
easements, licenses, or other restrictions on the use of any Real
Estate or other minor irregularities in title (including
leasehold title) thereto, so long as the same do not materially
impair the use, value, or marketability of such Real Estate; (i)
presently existing or hereinafter created Liens in favor of
Agent, on behalf of Lenders; (j) Liens expressly permitted under
clauses (b) and (c) of Section 6.7 of the Agreement; and (k) to
----------- --- -----------
the extent not included in clauses (a), (d) or (e) above, Prior
Claims that are unregistered and that secure amounts that are not
yet due and payable.
"Person" shall mean any individual, sole
------
proprietorship, partnership, joint venture, trust, unincorporated
organization, association, corporation, limited liability
company, institution, public benefit corporation, other entity or
government (whether federal, provincial, state, county, city,
municipal, local, foreign, or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Plan" shall mean, at any time, an employee benefit
----
plan, as defined in Section 3(3) of ERISA, which any Credit Party
or ERISA Affiliate maintains, contributes to or has an obligation
to contribute to on behalf of participants who are or were
employed by any Credit Party.
"PPSA" shall mean the Personal Property Security Act
----
(Ontario) and the Regulations thereunder, as from time to time in
effect, provided, however, if attachment, perfection or priority
of Agent's or Lenders' security interests in any Collateral are
governed by the personal property security laws of any
jurisdiction in Canada, other than Ontario, PPSA shall mean those
personal property security laws in such other jurisdiction for
the purposes of the provisions hereof relating to such
attachment, perfection or priority and for the definitions
related to such provisions.
"Prior Claims" shall mean all Liens created by
------------
applicable Canadian law (in contrast with Liens voluntarily
granted) which rank or are capable of ranking prior to or pari
passu with Agent's and Lenders' security interests (or the
applicable equivalent thereof) against all or part of the
Collateral, including for amounts owing for wages, employee
deductions, goods and services taxes, sales taxes, employer
health taxes, municipal taxes, workers' compensation, pension
fund obligations and overdue rents.
"Proceeds" shall mean "proceeds," as such term is
--------
defined in the Code and, in any event, shall include (a) any and
all proceeds of any insurance, indemnity, warranty or guaranty
payable to any Credit Party from time to time with respect to any
of the Collateral, (b) any and all payments (in any form
whatsoever) made or due and payable to any Credit Party from time
to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral by any Governmental Authority (or any Person acting
under color of governmental authority), (c) any claim of any
Credit Party against third parties (i) for past, present or
future infringement of any Patent or Patent License, or (ii) for
past, present or future infringement or dilution of any
Copyright, Copyright License, Trademark or Trademark License, or
for injury to the goodwill associated with any Trademark or
Trademark License, (d) any recoveries by any Credit Party against
third parties with respect to any litigation or dispute
concerning any of the Collateral, (e) dividends, interest and
distributions with respect to Investment Property, and (f) any
and all other amounts from time to time paid or payable under or
in connection with any of the Collateral, upon disposition or
otherwise.
"Projections" means Holdings' forecasted consolidated
-----------
and consolidating: (a) balance sheets; (b) profit and loss
statements; and (c) cash flow statements, all prepared on a
Subsidiary by Subsidiary or division by division basis, if
applicable, and otherwise consistent with the historical
Financial Statements of Holdings together with appropriate
supporting details and a statement of underlying assumptions.
"Pro Rata Share" shall mean with respect to all matters
--------------
relating to any Lender (a) with respect to the Revolving Loan,
the percentage obtained by dividing (i) the Revolving Loan
Commitment by (ii) the aggregate Revolving Loan Commitments, and
(b) with respect to all Loans on and after the Commitment
Termination Date, the percentage obtained by dividing (i) the
aggregate outstanding principal balance of the Loans held by that
Lender, by (ii) the outstanding principal balance of the Loans
held by all Lenders.
"Proposed Change" shall have the meaning assigned to it
---------------
in Section 11.2(d).
---------------
"Protective Acquisition" shall mean the acquisition by
----------------------
Specialty Management Group, Inc. of all of the outstanding
capital Stock of Protective Sealing, Inc., a Texas corporation,
for up to 740,000 shares of capital Stock of Holdings.
