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Exhibit 99.2
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LOAN AGREEMENT
BY AND AMONG
XXXXXX SERVICES CORPORATION
AND
EACH OF ITS SUBSIDIARIES THAT ARE SIGNATORIES HERETO
AS THE BORROWERS,
AND
THE LENDERS THAT ARE SIGNATORIES HERETO
AS THE LENDERS,
AND
FOOTHILL CAPITAL CORPORATION
as the Arranger and Administrative Agent,
Dated as of March 31, 2000
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TABLE OF CONTENTS
1. DEFINITIONS AND CONSTRUCTION ....................................... 1
1.1 Definitions ............................................... 1
1.2 Accounting Terms .......................................... 33
1.3 Code ...................................................... 34
1.4 Construction .............................................. 34
1.5 Schedules and Exhibits .................................... 34
2. LOAN AND TERMS OF PAYMENT .......................................... 34
2.1 Tranche A Advances ........................................ 34
2.2 Letters of Credit ......................................... 35
2.3 Tranche B Advances ........................................ 39
2.4 Borrowing Procedures and Settlements ...................... 40
2.5 Payments .................................................. 47
2.6 Overadvances .............................................. 52
2.7 Interest and Letter of Credit Fees: Rates, Payments, and
Calculations............................................... 52
2.8 Cash Management ........................................... 54
2.9 Crediting Payments ........................................ 55
2.10 Designated Account ........................................ 56
2.11 Maintenance of Loan Account; Statements of Obligations..... 56
2.12 Fees ...................................................... 57
2.13 LIBOR Option .............................................. 58
2.14 Capital Requirements ...................................... 61
2.15 Joint and Several Liability of the Borrowers .............. 62
2.16 Registered Notes .......................................... 64
2.17 Securitization ............................................ 65
3. CONDITIONS; TERM OF AGREEMENT....................................... 65
3.1 Conditions Precedent to the Initial Extension of Credit.... 65
3.2 [Intentionally Omitted] ................................... 70
3.3 Conditions Precedent to all Extensions of Credit........... 70
3.4 Term ...................................................... 70
3.5 Effect of Termination ..................................... 71
3.6 Early Termination by Borrowers ............................ 71
4. SECURITY INTERESTS.................................................. 72
4.1 Delivery of Additional Documentation Required ............. 72
4.2 Power of Attorney ......................................... 72
4.3 Right to Inspect .......................................... 73
4.4 Control Agreements ........................................ 73
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4.5 Collateral Agent to Hold Quebec Irrevocable Power of
Attorney................................................... 73
5. REPRESENTATIONS AND WARRANTIES...................................... 74
5.1 No Encumbrances ........................................... 74
5.2 Eligible Accounts ......................................... 74
5.3 Rights Agreement .......................................... 75
5.4 Equipment ................................................. 75
5.5 Location of Inventory and Equipment ....................... 76
5.6 Inventory Records ......................................... 76
5.7 Location of Chief Executive Office; FEIN .................. 76
5.8 Due Organization and Qualification; Subsidiaries........... 76
5.9 Due Authorization; No Conflict ............................ 77
5.10 Litigation ................................................ 78
5.11 No Material Adverse Change ................................ 78
5.12 Fraudulent Transfer ....................................... 78
5.13 Employee Benefits ......................................... 78
5.14 Environmental Condition ................................... 79
5.15 Brokerage Fees - Obligors ................................. 79
5.16 Intellectual Property ..................................... 80
5.17 Leases .................................................... 80
5.18 DDAs ...................................................... 80
5.19 Owned Real Property and Material Leases ................... 80
5.20 Complete Disclosure ....................................... 80
5.21 Indebtedness .............................................. 80
5.22 Project Accounts .......................................... 81
5.23 Directors' Compensation ................................... 81
6. AFFIRMATIVE COVENANTS............................................... 81
6.1 Accounting System ......................................... 81
6.2 Collateral Reporting ...................................... 81
6.3 Financial Statements, Reports, Certificates ............... 83
6.4 Tax Returns ............................................... 85
6.5 [intentionally omitted] ................................... 85
6.6 Certificates of Title .................................... 85
6.7 Maintenance of Equipment .................................. 85
6.8 Taxes ..................................................... 85
6.9 Insurance ................................................. 86
6.10 [Intentionally Omitted] ................................... 87
6.11 Location of Inventory and Equipment ....................... 87
6.12 Compliance with Laws ...................................... 88
6.13 Employee Benefits ......................................... 88
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6.14 Leases .................................................... 89
6.15 Brokerage Commissions ..................................... 89
6.16 Projections ............................................... 89
6.17 Corporate Existence, etc .................................. 89
6.18 Disclosure Updates ........................................ 89
6.19 Publication of Notice of the Effective Date of the Plan
of Reorganization.......................................... 90
6.20 Project Accounts .......................................... 90
6.21 Existing Letters of Credit ................................ 90
6.22 Omitted Good Standing Certificates ........................ 90
7. NEGATIVE COVENANTS.................................................. 90
7.1 Indebtedness .............................................. 91
7.2 Liens ..................................................... 92
7.3 Restrictions on Fundamental Changes ....................... 92
7.4 Disposal of Assets ........................................ 93
7.5 Change Name ............................................... 93
7.6 Guarantee ................................................. 93
7.7 Nature of Business ........................................ 94
7.8 Prepayments and Amendments ................................ 94
7.9 [Intentionally Omitted] ................................... 95
7.10 Consignments .............................................. 95
7.11 Distributions ............................................. 95
7.12 Accounting Methods ........................................ 95
7.13 Investments ............................................... 95
7.14 Transactions with Affiliates .............................. 95
7.15 Suspension ................................................ 96
7.16 Directors' Compensation ................................... 96
7.17 Use of Proceeds ........................................... 96
7.18 Change in Location of Chief Executive Office;
Inventory and Equipment with Bailees....................... 96
7.19 Financial Covenants. Fail to maintain:..................... 97
7.20 Capital Expenditures ...................................... 98
7.21 Securities Accounts ....................................... 98
7.22 ERISA Concerns ............................................ 98
8. EVENTS OF DEFAULT................................................... 99
9. THE LENDER GROUP'S RIGHTS AND REMEDIES.............................. 102
9.1 Rights and Remedies ....................................... 102
9.2 Remedies Cumulative ....................................... 103
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10. TAXES AND EXPENSES.................................................. 103
11. WAIVERS; INDEMNIFICATION............................................ 103
11.1 Demand; Protest; etc .................................... 103
11.2 The Lender Group's Liability for Collateral ............. 103
11.3 Indemnification ......................................... 104
12. NOTICES............................................................. 104
13. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.......................... 105
14. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.......................... 106
14.1 Assignments and Participations ............................ 106
14.2 Successors ................................................ 110
15. AMENDMENTS; WAIVERS................................................. 110
15.1 Amendments and Waivers .................................... 110
15.2 No Waivers; Cumulative Remedies ........................... 112
16. AGENT; THE LENDER GROUP............................................. 112
16.1 Appointment and Authorization of Agent .................... 112
16.2 Delegation of Duties ...................................... 113
16.3 Liability of Agent ........................................ 113
16.4 Reliance by Agent ......................................... 114
16.5 Notice of Default or Event of Default ..................... 114
16.6 Credit Decision ........................................... 115
16.7 Costs and Expenses; Indemnification ....................... 115
16.8 Agent in Individual Capacity .............................. 116
16.9 Successor Agent ........................................... 116
16.10 Lender in Individual Capacity ............................. 117
16.11 Withholding Taxes ......................................... 117
16.12 Collateral Matters ........................................ 119
16.13 Restrictions on Actions by Lenders; Sharing of Payments.... 120
16.14 Agency for Perfection ..................................... 121
16.15 Payments by Agent to the Lenders .......................... 121
16.16 Concerning the Collateral and Related Loan Documents....... 121
16.17 Field Audits and Examination Reports; Confidentiality;
Disclaimers by Lenders; Other Reports and Information...... 122
16.18 Several Obligations; No Liability ......................... 123
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17. GENERAL PROVISIONS.................................................. 123
17.1 Effectiveness .......................................... 123
17.2 Section Headings ....................................... 124
17.3 Interpretation ......................................... 124
17.4 Severability of Provisions ............................. 124
17.5 Amendments in Writing .................................. 124
17.6 Counterparts; Telefacsimile Execution .................. 124
17.7 Revival and Reinstatement of Obligations ............... 124
17.8 Integration ............................................ 125
17.9 Parent as Agent for Borrowers .......................... 125
17.10 Brokerage Fees - Lender Group .......................... 126
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Exhibits and Schedules
Exhibit A-1 Form of Assignment and Acceptance
Exhibit B-1 Form of Bonding Lien Intercreditor Agreement
Exhibit B-2 Form of Borrowing Base Certificate
Exhibit C-1 Canadian Confirmation Order
Exhibit C-2 Canadian Vesting Order
Exhibit C-3 Form of Compliance Certificate
Exhibit C-4 Confirmation Order
Exhibit L-1 Form of LIBOR Notice
Exhibit RA-1 Rights Agreement
Schedule C-1 Commitments
Schedule E-1 Existing Letters of Credit
Schedule P-1 Permitted Dispositions
Schedule P-2 Permitted Investments
Schedule P-3 Permitted Liens
Schedule P-4 Pre-Closing Merger Subsidiaries
Schedule P-5 Pre-Closing Restructuring Transactions
Schedule RPC-1 Real Property Collateral
Schedule 2.8(a) Lockbox Account Banks
Schedule 2.8(b) Collection Account Banks
Schedule 5.7 Chief Executive Office; FEIN
Schedule 5.8 Capitalization
Schedule 5.10 Litigation
Schedule 5.11 Pro Forma Closing Date Balance Sheet
Schedule 5.13 ERISA
Schedule 5.14(a) Violations of Environmental Laws
Schedule 5.14(b) Designations of Disposal Sites
Schedule 5.14(c) Notices of Environmental Liens
Schedule 5.14(d) Environmental Citations
Schedule 5.16 Intellectual Property
Schedule 5.18 Demand Deposit Accounts
Schedule 5.19 Owned Real Property and Material Leases
Schedule 5.22 Project Accounts
Schedule 5.23 Directors' Compensation
Schedule 6.11 Locations of Inventory and Equipment
Schedule 7.1(a) Permitted Indebtedness
Schedule 7.1(b) Permitted Purchase Money Indebtedness
Schedule 7.6 Guaranties
Schedule 7.14 Affiliate Transactions
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), is entered into as of March 31,
2000, by and among, on the one hand, the lenders identified on the signature
pages hereof (such lenders, together with their respective successors and
assigns, are referred to hereinafter each individually as a "Lender" and
collectively as the "Lenders"), FOOTHILL CAPITAL CORPORATION, a California
corporation, as the arranger and administrative agent for the Lenders (in such
capacity, together with its successors, if any, "Agent"), and, on the other
hand, XXXXXX SERVICES CORPORATION, a Delaware corporation ("Parent") and each of
Parent's Subsidiaries identified on the signature pages hereof (such
Subsidiaries, together with Parent, are referred to hereinafter each
individually as a "Borrower" and individually and collectively, jointly and
severally, as the "Borrowers").
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS.
As used in this Agreement, the following terms shall have the following
definitions:
"Account Debtor" means any Person who is or who may become obligated under,
with respect to, or on account of, an Account, a General Intangible, an item of
Investment Property, or Negotiable Collateral.
"Accounts" means all of the Obligors' "accounts" (as that term is defined
in the Code), and any and all credit insurance, guaranties, or security
therefor.
"Acquisition" means any purchase or other acquisition by a Borrower of the
assets of any other Person, other than the purchase of Inventory or Equipment in
the ordinary course of business.
"Administrative Borrower" has the meaning set forth in Section 17.9.
"Advance" means a Tranche A Advance or a Tranche B Advance, as the context
requires.
"Affiliate" means, as applied to any Person, any other Person who, directly
or indirectly, controls, is controlled by, or is under common control with, such
Person. For purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct the management and policies of a
Person, whether through the ownership of Stock, by contract, or otherwise;
provided, however, that, in any event: (a) any Person which owns directly or
indirectly ten percent (10%) or more of the securities
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having ordinary voting power for the election of directors or other members of
the governing body of a Person or ten percent (10%) or more of the partnership
or other ownership interests of a Person (other than as a limited partner of
such Person) shall be deemed to control such Person; (b) each director or
officer of a Person shall be deemed to be an Affiliate of such Person; and (c)
each partnership or joint venture in which a Person is a partner or joint
venturer shall be deemed to be an Affiliate of such Person.
"Agent" means Foothill in its capacity as arranger and administrative agent
for the Lenders hereunder, and any successor thereto.
"Agent's Account" shall mean an account at a bank designated by Agent from
time to time as the account into which Borrowers shall make all payments to
Agent for the benefit of the Lender Group and into which the Lender Group shall
make all payments to Agent under this Agreement and the other Loan Documents.
Initially, until Agent notifies Borrower and the Lender Group to the contrary,
the Agent's Account shall be that certain deposit account bearing account number
323-266193 and maintained by Agent with The Chase Manhattan Bank, N.A., 4 New
Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, ABA #000-000-000.
"Agent Advances" has the meaning set forth in Section 2.4(e)(i).
"Agent-Related Persons" means Agent together with its Affiliates, officers,
directors, employees, and agents.
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Base Rate Margin" means the following:
Type of Advance Applicable Base
Rate Margin
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Tranche A Advance 1.0 percentage point
Tranche B Advance 3.0 percentage points
"Applicable Prepayment Premium" means, as of any date of determination, an
amount equal to (a) during the period of time from and after the date of the
execution and delivery of this Agreement and up to but not including the date
that is the first anniversary of
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the Closing Date, 0.75% times the sum of (i) the Dollar amount of Tranche A
Advances outstanding on the last day of the month immediately preceding the date
of determination, and (ii) the Dollar amount undrawn under Letters of Credit
outstanding on the last day of the month immediately preceding the date of
determination, (b) during the period of time from and after the date that is the
first anniversary of the Closing Date up to but not including the date that is
eighteen months after the Closing Date, 0.375% times the sum of (i) the Dollar
amount of Tranche A Advances outstanding on the last day of the month
immediately preceding the date of determination, and (ii) the Dollar amount
undrawn under Letters of Credit outstanding on the last day of the month
immediately preceding the date of determination, and (c) thereafter, zero.
"Assignee" has the meaning set forth in Section 14.1(c).
"Assignment and Acceptance" means an Assignment and Acceptance in the form
of Exhibit A-1 attached hereto.
"Authorized Person" means any officer or other employee of Administrative
Borrower.
"Bankruptcy Cases" means Parent's Chapter 11 Case No. 99-02385(MFW), and
each of the other jointly administered Chapter 11 cases of the other Borrowers,
each of which was filed in the Bankruptcy Court on June 25, 1999.
"Bankruptcy Code" means the United States Bankruptcy Code, as amended, and
any successor statute.
"Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware.
"Base LIBOR Rate" means the average per annum rate, determined by Agent
(rounded upwards, if necessary, to the next 1/100%) at which Dollar deposits are
offered to Xxxxx Fargo in the London interbank market on or about 11:00 a.m.
(California time) 2 Business Days prior to the commencement of the applicable
Interest Period, for a term and in amounts comparable to the Interest Period and
amount of the LIBOR Rate Advance requested by Administrative Borrowers in
accordance with this Agreement.
"Base Rate" means, as of any date of determination, the rate of interest
announced within Xxxxx Fargo at its principal office in San Francisco as its
"prime rate", with the understanding that the "prime rate" is one of Xxxxx
Fargo's base rates (not necessarily the lowest of such rates) and serves as the
basis upon which effective rates of interest are calculated for those loans
making reference thereto and is evidenced by the recording thereof after its
announcement in such internal publication or publications as Xxxxx Fargo may
designate.
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"Base Rate Advance" means each portion of an Advance bearing interest at a
rate determined by reference to the Base Rate.
"Benefit Plan" means a "defined benefit plan" (as defined in Section 3(35)
of ERISA) that is subject to Title IV of ERISA and for which any Borrower or
ERISA Affiliate of such Borrower is an "employer" (as defined in Section 3(5) of
ERISA).
"Board of Directors" means the Board of Directors of any Person or any
committee thereof duly authorized to act on behalf of the Board of Directors.
"Bonding Lien Intercreditor Agreement" means that certain Intercreditor
Agreement by and among Collateral Agent and the agent for bonding creditors of
the Obligors, substantially in the form of Exhibit B-1 attached hereto or
otherwise in form and substance reasonably satisfactory to Agent.
"Books" means all of each Obligor's books and records (including all of its
records indicating, summarizing, or evidencing its assets (including the
Collateral) or liabilities, all of its information relating to its business
operations or financial condition, and all of its computer programs, disks,
files, printouts, runs, or other computer prepared information).
"Borrower" and "Borrowers" have the respective meanings set forth in the
preamble to this Agreement.
"Borrowing" means a borrowing hereunder consisting of Advances made on the
same day by the Lenders, or Agent on behalf thereof, or by Swing Lender in the
case of a Swing Loan, or by Agent in the case of an Agent Advance, in each case,
to Administrative Borrower.
"Borrowing Base" means, as of any date of determination, the result of:
(v) the lesser of
(1) the result of
(A) 80% of Eligible Domestic Accounts, plus
(B) the lesser of (I) 80% of Eligible Canadian Accounts
and (II) $35,000,000, plus
(C) the lesser of (I) 50% of Eligible Unbilled Accounts,
and (II) $30,000,000, minus
(D) the amount, if any, of the Dilution Reserve,
and
(2) an amount equal to the Obligors' Collections with respect to
Accounts for the immediately preceding 60 day period,
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minus
(w) the aggregate amount of reserves, if any, established by Agent
pursuant to Section 2.1(b) or Section 10,
minus
(x) the aggregate amount of unapplied deposits received with respect
to Eligible Accounts from Account Debtors.
"Borrowing Base Certificate" means a certificate in the form of Exhibit
B-2.
"Business Day" means any day that is not a Saturday, Sunday, or other day
on which commercial banks in New York, New York are authorized or required to
close, except that, if a determination of a Business Day shall relate to a LIBOR
Rate Advance, the term "Business Day" also shall exclude any day on which banks
are closed for dealings in Dollar deposits in the London interbank market.
"Canadian Bank" has the meaning set forth in Section 2.2(a).
"Canadian Bankruptcy Court" means the Ontario Superior Court of Justice.
"Canadian Confirmation Order" means, collectively, the orders of the
Canadian Bankruptcy Court pursuant to which the Canadian Transactions were
sanctioned and approved dated November 26, 1999, and March 8, 2000, copies of
which are attached hereto as Exhibit C-1.
"Canadian Debtors" means PSC and those of its Subsidiaries that commenced
proceedings in the Canadian Bankruptcy Court under the Companies' Creditors
Arrangement Act (Canada).
"Canadian Dollar Letters of Credit" has the meaning set forth in Section
2.2(a).
"Canadian Guarantors" means (a) PSI, (b) PAS, (c) Nortru, Ltd., an Ontario
corporation, (d) Allies Staffing Ltd., an Ontario corporation, (e) ServTech
Canada Inc., an Ontario corporation, (f) Xxxxxx Investment Corp., an Ontario
corporation, (g) Recyclage d'Aluminium Quebec Inc., a Canadian corporation, and
(h) ST Delta Canada, Inc., an Ontario corporation.
"Canadian Guaranty" means that certain Guaranty executed and delivered by
the Canadian Guarantors in favor of Agent, for the benefit of the Lenders, in
form and substance (including being governed by the laws of Ontario)
satisfactory to Agent.
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"Canadian Security Agreement" means that certain Security Agreement
executed and delivered by the Canadian Guarantors in favor of Collateral Agent,
in form and substance (including being governed by the laws of Ontario)
satisfactory to Agent.
"Canadian Security Documents" means the Canadian Security Agreement, the
Hypothec, and such other instruments, agreements, and documents governed by the
laws of Canada or any political subdivision thereof, as Agent or its Canadian
counsel reasonably may require to secure the whole or any part of the
Obligations as guaranteed by the Canadian Guarantors.
"Canadian Transactions" means the series of transactions pursuant to which
certain assets of the Canadian Debtors are transferred as going concerns to PSI,
PAS, and PSII.
"Canadian Vesting Order" means the order of the Canadian Bankruptcy Court
made on January 7, 2000, pursuant to which title to the assets to be transferred
pursuant to the Canadian Transactions is to be vested in Guarantors free and
clear of certain Liens or other claims, a copy of which is attached hereto as
Exhibit C-2.
"Capital Lease" means a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
participations, or other equivalents (however designated) of, or rights,
warrants, or options to purchase, corporate stock or any other equity interest
(however designated) of or in such Person.
"Capitalized Lease Obligation" means any Indebtedness represented by
obligations under a Capital Lease.
"Cash Equivalents" means and refers to: (a) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or the
government of Canada or issued by any agency or instrumentality of either of
them and backed by the full faith and credit of the United States or the
government of Canada, in each case maturing within one (1) year from the date of
acquisition thereof; (b) marketable direct obligations issued by any state of
the United States of America or any province of Canada or any political
subdivision of any such state or province or any public instrumentality thereof
maturing within one (1) year from the date of acquisition thereof and, at the
time of acquisition, having the highest rating obtainable from either S&P or
Xxxxx'x or an equivalent rating from Canadian Bond Rating Service Inc. or
Dominion Bond Rating Service Limited; (c) commercial paper maturing no more than
one (1) year from the date of acquisition thereof and, at the time of
acquisition, having a rating of A-2 or P-2, or better, from S&P or Xxxxx'x or an
equivalent rating from Canadian Bond Rating Service Inc. or Dominion Bond Rating
Service Limited; (d) certificates of deposit or bankers'
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acceptances maturing within one (1) year from the date of acquisition thereof
either (i) issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or under the laws of
the government of Canada, or any province thereof, which bank has a rating of A
or A2, or better, from S&P or Xxxxx'x or an equivalent rating from Canadian Bond
Rating Service Inc. or Dominion Bond Rating Service Limited, or (ii)
certificates of deposit less than or equal to $100,000 in the aggregate issued
by any other bank insured by the Federal Deposit Insurance Corporation.
"Cash Flow Available for Debt Service" has the meaning set forth in Section
8 of the Junior Secured Debt Credit Agreement as in effect on the Closing Date.
"Cash Interest Expense" means, with respect to any period of determination,
the consolidated interest expense of a Person accrued during such period as
determined in accordance with GAAP plus, without duplication, the Letter of
Credit fees accrued hereunder during such period, but excluding, to the extent
included, without duplication, (a) non-cash Interest Expense, (b) Exit Facility
Fees, and (c) any other amounts (such as the amortization of debt discount) that
would be classified as Depreciation Expenses.
"Chief Executive Office" shall mean where a Person is deemed located
pursuant to Section 9-103(3) of the Code.
"Closing Date" means the date of the making of the initial Advance (or
other extension of credit) hereunder.
"Code" means the New York Uniform Commercial Code, as amended from time to
time.
"Collateral" means all of the Personal Property Collateral and the Real
Property Collateral.
"Collateral Agency and Intercreditor Agreement" means that certain
Collateral Agency and Intercreditor Agreement by and among Foothill, Collateral
Agent, Agent, Junior Secured Debt Agent, Parent, and the Subsidiaries of Parent
identified on the signature pages thereto, in form and substance satisfactory to
Agent.
"Collateral Agent" means Foothill in its various capacities as collateral
agents under the Collateral Agency and Intercreditor Agreement, and any
successor thereto.
"Collateral Agent's Liens" shall mean (a) the Liens granted by Obligors to
Collateral Agent pursuant to the Security Agreement, the Stock Pledge Agreement,
the Copyright Security Agreement, the Rolling Stock Security Agreement, the
Patent Security Agreement, and the Trademark Security Agreement, (b) the Liens
granted by Guarantors
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to Collateral Agent pursuant to the Canadian Security Agreement and the
Guarantor Security Agreement, and (c) the Liens granted by the Obligors to
Collateral Agent pursuant to the Mortgages.
"Collection Account" has the meaning set forth in Section 2.8(b).
"Collection Account Bank" has the meaning set forth in Section 2.8(b).
"Collections" means all cash, checks, notes, instruments, and other items
of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds) of the Obligors.
"Combined Availability" means, as of any date of determination, the
aggregate amount of Tranche A Advances, Letters of Credit, and Tranche B
Advances that Borrowers are then entitled to obtain hereunder (after giving
effect to all then outstanding Obligations and all sublimits and reserves
applicable hereunder), minus the aggregate amount, if any, of all trade payables
of the Obligors aged materially in excess of the Obligors' historical levels
with respect thereto and all book overdrafts materially in excess of the
Obligors' historical practices with respect thereto, in each case as determined
by Agent in its Permitted Discretion, plus, at Agent's option, Obligors' cash on
hand and Cash Equivalents.
"Commitment" means, with respect to each Lender, its Tranche A Commitment,
its Tranche B Commitment, or its Total Commitment, as the context requires, and
with respect to all Lenders, their Tranche A Commitments, their Tranche B
Commitments, or their Total Commitments, as the context requires, in each case
as such Dollar amounts are set forth beside such Lender's name under the
applicable heading on Schedule C-1 attached hereto or on the signature page of
the Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 14.1.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C-3 delivered by the chief financial officer of Borrower to Agent.
"Confirmation Order" means, collectively, the orders of the Bankruptcy
Court dated November 3, 1999, November 30, 1999, and March 20, 2000, pursuant to
which the Plan of Reorganization was confirmed, copies of which are attached
hereto as Exhibit C-4.
"Control Agreement" means a control agreement, in form and substance
reasonably satisfactory to Agent, between Borrowers, Collateral Agent, and the
applicable securities intermediary with respect to the applicable Securities
Account and related Investment Property.
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"Copyright Security Agreement" means a Copyright Security Agreement
executed and delivered by each Obligor and Collateral Agent, the form and
substance of which is satisfactory to Agent.
"Daily Balance" means, with respect to each day during the term of this
Agreement, the amount of an Obligation owed at the end of such day.
"DDA" means any checking or other demand deposit account maintained by
Borrowers.
"Default" means an event, condition, or default that, with the giving of
notice, the passage of time, or both, would be an Event of Default.
"Defaulting Lender" means any Lender that fails to make any Advance that it
is required to make hereunder on any Funding Date and that has not cured such
failure by making such Advance within 1 Business Day after written demand upon
it by Agent to do so.
"Defaulting Lender Rate" means the Base Rate for the first 3 days from and
after the date the relevant payment is due and, thereafter, at that interest
rate equal to the interest rate then applicable to (a) with respect to any such
payment in respect of Tranche A Advances or Letters of Credit, the Tranche A
Advances, and (b) with respect to any other payment, the Tranche B Advances.
"Demand Notes" means those certain demand notes of even date herewith
executed and delivered by certain Canadian Guarantors in favor of the Collateral
Agents acting for the Lenders having Tranche A Commitments and for the Lenders
having Tranche B Commitments.
"Depreciation Expense" means, with respect to any period of determination,
the consolidated depreciation, amortization, and other similar reductions to
income of a Person for such period as determined in accordance with GAAP.
"Designated Account" means account number 1851-040855 of Administrative
Borrower maintained with the Designated Account Bank, or such other deposit
account of Borrower (located within the United States) that has been designated
as such, in writing, by Administrative Borrower to Agent.
"Designated Account Bank" means Comerica Bank, whose office is located at
000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx and whose ABA number is 000000000.
"Dilution" means, as of any date of determination, a percentage, based upon
the experience of the Obligors, taken as a whole, for the immediately preceding
90 days, that is the result of dividing the Dollar amount of (a) bad debt
write-downs, discounts, credits, or other dilutive items with respect to the
Accounts during such 90 day period, by
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(b) the Obligors' Collections with respect to Accounts during such 90 day period
(excluding extraordinary items) plus the Dollar amount of clause (a).
"Dilution Reserve" means, as of any date of determination, an amount
sufficient to reduce the advance rate against Eligible Accounts by one
percentage point for each percentage point by which Dilution is in excess of 5
percent.
"DIP Agent" means Bankers Trust Company, as agent for the lenders under the
DIP Credit Agreement.