"Qualified Plan" shall mean a Plan which is intended to
--------------
be tax-qualified under Section 401(a) of the IRC.
"Real Estate" shall have the meaning assigned to it in
-----------
Section 3.6.
-----------
"Records" shall mean all of the following now owned or
-------
hereafter acquired by any Credit Party: all present and future
books of account of every kind or nature, purchase and sale
agreements, invoices, ledger cards, bills of lading and other
shipping evidence, statements, correspondence, memoranda, credit
files and other data, property and general intangibles to the
extent relating to the Collateral or any account debtor, together
with the tapes, disks, diskettes and other data and software
storage media and devices, file cabinets or containers in or on
which the foregoing are stored (including any rights of any
Credit Party with respect to the foregoing maintained with or by
any other Person).
"Release" shall mean any release, threatened release,
-------
spill, emission, leaking, pumping, pouring, emitting, emptying,
escape, injection, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Material in the
indoor or outdoor environment, including the movement of
Hazardous Material through or in the air, soil, surface water,
ground water or property.
"Requisite Lenders" shall mean (a) Lenders having more
-----------------
than sixty-six and two-thirds percent (66 2/3%) of the
Commitments of all Lenders, or (b) if the Commitments have been
terminated, more than sixty-six and two-thirds percent (66 2/3%)
of the aggregate outstanding amount of all Loans.
"Reserves" shall mean, with respect to the Borrowing
--------
Base of any Borrower (a) reserves established pursuant to
Sections 1.1.(a), 1.6, 5.2(b) and 5.4(c), and (b) such other
----------------------------------------
reserves against Eligible Accounts or Borrowing Availability of
any Borrower which Agent may, in its reasonable credit judgment,
establish from time to time. Without limiting the generality of
the foregoing, reserves established to ensure the payment of all
Prior Claims, accrued Interest Expenses or Indebtedness shall be
deemed to be a reasonable exercise of Agent's credit judgment.
"Restricted Payment" shall mean with respect to any
------------------
Credit Party (a) the declaration or payment of any dividend or
the incurrence of any liability to make any other payment or
distribution of cash or other property or assets in respect of
such Credit Party's Stock; (b) any payment on account of the
purchase, redemption, defeasance, sinking fund or other
retirement of such Credit Party's Stock or any other payment or
distribution made in respect thereof, either directly or
indirectly; (d) any payment made to redeem, purchase, repurchase
or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire Stock of such Credit
Party now or hereafter outstanding; (e) any payment of a claim
for the rescission of the purchase or sale of, or for material
damages arising from the purchase or sale of, any shares of such
Credit Party's Stock or of a claim for reimbursement,
indemnification or contribution arising out of or related to any
such claim for damages or rescission; (f) any payment, loan,
contribution, or other transfer of funds or other property to any
Stockholder of such Credit Party other than payment of
compensation in the ordinary course to Stockholders who are
employees of such Credit Party; and (g) any payment of management
fees (or other fees of a similar nature) by such Credit Party to
any Stockholder of such Credit Party or their Affiliates; except
------
that, so long as no Default or Event of Default has occurred and
----
is continuing, any Borrower or Borrower Group may (i) make loans
or advances to Holdings, provided that, the proceeds of such
-------- ----
loans or advances are used by Holdings to make the regularly
scheduled payment of interest (on a pre-default, non-accelerated
basis) in respect of the Indenture Debt, and Borrowers
collectively shall have Net Borrowing Availability of at least
fifteen (15%) percent of the Aggregate Borrowing Base after
giving effect to any payment pursuant to this clause (g)(i) and
(ii) pay Holdings a management fee (or other fees of a similar
nature) in an aggregate amount not to exceed $6,500,000 per
annum.
"Retiree Welfare Plan" shall mean, at any time, a
--------------------
Welfare Plan that provides for continuing coverage or benefits
for any participant or any beneficiary of a participant after
such participant's termination of employment, other than
continuation coverage provided pursuant to Section 4980B of the
IRC and at the sole expense of the participant or the beneficiary
of the participant.
"Revolving Credit Advance" shall have the meaning
------------------------
assigned to it in Section 1.1(a)(i).
-----------------
"Revolving Lenders" shall mean, as of any date of
-----------------
determination, Lenders having a Revolving Loan Commitment.
"Revolving Loan" shall mean, at any time, the sum of
--------------
(i) the aggregate amount of Revolving Credit Advances outstanding
to any Borrower or to all Borrowers plus (ii) the aggregate
----
Letter of Credit Obligations incurred on behalf of any Borrower
or all Borrowers. Unless the context otherwise requires,
references to the outstanding principal balance of the Revolving
Loan shall include the outstanding balance of Letter of Credit
Obligations.
"Revolving Loan Commitment" shall mean (a) as to any
-------------------------
Lender, the aggregate commitment of such Lender to make Revolving
Credit Advances and/or incur Letter of Credit Obligations as set
forth on Annex J to the Agreement or in the most recent
-------
Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate commitment of all Lenders to make
Revolving Credit Advances and/or incur Letter of Credit
Obligations, which aggregate commitment shall be Thirty Million
US Dollars ($30,000,000) on the Closing Date, as such amount may
be adjusted, if at all, from time to time in accordance with the
Agreement.
"Revolving Note" shall have the meaning assigned to it
--------------
in Section 1.1(a)(ii).
------------------
"Security Agreement" shall mean the Security Agreement
------------------
of even date herewith entered into among Agent, on behalf of
itself and Lenders, and each Credit Party that is a signatory
thereto.
"Settlement Date" shall have the meaning assigned to it
---------------
in Section 9.9(a)(ii).
------------------
"Solvent" shall mean (a) with respect to any Person
-------
that is subject to Insolvency Laws of the United States of
America, 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 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 its debts as they become
absolute and matured; (iii) 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 (iv) such Person is not engaged in a business or
transaction, and is not about to engage in a business or
transaction, for which such Person's property would constitute an
unreasonably small capital; and (b) with respect to any Person
that is subject to Insolvency Laws of Canada, that on a
particular date 1. the property of such Person is sufficient, if
disposed of at a fairly conducted sale under legal process, to
enable payment of all of its obligations, due and accruing due,
(ii) the property of such Person is, at a fair valuation, greater
than the total amount of liabilities, including contingent
liabilities, of such Person; (iii) such Person has not ceased
paying its current obligations in the ordinary course of business
as they generally become due; and (iv) such Person is not for any
reason unable to meet its obligations as they generally become
due. The amount of contingent liabilities (such as litigation,
guarantees and pension plan liabilities) at any time shall be
computed as the amount which, in light of all the facts and
circumstances existing at the time, represents the amount which
can be reasonably be expected to become an actual or matured
liability. With respect to any Credit Party, for the purposes of
this definition only, the total amount of liabilities shall
exclude any intercompany liabilities due and owing to any Credit
Party.
"Specialty" shall mean Specialty Management Group,
---------
Inc., a Texas corporation.
"SRS" shall mean Separation and Recovery Systems, Inc.,
---
a Nevada corporation.
"Stated Expiry Date" shall mean the date which is two
------------------
(2) years from the Closing Date except that the Stated Expiry
Date shall automatically be extended for two (2) consecutive one
(1) year periods, the first of which shall commence on the second
(2nd) anniversary of the Closing Date and, if so extended for
such first one year period, the second of which shall commence on
the third (3rd) anniversary of the Closing Date, unless prior to
the then-current Stated Expiry Date (a) Borrower Representative,
on behalf of Borrowers, notifies Agent, in writing, not less than
sixty (60) days prior to the then-current Stated Expiry Date that
Borrowers have elected not to extend the then-current Stated
Expiry Date, or (b) Agent, on behalf of Lenders, notifies
Borrower Representative, in writing, not less than sixty (60)
days prior to the then-current Stated Expiry Date that Agent and
Lenders have elected not to extend the then-current Stated Expiry
Date. The foregoing notwithstanding, the Stated Expiry Date
shall not be extended if, as of the then-current Stated Expiry
Date, a Default or Event of Default then exists and is continuing
beyond any applicable notice or cure periods. Nothing contained
herein shall be deemed to be a commitment by Agent or Lenders, as
of the date of this Agreement, to permit the extension of the
Stated Expiry Date which is in effect on the date hereof. The
Stated Expiry Date shall in no event be later than the fourth
(4th) anniversary of the Closing Date.