"DIP Credit Agreement" means that certain Credit Agreement dated as of June
28, 1999 by and among PSC, Parent, Bankers Trust Company, as agent, Canadian
Imperial Bank of Commerce and Bankers Trust Company, as co-arrangers and the
various Persons parties to such agreement as lenders, as amended, supplemented,
or otherwise modified from time to time.
"Disbursement Letter" means an instructional letter executed and delivered
by Administrative Borrower to Agent regarding the extensions of credit to be
made on the Closing Date, the form and substance of which shall be reasonably
satisfactory to Agent.
"Dollars" or "$" means United States dollars.
"EBITDA" means, with respect to any fiscal period, the consolidated net
earnings (or loss) of Parent before Interest Expense, income taxes, and
Depreciation Expense for such period, as determined in accordance with GAAP and
excluding, to the extent included, without duplication (a) net of applicable
taxes, any loss or gain arising from the closure of businesses or locations, (b)
net of applicable taxes, any loss arising from the write-down of long term
assets, (c) professional fees and other restructuring costs (including retention
payments) incurred in connection with the Bankruptcy Cases and the proceedings
before the Canadian Bankruptcy Court and the closing of the transactions
contemplated by this Agreement, and (d) Exit Facility Fees.
"Eligible Account" means an Eligible Domestic Account, an Eligible Canadian
Account, or an Eligible Unbilled Account, as the context requires.
"Eligible Canadian Account" means any Account of one of the Canadian
Guarantors as to which each of the following is applicable: (a) such Account
does not qualify as an Eligible Domestic Account solely because of one or more
of the following reasons: (x) such Account is an Account of a Canadian Guarantor
rather than of a Borrower; (y) such Account is payable in Canadian dollars
rather than in Dollars; or (z) the Account Debtor with respect to such Account
maintains its chief executive office in Canada rather than in the United States
or is organized under the laws of Canada or a political subdivision thereof
rather than under the laws of the United States or any State
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thereof; and (b) Collateral Agent has perfected security interests in such
Account prior to any other security interest therein.
"Eligible Domestic Accounts" means those Accounts created by one of the
Borrowers in the ordinary course of its business, that arise out of its sale of
goods or rendition of services, that comply, in all material respects, with each
and all of the representations and warranties respecting Accounts made by
Borrowers under the Loan Documents, and that are not excluded as ineligible by
virtue of one or more of the criteria set forth below. Eligible Domestic
Accounts shall not include the following:
(a) Accounts that the Account Debtor has failed to pay within 90 days of
the original invoice date or Accounts with selling terms of more than 60 days,
(b) Accounts owed by an Account Debtor (or its Subsidiaries) where 50% or
more of all Accounts owed by that Account Debtor (or its Subsidiaries) are
deemed ineligible under clause (a) above,
(c) Accounts with respect to which the Account Debtor is an employee,
Affiliate, or agent of any Borrower,
(d) Accounts arising in a transaction wherein goods were placed on
consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale
on approval, a xxxx and hold, or pursuant to any other agreement providing for
repurchase or return (other than pursuant to warranties made in the ordinary
course of business),
(e) Accounts that are not payable in Dollars,
(f) Accounts with respect to which the Account Debtor either (i) does not
maintain its chief executive office in the United States, (ii) is not organized
under the laws of the United States or any State thereof, or (iii) is the
government of any foreign country or sovereign state, or of any state, province,
municipality, or other political subdivision thereof, or of any department,
agency, public corporation, or other instrumentality thereof, unless the Account
is supported by an irrevocable letter of credit in form and substance reasonably
satisfactory to the Agent, issued by a financial institution reasonably
satisfactory to the Agent, and that has been duly pledged to the Collateral
Agent (together with sufficient documentation to permit direct draws by the
Collateral Agent),
(g) Accounts with respect to which the Account Debtor is either (i) the
United States or any department, agency, or instrumentality of the United States
(exclusive, however, of Accounts with respect to which the Borrower has
complied, to the reasonable satisfaction of Agent, with the Assignment of Claims
Act, 31 USC ss. 3727), (ii) any State of the United States (exclusive, however,
of (y) Accounts owed by any State that does not have a statutory counterpart to
the Assignment of Claims Act or (z) Accounts owed by any State that does have a
statutory counterpart to the Assignment of Claims Act as to which the applicable
Obligor has complied to the Agent's satisfaction), or (iii) a
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Canadian Governmental Authority except to the extent the Account is assignable
without consent or all necessary consents have been obtained,
(h) Accounts with respect to which the Account Debtor is a creditor of any
Obligor, has (unless the Account Debtor has provided to the Agent an enforceable
"non- offset" letter in form and substance reasonably satisfactory to the Agent)
or has asserted a right of setoff, has disputed its liability, or has made any
claim with respect to its obligation to pay the Account, to the extent of such
claim, right of offset, assertion, or dispute,
(i) Accounts with respect to an Account Debtor whose total obligations
owing to the Obligors exceed 10% of all Eligible Accounts, to the extent of the
obligations owing by such Account Debtor in excess of such percentage,
(j) Accounts with respect to which the Account Debtor is subject to an
Insolvency Proceeding, is not Solvent, or goes out of business,
(l) Accounts, the collection of which, Agent, in its reasonable credit
judgment, believes to be doubtful by reason of the Account Debtor's financial
condition,
(m) Accounts arising with respect to a contract or project as to which the
obligations of the applicable Obligor are the subject of a payment, performance,
or other surety bond,
(n) Accounts with respect to which (i) the goods giving rise to such
Account have not been shipped and billed to the Account Debtor, or (ii) the
services giving rise to such Account have not been fully performed; and
(o) Accounts that otherwise are not in compliance with any other criteria
for eligibility established from time to time by Agent in its Permitted
Discretion (Agent shall endeavor in good faith promptly to provide notice to
Administrative Borrower of any change in criteria for eligibility established
pursuant to this clause (o)).
"Eligible Transferee" means (a) a commercial bank organized under the laws
of the United States, or any state thereof, and having total assets in excess of
$250,000,000, (b) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development or a political subdivision of any such country and which has total
assets in excess of $250,000,000, provided that such bank is acting through a
branch or agency located in the United States, (c) a finance company, insurance
company, or other financial institution or fund that is engaged in making,
purchasing, or otherwise investing in commercial loans in the ordinary course of
its business and having (together with its Affiliates) total assets in excess of
$250,000,000, (d) any Affiliate (other than individuals) of a pre-existing
Lender, (e) so long as no Event of Default has occurred and is continuing, any
other Person approved by Agent and Borrowers (such approval by Borrowers not to
be unreasonably withheld,
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conditioned or delayed), and (f) during the continuation of an Event of Default,
any other Person approved by Agent.
"Eligible Unbilled Account" means, as of any date of determination, an
Account of an Obligor that (a) is capable of being billed by such Obligor to its
customer in accordance with such Obligor's usual billing methods for Accounts,
but that has not yet been billed and invoiced to such customer, (b) does not
relate to services rendered or goods sold that were received by the applicable
Account Debtor more than 30 days prior to the date of determination, and (c) in
all other respects would qualify as an Eligible Domestic Account or Eligible
Canadian Account, as applicable, but for the fact that it has not yet been
billed and invoiced to such Obligor's customer. Eligible Unbilled Accounts shall
be net of contra accounts. If an Account that, immediately prior to being billed
and invoiced, was an Eligible Unbilled Account, then is billed and invoiced, it
thereupon shall cease to be an Eligible Unbilled Account and it shall become an
Eligible Domestic Account or Eligible Canadian Account, as applicable, if it
then meets the criteria applicable thereto.
"Environmental Law" means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy or rule of common
law now or hereafter in effect and in each case as amended, or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on the Obligors,
relating to the environment, employee health and safety or Hazardous Materials,
including CERCLA; RCRA; the Federal Water Pollution Control Act, 33 USC ss.1251
et seq; the Toxic Substances Control Act, 15 USC, ss. 2601 et seq; the Clean Air
Act, 42 USC ss.7401 et seq.; the Safe Drinking Water Act, 42 USC. ss.3803 et
seq.; the Oil Pollution Act of 1990, 33 USC. ss. 2701 et seq.; the Emergency
Planning and the Community Right-to-Know Act of 1986, 42 USC. ss. 11001 et seq.;
the Hazardous Material Transportation Act, 49 USC ss. 1801 et seq.; and the
Occupational Safety and Health Act, 29 USC. ss.651 et seq. (to the extent it
regulates occupational exposure to Hazardous Materials); any state and local or
foreign counterparts or equivalents, in each case as amended from time to time;
and any similar statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy or rule of common
law now or hereafter in effect in Canada and in each case as amended, or any
judicial or administrative interpretation thereof, including any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment to the extent binding on the Obligors.
"Equipment" means all of the Obligors' present and hereafter acquired
machinery, machine tools, motors, equipment, furniture, furnishings, fixtures,
vehicles (including motor vehicles and trailers), tools, parts, goods (other
than consumer goods, farm products, or Inventory), wherever located, including
all attachments, accessories, accessions, replacements, substitutions,
additions, and improvements to any of the foregoing.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto.
"ERISA Affiliate" means (a) any corporation whose employees are treated as
employed by the same employer as the employees of a Borrower under IRC Section
414(b), (b) any trade or business whose employees are treated as employed by the
same employer as the employees of a Borrower under IRC Section 414(c), (c)
solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any
organization that is a member of an affiliated service group of which a Borrower
is a member under IRC Section 414(m), or (d) solely for purposes of Section 302
of ERISA and Section 412 of the IRC, any party that is a party to an arrangement
with a Borrower and whose employees are aggregated with the employees of a
Borrower under IRC Section 414(o).
"ERISA Event" means (a) a Reportable Event with respect to any Benefit Plan
or Multiemployer Plan, (b) the withdrawal of any Borrower or any of its ERISA
Affiliates from a Benefit Plan during a plan year in which it was a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), (c) the providing of
notice of intent to terminate a Benefit Plan in a distress termination (as
described in Section 4041(c) of ERISA), (d) the institution by the PBGC of
proceedings to terminate a Benefit Plan or Multiemployer Plan, (e) any event or
condition (i) that provides a basis under Section 4042(a)(1), (2), or (3) of
ERISA for the termination of, or the appointment of a trustee to administer, any
Benefit Plan or Multiemployer Plan, or (ii) that may result in termination of a
Multiemployer Plan pursuant to Section 4041A of ERISA, (f) the partial or
complete withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of
any Borrower, any of their ERISA Affiliates from a Multiemployer Plan, or (g)
providing any security to any Plan under Section 401(a)(29) of the IRC by any
Borrower or any of its ERISA Affiliates or (h) the termination, reorganization
or insolvency of any Multiemployer Plan to which any Borrower or any of its
ERISA Affiliates is required to contribute.
"Event of Default" has the meaning set forth in Section 8.
"Excepted Collections" means the proceeds from the sale, exchange or other
disposition of assets from one Obligor to another Obligor or permitted under
clauses (f), (g), (h) or (i) of the definition of "Permitted Dispositions"
(inclusive, however, of Accounts, General Intangibles, or Negotiable Collateral
sold in connection with the sale of the business out of which they arose),
provided however, that in each case such proceeds shall become Excepted
Collections only to the extent that Administrative Borrower demonstrates to
Agent's satisfaction (in Agent's Permitted Discretion) within thirty calendar
days of receipt by Administrative Borrower of Agent's statement reflecting
receipt of such proceeds, that such proceeds qualify as Excepted Collections.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute.
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"Existing Letters of Credit" means those letters of credit listed on
Schedule E-1.
"Exit Facility Fees" means, as of any date of determination, (a) for any
fiscal period ended on or before the date that is the first anniversary of the
Closing Date, fees paid or payable to Agent and/or Lenders on or prior to the
Closing Date relative to the execution and delivery of this Agreement and,
without duplication, fees paid or payable pursuant to Sections 2.12(b), (c), and
(d) hereof during such period, and (b) for any fiscal period ended after the
date that is the date of the first anniversary of the Closing Date, fees paid or
payable pursuant to Sections 2.12(b), (c), and (d) hereof during such period.
"Fee Split Letters" means, collectively, (a) that certain letter agreement,
dated as of the date hereof, between Agent and Ableco Finance LLC and Xxxxxxxxx
LLC, (b) that certain letter agreement, dated as of the date hereof, between
Agent and Foothill Partners III, L.P., (c) that certain letter agreement, dated
as of the date hereof, between Agent and Foothill Income Trust, L.P., and (d)
that certain letter agreement, dated as of the date hereof, between Agent and
Arnos Corporation. The parties hereto acknowledge and agree that the Borrowers
are not parties to, and are not entitled to review, the Fee Split Letters and
consequently no provision of any Fee Split Letter may alter or otherwise affect
the obligations of the Borrowers hereunder or under any other Loan Document.
"FEIN" means Federal Employer Identification Number.
"Foothill" means Foothill Capital Corporation, a California corporation.
"Funding Date" means the date on which a Borrowing occurs.
"Funding Losses" has the meaning set forth in Section 2.13(b)(ii).
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, consistently applied.
"General Intangibles" means all of the Obligors' general intangibles and
other personal property (including contract rights, rights to payment, rights
arising under common law, statutes, or regulations, choses or things in action,
goodwill, patents, trade names, trademarks, servicemarks, copyrights,
blueprints, drawings, purchase orders, customer lists, monies due or recoverable
from pension funds, route lists, rights to payment and other rights under any
royalty or licensing agreements, infringement claims, computer programs,
information contained on computer disks or tapes, literature, reports, catalogs,
money, deposit accounts, insurance premium rebates, tax refunds, and tax refund
claims), other than goods, Accounts, Investment Property, and Negotiable
Collateral.
"Governing Documents" means, with respect to any Person, the certificate or
articles of incorporation, by-laws, or other organizational documents of such
Person.
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"Governmental Authority" shall mean any federal, state, local, or other
governmental or administrative body, instrumentality, department, or agency or
any court, tribunal, administrative hearing body, arbitration panel, commission,
or other similar dispute-resolving panel or body.
"Guarantors" means any or all of the Canadian Guarantors or the Non-
Canadian Guarantors, as the context requires.
"Guarantor Security Agreement" means that certain Security Agreement
executed and delivered by the Guarantors in favor of Collateral Agent, in form
and substance (including being governed by the laws of New York) satisfactory to
Agent.
"Guaranty" means that certain General Continuing Guaranty executed and
delivered by the Guarantors in favor of Agent and each of the Lenders, in form
and substance (including being governed by the laws of New York) satisfactory to
Agent.
"Hazardous Materials" means (a) substances that are defined or listed in,
or otherwise classified pursuant to, any applicable laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP
toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas,
natural gas liquids, synthetic gas, drilling fluids, produced waters, and other
wastes associated with the exploration, development, or production of crude oil,
natural gas, or geothermal resources, (c) any flammable substances or explosives
or any radioactive materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million.
"Hypothec" means the security document made by certain of the Canadian
Guarantors in favor of Collateral Agent, in form and substance (including being
governed by the laws of Quebec) satisfactory to Agent.
"Indebtedness" means, as to any Person and without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments and
all reimbursement or other obligations of such Person in respect of letters of
credit, bankers acceptances, interest rate swaps, or other financial products,
(c) all obligations of such Person under Capital Leases, (d) all obligations or
liabilities of the types described in clauses (a) through (c) above of others
secured by a Lien on any property or asset of such Person, irrespective of
whether such obligation or liability is assumed, and (e) any obligation of such
Person guaranteeing or intended to guarantee (whether guaranteed, endorsed,
co-made, discounted, or sold with recourse to such Person) any obligation or
liability of the types described in clauses (a) through (c) above of any other
Person; provided, however, that
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Indebtedness shall not include trade payables and accrued expenses, in each case
arising in the ordinary course of business or any reimbursement obligations of
such Person under any performance bond issued for the account of such Person.
"Indemnified Liabilities" has the meaning set forth in Section 11.3.
"Indemnified Person" has the meaning set forth in Section 11.3.
"Insolvency Proceeding" means any proceeding commenced by or against any
Person under any provision of the Bankruptcy Code or under any other bankruptcy
or insolvency law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, extensions generally with creditors, or proceedings
seeking reorganization, arrangement, or other similar relief.
"Interest Coverage Ratio" means, with respect to any period of
determination, the ratio of (i) EBITDA, to (ii) Cash Interest Expense and Exit
Facility Fees for such period, all as determined in accordance with GAAP minus
any Cash Interest Expense paid with respect to the exercise of a change of
control put under the Junior Unsecured Debt Documents.
"Interest Expense" means, with respect to any period of determination, the
consolidated interest expense of a Person incurred during such period as
determined in accordance with GAAP plus, without duplication, the Letter of
Credit fees accrued hereunder during such period, but excluding, to the extent
included, without duplication, (a) Exit Facility Fees, and (b) any other amounts
(such as the amortization of debt discount) that would be classified as
Depreciation Expenses.
"Interest Period" means, with respect to each LIBOR Rate Advance, a period
commencing on the date of the making of such LIBOR Rate Advance and ending 1, 2,
or 3 months thereafter; provided, however, that (a) if any Interest Period would
end on a day that is not a Business Day, such Interest Period shall be extended
(subject to clauses (c)-(e) below) to the next succeeding Business Day, (b)
interest shall accrue from and including the first day of each Interest Period
to, but excluding, the day on which any Interest Period expires, (c) any
Interest Period that would end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (d) with respect to an Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period), the Interest Period shall end on the last Business Day of the calendar
month that is 1, 2, or 3 months after the date on which the Interest Period
began, as applicable, and (e) Borrower may not elect an Interest Period which
will end after the Maturity Date.
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"Inventory" means all of the Obligors' inventory, including goods held for
sale or lease or to be furnished under a contract of service and all of
Obligors' raw materials, work in process, finished goods, and all materials used
or consumed in the Obligors' business, wherever located.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person in the form of loans, guarantees, advances, or
capital contributions (excluding (a) commission, travel, and similar advances to
officers and employees of such Person made in the ordinary course of business,
and (b) bona fide accounts receivable arising from the sale of goods or services
in the ordinary course of business consistent with past practice), purchases or
other acquisitions for consideration of Indebtedness or Stock, and any other
items that are or would be classified as investments on a balance sheet prepared
in accordance with GAAP.
"Investment Property" means all of the Obligors' "investment property", as
that term is defined in the Code.
"Issuing Lender" means Foothill or any other Lender that, at the request of
Administrative Borrower and with the consent of Agent agrees, in such Lender's
sole discretion, to become an Issuing Lender for the purpose of issuing L/Cs or
L/C Undertakings pursuant to Section 2.2.
"IRC" means the Internal Revenue Code of 1986, as amended, and any
successor statute.
"Junior Debt" means the Indebtedness evidenced by the Junior Debt
Documents.
"Junior Debt Documents" means the Junior Secured Debt Documents and the
Junior Unsecured Debt Documents.
"Junior Secured Debt" means the Indebtedness evidenced by the Junior
Secured Debt Documents.
"Junior Secured Debt Agent" means Canadian Imperial Bank of Commerce as
agent for the lenders under the Junior Secured Debt Credit Agreement.
"Junior Secured Debt Credit Agreement" means that certain Term Loan Credit
Agreement dated as of the Closing Date by and among Parent, Junior Secured Debt
Agent, and the various Persons parties to such agreement as lenders, in form and
substance satisfactory to Agent.
"Junior Secured Debt Documents" means the Junior Secured Debt Credit
Agreement and the notes and other documents and agreements entered into in
connection with the issuance of the Indebtedness thereunder.
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"Junior Unsecured Debt" means the Indebtedness evidenced by the Junior
Unsecured Debt Documents.
"Junior Unsecured Debt Documents" means the PIK Unsecured Debt Indenture,
the Unsecured Convertible Debt Indenture, and, in each case, the notes and other
documents and agreements entered into in connection with the issuance of the
Indebtedness thereunder.
"L/C" has the meaning set forth in Section 2.2(a).
"L/C Disbursement" means a payment made by the Issuing Lender pursuant to a
Letter of Credit.
"L/C Undertaking" has the meaning set forth in Section 2.2(a).
"Lender" and "Lenders" have the respective meanings set forth in the
preamble to this Agreement and shall include any other Person made a party to
this Agreement in accordance with the provisions of Section 14.1 hereof.
"Lender Group" means, individually and collectively, each of the Lenders
and Agent.
"Lender Group Expenses" means all (a) costs or expenses (including taxes,
and insurance premiums) required to be paid by an Obligor under any of the Loan
Documents that are paid or incurred by the Lender Group, (b) fees or charges
paid or incurred by the Lender Group in connection with the Lender Group's
transactions with Obligors, including, fees or charges for photocopying,
notarization, couriers and messengers, telecommunication, public record searches
(including tax lien, litigation, and UCC searches and including searches with
the patent and trademark office, the copyright office, or the department of
motor vehicles), filing, recording, publication, appraisal (including Collateral
appraisals in accordance with the provisions of this Agreement), and real estate
title policies and endorsements, (c) costs and expenses incurred by Agent in the
disbursement of funds to Borrowers (by wire transfer or otherwise), (d) charges
paid or incurred by Agent resulting from the dishonor of checks, (e) reasonable
costs and expenses paid or incurred by the Lender Group to correct any default
or enforce any provision of the Loan Documents, or in gaining possession of,
maintaining, handling, preserving, storing, shipping, selling, preparing for
sale, or advertising to sell the Collateral, or any portion thereof,
irrespective of whether a sale is consummated, (f) reasonable costs and expenses
paid or incurred by the Lender Group in examining the Books, (g) reasonable
costs and expenses of third party claims or any other suit paid or incurred by
the Lender Group in enforcing or defending the Loan Documents or in connection
with the transactions contemplated by the Loan Documents or the Lender Group's
relationship with any Obligor, and (h) the Lender Group's reasonable fees and
expenses (including attorneys fees) incurred in advising, structuring, drafting,
reviewing, administering, amending,
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terminating, enforcing (including attorneys fees and expenses incurred in
connection with a "workout," a "restructuring," or an Insolvency Proceeding
concerning any Obligor), defending, or concerning the Loan Documents,
irrespective of whether suit is brought.
"Lender-Related Person" means, with respect to any Lender, such Lender,
together with such Lender's Affiliates, and the officers, directors, employees,
and agents of such Lender.
"Letter of Credit" means an L/C or an L/C Undertaking, as the context
requires.
"Letter of Credit Usage" means, as of any date of determination, the sum of
(a) the aggregate undrawn Dollar amount of all outstanding Letters of Credit,
plus (b) a reserve amount established by Agent from time to time in Agent's
Permitted Discretion in connection with possible currency exchange rate
fluctuations with respect to L/C Undertakings issued in respect of Underlying
Letters of Credit issued in currencies other than Dollars.
"LIBOR Deadline" has the meaning set forth in Section 2.13(b)(i).
"LIBOR Notice" means a written notice in the form of Exhibit L-1 attached
hereto.
"LIBOR Rate" means, for each Interest Period for each LIBOR Rate Advance,
the rate per annum determined by Agent (rounded upwards, if necessary, to the
next 1/100%) by dividing (a) the Base LIBOR Rate for such Interest Period, by
(b) 100% minus the Reserve Percentage. The LIBOR Rate shall be adjusted on and
as of the effective day of any change in the Reserve Percentage.
"LIBOR Rate Advance" means each portion of a Tranche A Advance bearing
interest at a rate determined by reference to the LIBOR Rate.
"LIBOR Rate Margin" means 3.0 percentage points.
"Lien" means any interest in property securing an obligation owed to, or a
claim by, any Person other than the owner of the property, whether such interest
shall be based on the common law, statute, or contract, whether such interest
shall be recorded or perfected, and whether such interest shall be contingent
upon the occurrence of some future event or events or the existence of some
future circumstance or circumstances, including the lien or security interest
arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation,
assignment, deposit arrangement, security agreement, conditional sale or trust
receipt, or from a lease, consignment, or bailment for security purposes and
also including reservations, exceptions, encroachments, easements,
rights-of-way,
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covenants, conditions, restrictions, leases, and other title exceptions and
encumbrances affecting Real Property.
"Loan Account" has the meaning set forth in Section 2.11.
"Loan Documents" means this Agreement, the Canadian Guaranty, the Canadian
Security Agreement, any Control Agreement, the Copyright Security Agreement, the
Disbursement Letter, the Guaranty, the Guarantor Security Agreement, the
Hypothec, the Letters of Credit, the blocked account agreements referenced in
Section 2.8(c), the Mortgages, the Patent Security Agreement, the Security
Agreement, the Stock Pledge Agreement, the Suretyship Agreement, the Trademark
Security Agreement, and any other agreement entered into, now or in the future,
by any Borrower and the Lender Group in connection with this Agreement.
"Lockboxes" has the meaning set forth in Section 2.8(a).
"Lockbox Accounts" has the meaning set forth in Section 2.8(a).
"Lockbox Account Banks" has the meaning set forth in Section 2.8(a).
"Material Adverse Change" means (a) a material adverse change in the
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of the Obligors (taken as a whole), (b) the
material impairment of the ability of the Obligors (taken as a whole) to perform
their obligations under the Loan Documents or of the Lender Group's ability to
enforce the Obligations or realize upon a material portion of the Collateral, or
(c) a material impairment of the priority of the Collateral Agent's Liens with
respect to a material portion of the Collateral as a result of an action or
failure to act on the part of any Obligor.
"Maturity Date" has the meaning set forth in Section 3.4.
"Maximum Facility Amount" means $175,000,000.
"Maximum Tranche A Amount" means $100,000,000.
"Maximum Tranche B Amount" means $75,000,000.
"Mortgage" means, individually and collectively, one or more mortgages,
deeds of trust, or deeds to secure debt, executed and delivered by an Obligor in
favor of Collateral Agent, the form and substance of which shall be satisfactory
to Agent, that encumber Real Property Collateral and the related improvements
thereto.
"Multiemployer Plan" means a "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) to which any Borrower or any ERISA Affiliate is obligated
to contribute.
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"Negotiable Collateral" means all of Obligors' letters of credit, notes,
drafts, instruments, certificated securities, documents, and chattel paper.
"Non-Canadian Guarantors" means Arc Dust Processing (Barbados) Limited, a
Barbados corporation, and Xxxxxx International Development Inc., a Barbados
corporation.
"Obligations" means all loans, Advances, debts, principal, interest
(including any interest that, but for the provisions of the Bankruptcy Code,
would have accrued), contingent reimbursement obligations with respect to
Letters of Credit, premiums, liabilities (including all amounts charged to
Borrowers' Loan Account pursuant hereto), obligations, fees, charges, costs, or
Lender Group Expenses (including any fees or expenses that, but for the
provisions of the Bankruptcy Code, would have accrued), guaranties, covenants,
and duties owing by Obligors to the Lender Group of any kind and description
pursuant to or evidenced by the Loan Documents, irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all interest not
paid when due and all Lender Group Expenses that Obligors are required to pay or
reimburse by the Loan Documents, by law, or otherwise.
"Obligors" means, individually and collectively, Borrowers and the
Guarantors, and "Obligor" means any one of them.
"Originating Lender" has the meaning set forth in Section 14.1(g).
"Overadvance" has the meaning set forth in Section 2.6.
"Parent" has the meaning ascribed thereto in the preamble to this
Agreement.
"Participant" has the meaning set forth in Section 14.1(g).
"PAS" means Xxxxxx Analytical Services Inc., an Ontario corporation.
"Patent Security Agreement" means a Patent Security Agreement executed and
delivered by each Borrower and Collateral Agent, the form and substance of which
is satisfactory to Agent.
"Pay-Off Letter" means a letter, in form and substance reasonably
satisfactory to Agent, from DIP Agent to Agent respecting the amount necessary
to repay in full all of the obligations of the Obligors owing under the DIP
Credit Agreement and obtain a release of all of the Liens existing in favor of
DIP Agent in and to the assets of the Obligors.
"PBGC" means the Pension Benefit Guaranty Corporation, as defined in Title
IV of ERISA, or any successor thereto.
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"Permitted Acquisition" means an Acquisition by an Obligor of all or
substantially all of the assets of another Person (exclusive of any Stock issued
or owned by such Person) so long as (a) no Default or Event of Default shall
have occurred and be continuing or would result from the consummation of the
proposed Acquisition, (b) the assets being acquired are useful in the business
of the Obligors as such business exists on the Closing Date, (c) Borrowers have
complied with their obligations under Section 4.1 hereof and under the Security
Agreement in connection therewith, and (d) the total cash consideration paid in
respect of such Acquisition and all other Permitted Acquisitions made during the
period specified in clause (i), (ii) or (iii) below, as the case may be, does
not exceed (i) $2,000,000 during the period of time from and after the execution
and delivery of this Agreement up to the first anniversary of the Closing Date,
(ii) $2,000,000 during the period of time from and after the first anniversary
of the Closing Date up to the second anniversary of the Closing Date, or (iii)
$1,000,000 during the period of time from and after the second anniversary of
the Closing Date up to the Maturity Date.
"Permitted Discretion", with respect to any determination by a member of
the Lender Group, means a determination made in good faith and in the exercise
of reasonable (from the perspective of a secured asset-based lender) business
judgment.
"Permitted Dispositions" means (a) sales, exchanges, trade-ins, or other
dispositions of Equipment that is substantially worn, damaged, or obsolete in
the ordinary course of Obligors' business, (b) sales of Inventory to Persons
(including another Obligor) who are buyers in the ordinary course of the selling
Obligor's business, (c) the use or transfer of money or Cash Equivalents by
Obligors (i) to pay taxes, trade payables and other ordinary operating expenses
in the ordinary course of business, (ii) to make Capital Expenditures to the
extent permitted hereby, (iii) to pay Capitalized Lease Obligations to the
extent permitted hereby, (iv) to repay Indebtedness in connection with the
refinancing of Indebtedness to the extent permitted hereby, (v) to repay
Indebtedness in connection with any sale of assets to the extent permitted by
Section 7.8(c)(iv), (vi) to make Permitted Investments, or (vii) in any other
manner that is not prohibited by the terms of this Agreement or the other Loan
Documents, (d) the licensing or sub-licensing by any Obligor, on a non-exclusive
basis, of patents, trademarks, copyrights, and other intellectual property
rights in the ordinary course of such Obligor's business, (e) discounts so long
as no Default or Event of Default has occurred and is continuing, without
recourse and in the ordinary course of business, of overdue Accounts arising in
the ordinary course of business, but only in connection with the compromise or
collection thereof consistent with customary industry practice (and not as part
of any bulk sale or financing of receivables), (f) transfers of condemned
property to the respective Governmental Authority that has condemned same
(whether by deed in lieu of condemnation or otherwise), and transfers of
properties that have been subject to a casualty to the respective insurer of
such property as part of an insurance settlement, so long as the proceeds
thereof are applied in accordance with the provisions of the Collateral Agency
and Intercreditor Agreement and the provisions hereof, (g) transfers or leases
of assets by Parent to any wholly-owned
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Borrower, by any Obligor to Parent, or by any Obligor to any wholly-owned
Obligor, (h) so long as no Default or Event of Default has occurred and is
continuing, any disposition described on Schedule P-1, and (i) so long as no
Default or Event of Default has occurred and is continuing or would result
therefrom, any other sale, exchange, or other disposition of assets (exclusive
of Accounts, General Intangibles, or Negotiable Collateral, other than in
connection with the sale of the business out of which they arose) in an amount
not in excess of (1) $5,000,000 in any transaction or series of related
transactions, and (2) $25,000,000 in any twelve month period (the value of the
assets under clause (1) and (2) shall be determined on the basis of the fair
market value of such assets as mutually agreed upon by Administrative Borrower
and Agent in good faith and based upon the facts and circumstances as of the
date of the consummation of the applicable transaction).
"Permitted Investments" means (a) investments in cash and Cash Equivalents,
(b) so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, (i) contributions to, and investments in, joint ventures
to the extent specified on Schedule P-2, (ii) investments resulting from
performance under one or more of the guaranties described on Schedule 7.6, (iii)
equity investments by any Borrower in any other Borrower, (iv) equity
investments by any Canadian Guarantor in any other Canadian Guarantor, and (v)
equity investments by any Canadian Guarantor in any Borrower, (c) so long as no
Default or Event of Default has occurred and is continuing or would result
therefrom, discretionary Investments in Subsidiaries of Parent that are not
Obligors not in excess of: (i) during the period of time from and after the
Closing Date up to but not including the first anniversary of the Closing Date,
the result of (y) $5,000,000 minus (z) the aggregate amount of guaranties that
were made during such period and that are outstanding during such period
pursuant to Section 7.6(b), (ii) during the period of time from and after the
first anniversary of the Closing Date up to but not including the second
anniversary of the Closing Date, the result of (y) $5,000,000 minus (z) the
aggregate amount of guaranties that were made during such period and that are
outstanding during such period pursuant to Section 7.6(b), and (iii) during the
period of time from and after the second anniversary of the Closing Date up to
but not including the Maturity Date, the result of (y) $2,500,000 minus (z) the
aggregate amount of guaranties that were made during such period and that are
outstanding during such period pursuant to Section 7.6(b), (d) investments in
commercial paper rated at least A-1 or P-1 maturing within one year after the
date of acquisition thereof, (e) money market accounts maintained at a
commercial bank headquartered in the United States or Canada having combined
capital and surplus of no less than $500,000,000 or at any other financial
institution reasonably satisfactory to Agent, (f) investments in negotiable
instruments for collection, (g) advances made in connection with purchases of
goods or services in the ordinary course of business, and (h) investments
resulting from the making of loans or advances permitted by Section 7.1(h).
"Permitted Liens" means (a) Liens held by Collateral Agent pursuant to the
Security Documents and subject to the terms and conditions of the
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Collateral Agency and Intercreditor Agreement, (b) Liens for unpaid taxes that
either (i) are not yet delinquent or (ii) do not constitute an Event of Default
hereunder and are the subject of Permitted Protests or Liens for unpaid taxes
filed against a landlord or owner of a real property in which an Obligor owns
only a leasehold estate, (c) Liens set forth on Schedule P-3, (d) the interests
of lessors under operating leases, (e) Purchase Money Liens or the interests of
lessors under Capital Leases to the extent that such Liens or interests secure
Permitted Purchase Money Indebtedness and so long as the Lien attaches only to
the asset purchased or acquired and the proceeds thereof, (f) Liens arising by
operation of law in favor of warehousemen, landlords, carriers, mechanics,
materialmen, laborers, or suppliers, incurred in the ordinary course of business
of the Obligors and not in connection with the borrowing of money, and which
Liens either (i) are for sums not yet delinquent, (ii) are the subject of
Permitted Protests, or (iii) which in the aggregate do not detract from the
value of the subject property or assets or materially impair the use thereof in
the operation of the business of the Obligors, (g) Liens arising from deposits
made in connection with obtaining worker's compensation or other unemployment
insurance, (h) Liens or deposits to secure performance of bids, tenders, or
leases incurred in the ordinary course of business of the Obligors and not in
connection with the borrowing of money, (i) Liens granted as security for surety
or appeal bonds in connection with obtaining such bonds in the ordinary course
of business of the Obligors, (j) Liens resulting from any judgment or award that
is not an Event of Default hereunder, (k) with respect to any Real Property,
easements, rights of way, restrictions (including zoning restrictions),
encroachments, protrusions, municipal agreements, and other similar charges and
minor title deficiencies, in each case whether now or hereafter in existence,
not securing Indebtedness and not materially interfering with the conduct of the
business of the Obligors conducted at such Real Property, (l) rights of tenants,
subtenants, franchisees, or other parties in possession (other than a debtor in
possession, trustee in bankruptcy or receiver of Obligors) of Real Property, or
options or rights of first refusal respecting Real Property, whether pursuant to
leases, subleases, franchise agreements, other occupancy agreements, or
otherwise, if such rights were vested on the Closing Date or created thereafter
in the ordinary course of business in transactions permitted under this
Agreement, (m) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement, (n)
Liens in favor of a banking institution arising as a matter of law or pursuant
to the banking institution's standard form agreements regulating the DDAs, (o)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure the payment of customs duties in connection with the importation of
goods, (p) deposits made to secure statutory obligations in the form of excise
taxes, (q) Liens arising from precautionary UCC financing statement filings
regarding operating leases or consignment arrangements entered into by any
Obligor in transactions permitted under this Agreement, (r) Liens given to a
public utility or any municipality or governmental or other public authority
when required by such utility or other authority in connection with the
operation of the business or the ownership of the assets of the Obligors, (s)
reservations, limits and conditions in the original grant from the Crown, (t)
undetermined or inchoate Liens arising under the Construction Lien Act (Ontario)
and
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which Liens either (i) are for sums not yet delinquent, (ii) are the subject of
Permitted Protests, or (iii) which in the aggregate do not detract from the
value of the subject property or assets or materially impair the use thereof in
the operation of the business of the Obligors; and (t) Liens not otherwise
permitted by the foregoing clauses (a) through (t) to the extent attaching to
tangible properties and assets with an aggregate fair market value (to be
mutually agreed upon by Administrative Borrower and Agent in good faith and
based upon the facts and circumstances as of the date of determination) not in
excess of, and securing liabilities otherwise permitted hereunder not in excess
of, $500,000 in the aggregate.
"Permitted Protest" means the right of Obligors to protest any Lien (other
than any such Lien that secures the Obligations), tax (other than taxes that are
the subject of a United States federal tax lien), or rental payment, provided
that (a) if and to the extent required by GAAP, a reserve with respect to such
obligation is established on the Books in such amount as is required under GAAP,
(b) any such protest is instituted and diligently prosecuted by the applicable
Obligor in good faith, and (c) Agent is satisfied that, while any such protest
is pending, there will be no impairment of the enforceability, validity, or
priority of any of the Collateral Agent's Liens.
"Permitted Purchase Money Indebtedness" has the meaning set forth in
Section 7.1(c) hereof.
"Permitted Transactions" means, so long as the Borrowers give Agent and
Lenders not less than 60 days prior written notice and, prior to the
consummation thereof, comply with their obligations under Section 4.1 hereof and
under the Security Agreement in connection therewith, any (a) merger,
consolidation, reorganization, or recapitalization, or reclassifications of
Stock, between (i) any wholly-owned Guarantors, (ii) any wholly- owned Borrowers
(exclusive of Parent), (iii) any wholly-owned Guarantor and any wholly- owned
Borrower, so long as the wholly-owned Borrower is the surviving entity in such
transaction, (iv) any wholly-owned Guarantor and Parent, so long as Parent is
the surviving entity in such transaction, and (v) any wholly-owned Borrower
(other than Parent) and Parent, so long as Parent is the surviving entity in
such transaction, (b) liquidation, winding up, or dissolution by any Borrower
(other than Parent) or Guarantor, so long as the properties and assets resulting
from such transactions are vested in or transferred to Parent or a wholly-owned
Borrower or, in the case of a transaction undertaken by a Guarantor, to a
wholly-owned Guarantor or a wholly-owned Borrower, (c) sale, assignment, lease,
transfer, or other disposition of, in one transaction or a series of
transactions, all or any substantial part of any Borrower's (other than
Parent's) or Guarantor's property or assets, so long as the relevant properties
or assets that are the subject of such sale, assignment, lease, transfer, or
other disposition are sold, assigned, leased, transferred, or otherwise disposed
of to Parent or to a wholly-owned Borrower, or, in the case of a transaction
undertaken by a Guarantor, to a wholly-owned Guarantor or a wholly-owned
Borrower.
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"Person" means natural persons, corporations, limited liability companies,
limited partnerships, general partnerships, limited liability partnerships,
joint ventures, trusts, land trusts, business trusts, or other organizations,
irrespective of whether they are legal entities, and governments and agencies
and political subdivisions thereof.
"Personal Property Collateral" means all of the Obligors' personal property
and fixtures, and the proceeds thereof.
"PIK Unsecured Debt Trustee" means Wilmington Trust Company, as agent for
the holders of the Indebtedness issued under the PIK Unsecured Debt Indenture.
"PIK Unsecured Debt Indenture" means that certain Indenture dated as of the
Closing Date by and among Parent and the PIK Unsecured Debt Trustee, in form and
substance satisfactory to Agent.
"Plan" means any written or oral employee benefit plan, fund, program,
arrangement or contract maintained or contributed to or required to be
contributed to by a Borrower or with respect to which it may incur liability.
"Plan of Reorganization" means the First Amended Joint Plan of
Reorganization of Xxxxxx Services (Delaware), Inc., et al., as modified,
confirmed by the Bankruptcy Court in the Bankruptcy Case pursuant to the
Confirmation Order.
"Pre-Closing Merger Subsidiaries" means each of the Subsidiaries of Parent
identified on Schedule P-4.
"Pre-Closing Restructuring Transactions" means the series of transactions
described on Schedule P-5 pursuant to which each of the Pre-Closing Merger
Subsidiaries are merged, directly or indirectly, with and into one of the
Borrowers or such Pre-Closing Merger Subsidiary was dissolved or liquidated.
"Prepetition Lien Subordination and Intercreditor Agreement" means that
certain Subordination and Intercreditor Agreement by and among Collateral Agent
and the agent for certain prepetition creditors of certain of the Guarantors, in
form and substance satisfactory to Agent.
"Project Accounts" means those bank accounts set forth on Schedule 5.22 (as
amended from time to time in accordance with Section 6.20) established by a
Borrower pursuant to a binding contractual obligation with a third Person in
connection with the administration of the cash management system established
pursuant to the agreement between such Borrower and third Person.
"Projections" means Parent's forecasted (a) balance sheets, (b) statements
of earnings, and (c) cash flow statements, all prepared on a consistent basis
with Parent's historical financial statements that have been prepared in
accordance with GAAP, together
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with appropriate supporting details and a statement of underlying assumptions.
The foregoing notwithstanding, it is the express understanding of the parties
hereto that the Projections themselves are not prepared in accordance with GAAP.
"Pro Rata Share" means:
(a) with respect to a Lender's obligation to make Tranche A Advances and
receive payments of principal, interest, fees, costs, and expenses with respect
thereto, the percentage obtained by dividing (i) such Lender's Tranche A
Commitment, by (ii) the aggregate Tranche A Commitments of all Lenders;
(b) with respect to a Lender's obligation to participate in Letters of
Credit, to reimburse the Issuing Lender, and to receive payments of fees, costs,
and expenses with respect thereto, the percentage obtained by dividing (i) such
Lender's Tranche A Commitment, by (ii) the aggregate Tranche A Commitments of
all Lenders;
(c) with respect to a Lender's obligation to make Tranche B Advances and
receive payments of principal, interest, interest, fees, costs, and expenses
with respect thereto, the percentage obtained by dividing (i) such Lender's
Tranche B Commitment, by (ii) the aggregate Tranche B Commitments of all
Lenders; and
(d) with respect to all other matters (including the indemnification
obligations arising under Section 16.7), the percentage obtained by dividing (i)
such Lender's Total Commitments, by (ii) the aggregate Total Commitments of all
Lenders.
"PSC" means Xxxxxx Services Corp., an Ontario corporation.
"PSI" means Xxxxxx Services Inc., an Ontario corporation.
"PSII" means Xxxxxx Services (International), Inc., a Delaware corporation.
"Purchase Money Indebtedness" means Indebtedness (other than the
Obligations, but including Capitalized Lease Obligations), incurred at the time
of, or within 60 days after, the acquisition of any fixed assets for the purpose
of financing all or any part of the acquisition cost thereof.
"Purchase Money Lien" means a Lien upon fixed assets that secures Purchase
Money Indebtedness, but only if such Lien shall at all times be confined solely
to the fixed assets the purchase price of which was financed through the
incurrence of the Purchase Money Indebtedness secured by such Lien.
"Rating Agencies" has the meaning set forth in Section 2.17.
"Real Property" means any estates or interests in real property now owned
or hereafter acquired by an Obligor, and the improvements related thereto.
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"Real Property Collateral" means the parcel or parcels of Real Property
identified on Schedule RPC-1, and any Real Property hereafter acquired in fee by
an Obligor.
"Record" means information that is inscribed on a tangible medium or which
is stored in an electronic or other medium and is retrievable in perceivable
form.
"Registered Loan" has the meaning specified therefor in Section 2.16.
"Registered Note" has the meaning specified therefor in Section 2.16.
"Reportable Event" means any of the events described in Section 4043(c) of
ERISA or the regulations thereunder other than a Reportable Event as to which
the provision of 30 days notice to the PBGC is waived under applicable
regulations.
"Required Availability" means Combined Availability and unrestricted cash
and Cash Equivalents in an amount of not less than $40,000,000.
"Required Lenders" means, at any time, Lenders whose Pro Rata Shares
aggregate 66-2/3% of the Total Commitments, or if the Total Commitments have
been terminated irrevocably, 66-2/3% of the Obligations then outstanding.
"Reserve Percentage" means, on any day, that percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor Governmental
Authority) for determining the reserve requirements (including any basic,
supplemental, marginal, or emergency reserves) that is in effect on such date
with respect to deposits of Dollars in a non-United States or an international
banking office of a bank used to fund a LIBOR Rate Advance.
"Retiree Health Plan" means an "employee welfare benefit plan" within the
meaning of Section 3(1) of ERISA that provides benefits to individuals after
termination of their employment, other than as required by Section 601 of ERISA.
"Rights Agreement" means that certain Rights Agreement, a copy of which is
attached hereto as Exhibit RA-1.
"Risk Participation Liability" means, as to each Letter of Credit, all
reimbursement obligations of Borrowers to the issuer of an L/C or to the issuer
of a letter of credit with respect to the transaction for which an L/C
Undertaking was executed and delivered (to the extent such reimbursement
obligations are subject to such L/C Undertaking), consisting of (a) the amount
available to be drawn or which may become available to be drawn under the Letter
of Credit, (b) all amounts that have been paid and made available by the issuing
bank to the extent not reimbursed by Borrowers, whether by the making of an
Advance or otherwise, and (c) all accrued and unpaid interest, fees, and
expenses payable with respect thereto.
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"Rolling Stock Security Agreement" means a Rolling Stock Security Agreement
in favor of Collateral Agent encumbering U.S. railcars owned by Obligors, in
form and substance satisfactory to Agent.
"SEC" means the United States Securities and Exchange Commission and any
successor thereto.
"Securities Account" means a "securities account" as that term is defined
in Section 8-501 of the Code.
"Securitization" has the meaning set forth in Section 2.17.
"Securitization Parties" has the meaning set forth in Section 2.17.
"Security Agreement" means a Security Agreement executed and delivered by
each Borrower and Collateral Agent, the form and substance of which is
satisfactory to Agent.
"Security Documents" means the Security Agreement, the Stock Pledge
Agreement, the Trademark Security Agreement, the Patent Security Agreement, the
Copyright Security Agreement, the Rolling Stock Security Agreement, the
Mortgages, the Canadian Security Documents, and such other instruments,
agreements, and documents as Agent reasonably may require to secure the whole or
any part of the Obligations.
"Settlement" has the meaning set forth in Section 2.4(f)(i).
"Settlement Date" has the meaning set forth in Section 2.4(f)(i).
"Solvent" means, with respect to any Person on a particular date, that such
Person is not insolvent (as such term is defined in the Uniform Fraudulent
Transfer Act).
"Stipulation and Order" means the Stipulation and Order entered on January
13, 2000, clarifying that any dispute or claim arising under or related to this
Agreement or the other Loan Documents arising after the Effective Date of the
Plan of Reorganization will not be submitted to or heard by the Bankruptcy
Court.
"Stock" means all shares, options, warrants, interests, participations, or
other equivalents (regardless of how designated) of or in a Person, 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 SEC under the Exchange Act).
"Stock Pledge Agreement" means a Stock Pledge Agreement executed and
delivered by each Obligor and Collateral Agent with respect to the pledge of
certain Stock
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and certain notes owned by the Obligors, the form and substance of which is
satisfactory to Agent.
"Subsidiary" of a Person means a corporation, partnership, limited
liability company, or other entity in which that Person directly or indirectly
owns or controls the shares of Stock having ordinary voting power to elect a
majority of the board of directors (or appoint other comparable managers) of
such corporation, partnership, limited liability company, or other entity.
"Suretyship Agreement" means a Suretyship Agreement executed and delivered
by each Borrower, the form and substance of which is satisfactory to Agent.
"Swing Lender" means any Lender appointed by Agent in writing, and which
appointment has been accepted by such Lender in writing, as the "Swing Lender".
"Swing Loan" has the meaning set forth in Section 2.4(d)(i).
"Total Commitment" means, with respect to each Lender, its Total
Commitment, and, with respect to all Lenders, their Total Commitments, in each
case as such Dollar amounts are set forth beside such Lender's name under the
applicable heading on Schedule C-1 attached hereto or on the signature page of
the Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 14.1.
"Trademark Security Agreement" means a Trademark Security Agreement
executed and delivered by each Borrower and Collateral Agent, the form and
substance of which is satisfactory to Agent.
"Tranche A Advances" has the meaning set forth in Section 2.1.
"Tranche A Advance Usage" means, as of any date of determination, the then
extant amount of outstanding Tranche A Advances.
"Tranche A Advance Availability" means, as of any date of determination
(and after giving effect to any requested Letter of Credit or Tranche A
Advance), the lowest of (i) the Maximum Tranche A Amount less the sum of (A) the
then extant Letter of Credit Usage plus (B) the then extant amount of
outstanding Tranche A Advances, (ii) the Borrowing Base less the sum of (A) the
then extant Letter of Credit Usage, plus (B) the then extant amount of
outstanding Tranche A Advances, or (iii) $50,000,000 minus the then extant
amount of outstanding Tranche A Advances.
"Tranche A Commitment" means, with respect to each Lender, its Tranche A
Commitment, and, with respect to all Lenders, their Tranche A Commitments, in
each case as such Dollar amounts are set forth beside such Lender's name under
the applicable heading on Schedule C-1 attached hereto or on the signature page
of the Assignment and
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Acceptance pursuant to which such Lender became a Lender hereunder in accordance
with the provisions of Section 14.1.
"Tranche A Facility" means the credit facility provided for under Sections
2.1 and 2.2 hereof.
"Tranche A Usage" means, as of any date of determination, the sum of (a)
the then extant amount of outstanding Tranche A Advances, plus (b) the then
extant amount of the Letter of Credit Usage.
"Tranche B Advances" has the meaning set forth in Section 2.3.
"Tranche B Availability" means, as of any date of determination (and after
giving effect to any requested Tranche B Advance), the lesser of (i) the Maximum
Tranche B Amount less the then extant amount of outstanding Tranche B Advances,
or (ii) the Borrowing Base less the then extant amount of Tranche A Usage and
Tranche B Usage.
"Tranche B Commitment" means, with respect to each Lender, its Tranche B
Commitment, and, with respect to all Lenders, their Tranche B Commitments, in
each case as such Dollar amounts are set forth beside such Lender's name under
the applicable heading on Schedule C-1 attached hereto or on the signature page
of the Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 14.1.
"Tranche B Facility" means the credit facility provided for under Section
2.3 hereof.
"Tranche B Obligations" means Obligations in respect of the Tranche B
Facility (including any fee, cost, or expense under the Loan Documents that is
specifically identified to the Tranche B Facility).
"Tranche B Usage" means, as of any date of determination, the then extant
amount of outstanding Tranche B Advances.
"Underlying Issuer" means a third Person which is the beneficiary of an L/C
Undertaking and which has issued a letter of credit at the request of the
Issuing Lender for the benefit of Borrower.
"Underlying Letter of Credit" means a letter of credit that has been issued
by an Underlying Issuer.
"UK Metals Operations" means the metal recycling and mill services business
of the UK Entities.
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"UK Entities" means Xxxxxx Services (Europe) Limited, Allied Metals
Limited, B.M. Metals (Recycling) Ltd., Bath Reclamation (Avonmouth) Co. Limited,
Blackbushe Limited, Blackbushe Metals (Western) Limited, Xxxxxxx Metal Company
Limited, Southern Hauliers Limited, X.X. Xxxxxx (Metals) Limited, X. Xxxxxx
(Holdings) Limited, X. Xxxxxx & Co. Limited, X. Xxxxxxx and Sons (Bristol)
Limited, Xxxxx Xxxxxx Limited, Widsite Limited, Xxxxxx Metals (Europe) Limited.
"Unsecured Convertible Debt Trustee" means Wilmington Trust Company, as
trustee for the holders of the Indebtedness issued under the Unsecured
Convertible Debt Indenture.
"Unsecured Convertible Debt Indenture" means that certain Indenture dated
as of the Closing Date by and among Parent and the Unsecured Convertible Debt
Trustee, in form and substance satisfactory to Agent.
"Voidable Transfer" has the meaning set forth in Section 17.7.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or classes if the holders of such Capital Stock are ordinarily, in the
absence of contingencies, entitled to vote for the election of the directors (or
other persons performing similar functions) of such Person even if the right to
so vote has been suspended by the happening of such a contingency.
"Xxxxx Fargo" means Xxxxx Fargo Bank, National Association, a national
banking association.
1.2 ACCOUNTING TERMS.
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP. When used herein, the term "financial statements" shall
include the notes and schedules thereto. Whenever the term "Borrowers" or the
term "Parent" is used in respect of a financial covenant or a related
definition, it shall be understood to mean Parent on a consolidated basis unless
the context clearly requires otherwise. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards, or terms in this
Agreement, then Borrowers, Agent, and the Lenders agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Change with the intended result that the
criteria for evaluating Borrowers' financial condition shall be the same after
such Accounting Change as if such Accounting Change had not been made. Until
such time as such an amendment shall have been executed and delivered by
Borrowers and the Agent (acting upon the instructions of the Required Lenders),
all financial covenants, standards, and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Change had not occurred.
"Accounting Change" refers to any change in accounting principles, or in the
application or interpretation thereof by Borrowers' independent certified public
accountants, required, or determined by such accountants to be
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required, by any rule, regulations, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants, or, if applicable, the Securities and Exchange Commission, or, in
each case, any successor to such entities.
1.3 CODE.
Any terms used in this Agreement that are defined in the Code shall be
construed and defined as set forth in the Code unless otherwise defined herein.
1.4 CONSTRUCTION.
Unless the context of this Agreement or any other Loan Document clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement or any other Loan Document
refer to this Agreement or such other Loan Document, as the case may be, as a
whole and not to any particular provision of this Agreement or such other Loan
Document, as the case may be. Section, subsection, clause, schedule, and exhibit
references herein are to this Agreement unless otherwise specified. Any
reference in this Agreement or in the Loan Documents to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein to any Person shall be construed to include such Person's
successors and assigns. Any requirement of a writing contained herein or in the
other Loan Documents shall be satisfied by the transmission of a Record and any
Record transmitted shall constitute a representation and warranty as to the
accuracy and completeness of the information contained therein.
1.5 SCHEDULES AND EXHIBITS.
All of the schedules and exhibits attached to this Agreement shall be
deemed incorporated herein by reference.
2. LOAN AND TERMS OF PAYMENT.
2.1 TRANCHE A ADVANCES.
(a) Subject to the terms and conditions of this Agreement, and during
the term of this Agreement, each Lender with a Tranche A Commitment agrees to
make advances ("Tranche A Advances") to Borrowers in an amount at any one time
outstanding not to exceed such Lender's Pro Rata Share of an amount equal to the
lowest of (i) the Maximum Tranche A Amount less the then extant Letter of Credit
Usage, (ii) the Borrowing Base less the then extant Letter of Credit Usage, or
(iii) $50,000,000.
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(b) Anything to the contrary in this Section 2.1 notwithstanding,
Agent shall have the right to establish reserves in such amounts, and with
respect to such matters, as Agent in its Permitted Discretion shall deem
necessary or appropriate, against the Borrowing Base, including reserves with
respect to (i) sums that Borrowers are required to pay (such as taxes,
assessments, insurance premiums, or, in the case of leased assets, rents or
other amounts payable under such leases) and have failed to pay under any
Section of this Agreement or any other Loan Document, and (ii) amounts owing by
Borrowers to any Person to the extent secured by a Lien (other than any existing
Permitted Lien set forth on Schedule P-3 which is specifically identified
thereon as entitled to have priority over Collateral Agent's Liens) on, or trust
over, any of the Collateral, which Lien or trust, in the Permitted Discretion of
Agent, would be likely to have a priority superior to the Liens of Agent, for
the benefit of the Lender Group (such as landlord liens, ad valorem taxes,
property taxes, or sales taxes where given priority under applicable law) in and
to such item of the Collateral.