"Stock" shall mean all shares, options, warrants,
-----
general or limited partnership interests, membership interests or
other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent
entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended).
"Stockholder" shall mean, with respect to any Person,
-----------
each holder of Stock of such Person.
"Subsidiary" shall mean, with respect to any Person,
----------
(a) any corporation of which an aggregate of more than fifty
percent (50%) of the outstanding Stock having ordinary voting
power to elect a majority of the board of directors of such
corporation (irrespective of whether, at the time, Stock of any
other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency)
is at the time, directly or indirectly, owned legally or
beneficially by such Person and/or one or more Subsidiaries of
such Person, or with respect to which any such Person has the
right to vote or designate the vote of fifty percent (50%) or
more of such Stock whether by proxy, agreement, operation of law
or otherwise, and (b) any partnership or limited liability
company in which such Person and/or one or more Subsidiaries of
such Person shall have an interest (whether in the form of voting
or participation in profits or capital contribution) of more than
fifty percent (50%) or of which any such Person is a general
partner or may exercise the powers of a general partner. Unless
the context otherwise requires, each reference to a Subsidiary
shall be a reference to a Subsidiary of Borrower.
"Subsidiary Guarantors" shall mean, individually and
---------------------
collectively, Lake Xxxxxxx Construction Corporation, a Louisiana
corporation; Cambridge Construction Service Corp., a Nevada
corporation; H.E. Co. Services, Inc., a Texas corporation; and
Industra Thermal Service Corp., a Washington corporation;
Separation and Recovery Systems California, a California
corporation; and NUS, Inc., a Washington corporation.
"Subsidiary Guaranty" shall mean the Subsidiary
-------------------
Guaranty of even date herewith executed by the Subsidiary
Guarantors in favor of Agent, on behalf of itself and Lenders.
"Switch Gear Division Sale" shall mean the arms-length
-------------------------
sale by Controlled Power Limited Partnership of certain fixed
assets and work-in-process of its switch gear division for a
purchase price based upon the fair market value of the assets to
be sold.
"Tangible Net Worth" shall mean, with respect to any
------------------
Person at any date, the Net Worth of such Person at such date,
excluding, however, from the determination of the total assets at
--------- -------
such date, (a) all goodwill, capitalized organizational expenses,
capitalized research and development expenses, trademarks, trade
names, copyrights, patents, patent applications, licenses and
rights in any thereof, and other intangible items, (b) all
unamortized debt discount and expense, (c) treasury Stock, and
(d) any write-up in the book value of any asset resulting from a
revaluation thereof.
"Target" shall have the meaning assigned to it in
------
Section 6.1.
-----------
"Taxes" shall mean taxes, levies, imposts, deductions,
-----
Charges or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on or measured by the net income
of Agent or a Lender by the jurisdictions under the laws of which
Agent and Lenders are organized or any political subdivision
thereof.
"Termination Date" shall mean the date on which the
----------------
Loans have been indefeasibly repaid in full and all other
Obligations under the Agreement and the other Loan Documents have
been completely discharged and Letter of Credit Obligations have
been cash collateralized, canceled or backed by stand-by letters
of credit in accordance with Annex B, and none of Borrowers shall
-------
have any further right to borrow any monies under the Agreement.
"Third Party Interactives" shall mean all Persons with
------------------------
whom any Credit Party exchanges data electronically in the
ordinary course of business, including, without limitation,
customers, suppliers, third-party vendors, subcontractors,
processors-converters, shippers and warehousemen.
"Title IV Plan" shall mean a Pension Plan (other than a
-------------
Multiemployer Plan), which is covered by Title IV of ERISA, and
which any Credit Party or ERISA Affiliate maintains, contributes
to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.