(c) The Lenders with Tranche A Commitments shall have no obligation to
make additional Tranche A Advances hereunder to the extent such additional
Tranche A Advances would cause the Tranche A Usage and the Tranche B Usage to
exceed the Maximum Facility Amount.
(d) Anything in the Loan Documents to the contrary notwithstanding,
the proceeds of any Tranche A Advance shall not be used to repay any outstanding
Tranche B Advance unless Tranche A Advance Availability is greater than
$7,500,000 after giving effect to such Tranche A Advance.
(e) Amounts borrowed pursuant to this Section may be repaid and,
subject to the terms and conditions of this Agreement, reborrowed at any time
during the term of this Agreement.
2.2 LETTERS OF CREDIT.
(a) Subject to the terms and conditions of this Agreement, the Issuing
Lender agrees to issue letters of credit for the account of Borrowers (each, an
"L/C") or to purchase participations or execute indemnities or reimbursement
obligations (each such undertaking, an "L/C Undertaking") with respect to
Underlying Letters of Credit issued by an Underlying Issuer (as of the Closing
Date, such Underlying Issuer is to be Norwest Bank Minnesota, N.A.; in the event
that an Underlying Issuer declines to issue further Underlying Letters of
Credit, Issuing Lender agrees to use commercially reasonable efforts to obtain a
replacement Underlying Issuer; it being expressly acknowledged and agreed that
no Underlying Issuer has any obligations hereunder to Borrowers) for the account
of Borrowers. To request the issuance of an L/C or an L/C Undertaking (or the
amendment, renewal, or extension of an outstanding L/C or L/C Undertaking), a
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Lender) to the Issuing Lender and Agent (reasonably in advance of the requested
date of issuance, amendment, renewal, or extension) a notice requesting the
issuance of an L/C or L/C Undertaking, or identifying the L/C or L/C Undertaking
to be
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amended, renewed, or extended, the date of issuance, amendment, renewal, or
extension, the date on which such L/C or L/C Undertaking is to expire, the
amount of such L/C or L/C Undertaking, the name and address of the beneficiary
thereof (or of the Underlying Letter of Credit, as applicable), and such other
information as shall be necessary to prepare, amend, renew, or extend such L/C
or L/C Undertaking. If requested by the Issuing Lender, the applicable Borrower
also shall be an applicant under the application with respect to any Underlying
Letter of Credit that is to be the subject of an L/C Undertaking. The Issuing
Bank shall have no obligation to issue a Letter of Credit if any of the
following would result after giving effect to the requested Letter of Credit:
(i) the Letter of Credit Usage would exceed the Borrowing Base
less the amount of outstanding Tranche A Advances, or
(ii) the Letter of Credit Usage would exceed the Maximum Tranche
A Amount less the then extant amount of outstanding Tranche A Advances.
Borrowers and the Lender Group acknowledge and agree that certain of the
Existing Letters of Credit are to be the subject of Underlying Letters of
Credit. Each Letter of Credit (and corresponding Underlying Letter of Credit)
shall have an expiry date no later than 10 Business Days prior to the Maturity
Date (without regard to any potential renewal term) and all such Letters of
Credit (and corresponding Underlying Letters of Credit) shall be in form and
substance (including the currencies in which they are to be denominated)
acceptable to the Issuing Lender (in the exercise of its Permitted Discretion).
In this regard, Borrowers acknowledge (A) that, at Issuing Lender's request,
certain arrangements have been entered into between the current Underlying
Issuer and a Canadian bank in order to satisfy Borrowers' needs to have certain
of its letters of credit issued in Canadian dollars ("Canadian Dollar Letters of
Credit") by a Canadian bank ("Canadian Bank"), (B) that such arrangements
involve the issuance by the Issuing Lender of an L/C Undertaking to an
Underlying Issuer which, in turn, will issue an Underlying Letter of Credit in
favor of the Canadian Bank, (C) that such arrangements are uncommitted
facilities with terms shorter than the term of this Agreement, (D) and agree
that if such arrangements are terminated, the Issuing Lender's only obligation
with respect to securing Canadian Dollar Letters of Credit is to use its
reasonable commercial efforts to secure one or more Canadian Banks willing to
issue Canadian Dollar Letters of Credit supported by an Underlying Letter of
Credit issued by the Underlying Issuer, (E) and agree that all L/C Disbursements
payable by the Issuing Lender under any Letter of Credit will be payable solely
in Dollars, irrespective of whether the Underlying Letter of Credit or any
letter of credit issued based thereupon (including any Canadian Dollar Letter of
Credit) is payable in a currency other than Dollars, and (F) and agree that the
risk of currency fluctuations between the currency of a particular Underlying
Letter of Credit and the Dollars payable under the applicable Letter of Credit
is solely a risk of Borrowers and that no currency hedging product is being
provided hereunder. If Issuing Lender is obligated to advance funds under a
Letter of Credit, Borrowers immediately shall reimburse such L/C Disbursement to
Issuing Lender by paying to Agent an amount equal to
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such L/C Disbursement not later than 11:00 a.m., California time, on the date
that such L/C Disbursement is made, if Administrative Borrower shall have
received written or telephonic notice of such L/C Disbursement prior to 10:00
a.m., California time, on such date, or, if such notice has not been received by
Administrative Borrower prior to such time on such date, then not later than
11:00 a.m., California time, on (i) the Business Day that Administrative
Borrower receives such notice, if such notice is received prior to 10:00 a.m.,
California time, on the date of receipt, or (ii) the Business Day immediately
following the day that Administrative Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt and, in the
absence of such reimbursement, the L/C Disbursement immediately and
automatically shall be deemed to be a Tranche A Advance hereunder and,
thereafter, shall bear interest at the rate then applicable to Base Rate Tranche
A Advances under Section 2.7. To the extent an L/C Disbursement is deemed to be
a Tranche A Advance hereunder, Borrowers' obligation to reimburse such L/C
Disbursement shall be discharged and replaced by the resulting Tranche A
Advance. Promptly following receipt by Agent of any payment from Borrowers
pursuant to this paragraph, Agent shall distribute such payment to the Issuing
Lender or, to the extent that Lenders have made payments pursuant to Section
2.2(c) to reimburse the Issuing Lender, then to such Lenders and the Issuing
Lender as their interest may appear.
(b) Promptly following receipt of a notice of L/C Disbursement
pursuant to Section 2.2(a), each Lender with a Tranche A Commitment shall fund
its Pro Rata Share of any Tranche A Advance deemed made pursuant to the
foregoing subsection on the same terms and conditions as if Borrowers had
requested such Tranche A Advance and Agent shall promptly pay to Issuing Lender
the amounts so received by it from the Lenders. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Lender or the Lenders with
Tranche A Commitments, the Issuing Lender shall be deemed to have granted to
each Lender with a Tranche A Commitment, and each Lender with a Tranche A
Commitment shall be deemed to have purchased, a participation in each Letter of
Credit, in an amount equal to its Pro Rata Share of the Risk Participation
Liability of such Letter of Credit, and each such Lender agrees to pay to Agent
for the account of the Issuing Lender such Lender's Pro Rata Share of any
payments made by the Issuing Lender under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender with a Tranche A
Commitment hereby absolutely and unconditionally agrees to pay to Agent, for the
account of the Issuing Lender, such Lender's Pro Rata Share of each L/C
Disbursement made by the Issuing Lender and not reimbursed by Borrowers on the
date due as provided in paragraph (a) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender with
a Tranche A Commitment acknowledges and agrees that its obligation to deliver to
Agent, for the account of the Issuing Lender, an amount equal to its respective
Pro Rata Share pursuant to this Section 2.2(b) shall be absolute and
unconditional and such remittance shall be made notwithstanding the occurrence
or continuation of an Event of Default or Default or the failure to satisfy any
condition set forth in Section 3 hereof. If any such Lender fails to make
available to Agent the amount of such Lender's Pro Rata Share of any payments
made by the Issuing Lender in respect of such Letter of Credit as provided in
this Section, Agent (for the account of the Issuing Lender)
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shall be entitled to recover such amount on demand from such Lender together
with interest thereon at the Defaulting Lender Rate until paid in full.
(c) Borrowers hereby agree to indemnify, save, defend, and hold the
Lender Group harmless from any loss, cost, expense, or liability, and reasonable
attorneys fees incurred by the Lender Group arising out of or in connection with
any Letter of Credit; provided, however, that Borrowers shall not be obligated
hereunder to indemnify (i) Issuing Lender for any loss, cost, expense, or
liability that is caused by the gross negligence or willful misconduct of the
Issuing Lender or (ii) the member of the Lender Group responsible for any loss,
cost, expense or liability that is caused by such Person's gross negligence or
willful misconduct. Furthermore, the foregoing shall not be construed to excuse
the Issuing Lender or any member of the Lender Group from liability to Borrowers
to the extent of any damages suffered by Borrowers that are caused by the gross
negligence or willful misconduct of the Issuing Lender or any member of the
Lender Group. Borrowers agree to be bound by the Underlying Issuer's regulations
and interpretations of any Underlying Letter of Credit or by Issuing Lender's
interpretations of any L/C issued by Issuing Lender to or for a Borrower's
account, even though this interpretation may be different from Borrowers' own,
and Borrowers understand and agree that the Lender Group shall not be liable for
any error, negligence, or mistake, whether of omission or commission, in
following Borrowers' instructions or those contained in the Letter of Credit or
any modifications, amendments, or supplements thereto. Borrowers understand that
the L/C Undertakings may require Issuing Lender to indemnify the Underlying
Issuer for certain costs or liabilities arising out of claims by Borrowers
against such Underlying Issuer. Borrowers hereby agree to indemnify, save,
defend, and hold the Lender Group harmless with respect to any loss, cost,
expense (including reasonable attorneys fees), or liability incurred by the
Lender Group under any L/C Undertaking as a result of the Lender Group's
indemnification of any Underlying Issuer; provided, however, that Borrowers
shall not be obligated hereunder to indemnify (i) Issuing Lender for any loss,
cost, expense, or liability that is caused by the gross negligence or willful
misconduct of the Issuing Lender or (ii) the member of the Lender Group
responsible for any loss, cost, expense or liability that is caused by such
Person's gross negligence or willful misconduct. Furthermore, the foregoing
shall not be construed to excuse the Issuing Lender or any member of the Lender
Group from liability to Borrowers to the extent of any damages suffered by
Borrowers that are caused by the gross negligence or willful misconduct of the
Issuing Lender or any member of the Lender Group.
(d) Borrower hereby authorizes and directs any Underlying Issuer to
deliver to the Issuing Lender all instruments, documents, and other writings and
property received by such Underlying Issuer pursuant to such Underlying Letter
of Credit and to accept and rely upon the Issuing Lender's instructions with
respect to all matters arising in connection with such Underlying Letter of
Credit and the related application.
(e) Any and all charges, commissions, fees, and costs incurred by the
Issuing Lender relating to the Underlying Letters of Credit or the Canadian
Dollar Letters of Credit shall be considered Lender Group Expenses for purposes
of this Agreement and immediately shall be reimbursable by Borrowers to the
Agent for the account of the Issuing
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Lender; provided, however, that, solely in the case of an Underlying Letter of
Credit that is denominated in Dollars and is not issued to support the existence
or issuance of another letter of credit (including any Underlying Letter of
Credit issued to "backstop" an Existing Letter of Credit or a Canadian Dollar
Letter of Credit), in place of their obligations under this clause (e), on the
date of the issuance of the applicable Letter of Credit, Borrowers shall pay to
Agent for the account of the Issuing Lender an amount equal to one-quarter of
one percent (0.25%) of the original face amount of such Letter of Credit,
irrespective of whether the charges, commissions, fees, and costs are greater or
lesser than such amount.
(f) If by reason of (i) any change in any applicable law, treaty,
rule, or regulation or any change in the interpretation or application thereof
by any Governmental Authority, or (ii) compliance by the Underlying Issuer or
the Lender Group with any direction, request, or requirement (irrespective of
whether having the force of law) of any Governmental Authority or monetary
authority including Regulation D of the Federal Reserve Board as from time to
time in effect (and any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall be
imposed or modified in respect of any Letters of Credit issued hereunder,
or
(ii) there shall be imposed on the Underlying Issuer or the
Lender Group any other condition regarding any Underlying Letter of Credit
or any Letter of Credit issued pursuant hereto;
and the result of the foregoing is to increase, directly or indirectly, the
cost to the Lender Group of issuing, making, guaranteeing, or maintaining
any Letter of Credit or to reduce the amount receivable in respect thereof
by the Lender Group, then, and in any such case, Agent may, at any time
within a reasonable period after the additional cost is incurred or the
amount received is reduced, notify Administrative Borrower, and Borrowers
shall pay on demand such amounts Agent may specify to be necessary to
compensate the Lender Group for such additional cost or reduced receipt,
together with interest on such amount from the date of such demand until
payment in full thereof at the rate then applicable to Base Rate Tranche A
Advances hereunder. The determination by Agent of any amount due pursuant
to this Section, as set forth in a certificate setting forth the
calculation thereof in reasonable detail, shall, in the absence of manifest
or demonstrable error, be final and conclusive and binding on all of the
parties hereto.
2.3 TRANCHE B ADVANCES.
(a) Subject to the terms and conditions of this Agreement, and during
the term of this Agreement, each Lender with a Tranche B Commitment agrees to
make advances ("Tranche B Advances") to Borrowers in an amount at any one time
outstanding not to exceed such Lender's Pro Rata Share of an amount equal to the
lower of (i) the Maximum Tranche B Amount, or (ii) the Borrowing Base less the
Tranche A Usage.
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(b) Anything to the contrary in this Section 2.3 notwithstanding,
Borrowers shall not have the right to require Lenders with Tranche B Commitments
to make Tranche B Advances to Borrowers unless the Tranche A Usage equals the
Maximum Tranche A Amount.
(c) The Lenders with Tranche B Commitments shall have no obligation to
make additional Tranche B Advances hereunder to the extent such additional
Tranche B Advances would cause the Tranche A Usage and the Tranche B Usage to
exceed the Maximum Facility Amount.
(d) Amounts borrowed pursuant to this Section may be repaid and,
subject to the terms and conditions of this Agreement, reborrowed at any time
during the term of this Agreement; provided, however, that, if and so long as
any Tranche A Advances are outstanding, no Tranche B Advance shall be repaid
unless, after giving effect to such repayment, Tranche A Advance Availability is
greater than $7,500,000.
2.4 BORROWING PROCEDURES AND SETTLEMENTS
(a) PROCEDURE FOR BORROWING. Each Borrowing shall be made by an
irrevocable written request by an Authorized Person delivered to Agent (which
notice must be received by Agent no later than 10:00 a.m. (California time) on
(y) the Business Day prior to the date that is the requested Funding Date in the
case of a request for a Tranche A Advance, and (z) the 5th Business Day prior to
the date that is the requested Funding Date in the case of a request for a
Tranche B Advance) specifying (i) the amount of such Borrowing, and (ii) the
requested Funding Date, which shall be a Business Day; provided, however, that
in the case of a request for Swing Loan in an amount of $10,000,000, or less,
such notice will be timely received if it is received by Agent no later than
10:00 a.m. (California time) on the Business Day that is the requested Funding
Date) specifying (i) the amount of such Borrowing, and (ii) the requested
Funding Date, which shall be a Business Day. At Agent's election, in lieu of
delivering the above-described written request, any Authorized Person may give
Agent telephonic notice of such request by the required time, with such
telephonic notice to be confirmed in writing within 24 hours of the giving of
such notice.
(b) AGENT'S ELECTION. Promptly after receipt of a request for a
Borrowing pursuant to Section 2.4(a), Agent shall elect, in its discretion, (i)
to have the terms of Section 2.4(c) apply to such requested Borrowing, or (ii)
in the case of a request for a Tranche A Advance, to request Swing Lender to
make a Swing Loan pursuant to the terms of Section 2.4(d) in the amount of the
requested Borrowing; provided, however, that if Swing Lender declines in its
sole discretion to make a Swing Loan pursuant to Section 2.4(d), Agent shall
elect to have the terms of Section 2.4(c) apply to such requested Borrowing.
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(c) MAKING OF ADVANCES.
(i) In the event that Agent shall elect to have the terms of this
Section 2.4(c) apply to a requested Borrowing as described in Section
2.4(b), then promptly after receipt of a request for a Borrowing pursuant
to Section 2.4(a), Agent shall notify the Lenders, not later than 1:00 p.m.
(California time) on the Business Day immediately preceding the Funding
Date applicable thereto, by telecopy, telephone, or other similar form of
transmission, of the requested Borrowing. Each Lender shall make the amount
of such Lender's Pro Rata Share of the requested Borrowing available to
Agent in immediately available funds, to such account of Agent as Agent may
designate, not later than 10:00 a.m. (California time) on the Funding Date
applicable thereto. After Agent's receipt of the proceeds of such Advances,
upon satisfaction of the applicable conditions precedent set forth in
Section 3 hereof, Agent shall make the proceeds of such Advances available
to Borrowers on the applicable Funding Date by transferring same day funds
equal to the proceeds of such Advances received by Agent to Administrative
Borrower's Designated Account; provided, however, that, subject to the
provisions of Section 2.4(i), Agent shall not request any Lender to make,
and no Lender shall have the obligation to make, any Advance if Agent shall
have received written notice from any Lender, or otherwise has actual
knowledge, that (1) one or more of the applicable conditions precedent set
forth in Section 3 will not be satisfied on the requested Funding Date for
the applicable Borrowing unless such condition has been waived in
accordance with Section 15.1, or (2) the requested Borrowing would exceed
the Tranche A Advance Availability or Tranche B Availability, as
applicable, on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to
the Closing Date or, with respect to any Borrowing after the Closing Date,
at least 1 Business Day prior to the date of such Borrowing, that such
Lender will not make available as and when required hereunder to Agent for
the account of Borrowers the amount of that Lender's Pro Rata Share of the
Borrowing, Agent may assume that each Lender has made or will make such
amount available to Agent in immediately available funds on the Funding
Date and Agent may (but shall not be so required), in reliance upon such
assumption, make available to Borrowers on such date a corresponding
amount. If and to the extent any Lender shall not have made its full amount
available to Agent in immediately available funds and Agent in such
circumstances has made available to Borrowers such amount, that Lender
shall on the Business Day following such Funding Date make such amount
available to Agent, together with interest at the Defaulting Lender Rate
for each day during such period. A notice submitted by Agent to any Lender
with respect to amounts owing under this subsection shall be conclusive,
absent manifest error. If such amount is so made available, such payment to
Agent shall constitute such Lender's Advance on the date of Borrowing for
all
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purposes of this Agreement. If such amount is not made available to Agent
on the Business Day following the Funding Date, Agent will notify
Administrative Borrower of such failure to fund and, upon demand by Agent,
Borrowers shall pay such amount to Agent for Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at
a rate per annum equal to the interest rate applicable at the time to the
Advances composing such Borrowing. The failure of any Lender to make any
Advance on any Funding Date shall not relieve any other Lender of any
obligation hereunder to make an Advance on such Funding Date, but no Lender
shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to, and without
Borrowers' prior written consent shall not, transfer to a Defaulting Lender
any payments made by Borrowers to Agent for the Defaulting Lender's
benefit, and in the absence of such consent Agent shall transfer any such
payments to each other non-Defaulting Lender member of the Lender Group
ratably in accordance with their Commitments (but only to the extent that
such Defaulting Lenders Advance was funded by the other members of the
Lender Group) or, if so directed by Borrowers and if no Default or Event of
Default had occurred and is continuing (and to the extent such Defaulting
Lender's Advance was not funded by the Lender Group), retain same to be
re-advanced to Borrowers as if such Defaulting Lender had made Advances to
Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted
Discretion, re- lend to Borrowers for the account of such Defaulting Lender
the amount of all such payments received and retained by it for the account
of such Defaulting Lender. Solely for the purposes of voting or consenting
to matters with respect to the Loan Documents, such Defaulting Lender shall
be deemed not to be a "Lender" and such Lender's Commitment shall be deemed
to be zero. This section shall remain effective with respect to such Lender
until (x) the Obligations under this Agreement shall have been declared or
shall have become immediately due and payable, (y) the non-Defaulting
Lenders, Agent, and Borrowers shall have waived such Lender's default in
writing, or (z) the Defaulting Lender makes its Pro Rata Share of the
applicable Advance and pays to Agent all amounts owing by Defaulting Lender
in respect thereof. The operation of this Section shall not be construed to
increase or otherwise affect the Commitment of any Lender, to relieve or
excuse the performance by such Defaulting Lender or any other Lender of its
duties and obligations hereunder or to relieve or excuse the performance by
Borrowers of its duties and obligations hereunder to Agent or to Lenders
other than such Defaulting Lender. Any such failure to fund by any
Defaulting Lender shall constitute a material breach by such Defaulting
Lender of this Agreement and shall entitle Borrowers at their option, upon
written notice to Agent, to arrange for a substitute Lender to assume the
Commitment of such Defaulting Lender, such substitute Lender to be
acceptable to Agent. In connection with the
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arrangement of such a substitute Lender, the Defaulting Lender shall have
no right to refuse to be replaced hereunder, and agrees to execute and
deliver a completed form of Assignment and Acceptance Agreement in favor of
the substitute Lender (and agrees that it shall be deemed to have executed
and delivered such document if it fails to do so) subject only to being
repaid its share of the outstanding Obligations (including an assumption of
its Pro Rata Share of the Risk Participation Liability) without any premium
or penalty of any kind whatsoever; provided further, however, that any such
assumption of the Commitment of such Defaulting Lender shall not be deemed
to constitute a waiver of any of the Lender Groups' or Borrowers' rights or
remedies against any such Defaulting Lender's arising out of or in relation
to such failure to fund.
(d) MAKING OF SWING LOANS.
(i) In the event Agent shall elect, with the consent of Swing
Lender, as a Lender, to have the terms of this Section 2.4(d) apply to a
requested Borrowing of a Tranche A Advance as described in Section 2.4(b),
Swing Lender as a Lender shall make such Tranche A Advance in the amount of
such Borrowing (any such Tranche A Advance made solely by Swing Lender as a
Lender pursuant to this Section 2.4(d) being referred to as a "Swing Loan"
and such Tranche A Advances being referred to collectively as "Swing
Loans") available to Borrowers on the Funding Date applicable thereto by
transferring same day funds to Administrative Borrower's Designated
Account. Each Swing Loan is a Tranche A Advance hereunder and shall be
subject to all the terms and conditions applicable to other Tranche A
Advances of the same type hereunder, except that all payments thereon shall
be payable to Swing Lender as a Lender solely for its own account (and for
the account of the holder of any participation interest with respect to
such Tranche A Advance). Subject to the provisions of Section 2.4(i), Agent
shall not request Swing Lender as a Lender to make, and Swing Lender as a
Lender shall not make, any Swing Loan if Agent shall have received written
notice from any Lender, or otherwise has actual knowledge, that (i) one or
more of the applicable conditions precedent set forth in Section 3 will not
be satisfied on the requested Funding Date for the applicable Borrowing
unless such condition has been waived in accordance with Section 15.1, or
(ii) the requested Borrowing would exceed the Tranche A Advance
Availability on such Funding Date. Swing Lender as a Lender shall not
otherwise be required to determine whether the applicable conditions
precedent set forth in Section 3 have been satisfied on the Funding Date
applicable thereto prior to making, in its sole discretion, any Swing Loan.
(ii) The Swing Loans shall be secured by the Collateral Agent's
Liens and shall constitute Tranche A Advances and Obligations
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hereunder, and shall bear interest at the rate applicable from time to time
to Tranche A Advances of the same type as the applicable Advance.
(e) AGENT ADVANCES.
(i) Agent hereby is authorized by Borrowers and the Lenders, from
time to time in Agent's sole discretion, (1) after the occurrence and
during the continuance of a Default or an Event of Default, or (2) at any
time that any of the other applicable conditions precedent set forth in
Section 3 have not been satisfied, to make Advances to Borrowers on behalf
of the Lenders that Agent, in its reasonable business judgment, deems
necessary or desirable (A) to preserve or protect the Collateral, or any
portion thereof, or (B) to enhance the likelihood of repayment of the
Obligations (any of the Advances described in this Section 2.4(e) shall be
deemed to be Tranche A Advances hereunder and shall be referred to as
"Agent Advances"); provided, however, that at no time shall the aggregate
amount of outstanding Agent Advances under this Section 2.4(e) exceed the
result of (1) the lesser of (A) $10,000,000, or (B) 10% of the Borrowing
Base then in effect, minus (2) the amount of optional Overadvances made by
Agent or Swing Lender to Borrowers pursuant to Section 2.4(i). Each Agent
Advance is an Advance hereunder and shall be subject to all the terms and
conditions applicable to other Advances, except that all payments thereon
shall be payable to Agent solely for its own account.
(ii) Agent Advances shall be repayable on demand and secured by
the Collateral Agent's Liens, shall constitute Advances and Obligations
hereunder, and shall bear interest at the rate applicable from time to time
to Base Rate Tranche A Advances.
(f) SETTLEMENT. It is agreed that each Lender's funded portion of the
Advances is intended by the Lenders to equal, at all times, such Lender's Pro
Rata Share of the outstanding Advances. Such agreement notwithstanding, Agent,
Swing Lender, and the other Lenders agree (which agreement shall not be for the
benefit of or enforceable by Borrowers) that in order to facilitate the
administration of this Agreement and the other Loan Documents, settlement among
them as to the Advances, the Swing Loans, and the Agent Advances shall take
place on a periodic basis in accordance with the following provisions:
(i) Agent shall request settlement ("Settlement") with the
Lenders on a weekly basis, or on a more frequent basis if so determined by
Agent, (1) on behalf of Swing Lender, with respect to each outstanding
Swing Loan, (2) for itself, with respect to each Agent Advance, and (3)
with respect to Collections received, as to each by notifying the Lenders
by telecopy, telephone, or other similar form of transmission, of such
requested Settlement, no later than 2:00 p.m. (California time) on the
Business Day immediately prior to the date of such requested Settlement
(the date of such requested
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Settlement being the "Settlement Date"). Such notice of a Settlement Date
shall include a summary statement of the amount of outstanding Advances,
Swing Loans, and Agent Advances for the period since the prior Settlement
Date, the amount of repayments received in such period, and the amounts
allocated to each Lender of the interest, fees, and other charges for such
period. Subject to the terms and conditions contained herein (including
Section 2.4(c)(iii)): (y) if a Lender's balance of the Advances, Swing
Loans, and Agent Advances exceeds such Lender's Pro Rata Share of the
Advances, Swing Loans, and Agent Advances as of a Settlement Date, then
Agent shall by no later than 12:00 p.m. (California time) on the Settlement
Date transfer in immediately available funds to the account of such Lender
as such Lender may designate, an amount such that each such Lender shall,
upon receipt of such amount, have as of the Settlement Date, its Pro Rata
Share of the Advances, Swing Loans, and Agent Advances; and (z) if a
Lender's balance of the Advances, Swing Loans, and Agent Advances is less
than such Lender's Pro Rata Share of the Advances, Swing Loans, and Agent
Advances as of a Settlement Date, such Lender shall no later than 12:00
p.m. (California time) on the Settlement Date transfer in immediately
available funds to such account of Agent as Agent may designate, an amount
such that each such Lender shall, upon transfer of such amount, have as of
the Settlement Date, its Pro Rata Share of the Advances, Swing Loans, and
Agent Advances. Such amounts made available to Agent under clause (z) of
the immediately preceding sentence shall be applied against the amounts of
the applicable Swing Loan or Agent Advance and, together with the portion
of such Swing Loan or Agent Advance representing Swing Lender's Pro Rata
Share thereof, shall constitute Advances of such Lenders. If any such
amount is not made available to Agent by any Lender on the Settlement Date
applicable thereto to the extent required by the terms hereof, Agent shall
be entitled to recover for its account such amount on demand from such
Lender together with interest thereon at the Defaulting Lenders Rate.
(ii) In determining whether a Lender's balance of the Advances,
Swing Loans, and Agent Advances is less than, equal to, or greater than
such Lender's Pro Rata Share of the Advances, Swing Loans, and Agent
Advances as of a Settlement Date, Agent shall, as part of the relevant
Settlement, apply to such balance the portion of payments actually received
in good funds by Agent or Swing Lender with respect to principal, interest,
fees payable by Borrowers and allocable to the Lenders hereunder, and
proceeds of Collateral. To the extent that a net amount is owed to any such
Lender after such application, such net amount shall be distributed by
Agent or Swing Lender to that Lender as part of such next Settlement.
(iii) Between Settlement Dates, Agent, to the extent no Agent
Advances or Swing Loans are outstanding, may pay over to Swing Lender any
payments received by Agent, that in accordance with the terms of this
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Agreement would be applied to the reduction of the Advances, for
application to Swing Lender's Pro Rata Share of the Advances. If, as of any
Settlement Date, Collections received since the then immediately preceding
Settlement Date have been applied to Swing Lender's Pro Rata Share of the
Advances other than to Swing Loans or Agent Advances, as provided for in
the previous sentence, Swing Lender shall pay to Agent for the accounts of
the Lenders, and Agent shall pay to the Lenders, to be applied to the
outstanding Advances of such Lenders, an amount such that each Lender
shall, upon receipt of such amount, have, as of such Settlement Date, its
Pro Rata Share of the Advances. During the period between Settlement Dates,
Swing Lender with respect to Swing Loans, Agent with respect to Agent
Advances, and each Lender with respect to the Advances other than Swing
Loans and Agent Advances, shall be entitled to interest at the applicable
rate or rates payable under this Agreement on the daily amount of funds
employed by Swing Lender, Agent, or the Lenders, as applicable.
(g) NOTATION. Agent shall record on its books the principal amount of
the Advances owing to each Lender, including the Swing Loans owing to Swing
Lender, and Agent Advances owing to Agent, and the interests therein of each
Lender, from time to time. In addition, each Lender is authorized, at such
Lender's option, to note the date and amount of each payment or prepayment of
principal of such Lender's Advances in its books and records, including computer
records, such books and records constituting conclusive evidence, absent
manifest error, of the accuracy of the information contained therein.
(h) LENDERS' FAILURE TO PERFORM. All Advances (other than Swing Loans
and Agent Advances) shall be made by the Lenders simultaneously and in
accordance with their Pro Rata Shares. It is understood that (i) no Lender shall
be responsible for any failure by any other Lender to perform its obligation to
make any Advances hereunder, nor shall any Commitment of any Lender be increased
or decreased as a result of any failure by any other Lender to perform its
obligation to make any Advances hereunder, and (ii) no failure by any Lender to
perform its obligation to make any Advances hereunder shall excuse any other
Lender from its obligation to make any Advances hereunder.
(i) OPTIONAL OVERADVANCES. Any contrary provision of this Agreement
notwithstanding, if the condition for borrowing under Section 3.3(d) cannot be
fulfilled, the Lenders nonetheless hereby authorize Agent or Swing Lender, as
applicable, and Agent or Swing Lender, as applicable, may, but is not obligated
to, knowingly and intentionally continue to make Tranche A Advances (including
Swing Loans) to Borrowers, such failure of condition notwithstanding, so long
as, at the time any such Tranche A Advance is made , (i) the outstanding Tranche
A Usage does not exceed the Borrowing Base by more than the lesser of (A)
$10,000,000, or (B) 10% of the Borrowing Base then in effect, (ii) after giving
effect to any such Overadvance, the then extant amount of Tranche A Advances
does not exceed $50,000,000, and (iii) after giving effect to any such
Overadvance, the aggregate amount of outstanding optional Overadvances made by
Agent or Swing Lender to Borrowers pursuant to this Section 2.4(i) shall not
exceed the result of (1) the lesser of (A)
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$10,000,000, or (B) 10% of the Borrowing Base then in effect, minus (2) the
amount of Agent Advances outstanding under Section 2.4(e). The foregoing
provisions are for the sole and exclusive benefit of Agent, Swing Lender, and
the Lenders and are not intended to benefit Borrowers in any way. The Advances
and Swing Loans, as applicable, that are made pursuant to this Section 2.4(i)
shall be subject to the same terms and conditions as any other Advance or Swing
Loan, as applicable, except that the rate of interest applicable thereto shall
be the rates set forth in Section 2.7(c) hereof without regard to the presence
or absence of a Default or Event of Default.
(i) In the event Agent obtains actual knowledge that the Tranche
A Usage exceeds the amounts permitted by the preceding paragraph,
regardless of the amount of or reason for such excess, Agent shall notify
Lenders as soon as practicable (and prior to making any (or any further)
intentional Overadvances (except for and excluding amounts charged to the
Loan Account for interest, fees, or Lender Group Expenses) unless Agent
determines that prior notice would result in imminent harm to the
Collateral or its value), and the Lenders with Tranche A Commitments
thereupon shall, together with Agent, jointly determine the terms of
arrangements that shall be implemented with Borrowers intended to reduce,
within a reasonable time, the outstanding principal amount of the Tranche A
Advances to Borrowers to an amount permitted by the preceding paragraph. In
the event Agent or any Lender disagrees over the terms of reduction or
repayment of any Overadvance, the terms of reduction or repayment thereof
shall be implemented according to the determination of the Required
Lenders.
(ii) Each Lender with a Tranche A Commitment shall be obligated
to settle with Agent as provided in Section 2.4(f) for the amount of such
Lender's Pro Rata Share of any unintentional Overadvances by Agent reported
to such Lender, any intentional Overadvances made as permitted under this
Section 2.4(i), and any Overadvances resulting from the charging to the
Loan Account of interest, fees, or Lender Group Expenses.
2.5 PAYMENTS.
(a) PAYMENTS BY BORROWERS.
(i) Except as otherwise expressly provided herein, all payments
by Borrowers shall be made to Agent's Account for the account of the Lender
Group and shall be made in immediately available funds, no later than 11:00
a.m. (California time) on the date specified herein. Any payment received
by Agent later than 11:00 a.m. (California time), at the option of Agent,
shall be deemed to have been received on the following Business Day and any
applicable interest or fee shall continue to accrue until such following
Business Day.
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(ii) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(iii) Unless Agent receives notice from Administrative Borrower
prior to the date on which any payment is due to the Lenders that Borrowers
will not make such payment in full as and when required, Agent may assume
that Borrowers have made (or will make) such payment in full to Agent on
such date in immediately available funds and Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such Lender. If and to
the extent Borrowers do not make such payment in full to Agent on the date
when due, each Lender severally shall repay to Agent on demand such amount
distributed to such Lender, together with interest thereon at the
Defaulting Lender Rate for each day from the date such amount is
distributed to such Lender until the date repaid.
(b) APPORTIONMENT, APPLICATION, AND REVERSAL OF PAYMENTS.
(i) Except as otherwise provided with respect to Defaulting
Lenders and except as otherwise expressly provided in the Loan Documents
(or the Fee Split Letters), aggregate principal and interest payments shall
be apportioned ratably among the Lenders (according to the unpaid principal
balance of the Advances to which such payments relate held by each Lender)
and payments of fees (other than fees designated for an Agent's sole and
separate account) shall, as applicable, be apportioned ratably among the
Lenders. All payments shall be remitted to Agent and all such payments and
all proceeds of Collateral received by Agent shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent
under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the
Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate
accounts after giving effect to the Fee Split Letters) under the Loan
Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders
(after giving effect to the Fee Split Letters) under the Loan Documents, on
a ratable basis, until paid in full; provided, however, that after the
occurrence and during the continuance of an Event of Default, the priority
of the payment of fees due to Tranche B Lenders, in their capacity as such
(and all Lenders that are directly or indirectly successors or assignees of
Tranche B
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Lenders, in their capacity as such) shall (unless all of the Lenders
with a Tranche A Commitment or Tranche A Facility Obligations elect
otherwise) be deferred to item "fourteenth" below,
(E) fifth, to pay interest due in respect of all Agent Advances,
until paid in full,
(F) sixth, ratably to pay interest due in respect of all Advances
(other than Agent Advances) and Swing Loans until paid in full,
provided, however, that after the occurrence and during the
continuance of an Event of Default, the priority of the payment of
interest due in respect of the Tranche B Advances (unless all of the
Lenders with a Tranche A Commitment or Tranche A Facility Obligations
elect otherwise) be deferred to item "fifteenth" below,
(G) seventh, ratably to pay the principal of all Agent Advances
until paid in full,
(H) eighth, if Tranche A Advance Availability is less than
$7,500,000, to pay the principal of all Swing Loans until Tranche A
Advance Availability is $7,500,000, such payments to be applied,
first, to the outstanding Swing Loans that are Base Rate Advances and,
second, to the outstanding Swing Loans that are LIBOR Rate Advances
(in the order of their maturity),
(I) ninth, if Tranche A Advance Availability is less than
$7,500,000 (after giving effect to item "eighth" above), to pay the
principal of all Tranche A Advances until Tranche A Advance
Availability is $7,500,000, such payments to be applied, first, to the
outstanding Tranche A Advances that are Base Rate Advances and,
second, to the outstanding Tranche A Advances that are LIBOR Rate
Advances (in the order of their maturity),
(J) tenth, ratably to pay the principal of all Tranche B Advances
until paid in full, provided, however, that after the occurrence and
during the continuance of an Event of Default, the priority of the
payment of principal due with respect to Tranche B Advances shall
(unless all of the Lenders with a Tranche A Commitment or Tranche A
Facility Obligations elect otherwise) be deferred to item "sixteenth"
below,
(K) eleventh, to pay the principal of all Swing Loans until paid
in full, such payments to be applied, first, to the outstanding Swing
Loans that are Base Rate Advances and, second, if an Event of Default
has occurred and is continuing, to the outstanding Swing Loans that
are LIBOR Rate Advances (in the order of their maturity),
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(L) twelfth, to pay the principal of all Tranche A Advances until
paid in full, such payments to be applied, first, to outstanding
Tranche A Advances that are Base Rate Advances and, second, if an
Event of Default has occurred and is continuing, to the outstanding
Tranche A Advances that are LIBOR Rate Advances (in the order of their
maturity),
(M) thirteenth, if an Event of Default has occurred and is
continuing, to Agent, to be held by Agent, for the ratable benefit of
Agent and those Lenders having a Tranche A Commitment, as cash
collateral in an amount equal to 105% of the maximum amount of Issuing
Lender's obligations under outstanding Letters of Credit until paid in
full,
(N) fourteenth, to pay any fees then due to Tranche B Lenders in
their capacity as such (and all Lenders that are directly or
indirectly successors or assignees of Tranche B Lenders, in their
capacity as such) under the Loan Documents until paid in full,
(O) fifteenth, to pay interest then due in respect of all Tranche
B Advances until paid in full,
(P) sixteenth, to pay the principal of all Tranche B Advances
until paid in full, and
(Q) seventeenth, to Borrowers to be wired to the Designated
Account or such other Person entitled thereto under applicable law.
(ii) Agent shall promptly distribute to each Lender, pursuant to
the applicable wire instructions received from each Lender in writing,
such funds as it may be entitled to receive, subject to a Settlement
delay as provided in Section 2.4(h).
(iii) In each instance, so long as no Event of Default has
occurred and is continuing, Section 2.5(b) shall not be deemed to
apply to any payment by Borrowers specified by Borrowers to be for the
payment of specific Obligations then due and payable under any
provision of this Agreement.
(iv) For purposes of the foregoing, "paid in full" means payment
of all amounts owing under the Loan Documents according to the terms
thereof, including loan fees, service fees, professional fees,
interest (and specifically including interest accrued after the
commencement of any Insolvency Proceeding), default interest, interest
on interest, and expense reimbursements, whether or not the same would
be or is allowed or disallowed in whole or in part in any Insolvency
Proceeding.
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(v) In the event of a direct conflict between the priority
provisions of this Section 2.5 and other provisions contained in any
other Loan Document, it is the intention of the parties hereto that
both such priority provisions in such documents shall be read together
and construed, to the fullest extent possible, to be in concert with
each other. In the event of any actual, irreconcilable conflict that
cannot be resolved as aforesaid, the terms and provisions of this
Section 2.5 shall control and govern, principal and interest payments
shall be apportioned ratably among the Lenders (according to the
unpaid principal balance of the Obligations to which such payments
relate held by each individual Lender) and payments of fees (other
than fees designated for Agent's sole and separate account) shall, as
applicable, be apportioned ratably among the Lenders having a Pro Rata
Share of the type of credit facility as to which the particular fee is
applicable. In the event that the Collateral Agency and Intercreditor
Agreement provides that proceeds of Collateral are to be applied to
obligations other than the Obligations, then the payment provisions
above shall not control and the provisions of the Collateral Agency
and Intercreditor Agreement shall control.
(c) ASSET DISPOSITION PROCEEDS; REDUCTION OF COMMITMENTS. Promptly upon
receipt by Agent of any proceeds from Collateral Agent, whether on account of
Permitted Dispositions, condemnation proceeds, casualty proceeds, or otherwise,
(i) subject to the last sentence of this subsection, Agent shall apply such
proceeds in accordance with Section 2.5(b) above, (ii) if and to the extent that
the Collateral Agency and Intercreditor Agreement requires that the payment of
proceeds is to be accompanied by a reduction of the Commitments, then such
reduction shall be applied (y) first, to the Tranche A Commitments, such
reduction to be applied ratably amongst each of the Lenders with Tranche A
Commitments, and (z) second, to the Tranche B Commitments, such reduction to be
applied ratably amongst each of the Lenders with Tranche B Commitments, and (ii)
if and to the extent that the Collateral Agency and Intercreditor Agreement
provides that the payment of proceeds is to be accompanied by a reduction of the
Commitments only to the extent elected by the Lenders, then such election shall
be made and such reduction shall be applied (y) first, to the Tranche A
Commitments, to the extent agreed to by Tranche A Lenders whose Pro Rata Shares
aggregate 51% of the Tranche A Commitments, such reduction to be applied ratably
amongst each of the Lenders with Tranche A Commitments, and (z) second, if and
to the extent that the Tranche A Lenders affirmatively decide that less than all
of the available reductions should reduce the Tranche A Commitments, to the
extent agreed to by Tranche B Lenders whose Pro Rata Shares aggregate 51% of the
Tranche B Commitments, to the Tranche B Commitments, such remaining available
reduction to be applied ratably amongst each of the Lenders with Tranche B
Commitments. In each instance when the Tranche A Commitments are reduced, (i)
the amount of the Maximum Tranche A Amount and the Maximum Facility Amount shall
be reduced on a Dollar-for-Dollar basis, and (ii) the amount set forth in
Section 2.1(a)(iii) and the amount set forth in item (iii) of the definition of
Tranche A Advance Availability shall be reduced proportionately with the
reduction of the Tranche A Commitments. In each instance when the Tranche B
Commitments are reduced, the amount of the Maximum Tranche B Amount and the
Maximum Facility Amount shall be
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reduced on a Dollar-for-Dollar basis. In any instance when the Tranche A
Commitments are reduced, if, after giving effect to such reduction, the amount
of the then extant Letter of Credit Usage exceeds the amount of the Tranche A
Commitments, then Agent shall retain from the proceeds remitted to it from the
Collateral Agent an amount equal to 105% of such excess and such amount retained
shall be held by Agent, for the ratable benefit of Agent and those Lenders
having a Tranche A Commitment, as cash collateral until the outstanding Letters
of Credit are paid in full, with any balance being applied in accordance with
Section 2.5(b) above.
2.6 OVERADVANCES.
If, at any time or for any reason, the amount of Obligations owed by
Borrowers to the Lender Group pursuant to Sections 2.1, 2.2, or 2.3 is greater
than either the Dollar or percentage limitations set forth in Sections 2.1, 2.2,
or 2.3, (an "Overadvance"), except with respect to optional Overadvances
provided for in Section 2.4(i), Borrowers immediately shall pay to Agent, in
cash, the amount of such excess, which amount shall be used by Agent to reduce
the Obligations in accordance with the priority set forth in Section 2.5(b). In
addition, each Borrower, jointly and severally, hereby promises to pay the
Obligations (including principal, interest, fees, costs, and expenses) in
Dollars in full to Agent for the account of the Lender Group as and when due and
payable under the terms of this Agreement and the other Loan Documents.
2.7 INTEREST AND LETTER OF CREDIT FEES: RATES, PAYMENTS, AND CALCULATIONS.
(a) INTEREST RATES. Except as provided in clause (c) below, all amounts
that have been charged to the Loan Account (except for undrawn Letters of
Credit) pursuant to the terms hereof shall bear interest on the Daily Balance
thereof as follows (i) if a LIBOR Rate Advance, at a per annum rate equal to the
LIBOR Rate plus the LIBOR Margin, and (ii) otherwise, at a per annum rate equal
to the Base Rate plus the Applicable Base Rate Margin.
(b) LETTER OF CREDIT FEE. Borrowers shall pay Agent (for the ratable
benefit of the Lenders with a Tranche A Commitment based upon their Pro Rata
Share of the Tranche A Commitment), a Letter of Credit fee (in addition to the
charges, commissions, fees, and costs set forth in Section 2.2(e)) which shall
accrue at a rate equal to 2.75% per annum times the average daily aggregate
undrawn amount of all outstanding Letters of Credit during the month preceding
the date such Letter of Credit fee is due and payable in accordance with Section
2.7(d) hereof.
(c) DEFAULT RATE. Upon the occurrence and during the continuation of an
Event of Default, and at the election of any Lender as evidenced by delivery by
such Lender of written notice of such election to Agent, Lenders and
Administrative Borrower, and effective as of the date such notice is received by
Agent or such later date specified in such notice,
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(i) all amounts that have been charged to the Loan Account
(except for undrawn Letters of Credit) pursuant to the terms hereof
shall bear interest on the Daily Balance thereof at a per annum rate
equal to 2 percentage points above the per annum rate otherwise
applicable hereunder, and
(ii) the Letter of Credit fee provided for above shall be
increased to 2 percentage points above the per annum rate otherwise
applicable hereunder.
(d) PAYMENTS. Interest, Letter of Credit fees, and all other fees
payable hereunder shall be due and payable, in arrears, on the first day of each
month during the term hereof (except that interest on LIBOR Advances shall be
due and payable, in arrears, on the last day of the applicable Interest Period).
Each Borrower hereby authorizes Agent, without prior notice to such Borrower, to
charge such interest and fees, all Lender Group Expenses (as and when incurred),
the charges, commissions, fees, and costs provided for in Section 2.12 (as and
when due or incurred), the charges, commissions, fees, and costs provided for in
Section 2.2 (as and when due or incurred), and all other payments due under any
Loan Document to Borrowers' Loan Account, which amounts thereafter shall accrue
interest at the rate then applicable to Tranche A Advances hereunder if Tranche
A Availability is greater than such amounts, but otherwise at the rate then
applicable to Tranche B Advances hereunder. Any interest not paid when due shall
be compounded and shall thereafter accrue interest at the rate then applicable
to Tranche A Advances hereunder if Tranche A Availability is greater than such
interest amount, but otherwise at the rate then applicable to Tranche B Advances
hereunder.
(e) COMPUTATION. All interest and fees chargeable under the Loan
Documents shall be computed on the basis of a 360 day year for the actual number
of days elapsed. In the event the Base Rate is changed from time to time
hereafter, the rates of interest hereunder based upon the Base Rate
automatically and immediately shall be increased or decreased by an amount equal
to such change in the Base Rate.
(f) INTENT TO LIMIT CHARGES TO MAXIMUM LAWFUL RATE. In no event shall
the interest rate or rates payable under this Agreement, plus any other amounts
paid in connection herewith, exceed the highest rate permissible under any law
that a court of competent jurisdiction shall, in a final determination, deem
applicable. Borrowers and the Lender Group, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and manner
of payment stated within it; provided, however, that, anything contained herein
to the contrary notwithstanding, if said rate or rates of interest or manner of
payment exceeds the maximum allowable under applicable law, then, ipso facto as
of the date of this Agreement, each Borrower is and shall be liable only for the
payment of such maximum as allowed by law, and payment received from Borrower in
excess of such legal maximum, whenever received, shall be applied to reduce the
principal balance of the Obligations to the extent of such excess.
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2.8 CASH MANAGEMENT.
(a) Each Borrower shall (i) establish and maintain one or more lock
boxes (each a "Lockbox") at one or more of the banks set forth on Schedule
2.8(a), and shall request in writing and otherwise take such reasonable steps to
ensure that all of its Account Debtors forward payment directly to such
Lockboxes (such request may be made in the form of a written direction to make
all payments to the applicable Lockbox), and (ii) deposit or cause to be
deposited promptly, and in any event no later than the first Business Day after
the date of receipt thereof, all Collections (whether or not otherwise delivered
to a Lockbox) into a bank account in Agent's name (a "Lockbox Account") at one
of the banks set forth on Schedule 2.8(a) (a "Lockbox Account Bank"). Borrowers
may amend Schedule 2.8(a) to include additional Lockbox Account Banks so long as
each such supplemental Lockbox Account Bank is acceptable to Agent.
(b) Each Guarantor shall (i) deposit or cause to be deposited
promptly, and in any event no later than the first Business Day after the date
of receipt thereof, all cash, checks, drafts and all forms of items of payment
made in respect of any and all Collateral into bank accounts in such Guarantor's
name (each a "Collection Account" and, collectively, the "Collection Accounts")
at one of the banks set forth on Schedule 2.8(b) (each a "Collection Account
Bank" and, collectively, the "Collection Account Banks"). All Collection Account
Banks shall be satisfactory to the Agent. Borrowers may amend Schedule 2.8(b) to
include additional Collection Account Banks so long as each such supplemental
Collection Account Bank is acceptable to Agent.
(c) Each Lockbox Account Bank and all Collection Account Banks shall
establish and maintain tri-party blocked account agreements with the Agent and
the applicable Obligor, in form and substance acceptable to the Agent. Each such
blocked account agreement shall provide, among other things, that (i) all items
of payment deposited in such accounts and proceeds thereof are held by such
banks as agent or bailee-in-possession for Agent, (ii) the bank executing such
agreement has no rights of setoff or recoupment or any other claim against such
account, as the case may be, other than for payment of its service fee and other
charges directly related to the administration of such account and for returned
checks or other items of payment, and (iii)(A) with respect to each bank at
which a Collection Account is located, such bank agrees, from and after the date
it receives a written notice from Agent that an Event of Default has occurred
and is continuing hereunder, immediately to forward by daily sweep all amounts
in each Collection Account to the Agent's Account, and (B) with respect to each
Lockbox Account Bank, such bank agrees immediately to forward by daily sweep all
amounts received in the applicable Lockbox Account to the Agent's Account. No
Borrower shall accumulate or maintain cash in disbursement or payroll accounts
as of any date of determination in excess of checks outstanding against such
accounts as of that date, amounts necessary to meet minimum balance
requirements, and amounts maintained in such accounts in the ordinary course of
such Borrower's business.
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(d) Unless an Event of Default has occurred and is continuing, each
Guarantor may use the funds on deposit in a Collection Account for its working
capital purposes. From and after the occurrence of an Event of Default and at
the election of the Required Lenders, the funds on deposit in the Collection
Accounts of each Guarantor shall be converted into Dollars (at such Guarantor's
sole expense) and wired into the Agent's Account to be applied on account of the
"Guaranteed Obligations" (as that term is defined in the Canadian Guaranty) of
such Guarantor.
(e) So long as no Default or Event of Default has occurred and is
continuing, the Obligors may amend Schedule 2.8(a) or (b) to add or replace a
Collection Account Bank, Lockbox Account Bank, Lockbox or Collection Account or
to replace the Designated Account; provided, however, that (i) such bank shall
be satisfactory to Agent and Agent shall have consented in writing in advance to
the opening of such account or Lockbox with the relevant bank and (ii) prior to
the time of the opening of such account or Lockbox, the applicable Borrower or
the Subsidiaries thereof, as applicable, and such bank shall have executed and
delivered to Agent a tri-party blocked account agreement, in form and substance
reasonably satisfactory to Agent. The Obligors shall close any of their accounts
(and establish replacement accounts in accordance with the foregoing sentence)
promptly and in any event within 30 days of notice from Agent that the
creditworthiness of any bank holding an account is no longer acceptable in
Agent's reasonable judgment, or as promptly as practicable and in any event
within 60 days of notice from Agent that the operating performance, funds
transfer or availability procedures or performance with respect to accounts or
lockboxes of the bank holding such accounts or Agent's liability under any tri-
party blocked account agreement with such bank is no longer acceptable in
Agent's reasonable judgment.
(f) The Lockboxes, Collection Accounts, Designated Account, Lockbox
Accounts and the Concentration Account shall be cash collateral accounts, with
all cash, checks and similar items of payment in such accounts securing payment
of the Advances and all other Obligations, and in which each Obligor and each
Guarantor shall have granted a Lien to Collateral Agent.
2.9 CREDITING PAYMENTS.
The receipt of any payment by Agent (whether from transfers to Agent by the
Lockbox Account Banks, Collection Account Banks or otherwise) shall not be
considered a payment on account unless such Collection item is a wire transfer
of immediately available federal funds made to the Agent's Account or unless and
until such payment item is honored when presented for payment. Should any
payment item not be honored when presented for payment, then Borrowers shall be
deemed not to have made such payment and interest shall be calculated
accordingly. Anything to the contrary contained herein notwithstanding, any
payment item shall be deemed received by Agent only if it is received into the
Agent's Account on a Business Day on or before 11:00 a.m. (California time). If
any Collection item is received into the Agent's Account on or after 11:00 a.m.
(California time) on a Business Day, it shall be deemed to have been received by
Agent as of the opening of business on the
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immediately following Business Day. From and after the Closing Date, Agent shall
be entitled to charge the Obligors for 1/2 of a Business Day of `clearance' or
`float' at the rate applicable to Tranche A Advances set forth in Section
2.7(a)(ii) or Section 2.7(c)(i), as applicable, on all Collections (other than
Excepted Collections) that are received by the Obligors (regardless of whether
forwarded by the Lockbox Banks or Collection Account Banks to Agent). This
across-the-board 1/2 of a Business Day clearance or float charge on all
Collections (other than Excepted Collections) is acknowledged by the parties to
constitute an integral aspect of the pricing of the financing of Borrowers and
shall apply irrespective of whether or not there are any outstanding monetary
Obligations; the effect of such clearance or float charge being the equivalent
of charging 1/2 of a Business Day of interest on such Collections. The parties
further acknowledge and agree that the economic benefit of the foregoing
provisions of this Section 2.9 shall accrue to the sole and exclusive benefit of
Agent.
2.10 DESIGNATED ACCOUNT.
Agent is authorized to make the Advances, and issue the Letters of Credit
under this Agreement based upon telephonic or other instructions received from
anyone purporting to be an Authorized Person, or without instructions if
pursuant to Section 2.7(d). Administrative Borrower agrees to establish and
maintain the Designated Account with the Designated Account Bank for the purpose
of receiving the proceeds of the Advances requested by Borrowers and made by
Agent or the Lenders hereunder. Unless otherwise agreed by Agent and Borrowers,
any Advance, Agent Advance, or Swing Loan requested by Borrowers and made by
Agent or the Lenders hereunder shall be made to the Designated Account.
2.11 MAINTENANCE OF LOAN ACCOUNT; STATEMENTS OF OBLIGATIONS.
Agent shall maintain an account on its books in the name of Borrowers (the
"Loan Account") on which Borrowers will be charged with all Advances and Letters
of Credit made or issued by Agent or the Lenders to Borrowers' or for Borrowers'
account, including, Advances made by Agent or the Lenders for the payment of
accrued interest, Lender Group Expenses, and any other payment Obligations of
Borrowers. In accordance with Section 2.9, the Loan Account will be credited
with all payments received by Agent from Borrowers or for Borrowers' account,
including all amounts received in the Agent's Account from any Lockbox Bank or
the Collection Account Banks. Agent shall render statements regarding the Loan
Account to Administrative Borrower, including principal, interest, fees, and
including an itemization of all charges and expenses constituting Lender Group
Expenses owing, and, absent manifest error, such statements shall be
conclusively presumed to be correct and accurate and constitute an account
stated between Borrowers and the Lender Group unless, within 30 days after
receipt thereof by Administrative Borrower, Administrative Borrower shall
deliver to Agent written objection thereto describing the error or errors
contained in any such statements.
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2.12 FEES.