"Trademarks" shall mean all of the following now owned
----------
or hereafter acquired by any Credit Party: (a) all trademarks,
trade names, corporate names, business names, trade styles,
service marks, logos, other source or business identifiers,
prints and labels on which any of the foregoing have appeared or
appear, designs and general intangibles of like nature (whether
registered or unregistered), all registrations and recordings
thereof, and all applications in connection therewith, including
registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of
the United States, any state or territory thereof, or any other
country or any political subdivision thereof; (b) all reissues,
extensions or renewals thereof; and (c) all goodwill associated
with or symbolized by any of the foregoing.
"Xxxxxx Group" shall mean, collectively the Xxxxxx
------------
Group, Inc., a Delaware corporation; C.A. Xxxxxx Construction
Company, a Delaware corporation; Action Contract Services, Inc.,
a Delaware corporation; and C.A. Xxxxxx Maintenance, Inc., a
Texas corporation
"Unfunded Pension Liability" shall mean, at any time,
--------------------------
the aggregate amount, if any, of the sum of (a) the amount by
which the present value of all accrued benefits under each Title
IV Plan exceeds the fair market value of all assets of such Title
IV Plan allocable to such benefits in accordance with Title IV of
ERISA, all determined as of the most recent valuation date for
each such Title IV Plan using the actuarial assumptions for
funding purposes in effect under such Title IV Plan, and (b) for
a period of five (5) years following a transaction which might
reasonably be expected to be covered by Section 4069 of ERISA,
the liabilities (whether or not accrued) that could be avoided by
any Credit Party or any ERISA Affiliate as a result of such
transaction.
"United Eco Group" shall mean, collectively, United Eco
----------------
Systems, Inc. a Delaware corporation; and Eco Systems, Inc., a
Delaware corporation.
"US Accounts" shall mean all "accounts," as such term
-----------
is defined in the Code, now owned or hereafter acquired by any
Credit Party and, in any event, including (a) all accounts
receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel
Paper, Documents or Instruments) now owned or hereafter received
or acquired by or belonging or owing to any Credit Party, whether
arising out of goods sold or services rendered by it or from any
other transaction (including any such obligations which may be
characterized as an account or contract right under the Code),
(b) all of each Credit Party's rights in, to and under all
purchase orders or receipts now owned or hereafter acquired by it
for goods or services, (c) all of each Credit Party's rights to
any goods represented by any of the foregoing (including unpaid
sellers' rights of rescission, replevin, reclamation and stoppage
in transit and rights to returned, reclaimed or repossessed
goods), (d) all monies due or to become due to any Credit Party,
under all purchase orders and contracts for the sale of goods or
the performance of services or both by such Credit Party or in
connection with any other transaction (whether or not yet earned
by performance on the part of such Credit Party) now or hereafter
in existence, including the right to receive the proceeds of said
purchase orders and contracts, and (e) all collateral security
and guarantees of any kind, now or hereafter in existence, given
by any Person with respect to any of the foregoing.
"US Collection Account" shall mean that certain account
---------------------
of Agent, account number 000-000-00 in the name of Agent at
Bankers Trust Company in New York, New York ABA No. 021 001 033
or such other account as may be specified in writing by Agent as
the "US Collection Account".
"US Dollar Amount" shall mean, for any amount on any
----------------
particular date, the aggregate of:
(a) the portion, if any, of the amount denominated in
US Dollars; and
(b) the Equivalent Amount in US Dollars (determined on
such date unless otherwise specified herein) of
the portion, if any, of the amount denominated in
another currency.
"Year 2000 Assessment" shall mean a comprehensive
--------------------
written assessment of the nature and extent of each Credit
Party's Year 2000 Problems and Year 2000 Date-Sensitive
Systems/Components, including, without limitation, Year 2000
Problems regarding data exchanges with Third Party Interactives.