The Borrowers shall pay to Agent the following fees, which fees shall be:
(i) non-refundable when paid (irrespective of whether this Agreement is
terminated thereafter); and (ii) apportioned among the Lenders in accordance
with the terms of the Fee Split Letters (except where expressly stated to the
contrary below):
(a) LOAN ORIGINATION FEE. On the Closing Date, a loan origination fee
of $4,500,000, reduced by any amounts previously paid.
(b) AGENCY FEE. An agency fee equal to $150,000 payable annually in
advance (without any rebate if this Agreement is terminated prior to the end of
the applicable year) on the Closing Date and on each date that is an anniversary
of the Closing Date that occurs prior to the later of (i) the termination of the
Commitments, and (ii) the payment in full in cash of the Obligations.
(c) ANNUAL FEE. An annual fee of $750,000 payable (i) on the date that
is the first anniversary of the Closing Date, and (ii) on the date that is the
second anniversary of the Closing Date; provided, however, that no such fee
shall be payable on a particular date if, prior to such date, the (i) the
Commitments have been terminated, and (ii) the Obligations have been paid in
full.
(d) LOAN SERVICING FEE. A loan servicing fee equal to $20,000 payable
in arrears on the first day of each month after the Closing Date prior to the
date on which (i) the Commitments have been terminated, and (ii) the Obligations
have been paid in full; provided, however that the loan servicing fee for the
period from and after the Closing Date and up to the last day of the month in
which the Closing Date occurs shall be equal to the product of $20,000
multiplied by a fraction the numerator of which is the number of days from and
after the Closing Date and up to and including the last day of the month in
which the Closing Date occurs and the denominator of which is the number of days
in such month.
(e) UNUSED LINE FEE FOR THE TRANCHE A FACILITY. For the Pro Rata
benefit of each Lender with a Tranche A Commitment, on the first day of each
month during the term of this Agreement, an unused line fee in an amount equal
to 0.375% per annum times the result of (a) the Maximum Tranche A Amount, less
(b) the average Daily Balance of the Tranche A Usage during the immediately
preceding month,
(f) UNUSED LINE FEE FOR THE TRANCHE B FACILITY. For the Pro Rata
benefit of each Lender with a Tranche B Commitment, on the first day of each
month during the term of this Agreement, an unused line fee in an amount equal
to 0.75% per annum times the result of (a) the Maximum Tranche B Amount, less
(b) the average Daily Balance of the Tranche B Usage during the immediately
preceding month, and
(g) FINANCIAL EXAMINATION, VALUATION, AND APPRAISAL FEES. For the sole
and separate account of Agent, (i) a separate fee of $750 pay day, per examiner,
plus out-of-pocket expenses for each financial analysis and examination (i.e.,
audits) of Borrowers performed by personnel employed by Agent; provided,
however, that, so long as no Event of Default has occurred and is continuing,
Borrowers shall not be obligated to pay such fees and
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expenses in respect of more than 3 such audits in any year; (ii) a one time
charge of $3,000 plus outofpocket expenses for expenses for the establishment of
electronic collateral reporting systems; and (iii) the actual charges paid or
incurred by Agent if it elects to employ the services of one or more third
Persons to appraise the Collateral, or any portion thereof, or to assess the
Obligors' business valuation; provided, however, that, so long as no Event of
Default has occurred and is continuing, Borrowers shall not be obligated to pay
such charges in respect of more than one Collateral appraisal or business
valuation in any year.
Upon the payment of the foregoing fees by the Borrowers to Agent, Borrowers
shall be discharged from any further obligation to pay such fees.
2.13 LIBOR OPTION.
(a) INTEREST AND INTEREST PAYMENT DATES. In lieu of having interest
charged at the rate based upon the Base Rate, Borrowers shall have the option
(the "LIBOR Option") to have interest on a portion of the Tranche A Advances be
charged at the LIBOR Rate. Interest on LIBOR Rate Advances shall be payable on
the last day of each Interest Period applicable thereto. On the last day of each
applicable Interest Period, unless Borrower has properly exercised the LIBOR
Option with respect thereto, the interest rate applicable to such LIBOR Rate
Advances automatically shall convert to the rate of interest then applicable to
Base Rate Tranche A Advances under Section 2.7 hereof. At any time that an Event
of Default has occurred and is continuing, Agent shall have the right to convert
the interest rate on all outstanding LIBOR Rate Advances to the Base Rate then
applicable to Tranche A Advances under Section 2.7(a)(ii) hereof; provided,
however, that, unless the Obligations have been declared immediately due and
payable pursuant to Section 9 hereof, any outstanding LIBOR Rate Advances shall
continue to bear interest at the rate applicable thereto that is based upon the
LIBOR Rate (subject to the ability of the Required Lenders to apply Section
2.7(c)(i) thereto) until the last day of each such Interest Period, at which
time the interest rate applicable thereto automatically shall convert to the
rate of interest then applicable to Base Rate Advances under Section 2.7 hereof.
(b) LIBOR ELECTION.
(i) Administrative Borrower may, at any time and from time to
time, so long as no Event of Default has occurred and is continuing,
elect to exercise the LIBOR Option by notifying Agent prior to 11:00
a.m. (California time) at least 3 Business Days prior to the
commencement of the proposed Interest Period (the "LIBOR Deadline").
Notice of Administrative Borrower's election of the LIBOR Option for a
permitted portion of the Tranche A Advances and an Interest Period
pursuant to this Section shall be made by delivery to Agent of a LIBOR
Notice received by Agent before the LIBOR Deadline, or by telephonic
notice received by Agent before the LIBOR Deadline (to be confirmed by
delivery to Agent of a LIBOR Notice received by Agent prior to 5:00
p.m. (California time) on the same day. Promptly (but in no event
later than 3:00 p.m. (California time) on the date of receipt thereof)
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upon its receipt of each such LIBOR Notice, Agent shall provide a copy
thereof to each of the Lenders having a Tranche A Commitment.
(ii) Each LIBOR Notice shall be irrevocable and binding on
Borrowers. In connection with each LIBOR Rate Advance, Borrowers shall
indemnify, defend, and hold Agent and the Lenders harmless against any
loss, cost, or expense incurred by Agent or any Lender as a result of
(a) the payment of any principal of any LIBOR Rate Advance other than
on the last day of an Interest Period applicable thereto (including as
a result of an Event of Default), (b) the conversion of any LIBOR Rate
Advance other than on the last day of the Interest Period applicable
thereto, or (c) the failure to borrow, convert, continue or prepay any
LIBOR Rate Advance on the date specified in any LIBOR Notice delivered
pursuant hereto (such losses, costs, and expenses, collectively,
"Funding Losses"). In the case of a LIBOR Rate Advance, Funding Losses
shall, with respect to Agent or any Lender, be deemed to equal the
amount determined by such Agent or such Lender to be the excess, if
any, of (i) the amount of interest that would have accrued on the
principal amount of such LIBOR Rate Advance had such event not
occurred, at the LIBOR Rate that would have been applicable to such
Advance, for the period from the date of such event to the last day of
the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Advance), over (ii) the amount of
interest that would accrue on such principal amount for such period at
the interest rate which Agent or such Lender would be offered were it
to be offered, at the commencement of such period, dollar deposits of
a comparable amount and period in the London interbank market. A
certificate of Agent or a Lender setting forth any amount or amounts
that such Agent or such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive
absent manifest error.
(iii) Borrower shall have not more than 5 Interest Periods in
effect at any given time. Borrower only may exercise the LIBOR Option
for LIBOR Rate Advances of at least $1,000,000 and integral multiples
of $500,000 in excess thereof.
(c) PREPAYMENTS. Borrowers may prepay LIBOR Rate Advances at any time
without premium or penalty; provided, however, that in the event that LIBOR Rate
Advances are prepaid on any date that is not the last day of the Interest Period
applicable thereto, including as a result of any automatic prepayment through
the required application by Agent of proceeds of Collections in accordance with
Section 2.5(b) or for any other reason, including early termination of the term
of this Agreement or acceleration of the Obligations pursuant to the terms
hereof, Borrowers shall indemnify, defend, and hold Agent and the Lenders and
their participants harmless against any and all Funding Losses in accordance
with Section 2.13(b).
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(d) SPECIAL PROVISIONS APPLICABLE TO LIBOR RATE.
(i) If any change in applicable law occurring subsequent to the
commencement of the then applicable Interest Period (a) imposes,
modifies or deems applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender; or (b) imposes on any Lender or the
London interbank market any other condition affecting this Agreement
or LIBOR Rate Advances made by such Lender (excluding the Reserve
Percentage), and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any LIBOR
Rate Advance (or of maintaining its obligation to make any such
Advance), then, in any such event, the affected Lender shall give
Administrative Borrower and Agent notice of the imposition of such
increased costs, which notice shall contain a statement setting forth
the basis for determining the amount of such increased costs and
Borrowers will pay to such Lender such additional amount or amounts as
will compensate such Lender for such additional costs incurred or
reduction suffered.
(ii) In the event that a change in market conditions or a change
in law, regulation, treaty, or directive, or in the interpretation or
application thereof, shall at any time after the date hereof, in the
reasonable opinion of any Lender, make it unlawful or impractical for
such Lender to fund or maintain LIBOR Advances or to continue such
funding or maintaining, or to determine or charge interest rates at
the LIBOR Rate, such Lender shall give notice of such changed
circumstances to Agent and Administrative Borrower and Agent shall
immediately transmit the notice to each other Lender and (y) in the
case of any LIBOR Rate Advances that are outstanding, the date
specified in such Lender's notice shall be deemed to be the last day
of the Interest Period of such LIBOR Rate Advances, and interest upon
the LIBOR Advances then outstanding shall thereafter accrue interest
at the rate then applicable to Base Rate Tranche A Advances as
provided in Section 2.7(a)(ii) or Section 2.7(c)(i), as applicable,
and (z) Borrower shall not be entitled to elect the LIBOR Option until
such Lender determines that it would no longer be unlawful or
impractical to do so.
(e) NO REQUIREMENT OF MATCHED FUNDING. Anything to the contrary
contained herein notwithstanding, neither Agent, nor any Lender, nor any
participant is required actually to acquire eurodollar deposits to fund or
otherwise match fund any Advances as to which interest accrues at the LIBOR
Rate. The provisions of this Section shall apply as if each Lender or its
participants had match funded any Advances as to which interest is accruing at
the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the
amount of the LIBOR Rate Advances.
(f) NOTICE OF INCREASED COSTS. Borrowers shall not be required to
compensate a Lender or the Issuing Lender pursuant to Section 2.13 for any
increased costs
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incurred more than 90 days prior to the date that such Lender or the Issuing
Lender, as the case may be, notifies Administrative Borrower of the change in
law giving rise to such increased costs and of such Lender's or the Issuing
Lender's intention to claim compensation therefor; provided, that, if the change
in law giving rise to such increased costs is retroactive, then the 90-day
period referred to above shall be extended to include the period of retroactive
effect thereof.
2.14 CAPITAL REQUIREMENTS.
(i) REDUCTION OF RETURN ON CAPITAL. If, after the date hereof,
any Lender determines that (i) the adoption of or change in any law,
rule, regulation or guideline regarding capital requirements for banks
or bank holding companies, or any change in the interpretation or
application thereof by any Governmental Authority charged with the
administration thereof, or (ii) compliance by such Lender or its
parent bank holding company with any guideline, request or directive
of any such entity regarding capital adequacy (whether or not having
the force of law), having the effect of reducing the return on such
Lender's or such holding company's capital as a consequence of such
Lender's Commitment to make Advances hereunder or its obligations in
respect of any Letter of Credit to a level below that which such
Lender or such holding company could have achieved but for such
adoption, change or compliance (taking into consideration such
Lender's or such holding company's then existing policies with respect
to capital adequacy and assuming the full utilization of such entity's
capital) by any amount deemed by such Lender to be material, then such
Lender may notify Administrative Borrower and the Agent thereof.
Borrowers agree to pay such Lender on demand the amount of such
reduction of return of capital as and when such reduction is
determined, payable within 90 days after presentation by such Lender
of a statement in the amount and setting forth in reasonable detail
such Lender's calculation thereof and the assumptions upon which such
calculation was based (which statement shall be deemed true and
correct absent manifest error). In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
(ii) NOTICE OF REDUCTIONS. Borrowers shall not be required to
compensate a Lender or the Issuing Lender pursuant to Section 2.14 for
any reductions incurred more than 90 days prior to the date that such
Lender or the Issuing Lender, as the case may be, notifies
Administrative Borrower of the change in law giving rise to such
reductions and of such Lender's or the Issuing Lender's intention to
claim compensation therefor; provided, that, if the change in law
giving rise to such reductions is retroactive, then the 90-day period
referred to above shall be extended to include the period of
retroactive effect thereof.
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2.15 JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Agent and the Lenders under this Agreement,
for the mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of the other Borrowers to accept joint and
several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers, with respect to the
payment and performance of all of the Obligations (including, without
limitation, any Obligations arising under this Section 2.15), it being the
intention of the parties hereto that all the Obligations shall be the joint and
several obligations of each Person composing the Borrowers without preferences
or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to perform
any of the Obligations in accordance with the terms thereof, then in each such
event the other Persons composing the Borrowers will make such payment with
respect to, or perform, such Obligation.
(d) The Obligations of each Person composing the Borrowers under the
provisions of this Section 2.15 constitute the absolute and unconditional, full
recourse Obligations of each Person composing the Borrowers enforceable against
each such Borrower to the full extent of its properties and assets, irrespective
of the validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.
(e) Except as otherwise expressly provided in this Agreement, each
Person composing the Borrowers hereby waives notice of acceptance of its joint
and several liability, notice of any Advances or Letters of Credit issued under
or pursuant to this Agreement, notice of the occurrence of any Default, Event of
Default, or of any demand for any payment under this Agreement, notice of any
action at any time taken or omitted by Agent or Lenders under or in respect of
any of the Obligations, any requirement of diligence or to mitigate damages and,
generally, to the extent permitted by applicable law, all demands, notices and
other formalities of every kind in connection with this Agreement (except as
otherwise provided in this Agreement). Each Person composing the Borrowers
hereby assents to, and waives notice of, any extension or postponement of the
time for the payment of any of the Obligations, the acceptance of any payment of
any of the Obligations, the acceptance of any partial payment thereon, any
waiver, consent or other action or acquiescence by Agent or Lenders at any time
or times in respect of any default by any Person composing the Borrowers in the
performance or satisfaction of any term, covenant, condition or provision of
this Agreement, any and all other indulgences whatsoever by Agent or Lenders in
respect of any of the Obligations, and the taking,
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addition, substitution or release, in whole or in part, at any time or times, of
any security for any of the Obligations or the addition, substitution or
release, in whole or in part, of any Person composing the Borrowers. Without
limiting the generality of the foregoing, each of the Borrowers assents to any
other action or delay in acting or failure to act on the part of any Agent or
Lender with respect to the failure by any Person composing the Borrowers to
comply with any of its respective Obligations, including, without limitation,
any failure strictly or diligently to assert any right or to pursue any remedy
or to comply fully with applicable laws or regulations thereunder, which might,
but for the provisions of this Section 2.15 afford grounds for terminating,
discharging or relieving any Person composing the Borrowers, in whole or in
part, from any of its Obligations under this Section 2.15, it being the
intention of each Person composing the Borrowers that, so long as any of the
Obligations hereunder remain unsatisfied, the Obligations of such Person
composing the Borrowers under this Section 2.15 shall not be discharged except
by performance and then only to the extent of such performance. The Obligations
of each Person composing the Borrowers under this Section 2.15 shall not be
diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to
any Person composing the Borrowers or any Agent or Lender. The joint and several
liability of the Persons composing the Borrowers hereunder shall continue in
full force and effect notwithstanding any absorption, merger, amalgamation or
any other change whatsoever in the name, constitution or place of formation of
any of the Persons composing the Borrowers or any Agent or Lender.
(f) The provisions of this Section 2.15 are made for the benefit of
the Agent, the Lenders and their respective successors and assigns, and may be
enforced by it or them from time to time against any or all of the Persons
composing the Borrowers as often as occasion therefor may arise and without
requirement on the part of any such Agent, Lender, successor or assign first to
marshal any of its or their claims or to exercise any of its or their rights
against any of the other Persons composing the Borrowers or to exhaust any
remedies available to it or them against any of the other Persons composing the
Borrowers or to resort to any other source or means of obtaining payment of any
of the Obligations hereunder or to elect any other remedy. The provisions of
this Section 2.15 shall remain in effect until all of the Obligations shall have
been paid in full or otherwise fully satisfied. If at any time, any payment, or
any part thereof, made in respect of any of the Obligations, is rescinded or
must otherwise be restored or returned by any Agent or Lender upon the
insolvency, bankruptcy or reorganization of any of the Persons composing the
Borrowers, or otherwise, the provisions of this Section 2.15 will forthwith be
reinstated in effect, as though such payment had not been made.
(g) Each of the Persons composing the Borrowers hereby agrees that it
will not enforce any of its rights of contribution or subrogation against the
other Persons composing the Borrowers with respect to any liability incurred by
it hereunder or under any of the other Loan Documents, any payments made by it
to the Agent or the Lenders with respect to any of the Obligations or any
collateral security therefor until such time as
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all of the Obligations have been paid in full in cash. Any claim which any
Borrower may have against any other Borrower with respect to any payments to any
Agent or Lender hereunder or under any other Loan Documents are hereby expressly
made subordinate and junior in right of payment, without limitation as to any
increases in the Obligations arising hereunder or thereunder, to the prior
payment in full in cash of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Borrower, its
debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full in cash before any payment or distribution of any
character, whether in cash, securities or other property, shall be made to any
other Borrower therefor.
(h) Each of the Persons composing the Borrowers hereby agrees that,
after the occurrence and during the continuance of any Default or Event of
Default, the payment of any amounts due with respect to the indebtedness owing
by any Borrower to any other Borrower is hereby subordinated to the prior
payment in full in cash of the Obligations. Each Borrower hereby agrees that
after the occurrence and during the continuance of any Default or Event of
Default, such Borrower will not demand, xxx for or otherwise attempt to collect
any indebtedness of any other Borrower owing to such Borrower until the
Obligations shall have been paid in full in cash. If, notwithstanding the
foregoing sentence, such Borrower shall collect, enforce or receive any amounts
in respect of such indebtedness, such amounts shall be collected, enforced and
received by such Borrower as trustee for the Collateral Agent, and the
Collateral Agent shall deliver any such amounts to the Administrative Agent for
application to the Obligations in accordance with Section 2.4(b).
2.16 REGISTERED NOTES.
Administrative Borrower on behalf of each of the Persons comprising the
Borrowers agrees to record each Advance on the Register referred to in Section
14.1. Any Advance recorded on the Register (the "Registered Loan") may not be
evidenced by promissory notes other than Registered Notes. Upon the registration
of any Advance, each Borrower agrees, at the request of any Lender (which
request shall contain information concerning the aggregate amount of the
applicable Advances to be subject to such note and the allocation of such
Advances to such Lender), to execute and deliver to such Lender a promissory
note in registered form to evidence such Registered Loan (i.e. containing
registered note language in form and substance acceptable to such Lender) and
registered as provided in Section 14.1 (a "Registered Note"), payable to the
order of such Lender and otherwise duly completed. Once recorded on the
Register, the Advances evidenced by such Registered Note may not be removed from
the Register so long as it remains outstanding, and a Registered Note may not be
exchanged for a promissory note that is not a Registered Note.
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2.17 SECURITIZATION.
Each Borrower hereby acknowledges that the Lenders and each of their
Affiliates may sell or securitize the Advances (a "Securitization") through the
pledge of the Advances as collateral security for loans to such Lenders or their
Affiliates or through the sale of the Advances or the issuance of direct or
indirect interests in the Advances, which loans to such Lenders or their
Affiliate or direct or indirect interests will be rated by Xxxxx'x, Standard &
Poor's or one or more other rating agencies (the "Rating Agencies"). Each
Borrower shall cooperate with such Lenders and their Affiliates to effect the
Securitization including, without limitation, by (a) amending this Agreement and
the other Loan Documents, and executing such additional documents, as reasonably
requested by such Lenders in connection with the Securitization, provided that
(i) any such amendment or additional documentation does not impose material
additional costs on the Borrowers and (ii) any such amendment or additional
documentation does not materially adversely affect the rights, or materially
increase the obligations, of the Borrowers under the Loan Documents or change or
affect in a manner adverse to the Borrowers the financial terms of the Advances,
(b) providing such information as may be reasonably requested by such Lenders in
connection with the rating of the Advances or the Securitization, and (c)
providing in connection with any rating of the Advances or Term Loans a
certificate (i) agreeing to indemnify such Lenders and any of their Affiliates,
any of the Rating Agencies, or any party providing credit support or otherwise
participating in the Securitization (collectively, the "Securitization Parties")
for any losses, claims, damages or liabilities (the "Liabilities") to which such
Lenders, their Affiliates or such Securitization Parties may become subject
insofar as the Liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Loan Document
or in any writing delivered by or on behalf of any Borrowers or its Affiliates
to the Lenders in connection with any Loan Document or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and such
indemnity shall survive any transfer by any Lender or its successors or assigns
of the Advances and (ii) agreeing to reimburse such Lenders and any of their
Affiliates for any legal or other expenses reasonably incurred by such Persons
in connection with defending the Liabilities. Lenders shall use reasonable
efforts to minimize any costs, liabilities, or administrative burden on any
Borrower in connection with such Borrower's compliance with this section.
3. CONDITIONS; TERM OF AGREEMENT.
3.1 CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT.
The obligation of the Lender Group (or any member thereof) to make the
initial Advance (or otherwise to extend any credit provided for hereunder), is
subject to the fulfillment, to the reasonable satisfaction of Agent and each of
the Lenders, of each of the conditions precedent set forth below:
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(a) the Closing Date shall occur on or before April 7, 2000;
(b) Agent shall have received all financing statements required by
Agent, duly executed by the Obligors, and Agent shall have received confirmation
of the filing of all (or as many as is acceptable to Agent) of such financing
statements;
(c) Agent shall have received each of the following documents, in form
and substance satisfactory to Agent and each of the Lenders, duly executed, and
each such document shall be in full force and effect:
(i) this Agreement;
(ii) the Security Agreement, together with the U.S. motor
vehicle registrations requested by Agent;
(iii) tri-party blocked account agreements governing the
Collection Accounts and the Lockbox Accounts;
(iv) the Disbursement Letter;
(v) the Stock Pledge Agreement, and, as to each Obligor, all
certificates representing shares of Stock that are pledged under the
Stock Pledge Agreement, together with undated and executed Stock
powers with respect to such Stock endorsed in blank, all promissory
notes that are pledged under the Stock Pledge Agreement, together with
executed endorsements in blank of such promissory notes, and any
appropriate control agreements referenced in the Stock Pledge
Agreement governing the pledge of uncertificated equity interests
owned by Obligors;
(vi) the Trademark Security Agreement;
(vii) the Patent Security Agreement;
(viii) the Copyright Security Agreement;
(ix) the Rolling Stock Security Agreement;
(x) the Canadian Guaranty;
(xi) the Canadian Security Agreement;
(xii) the Guaranty;
(xiii) the Hypothec;
(xiv) the Guarantor Security Agreement;
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(xv) the Suretyship Agreement;
(xvi) the Mortgages;
(xvii) the Fee Split Letters;
(xviii) the Pay-Off Letter, together with UCC termination
statements, mortgage lien releases, U.S. motor vehicle registrations
and lien releases relating to the same, and other documentation
evidencing the termination by DIP Agent of its Liens in and to the
properties and assets of the Obligors;
(d) Agent shall have received a certificate from the Secretary of each
Borrower attesting to the resolutions of such Borrower's Board of Directors
authorizing its execution, delivery, and performance of this Agreement and the
other Loan Documents to which such Borrower is a party and authorizing specific
officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing
Documents, as amended, modified, or supplemented to the Closing Date, certified
by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to
each Borrower (other than Oneida Asbestos Removal Inc.), dated within 20
Business Days of the Closing Date or such other date as is acceptable to Agent,
such certificate to be issued by the appropriate officer of the jurisdiction of
organization of such Borrower, which certificate shall indicate that such
Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to
each Borrower (other than Oneida Asbestos Removal Inc. and such other Borrowers
as may be agreed to by Agent), each dated within 25 Business Days of the Closing
Date or such other date as is acceptable to Agent, such certificates to be
issued by the appropriate officer of the jurisdiction in which the Chief
Executive Office of such Borrower is located, which certificates shall indicate
that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the Secretary of each
Guarantor attesting to the resolutions of such Guarantor's Board of Directors
authorizing its execution, delivery, and performance of the Loan Documents to
which such Guarantor is a party and authorizing specific officers of such
Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing
Documents, as amended, modified, or supplemented to the Closing Date, certified
by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status or equivalent
document satisfactory to Agent with respect to each Canadian Guarantor, dated
within 20
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Business Days of the Closing Date or such other date as is acceptable to Agent,
such certificate to be issued by the appropriate officer of the jurisdiction of
organization of such Canadian Guarantor;
(k) Agent shall have received a certificate of insurance, together
with the endorsements thereto, as are required by Section 6.9, the form and
substance of which shall be satisfactory to Agent and its counsel;
(l) Agent shall have received fully executed and delivered originals
of (i) the Collateral Agency and Intercreditor Agreement, (ii) the Prepetition
Lien Subordination and Intercreditor Agreement, and (iii) the Bonding Lien
Intercreditor Agreement, the form and substance of each of which shall be
satisfactory to Agent, the Lenders, and their respective counsel;
(m) Agent shall have received opinions of Obligors' United States and
Canadian counsel in form and substance satisfactory to Agent in its Permitted
Discretion;
(n) Borrowers shall have the Required Availability after giving effect
to the initial extensions of credit;
(o) Agent shall have received copies of the Junior Secured Debt
Documents, as amended, modified, or supplemented to the Closing Date, certified
by the Secretary of Parent, and such agreement and documents shall be
satisfactory in form and substance to Agent;
(p) Agent shall have received copies of the PIK Unsecured Debt
Indenture and the forms of each of the notes and related agreements and
documents, as amended, modified, or supplemented to the Closing Date, certified
by the Secretary of Parent, and such agreement and documents shall be
satisfactory in form and substance to Agent;
(q) Agent shall have received copies of the Unsecured Convertible Debt
Indenture and the forms of each of the notes and related agreements and
documents, as amended, modified, or supplemented to the Closing Date, certified
by the Secretary of Parent, and such agreement and documents shall be
satisfactory in form and substance to Agent;
(r) the Confirmation Order shall have been entered by the Bankruptcy
Court and shall be in full force and effect, shall be final and non-appealable,
and no appeal of the Confirmation Order shall be pending,
(s) the Stipulation and Order shall have been entered by the
Bankruptcy Court and shall be in full force and effect,
(t) the Canadian Confirmation Order and the Canadian Vesting Order
each shall have been entered by the Canadian Bankruptcy Court and shall be in
full force and
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effect, shall be final and non-appealable, and no appeal of either of such
orders shall be pending,
(u) the Plan of Reorganization shall have become effective pursuant to
its terms and the terms and conditions of the Confirmation Order and Agent shall
have received evidence satisfactory to it that each of the conditions to
effectiveness were satisfied;
(v) the Canadian Transactions shall have been fully consummated in
accordance with the terms and conditions of the Canadian Confirmation Order;
(w) the Pre-Closing Restructuring Transactions shall have been fully
consummated;
(x) Agent shall have received evidence satisfactory to it that (i)
Parent has changed its name from "Xxxxxx Services (Delaware), Inc." to "Xxxxxx
Services Corporation", (ii) "1381648 Ontario Inc." has changed its name to
"Xxxxxx Services Inc.", and (iii) "1381649 Ontario Inc." has changed its name to
"Xxxxxx Analytical Services Inc.";
(y) Agent shall have received evidence satisfactory to it, including
receipt of recently dated opinions of counsel, augmented with any necessary
certificate of the chief financial officer of Parent, regarding the
impracticality and/or the burdensome effect upon Obligors that would result in
the event that Phencorp Reinsurance Company Inc., a Barbados corporation, and
Phencorp International B.V., a Netherlands corporation, guarantied the
Obligations or from hypothecated their assets to secure the Obligations;
(z) Agent shall have received evidence satisfactory to it that all
Liens in favor of the "Account Intermediaries" (as that term is defined in the
Plan) have been terminated;
(aa) Agent shall have received evidence satisfactory to it, including
an appropriate certificate from the chief financial officer of Parent to the
effect that PSC (Europe) Limited or such other entity that has been approved by
Agent, has received no less than $5 million in capital contributions from Xxxxxx
Services Corp. during calendar year 2000;
(bb) Borrowers shall have paid all Lender Group Expenses incurred by
Agent or any other Lender in connection with the transactions evidenced by this
Agreement for which invoices have been rendered prior to the initial Advance or
the initial issuance of a Letter of Credit;
(cc) Agent shall have received evidence satisfactory to it, including
an appropriate certificate from the chief financial officer of Parent to the
effect that the mailing address of 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxxx,
Xxxxxxx, is a proper mailing address as of the Closing Date for the following
Borrowers: Luntz Acquisition (Delaware) Corporation; RESI Acquisition (Delaware)
Corporation; Xxxxxx/XX Xxxxxxx, Inc.; Xxxxxx Metals Recovery (USA) Inc.;
ServTech EPC, Inc.; and Xxxxxx Metals (USA), Inc. and that
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any mail delivered to such address will be received in the ordinary course of
business by such Borrowers;
(dd) Agent shall have received copies of the policies of insurance,
together with the endorsements thereto, as are required by Section 6.9; and
(ee) all other documents and legal matters in connection with the
transactions contemplated by this Agreement shall have been delivered, executed,
or recorded and shall be in form and substance satisfactory to Agent and its
counsel.
3.2 [INTENTIONALLY OMITTED]
3.3 CONDITIONS PRECEDENT TO ALL EXTENSIONS OF CREDIT.
The obligation of the Lender Group (or any member thereof) to make all
Advances, Swing Loans, or to issue Letters of Credit (and to make any other
extensions of credit provided for hereunder) shall be subject to the following
conditions precedent:
(a) the representations and warranties of the Obligors contained in
this Agreement and the other Loan Documents shall be true and correct in all
material respects on and as of the date of such extension of credit, as though
made on and as of such date (except to the extent that such representations and
warranties relate solely to an earlier date),
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such extension of credit, nor shall either result from
the making thereof,
(c) no injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the extending of such credit shall
have been issued and remain in force by any Governmental Authority against
Borrowers, Agent, any Lender, or any of their Affiliates, and
(d) after giving effect to such Advance, Swing Loan, Letter of Credit,
or other extension of credit, Combined Availability is greater than zero.
The foregoing conditions precedent are not conditions to each Lender (i)
participating in or reimbursing Agent for such Lenders' Pro Rata Share of any
drawings under Letters of Credit as provided herein, or (ii) participating in or
reimbursing Swing Lender or the Agent for such Lenders' Pro Rata Share of any
Swing Loan or Agent Advance as provided herein.
3.4 TERM.
This Agreement shall become effective upon the execution and delivery
hereof by Borrowers, Agent and the Lender Group and shall continue in full force
and effect for a term ending on September 30, 2002 (the "Maturity Date"). The
foregoing
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notwithstanding, the Lender Group, upon the election of the Required Lenders,
shall have the right to terminate its obligations under this Agreement
immediately and without notice upon the occurrence and during the continuation
of an Event of Default.
EFFECT OF TERMINATION.
On the date of termination of this Agreement, all Obligations (including
contingent reimbursement obligations of Borrowers with respect to any
outstanding Letters of Credit) immediately shall become due and payable without
notice or demand. No termination of this Agreement, however, shall relieve or
discharge Borrowers of Borrowers' duties, Obligations, or covenants hereunder.
Continuing security interests in the Collateral, for the benefit of the Lender
Group, shall remain in effect until all Obligations have been fully and finally
discharged and the Lender Group's obligations to provide additional credit
hereunder have been terminated. Upon termination of this Agreement and after all
Obligations have been fully and finally discharged and the Lender Group's
obligations to provide additional credit under the Loan Documents have been
terminated irrevocably, Agent will, at Borrowers' sole expense, instruct
Collateral Agent to execute and deliver any lien releases, mortgage releases,
discharges of security interests, and other similar discharge or release
documents (and, if applicable, in recordable form) as are reasonably necessary
to release, as of record, the Liens granted by the Obligors to Collateral Agent
for the benefit of the Lender Group with respect to the Obligations.
EARLY TERMINATION BY BORROWERS.
Borrowers have the option, at any time upon 45 days prior written notice to
Agent, to terminate this Agreement by paying to Agent, for the benefit of the
Lender Group, in cash, the Obligations (including either (i) providing cash
collateral to be held by Agent for the benefit of the Lender Group in an amount
equal to 105% of the maximum amount of the Lender Group's obligations under
outstanding Letters of Credit, or (ii) causing the original Letters of Credit to
be returned to Agent) in full, together with the Applicable Prepayment Premium.
If Borrowers have sent a notice of termination pursuant to the provisions of
this Section, but fail to pay the Obligations in full on the date set forth in
said notice, then Agent, acting upon the instructions of the Required Lenders,
shall have the election, to be made by a notice in writing sent by Agent to
Administrative Borrower within 60 Business Days after the date that Borrowers
had scheduled as the early termination date, either to (a) require Borrowers to
repay the Obligations in full on a date that is 10 days after the date on which
such notice is sent, (b) renew this Agreement for an additional term of 1 year
(provided, however, that if the Maturity Date shall be less than 1 year from the
date that is 60 Business Days after the date that Borrowers had scheduled as the
early termination date, such renewal only shall be upon the consent of all
Lenders), or (c) continue the terms of this Agreement as if no such early
termination notice had been sent. In the event of the termination of this
Agreement at any time prior to the Maturity Date, for any other reason,
including: (i) termination upon the election of the Lender
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Group to terminate after the occurrence of an Event of Default, (ii) foreclosure
and sale of Collateral resulting in repayment of the Obligations in full, (iii)
sale of the Collateral in any Insolvency Proceeding resulting in repayment of
the Obligations in full, or (iv) restructure, reorganization and/or compromise
of the Obligations by the confirmation of a plan of reorganization, plan or
arrangement, or any other plan of compromise, restructure or arrangement in any
Insolvency Proceeding, in view of the impracticability and extreme difficulty of
ascertaining the actual amount of damages to the Lender Group and/or profits
lost by the Lender Group as a result of such early termination, and by mutual
agreement of the parties as to a reasonable estimation and calculation of the
lost profits and/or damages of the Lender Group, Borrowers shall pay the
Applicable Prepayment Premium to the Lender Group measured as of the date of
such termination.
4. SECURITY INTERESTS.
4.1 DELIVERY OF ADDITIONAL DOCUMENTATION REQUIRED.
At any time upon the request of Agent, Borrowers shall execute and deliver
to Agent or Collateral Agent, as applicable, all financing statements, fixture
filings, security agreements, Control Agreements, pledges, assignments,
endorsements of certificates of title, and all other documents that Agent
reasonably may deem necessary, in form and substance reasonably satisfactory to
Agent, to perfect and continue perfected Collateral Agent's Liens in the
Collateral (whether now owned or hereafter arising or acquired), and in order to
fully consummate all of the transactions contemplated hereby and under the other
Loan Documents.
4.2 POWER OF ATTORNEY.
Each Borrower hereby irrevocably makes, constitutes, and appoints Agent
(and any of Agent's officers, employees, or agents designated by Agent) as such
Borrower's true and lawful attorney, with power to (a) if such Borrower refuses
to, or fails timely to execute and deliver any of the documents described in
Section 4.1, sign the name of such Borrower on any of the documents described in
Section 4.1, (b) at any time that an Event of Default has occurred and is
continuing, sign Borrower's name on any drafts against Account Debtors and
notices to Account Debtors, (c) send requests for verification of Accounts, (d)
endorse such Borrower's name on any Collection item that may come into the
Lender Group's possession, (e) at any time that an Event of Default has occurred
and is continuing, notify the post office authorities to change the address for
delivery of such Borrower's mail to an address designated by Agent, to receive
and open all mail addressed to such Borrower, and to retain all mail relating to
the Collateral and forward all other mail to such Borrower, (f) at any time that
an Event of Default has occurred and is continuing, make, settle, and adjust all
claims under such Borrower's policies of insurance and make all determinations
and decisions with respect to such policies of insurance, (g) at any time that
an Event of Default has occurred and is continuing, settle and adjust disputes
and claims respecting the Accounts directly with Account Debtors, for amounts
and upon
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terms that Agent determines to be reasonable, and Agent may cause to be executed
and delivered any documents and releases that Agent determines to be necessary,
and (h) if Borrower has failed to do so within the time specified in Section
6.19 herein, publish notice of the occurrence of the Effective Date of the Plan
of Reorganization in conformity with paragraph 25 of the Confirmation Order. The
appointment of Agent as such Borrower's attorney, and each and every one of its
rights and powers, being coupled with an interest, is irrevocable until all of
the Obligations have been fully and finally repaid and performed and the Lender
Group's obligations to extend credit hereunder are terminated.
4.3 RIGHT TO INSPECT.
Agent and each Lender (through any of their respective officers, employees,
or agents) shall have the right, from time to time hereafter to inspect the
Books and to check, test, and appraise the Collateral in order to verify any
Borrower's financial condition or the amount, quality, value, condition of, or
any other matter relating to, the Collateral.
4.4 CONTROL AGREEMENTS.
Each Borrower agrees that it will not transfer assets out of any Securities
Accounts other than as permitted under Section 7.21 and, if to another
securities intermediary, unless each of such Borrower, Collateral Agent, and the
substitute securities intermediary have entered into a Control Agreement. No
arrangement contemplated hereby or by any Control Agreement in respect of any
Securities Accounts or other investment property shall be modified by a Borrower
without the prior written consent of Agent. Upon the occurrence of and during
the continuation of an Event of Default, Collateral Agent may notify any
securities intermediary to liquidate or transfer the applicable Securities
Account or any related investment property maintained or held thereby and remit
the proceeds thereof to Agent's Account.
4.5 COLLATERAL AGENT TO HOLD QUEBEC IRREVOCABLE POWER OF ATTORNEY.
For greater certainty, and without limiting the powers of the Agent or the
Collateral Agents hereunder or under any of the Loan Documents, each of the
Lenders and each Borrower hereby acknowledges that each of the Collateral Agents
acting for the Lenders having Tranche A Commitments and the Lenders having
Tranche B Commitments shall, for purposes of holding any security granted by the
Canadian Guarantors on the Canadian Guarantors' respective property pursuant to
the laws of the Province of Quebec to secure payment of the Demand Notes, be the
holder of an irrevocable power of attorney (fonde de pouvoir) (within the
meaning of the Civil Code of Quebec) for themselves and all present and future
Lenders and in particular for all present and future holders of such Demand
Notes. Agent and each of the Lenders hereby irrevocably constitutes, to the
extent necessary, each of the Collateral Agents acting for the Lenders having
Tranche A Commitments and the Lenders having Tranche B Commitments as the holder
of an
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irrevocable power of attorney (fonde de pouvoir) (within the meaning of Article
2692 of the Civil Code of Quebec) in order to hold security granted by the
Canadian Guarantors in the Province of Quebec to secure such Demand Notes. Each
permitted assignee of the Lenders shall be deemed to have confirmed and ratified
the constitution of each Collateral Agent as the holder of such irrevocable
power of attorney (fonde de pouvoir) by execution of the relevant assignment of
its interest. Notwithstanding the provisions of Section 32 of the Special
Corporate Powers Act (Quebec), each Collateral Agent may acquire and be the
holder of such Demand Notes. The Borrower on its own behalf and on behalf of the
Canadian Guarantors hereby acknowledges that the Demand Notes issued by each
Canadian Guarantor constitute a title of indebtedness, as such term is used in
Article 2692 of the Civil Code of Quebec.
5. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender Group to enter into this Agreement, each
Borrower makes the following representations and warranties to the Lender Group
which shall be true, correct, and complete, in all material respects, as of the
date hereof, and shall be true, correct, and complete in all material respects
as of the Closing Date, and at and as of the date of the making of each Advance
(or other extension of credit) made thereafter, as though made on and as of the
date of such Advance (or other extension of credit) (except to the extent that
such representations and warranties relate solely to an earlier date) and such
representations and warranties shall survive the execution and delivery of this
Agreement:
5.1 NO ENCUMBRANCES.
Each Borrower has good and indefeasible title to its Collateral and Real
Property, free and clear of Liens except for Permitted Liens.
5.2 ELIGIBLE ACCOUNTS.
The Eligible Accounts are bona fide existing payment obligations of Account
Debtors created by the sale and delivery of Inventory or the rendition of
services to Obligors' customers in the ordinary course of the Obligors'
business, owed to an Obligor without defenses, disputes, offsets, counterclaims,
or rights of return or cancellation. Any goods giving rise to such Eligible
Accounts have been delivered to the customer, or to the customer's agent for
immediate shipment to the customer, and any services giving rise to such
Eligible Accounts have been fully performed. As to each Eligible Account, such
right to payment is not, unless an exception to any of the following has been
consented to in writing by Agent:
(a) owed by an employee, Affiliate, or agent of any Borrower,
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(b) on account of a transaction wherein goods were placed on
consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale
on approval, a xxxx and hold, or pursuant to any other agreement providing for
repurchase or return (other than pursuant to warranties made in the ordinary
course of business),
(c) payable in a currency other than Dollars (in the case of Eligible
Domestic Accounts) or Canadian dollars (in the case of Eligible Canadian
Accounts),
(d) owed by an Account Debtor that has (unless the Account Debtor has
provided to the Agent an enforceable "non-offset" letter in form and substance
reasonably satisfactory to the Agent) or has asserted a right of setoff, has
disputed its liability, or has made any claim with respect to its obligation to
honor the Obligor's right to payment (unless such asserted right of setoff,
dispute, or claim has been disclosed in writing to Agent, in which case, such
representation shall only be made to the extent of such Account that is not the
subject of such setoff, dispute, or claim),
(e) owed by an Account Debtor that, to the knowledge of Borrowers, is
subject to any Insolvency Proceeding or is not Solvent and no Obligor has
received notice of an imminent Insolvency Proceeding involving the Account
Debtor or a material impairment of the financial condition of the applicable
Account Debtor,
(f) on account of a transaction as to which the goods, the sale of
which gives rise to such right to payment, have not been delivered to the
Obligor's customer or the services giving rise to such right to payment have not
been fully performed,
(g) a right to receive progress payments or other advance xxxxxxxx
that are due prior to the completion of the performance by the Obligor that is
to give rise to the subject right to payment, and
(h) on account of a transaction that has not been billed to the
customer (in the case of Eligible Accounts other than Eligible Unbilled
Accounts) or is not to be billed to the customer within 30 days of the date of
determination (in the case of Eligible Unbilled Accounts).
5.3 RIGHTS AGREEMENT.
Exhibit RA-1 is a true, correct, and complete copy of the executed Rights
Agreement, and the Rights Agreement has not been amended, supplemented or
modified in any way, and remains in full force and effect.
5.4 EQUIPMENT.
Except for immaterial amounts of idle Equipment, all of the Equipment is
used or held for use in the Obligors' business and is fit for such purposes.
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5.5 LOCATION OF INVENTORY AND EQUIPMENT.
Except for rail cars, other rolling stock, registered motor vehicles,
aircraft, vessels, and immaterial (less than $10,000,000 in market value as
reasonably determined by Collateral Agent) amounts of Inventory and other
Equipment, (i) no Inventory or Equipment is stored with a bailee, warehouseman,
or similar party, and (ii) no Inventory or Equipment is located at any location
other than the locations identified on Schedule 6.11.
5.6 INVENTORY RECORDS.
The Obligors, taken as a whole, keep records that are accurate, in all
material respects, and that itemize and describe the type and quantity of its
Inventory held for sale and its cost therefor.
5.7 LOCATION OF CHIEF EXECUTIVE OFFICE; FEIN.
The chief executive office of each of the Obligors is located at the
address indicated in Schedule 5.7 and each Borrower's FEIN is identified in
Schedule 5.7.
5.8 DUE ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
(a) (a) Each Obligor (except for Oneida Asbestos Removal Inc.) is duly
organized and existing and in good standing under the laws of the jurisdiction
of its organization and qualified to do business in any state where the failure
to be so qualified reasonably could be expected to have a Material Adverse
Change.
(b) Set forth on Schedule 5.8, is a complete and accurate description
of the authorized capital Stock of Parent, by class, and, as of the Closing
Date, a description of the number of shares of each such class that are issued
and outstanding. Other than as described on Schedule 5.8, and other than the
conversion rights applicable under the Junior Debt Documents, there are no
subscriptions, options, warrants, or calls relating to any shares of the capital
Stock of Parent, including any right of conversion or exchange under any
outstanding security or other instrument. Except for any such obligation set
forth in the Junior Debt Documents, Parent is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its capital Stock or any security convertible into or exchangeable for
any of its capital Stock.
(c) Set forth on Schedule 5.8, is a complete and accurate list of
Parent's direct and indirect Subsidiaries, showing: (i) the jurisdiction of
their incorporation; (ii) the number of shares of each class of common and
preferred Stock authorized for each of such Subsidiaries; and (iii) the number
and the percentage of the outstanding shares of each such class owned directly
or indirectly by Parent. All of the outstanding capital Stock of each such
Subsidiary has been validly issued and is fully paid and non-assessable.
(d) Except as set forth on Schedule 5.8, no capital Stock (or any
securities, instruments, warrants, options, purchase rights, conversion or
exchange rights, calls, commitments or claims of any character convertible into
or exercisable for Stock) of
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any direct or indirect Subsidiary of Parent is subject to the issuance of any
security, instrument, warrant, option, purchase right, conversion or exchange
right, call, commitment or claim of any right, title, or interest therein or
thereto.
5.9 DUE AUTHORIZATION; NO CONFLICT.
(a) (a) The execution, delivery, and performance by each Obligor of
the Loan Documents to which it is a party have been duly authorized by all
necessary action on the part of such Obligor.
(b) The execution, delivery, and performance by each Obligor of the
Loan Documents to which it is a party do not and will not (i) violate any
provision of federal, state, or local law or regulation applicable to such
Obligor, the Governing Documents of such Obligor, or any order, judgment, or
decree of any court or other Governmental Authority binding on such Obligor,
(ii) conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under any material contractual obligation of
such Obligor, except that no Borrower makes the foregoing representation and
warranty as to whether the grant of Collateral Agent's Liens in and to any
Obligor's right, title, and interest in and to any agreement, instrument,
license, permit or other document or General Intangible conflicts with or
constitutes a default under such agreement, instrument, license, permit or other
document or General Intangible if and to the extent such agreement, instrument,
license, permit or other document or General Intangible purports to prohibit the
assignment thereof or grant of a security interest therein, (iii) result in or
require the creation or imposition of any Lien of any nature whatsoever upon any
properties or assets of such Obligor, other than Permitted Liens, or (iv) except
to the extent obtained as of the Closing Date, require any approval of
stockholders or any approval or consent of any Person under any material
contractual obligation of such Obligor.
(c) Other than the filing of financing statements, fixture filings,
Mortgages, filings under the PPSA, and filings necessary to perfect security
interests in aircraft, rail cars, vessels, and certificated motor vehicles, the
execution, delivery, and performance by each Obligor of the Loan Documents to
which such Obligor is a party do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by, any
Governmental Authority or other Person.
(d) The Loan Documents to which each Obligor is a party, and all other
documents contemplated hereby and thereby, when executed and delivered by such
Obligor will be the legally valid and binding obligations of such Obligor,
enforceable against such Obligor in accordance with their respective terms,
except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors' rights generally.
(e) The Collateral Agent's Liens granted by the Obligors, for the
benefit of the Lender Group, in and to their properties and assets pursuant to
this Agreement and the other Loan Documents are validly created, perfected, and
first priority Liens (in the case of all Obligations other than the Tranche B
Obligations) or second priority Liens (in the
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case of Tranche B Obligations), subject only to Collateral Agent's Liens granted
by the Obligors, for the benefit of the holders of the Junior Secured Debt
(which Liens are to be junior and subordinate to the Collateral Agent's Liens
for the benefit of the Lender Group) and certain Permitted Liens that are
specifically identified on Schedule P-3 as being entitled to have priority over
Collateral Agent's Liens.
5.10 LITIGATION.
Other than those matters disclosed on Schedule 5.10, there are no actions,
suits, or proceedings pending or, to the best knowledge of Borrowers, threatened
against any Obligor, except for (a) matters that are fully covered by insurance
(subject to customary deductibles), and (b) matters arising after the Closing
Date that, if decided adversely to an Obligor, reasonably could not be expected
to result in a Material Adverse Change.
5.11 NO MATERIAL ADVERSE CHANGE.
Attached hereto as Schedule 5.11 is a pro forma balance sheet of Parent and
its Subsidiaries that is dated as of the Closing Date, which was prepared based
upon the most recent balance sheet of Parent and its Subsidiaries available
prior to the Closing Date, which was prepared in accordance with GAAP (except
for the omission of footnotes, and certain reclassifications and interim period
adjustments and accruals (all of which are of a recurring nature and none of
which individually, or in the aggregate, would be material)) and presents fairly
in all material respects the consolidated financial position of Parent and its
Subsidiaries as of the Closing Date. There has not been a Material Adverse
Change with respect to Parent and its Subsidiaries since the Closing Date.
5.12 FRAUDULENT TRANSFER.
(a) The Obligors, taken as a whole, are Solvent.
(b) No transfer of property is being made by an Obligor and no
obligation is being incurred by an Obligor in connection with the transactions
contemplated by this Agreement or the other Loan Documents with the intent to
hinder, delay, or defraud either present or future creditors of such Obligor.
5.13 EMPLOYEE BENEFITS.
None of the Borrowers, any of their Subsidiaries, or any of their ERISA
Affiliates maintains or contributes or is required to contribute to any Benefit
Plan or any Multiemployer Plan, other than those listed on Schedule 5.13 (such
schedule may be amended by Borrowers at any time after the Closing Date only
with the prior written consent of the Agent, which consent may be conditioned
upon the amendment of the Loan Documents to add such further ERISA-related (and
any applicable Canadian law counterparts) provisions as Agent may require in its
Permitted Discretion). As of the
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Closing Date, Borrowers and each ERISA Affiliate have satisfied the minimum
funding standards of ERISA and the IRC with respect to each Benefit Plan to
which it is obligated to contribute. Full payment has been made by the Borrowers
or any of their ERISA Affiliates of all minimum amounts which such entities are
required to contribute under the terms of each Plan and Multiemployer Plan
except where the failure to so comply, taking all instances in the aggregate,
would not reasonably be expected to result in liability in respect of such
minimum amounts in excess of $35,000. No ERISA Event has occurred nor has any
other event occurred that may result in an ERISA Event that reasonably could be
expected to result in a Material Adverse Change. None of the Borrowers or their
Subsidiaries, any ERISA Affiliate, or any fiduciary of any Plan is subject to
any direct or indirect liability with respect to any Plan under any applicable
law, treaty, rule, regulation, or agreement.
5.14 ENVIRONMENTAL CONDITION.
Except as set forth on Schedule 5.14(a), to Borrowers' knowledge, none of
the Obligors' properties or assets has ever been used by an Obligor or by
previous owners or operators in the disposal of, or to produce, store, handle,
treat, release, or transport, any Hazardous Materials, where such production,
storage, handling, treatment, release or transport was in violation of
applicable Environmental Law in a manner that reasonably is likely, individually
or in the aggregate, to result in a Material Adverse Change. Except as set forth
on Schedule 5.14(b), to Borrowers' knowledge, none of the Obligors' properties
or assets has ever been designated or identified in any manner pursuant to any
environmental protection statute as a Hazardous Materials disposal site (where
the effect that reasonably could be expected to result from such designation or
identification reasonably could be expected to result in a Material Adverse
Change), or as a candidate for closure pursuant to any environmental protection
statute. Except as set forth on Schedule 5.14(c), no Obligor has received notice
that a Lien arising under any Environmental Law has attached to any revenues or
to any real or personal property owned or operated by an Obligor. Except as set
forth on Schedule 5.14(d), no Obligor has received a summons, citation, notice,
or directive from the Environmental Protection Agency or any other federal or
state governmental agency concerning any action or omission by such Obligor
resulting in the releasing or disposing of Hazardous Materials into the
environment, other than such summons, citations, notices, or directives that
individually or in the aggregate are not reasonably likely to result in a
Material Adverse Change.
5.15 BROKERAGE FEES - OBLIGORS.
No Obligor has utilized the services of any broker or finder in connection
with Borrowers' obtaining financing from the Lender Group under this Agreement
and no brokerage commission or finders fee is payable to any Person solicited or
engaged by any Obligor in connection herewith.
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5.16 INTELLECTUAL PROPERTY.
The Obligors, taken as a whole, own, or hold adequate licenses or rights to
use, all trademarks, trade names, copyrights, patents, patent rights, and
licenses that are necessary to the conduct of their business, taken as a whole,
as currently conducted. Attached hereto as Schedule 5.16 is a true, correct, and
complete listing of all patents, patent applications, trademarks, trademark
applications, copyrights, and copyright registrations as to which an Obligor is
the owner or is an exclusive licensee.
5.17 LEASES.
The Obligors, taken as a whole, enjoy peaceful and undisturbed possession
under all leases material to the business of the Obligors, taken as a whole, and
to which they are parties or under which they are operating. All of such leases
are valid and subsisting and no material default by the Obligors exists under
any of them.
5.18 DDAs.
Set forth on Schedule 5.18 are all of the Obligors' current DDAs,
including, with respect to each depository (i) the name and address of that
depository; and (ii) the account number(s) of the account(s) maintained with
such depository.
5.19 OWNED REAL PROPERTY AND MATERIAL LEASES.
Schedule 5.19 is a listing of all Real Property that is either (a) owned in
fee by the Obligors, or (b) leased by the Obligors and identified by the
Obligors as being material to the business of the Obligors taken as a whole.
5.20 COMPLETE DISCLOSURE.
All factual information (taken as a whole) furnished by or on behalf of the
Obligors in writing to Agent or any Lender (including all information contained
in the Schedules hereto or in the other Loan Documents) for purposes of or in
connection with this Agreement, the other Loan Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of the Obligors in writing to
the Agent or any Lender will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
5.21 INDEBTEDNESS.
Set forth on Schedule 7.1 is a true and complete list of all (a)
Indebtedness of the Obligors outstanding immediately prior to the Closing Date
that is to remain outstanding after the Closing Date, and (b) agreements
existing immediately prior to the Closing Date that are to remain outstanding
after the Closing Date pursuant to which the Obligors are
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entitled to incur Indebtedness, in each case showing the aggregate principal
amount thereof and the name of the Obligor which directly or indirectly is
obligated on account of such Indebtedness.
5.22 PROJECT ACCOUNTS.
Set forth on Schedule 5.22 is a true and complete list of all Project
Accounts.
5.23 DIRECTORS' COMPENSATION.
Set forth on Schedule 5.23 is a description of the annual fee or
per-meeting fees to be paid to directors by each Obligor for the current fiscal
year.
6. AFFIRMATIVE COVENANTS.
Borrowers covenant and agree that, so long as any credit hereunder
shall be available and until full and final payment of the Obligations, each
Obligor (or each Borrower, if the language expressly does not refer to the
Obligors) shall do all of the following:
6.1 ACCOUNTING SYSTEM.
Maintain a system of accounting that enables Parent to produce consolidated
financial statements in accordance with GAAP and maintain records pertaining to
the Collateral that contain information as from time to time reasonably may be
requested by Agent. Obligors, taken as a whole, also shall keep an inventory
reporting system that shows all additions, sales, claims, returns, and
allowances with respect to the Inventory.