"Year 2000 Corrective Actions" shall mean, as to each
----------------------------
Credit Party, all actions necessary to eliminate such Person's
Year 2000 Problems, including, without limitation, computer code
enhancements and revisions, upgrades and replacements of Year
2000 Date-Sensitive Systems/Components, and coordination of such
enhancements, revisions, upgrades and replacements with Third
Party Interactives.
"Year 2000 Corrective Plan" shall mean, with respect to
-------------------------
each Credit Party, a comprehensive plan to eliminate all of its
Year 2000 Problems on or before December 1, 1999, including
without limitation (i) computer code enhancements or revisions,
(ii) upgrades or replacements of Year 2000 Date-Sensitive
Systems/Components, (iii) test and validation procedures, (iv) an
implementation time line and budget and (v) designation of
specific employees who will be responsible for planning,
coordinating and implementing each phase or subpart of the Year
2000 Corrective Plan.
"Year 2000 Date-Sensitive System/Component" shall mean,
-----------------------------------------
as to any Person, any system software, network software,
applications software, data base, computer file, embedded
microchip, firmware or hardware that accepts, creates,
manipulates, sorts, sequences, calculates, compares or outputs
calendar-related data accurately; such systems and components
shall include, without limitation, mainframe computers, file
server/client systems, computer workstations, routers, hubs,
other network-related hardware, and other computer-related
software, firmware or hardware and information processing and
delivery systems of any kind and telecommunications systems and
other communications processors, security systems, alarms,
elevators and HVAC systems.
"Year 2000 Implementation Testing" shall mean, as to
--------------------------------
each Credit Party, (i) the performance of test and validation
procedures regarding Year 2000 Corrective Actions on a unit basis
and on a systemwide basis; (ii) the performance of test and
validation procedures regarding data exchanges among the Credit
Parties' Year 2000 Date-Sensitive Systems/Components and data
exchanges with Third Party Interactives, and (iii) the design and
implementation of additional Corrective Actions, the need for
which has been demonstrated by test and validation procedures.
"Year 2000 Problems" shall mean, with respect to each
------------------
Credit Party, limitations on the capacity or readiness of any
such Credit Party's Year 2000 Date-Sensitive Systems/Components
to accurately accept, create, manipulate, sort, sequence,
calculate, compare or output calendar date information with
respect to calendar year 1999 or any subsequent calendar year
beginning on or after January 1, 2000 (including leap year
computations), including, without limitation, exchanges of
information among Year 2000 Date-Sensitive Systems/Components of
the Credit Parties and exchanges of information among the Credit
Parties and Year 2000 Date-Sensitive Systems/Components of Third
Party Interactives and functionality of peripheral interfaces,
firmware and embedded microchips.
Rules of construction with respect to accounting terms
used in this Agreement or the other Loan Documents shall be as
set forth in Annex G. All other undefined terms contained in any
-------
of the Loan Documents shall, unless the context indicates
otherwise, have the meanings provided for by the Code as in
effect in the State of New York to the extent the same are used
or defined therein. Unless otherwise specified, references in
the Agreement or any of the Appendices to a Section, subsection
or clause refer to such Section, subsection or clause as
contained in the Agreement. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to the
Agreement as a whole, including all Annexes, Exhibits and
Schedules, as the same may from time to time be amended,
restated, modified or supplemented, and not to any particular
section, subsection or clause contained in the Agreement or any
such Annex, Exhibit or Schedule.
Wherever from the context it appears appropriate, each
term stated in either the singular or plural shall include the
singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, feminine
and neuter genders. The words "including", "includes" and
"include" shall be deemed to be followed by the words "without
limitation"; the word "or" is not exclusive; references to
Persons include their respective successors and assigns (to the
extent and only to the extent permitted by the Loan Documents)
or, in the case of governmental Persons, Persons succeeding to
the relevant functions of such Persons; and all references to
statutes and related regulations shall include any amendments of
the same and any successor statutes and regulations. Whenever
any provision in any Loan Document refers to the knowledge (or an
analogous phrase) of any Credit Party, such words are intended to
signify that such Credit Party has actual knowledge or awareness
of a particular fact or circumstance or that such Credit Party,
if it had exercised reasonable diligence, would have known or
been aware of such fact or circumstance.