6.2 COLLATERAL REPORTING.
Provide Agent (with copies for each Lender to be provided by Agent or
Obligors) with the following documents (or electronic equivalent of such
documents) at the following times in form reasonably satisfactory to Agent (it
being understood that, absent a request by Agent for information with respect to
a particular Obligor, this covenant shall be deemed satisfied to the extent that
the Administrative Borrower provides the following information for the Obligors
taken as a whole):
If the average then,
Combined
Availability for the 5 on a bi-weekly basis (but not later than the Tuesday
day period immediately following the reporting period), a
immediately preceding detailed aging, by total of the Accounts,
the date of together with a detailed calculation of the non-
determination is Eligible Accounts.
greater than or equal
to $40,000,000
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If the average then,
Combined on a weekly basis ((but not later than the Tuesday
Availability for the 5 immediately following the reporting period), a
day period detailed aging, by total of the Accounts, together
immediately preceding with a detailed calculation of the non-Eligible
the date of Accounts.
determination is
greater than or equal
to $20,000,000 but
less than $40,000,000
If the average then,
Combined on such frequency as Agent shall require, a detailed
Availability for the 5 aging, by total, of the Accounts together with a
day period detailed calculation of the non-Eligible Accounts.
immediately preceding
the date of
determination is less
than $20,000,000
Monthly (not later (a) a detailed calculation of the Borrowing Base,
than the 15th calendar
day of each month if (b) a detailed aging, by total, of the Accounts,
the average Combined together with a reconciliation to the detailed
Availability for the 5 calculation of the Borrowing Base and a
day period reconciliation to the general ledger,
immediately preceding
the date of
determination is less (c) a summary aging, by vendor, of the Obligors'
than $40,000,000, accounts payable and any book overdraft, and
otherwise, not later
than the 15th Business (d) a calculation of Dilution for the prior month.
Day of each month)
Upon request by (e) a detailed list of the Obligors' customers,
Agent
(f) copies of invoices in connection with the
Accounts, credit memos, remittance advices, deposit
slips, shipping and delivery documents in connection
with the Accounts and, for Inventory and Equipment
acquired by an Obligor, purchase orders and invoices,
(g) Inventory reports specifying the Obligors' cost
and the wholesale market value of their Inventory,
by category, with additional detail showing additions
to and deletions from the Inventory, and
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(h) such other reports as to the Collateral, or the
financial condition of an Obligor as Agent may
request.
6.3 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
Deliver to Agent, with sufficient copies for each Lender the following
documents or their electronic equivalent (it being understood that, absent
request by Agent for information with respect to a particular Obligor, this
covenant shall be deemed satisfied to the extent that the Administrative
Borrower provides the following information for the Obligors taken as a whole):
(a) as soon as available, but in any event within 45 days after the
end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, statement of
earnings, and statement of cash flow covering Parent's and its
Subsidiaries operations during such period,
(ii) a certificate signed by the chief financial officer of
Administrative Borrower on behalf of Administrative Borrower to the
effect that:
(A) the financial statements delivered hereunder have been
prepared in accordance with GAAP (except for the lack of
footnotes and being subject to year-end audit adjustments) and
present fairly in all material respects the financial condition
of Parent and its Subsidiaries,
(B) the representations and warranties of the Obligors contained
in this Agreement and the other Loan Documents are true and
correct in all material respects on and as of the date of such
certificate, as though made on and as of such date (except to the
extent that such representations and warranties relate solely to
an earlier date),
(C) there does not exist any condition or event that constitutes
a Default or Event of Default (or, to the extent of any
non-compliance, describing such non-compliance as to which he or
she may have knowledge and what action the applicable Obligor has
taken, is taking, or proposes to take with respect thereto), and
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(iii) for each month that is the date on which a financial
covenant in Section 7.19 is to be tested, a Compliance Certificate
demonstrating, in reasonable detail, compliance at the end of such
period with the applicable financial covenants contained in Section
7.19, and
(b) as soon as available, but in any event within 120 days after the
end of each of Parent's fiscal years that occurs after the Closing Date,
(i) consolidated financial statements of Parent and its
Subsidiaries for each such fiscal year, audited by
PriceWaterhouseCoopers or other independent certified public
accountants reasonably acceptable to Agent and certified, without any
qualifications, by such accountants to have been prepared in
accordance with GAAP (such audited financial statements to include a
balance sheet, statement of earnings, and statement of cash flow and,
if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the
Lenders stating that such accountants do not have knowledge of the
existence of any Default or Event of Default under Section 7.19,
(c) if and when filed by Parent,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form
8-K current reports,
(ii) any other filings made by Parent with the SEC, and
(iii) any other information that is provided by Parent to its
shareholders generally,
(d) upon the request of Agent,
(i) any other report reasonably requested relating to the
financial condition of Parent or any of the other Obligors.
In addition to the financial statements referred to above, Borrowers agree
to deliver promptly to Agent (with copies for each Lender) copies of management
reports, in the form historically prepared by Parent, that reflect the
operational performance of each of the individual business segments of the
Borrowers taken as a whole. Without limiting the foregoing, Borrowers agree
(unless and until the UK Metals Operations have been sold)
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that each of the financial statements to be delivered hereunder shall be
prepared on a consolidating basis reflecting the financial performance of Parent
and its Subsidiaries (exclusive of the financial performance of the UK Metals
Operations) and reflecting the UK Metals Operations. Borrowers agree that their
independent certified public accountants are authorized to communicate with
Agent and to release to Agent whatever financial information concerning the
Obligors that Agent reasonably may request; provided, however, that, prior to
contacting such independent certified public accountants, Agent shall attempt,
in good faith, to obtain such information from Borrowers.
6.4 TAX RETURNS.
Upon the request of Agent, deliver copies of all federal
income tax returns as soon as the same are available and in any event no later
than 45 days after the same are required to be filed by law (after giving effect
to any applicable duly filed extensions).
6.5 [INTENTIONALLY OMITTED].
6.6 CERTIFICATES OF TITLE.
Upon Agent's request, promptly deliver to Collateral Agent,
properly endorsed, any and all certificates of title to any items of Equipment.
6.7 MAINTENANCE OF EQUIPMENT.
Maintain the Equipment in good operating condition and repair (ordinary
wear and tear excepted), and make all necessary replacements thereto so that the
value and operating efficiency thereof shall at all times be maintained and
preserved, except where Borrowers determine that to do so would not be economic
and where the failure to do so is not reasonably likely to result in a Material
Adverse Change. Other than those items of Equipment that constitute fixtures on
the Closing Date, each Obligor shall use its commercially reasonable efforts to
prevent any item of Equipment from becoming a fixture to real estate (other than
Real Property Collateral) or an accession to other property, and such Equipment
shall at all times remain personal property.
6.8 TAXES.
Cause all assessments and taxes, whether real, personal, or otherwise, due
or payable by, or imposed, levied, or assessed against any Obligor or any of its
property to be paid in full, before delinquency or before the expiration of any
extension period, except to the extent that the validity of such assessment or
tax shall be the subject of a Permitted Protest. The Obligors will make timely
payment or deposit of all tax payments and withholding taxes required of it by
applicable laws, including those laws concerning F.I.C.A., F.U.T.A., state
disability, and local, state, and federal income taxes, and will,
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upon request, furnish Agent with proof satisfactory to Agent indicating that
each Obligor has made such payments or deposits. Upon the request of Agent, each
Obligor shall deliver satisfactory evidence of payment of applicable excise
taxes in each jurisdiction in which (a) such Obligor conducts business or is
required to pay any such excise tax, (b) where such Obligor's failure to pay any
such applicable excise tax would result in a Lien on the properties or assets of
such Obligor, or (c) where such Obligor's failure to pay any such applicable
excise tax would constitute a Material Adverse Change. The foregoing
notwithstanding, Obligors may have at any one time outstanding: (i) an amount of
$500,000 in unpaid and delinquent taxes and assessments (exclusive of those
subject to Permitted Protests); plus (ii) delinquent taxes owing by BEC/Xxxxxx
in the approximate amount of $338,000 owing to Jefferson County, Alabama; plus
(iii) provincial sales taxes in arrears in the approximate amount of $305,000 as
identified on that certain document labeled as "Receiver's Reserve Estimate"
(collectively, "Permitted Delinquent Taxes"). Obligors shall use their
commercially reasonable efforts to promptly discharge and pay the Permitted
Delinquent Taxes.
6.9 INSURANCE.
(a) At Obligors' expense, maintain insurance respecting the
Collateral, wherever located, and with respect to Obligors' business, covering
loss or damage by fire, theft, explosion, and all other hazards and risks as
ordinarily are insured against by other Persons engaged in the same or similar
businesses. Obligors also shall maintain business interruption, public
liability, and product liability insurance, as well as insurance against
larceny, embezzlement, and criminal misappropriation All such policies of
insurance shall be in such amounts and with such insurance companies as are
reasonably satisfactory to Agent. Obligors shall deliver copies of all such
policies to Agent with 438 BFU lender's loss payable endorsements or other
reasonably satisfactory lender's loss payable endorsements, naming Collateral
Agent as loss payee or additional insured, as appropriate. Each policy of
insurance or endorsement shall contain a clause requiring the insurer to give
not less than 30 days prior written notice to Agent in the event of cancellation
of the policy for any reason whatsoever. If Obligors fail to provide and pay for
such insurance, Agent may, at its option, but shall not be required to, procure
the same and charge Borrowers' Loan Account therefor.
(b) At Obligors' expense, obtain and maintain (i) insurance of the
type necessary to insure the Collateral and all improvements to the Real
Property for the full replacement cost thereof, against any loss by fire,
lightning, windstorm, hail, explosion, aircraft, smoke damage, vehicle damage,
earthquakes, and other risks from time to time included under "extended
coverage" policies, in such amounts as Agent may require, but in any event in
amounts sufficient to prevent the Obligors from becoming a coinsurer under such
policies, (ii) combined single limit bodily injury insurance against any loss,
liability, or damages per occurrence in an amount not less than that
historically maintained by the Obligors; and (iii) insurance for such other
risks as Agent may require in its Permitted Discretion.
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(c) Obligors shall give Agent prompt notice of any material loss
covered by such insurance. Collateral Agent shall have the exclusive right to
adjust any losses payable under any such insurance policies, without any
liability to Obligors whatsoever in respect of such adjustments; provided,
however, prior to the occurrence and during the continuance of an Event of
Default, Obligors shall have the right to adjust any losses payable under any
such insurance policies involving amounts less than $5,000,000. Any monies to be
received as payment for any loss under any insurance policy mentioned above
(other than liability insurance policies) or as payment of any award or
compensation for condemnation or taking by eminent domain, shall (i) if no Event
of Default has occurred and is continuing and if such proceeds are $5,000,000,
or less, be paid to Administrative Borrower for application solely to the cost
of repairs, replacements, or restorations or to the repayment of the
Obligations, and (ii) in all other cases, be paid to Collateral Agent to be
applied pursuant to the terms of the Collateral Agency and Intercreditor
Agreement. Borrowers agree that if any Borrower receives any payment for any
loss under any insurance policy mentioned above or any payment of any award or
compensation for condemnation or taking by eminent domain and clause (ii) above
applies, such Borrower shall hold such proceeds in trust for, and promptly pay
such proceeds over to, the Collateral Agent having the senior lien under the
Collateral Agency and Intercreditor Agreement. All repairs, replacements, or
restorations shall be effected with reasonable promptness and shall be of a
value at least equal to the value of the items or property destroyed prior to
such damage or destruction.
(d) No Borrower will take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section 6.9, unless Collateral Agent is included thereon as named insured with
the loss payable to Collateral Agent under a standard 438BFU endorsement or its
equivalent. The applicable Borrower immediately shall notify Agent whenever such
separate insurance is taken out, specifying the insurer thereunder and full
particulars as to the policies evidencing the same, and copies of such policies
immediately shall be provided to Agent.
6.10 [INTENTIONALLY OMITTED].
6.11 LOCATION OF INVENTORY AND EQUIPMENT.
Keep the Inventory and Equipment (other than railcars, other rolling stock,
registered motor vehicles, aircraft, vessels, and immaterial (less than
$10,000,000 in market value as reasonably determined by Collateral Agent)
amounts of Inventory and other Equipment) at no locations other than those
identified on Schedule 6.11; provided, however, that Administrative Borrower may
amend Schedule 6.11 so long as such amendment occurs by written notice to
Collateral Agent not less than 30 days prior to the date on which the Inventory
or Equipment is moved to such new location, so long as, for any Borrower or
Canadian Guarantor, such new location is within the continental United States or
Canada, and so long as, at the time of such written notification, the applicable
Obligor provides any financing statements, fixture filings, or other filings
necessary to perfect and continue perfected the Collateral Agent's Liens on such
assets.
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6.12 COMPLIANCE WITH LAWS.
Comply with the requirements of all applicable laws, rules, regulations,
and orders of any Governmental Authority, including the Fair Labor Standards Act
and the Americans With Disabilities Act, other than laws, rules, regulations,
and orders the non- compliance with which, individually or in the aggregate,
would not result in and reasonably could not be expected to result in a Material
Adverse Change.
6.13 EMPLOYEE BENEFITS.
(a) Cause to be delivered to Agent, each of the following: (i)
promptly, and in any event within 10 Business Days after any Borrower or any of
its ERISA Affiliates knows or has reason to know that an ERISA Event has
occurred that reasonably could be expected to result in a Material Adverse
Change, a written statement of the chief financial officer of such Borrower
describing such ERISA Event and any action that is being taking with respect
thereto by such Borrower, or ERISA Affiliate, and any action taken or threatened
by the IRS, Department of Labor, or PBGC. Each Borrower or such ERISA Affiliate,
as applicable, shall be deemed to know all facts known by the administrator of
any Benefit Plan of which it is the plan sponsor, (ii) promptly, and in any
event within 3 Business Days after the filing thereof with the IRS, a copy of
each funding waiver request filed with respect to any Benefit Plan and all
communications received by a Borrower, any of its Subsidiaries or, to the
knowledge of a Borrower, any ERISA Affiliate with respect to such request, and
(iii) promptly, and in any event within 3 Business Days after receipt by such
Borrower, any of its Subsidiaries or, to the knowledge of such Borrower, any
ERISA Affiliate, of the PBGC's intention to terminate a Benefit Plan or to have
a trustee appointed to administer a Benefit Plan, copies of each such notice.
(b) Cause to be delivered to Agent, upon Agent's request, each of the
following: (i) a copy of each Plan (or, where any such plan is not in writing,
complete description thereof) (and if applicable, related trust agreements or
other funding instruments) and all amendments thereto, all written
interpretations thereof and written descriptions thereof that have been
distributed to employees or former employees of the applicable Borrower or its
ERISA Affiliates; (ii) the most recent determination letter issued by the IRS
with respect to each Benefit Plan and each other Plan intended to be qualified
under Section 401(a) of the IRC; (iii) for the three most recent plan years,
annual reports on Form 5500 Series required to be filed with any governmental
agency for each Benefit Plan; (iv) all actuarial reports prepared for the last
three plan years for each Benefit Plan; (v) a listing of all Multiemployer
Plans, with the aggregate amount of the most recent annual contributions
required to be made by the applicable Borrower or any ERISA Affiliate to each
such plan and copies of the collective bargaining agreements requiring such
contributions; (vi) any information that has been provided to such Borrower or
any ERISA Affiliate regarding withdrawal liability under any Multiemployer Plan;
and (vii) the aggregate amount of the most recent annual payments made to former
employees of the applicable Borrower or its Subsidiaries under any Retiree
Health Plan.
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6.14 LEASES.
Pay when due all rents and other amounts payable under any leases to which
each Obligor is a party or by which an Obligor's properties and assets are
bound, unless such payments are the subject of a Permitted Protest.
6.15 BROKERAGE COMMISSIONS.
Pay any and all brokerage commission or finders fees incurred by Borrowers
in connection with or as a result of Borrowers' obtaining financing from the
Lender Group under this Agreement, if any. Borrowers agree and acknowledge that
payment of all such brokerage commissions or finders fees shall be the sole
responsibility of Borrowers and Borrowers agree to indemnify, defend, and hold
Agent and the Lender Group harmless from and against any claim of any broker or
finder (other than a broker or finder solicited or retained by the Lender Group)
arising out of Borrowers' obtaining financing from the Lender Group under this
Agreement.
6.16 PROJECTIONS.
Not later than 30 days after the end of each fiscal year of Parent,
commencing with fiscal year 2001, deliver to Agent Projections, in form and
substance (including as to scope and underlying assumptions) satisfactory to
Agent, in its Permitted Discretion, for the forthcoming 2 years, year by year,
and for the forthcoming fiscal year, month by month, certified by the chief
financial officer of Parent as being such officer's good faith estimate of the
financial performance of the Obligors projected to be achieved during the period
covered thereby. The foregoing to the contrary notwithstanding, (a) projections
in the form of the projections delivered to Agent prior to the Closing Date
shall be presumed to be in form acceptable to Agent, and (b) Agent may not deem
projections to be unsatisfactory to it solely because it is not satisfied with
the financial condition or prospects of Parent and its Subsidiaries as described
in such projections.
6.17 CORPORATE EXISTENCE, ETC.
Other than as may be affected by the consummation of Permitted
Transactions, at all times preserve and keep in full force and effect each
Obligor's valid corporate existence and good standing and any rights and
franchises material to the Obligors' businesses.
6.18 DISCLOSURE UPDATES.
Promptly and in no event later than 5 Business Days after an officer of
Administrative Borrower obtaining knowledge thereof, (i) notify Agent if any
written information, exhibit, or report furnished to the Lender Group contained
any untrue statement of a material fact or omitted to state any material fact
necessary to make the
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statements contained therein not misleading in light of the circumstances in
which made, and (ii) correct any defect or error that may be discovered therein
or in any Loan Document or in the execution, acknowledgement, filing, or
recordation thereof.
6.19 PUBLICATIONOF NOTICE OF THE EFFECTIVE DATE OF THE PLAN OF
REORGANIZATION.
No later than five Business Days after the Effective Date of the Plan of
Reorganization, publish notice of the occurrence of the Effective Date of the
Plan of Reorganization as required by paragraph 25 of the Confirmation Order.
6.20 PROJECT ACCOUNTS.
Promptly, but in no event later than 5 Business Days after an officer of a
Borrower obtains knowledge thereof, amend Schedule 5.22 to reflect any additions
or substitutions thereto; provided, however, that all such Project Accounts
shall be maintained with a bank satisfactory to Agent.
6.21 EXISTING LETTERS OF CREDIT.
Parent will use its commercially reasonable efforts to negotiate with the
beneficiaries of any Existing Letters of Credit for the replacement of such
Existing Letters of Credit, whether or not such Existing Letters of Credit have
been backstopped by an Underlying Letter of Credit issued under this Agreement.
6.22 OMITTED GOOD STANDING CERTIFICATES.
Parent will use its commercially reasonable efforts to obtain good standing
qualifications and certificates of good standing for Oneida Asbestos Removal
Inc. in its jurisdiction of organization and in the jurisdiction of their Chief
Executive Office. Promptly upon receiving notice that such entities are in good
standing in their jurisdiction of incorporation, but in no event later than ten
Business Days after an officer of such entity or Parent obtains knowledge
thereof, cause Oneida Asbestos Removal Inc. to ratify its execution, delivery
and performance of this Agreement and all other Loan Documents by documentation
acceptable to Agent.
7. NEGATIVE COVENANTS.
Borrowers covenant and agree that, so long as any credit hereunder shall be
available and until full and final payment of the Obligations, no Obligor shall
(or no Borrower shall, if the language expressly does not refer to the Obligors)
do any of the following:
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7.1 INDEBTEDNESS.
Create, incur, assume, permit, guarantee, or otherwise become or remain,
directly or indirectly, liable with respect to any Indebtedness, except:
(a) Indebtedness evidenced by this Agreement and the other Loan
Documents, together with Indebtedness to issuers of letters of credit that are
the subject of L/C Undertakings;
(b) Indebtedness set forth on Schedule 7.1(a);
(c) (i) Purchase Money Indebtedness having a principal amount of
$100,000 or greater per holder of such Indebtedness, which such Indebtedness
exists as of the Closing Date and is described on Schedule 7.1(b), (ii) Purchase
Money Indebtedness having a principal amount less than the amount set forth in
clause (i) above per holder of such Indebtedness, which such Indebtedness exists
as of the Closing Date, and (iii) Purchase Money Indebtedness incurred after the
Closing Date in an aggregate amount outstanding at any one time not to exceed
(y) $18,000,000, minus (z) the amount of Indebtedness outstanding under clauses
(i) and (ii) of this subsection (collectively, "Permitted Purchase Money
Indebtedness");
(d) $350,000,000 in principal amount (plus the amount of (i) unpaid
interest, fees, and costs accrued thereunder, and (ii) accrued interest paid in
kind) of Indebtedness created under the Junior Secured Credit Agreement;
(e) Indebtedness created under the PIK Unsecured Debt Indenture in a
principal amount equal to $48,000,000 (plus the amount of (i) unpaid interest,
fees, and costs accrued thereunder, and (ii) accrued interest paid in kind);
(f) $18,000,000 in principal amount of Indebtedness issued under the
Unsecured Convertible Debt Indenture (plus the amount of accrued and unpaid
interest);
(g) refinancings, renewals, replacements or extensions of Indebtedness
permitted under clauses (b), (c), (d), (e), and (f) of this Section 7.1 (and
continuance, replacement or renewal of any Permitted Liens associated therewith)
so long as: (i) the terms and conditions of such refinancings, renewals,
replacements or extensions do not materially impair the prospects of repayment
of the Obligations by the Obligors, (ii) the net cash proceeds of such
refinancings, replacements renewals, or extensions do not result in an increase
in the aggregate principal amount of the Indebtedness so refinanced, renewed,
replaced or extended, (iii) such refinancings, renewals, replacements or
extensions do not result in a shortening of the average weighted maturity of the
Indebtedness so refinanced, renewed, replaced or extended, (iv) to the extent
that Indebtedness that is refinanced, renewed, replaced or extended was
subordinated in right of payment to the Obligations, then the subordination
terms and conditions of the refinancing, renewal, replacement or extension
Indebtedness must be at least as favorable to the Lender Group as those
applicable to the refinanced, renewed, replaced or extended Indebtedness, and
(v) such refinancing, renewal, replacement or extension shall not obligate any
Obligor which was not previously obligated
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with respect to the Indebtedness that is the subject of such refinancing,
renewal, replacement or extension;
(h) Indebtedness owed (i) by Parent to any Borrower or Guarantor, (ii)
by any wholly-owned Borrower to Parent, (iii) by any wholly-owned Borrower to
any other wholly-owned Borrower, (iv) by any wholly-owned Guarantor to Parent,
or (v) by any wholly-owned Guarantor to any other wholly-owned Guarantor;
(i) Indebtedness necessary to comply with the Obligors' bonding
requirements, as approved from time to time, by the Required Lenders;
(j) guaranties permitted by Section 7.6 hereof; and
(k) Permitted Delinquent Taxes.
7.2 LIENS.
Create, incur, assume, or permit to exist, directly or indirectly, any Lien
on or with respect to any of its property or assets, of any kind, whether now
owned or hereafter acquired, or any income or profits therefrom, except for (i)
Permitted Liens (including Liens that are replacements of Permitted Liens to the
extent that the original Indebtedness is refinanced under Section 7.1(g) and so
long as the replacement Liens only encumber those assets or property that
secured the original Indebtedness) and (ii) Liens securing Permitted Delinquent
Taxes.
7.3 RESTRICTIONS ON FUNDAMENTAL CHANGES.
Except for the consummation of the Canadian Transactions and except for
Permitted Transactions and Permitted Dispositions,
(a) Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassify its Stock.
(b) Liquidate, wind up, or dissolve itself (or suffer any liquidation
or dissolution).
(c) Convey, sell, assign, lease, transfer, or otherwise dispose of, in
one transaction or a series of transactions, all or any substantial part of its
property or assets, provided, that nothing contained in this Agreement shall be
construed to restrict or limit any offering, issuance, or sale by Parent, in one
or more transactions, public or private, of its Stock (including any concomitant
increase in the number of authorized shares of Stock of Parent or in the
authorized share capital of Parent), so long as such offerings, issuances, and
sales are made in compliance with all applicable laws and regulations.
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7.4 DISPOSAL OF ASSETS.
Sell, lease, assign, transfer, or otherwise dispose of any of the Obligors'
properties or assets, other than pursuant to Permitted Dispositions, the
Canadian Transactions and Permitted Transactions.
7.5 CHANGE NAME.
Except for the consummation of the Canadian Transactions, and Permitted
Transactions, and except as required by Section 3.1(y) hereof, change any
Obligor's name, FEIN, corporate structure (within the meaning of Section
9-402(7) of the Code), or identity, or add any new fictitious name, except that
any Obligor may do so upon at least 30 days prior written notice to Collateral
Agent and Agent of such change and so long as, at the time of such written
notification, such Obligor provides any financing statements or fixture filings
necessary to perfect and continue perfected Collateral Agent's Liens in the
Collateral.
7.6 GUARANTEE.
Guarantee or otherwise become in any way liable with respect to the
obligations of any Person other than:
(a) guaranties by one Obligor of the obligations of another Obligor,
(b) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, guaranties by an Obligor of the
obligations of a Subsidiary of Parent that is not an Obligor in an amount not to
exceed, in the aggregate for all such guaranties made during each of the periods
specified in clauses (i), (ii) or (iii) below, as the case may be, the following
amounts: (i) during the period of time from and after the Closing Date up to but
not including the first anniversary of the Closing Date, the result of (y)
$5,000,000 minus (z) the aggregate amount of Permitted Investments that were
made during such period pursuant to clause (c) of the definition of Permitted
Investment as of the date of determination, (ii) during the period of time from
and after the first anniversary of the Closing Date up to but not including the
second anniversary of the Closing Date, the result of (y) $5,000,000 minus (z)
the aggregate amount of Permitted Investments that were made during such period
pursuant to clause (c) of the definition of Permitted Investment as of the date
of determination, and (iii) during the period of time from and after the second
anniversary of the Closing Date up to and including the Maturity Date, the
result of (y) $2,500,000 minus (z) the aggregate amount of Permitted Investments
that were made during such period pursuant to clause (c) of the definition of
Permitted Investment as of the date of determination,
(c) guaranties existing as of the Closing Date and described on Schedule
7.6 hereto and extensions or renewals of such guaranties, so long as the
principal amount of the obligations guarantied is not increased beyond the
principal amount of the applicable guaranty as of the date of such extension or
renewal, or
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(d) endorsement of instruments or items of payment for deposit to the
account of an Obligor or which are transmitted or turned over to Collateral
Agent.
7.7 NATURE OF BUSINESS.
Make any material change in the principal nature of the Obligors' business,
taken as a whole.
7.8 PREPAYMENTS AND AMENDMENTS.
(a) Except in connection with a refinancing permitted by Section
7.1(g) or as provided in subsection (c) below, and other than with respect to
Indebtedness permitted under Section 7.1(h), prepay, redeem, retire, defease,
purchase, or otherwise acquire any Indebtedness owing to any Person, other than
the Obligations in accordance with this Agreement,
(b) Except in connection with a refinancing permitted by Section
7.1(g), directly or indirectly, amend, modify, alter, increase, or change any of
the terms or conditions of any agreement, instrument, document, indenture, or
other writing evidencing or concerning Indebtedness permitted under Sections
7.1(b), (c), (d), (e), or (f) in any manner that is or reasonably could be
expected to be materially adverse to the Obligors or to the interests of the
Lender Group or that materially impairs the prospects of timely repayment of the
Obligations.
(c) Amend, supplement, or modify any Junior Debt Document or repay the
principal of, or make any other payment in relation to, the Indebtedness
governed by the Junior Debt Documents; provided, so long as no Event of Default
has occurred and is continuing or would result therefrom, the foregoing shall
not prohibit (i) the payment of regularly scheduled payments of interest on the
Indebtedness governed by the Junior Debt Documents (including Deferral Period
Interest as defined in the Junior Unsecured Debt Documents); provided, however,
that the Obligors shall not pay any interest in cash that they have the
contractual right to pay in kind, (ii) the payment of principal or interest on
the Junior Secured Debt in such amounts as may be required by Section 2.03(A)(c)
of the Junior Secured Debt Credit Agreement as in effect on the Closing Date,
provided, however, that the Obligors shall not pay any such amounts in cash that
they have the contractual right to defer or pay in kind, (iii) the repayment of
the Junior Debt, in whole or in part, with the proceeds of any refinancing
thereof (provided that such refinancing Indebtedness complies with the
requirements of Section 7.1(g)), (iv) the prepayment of the Junior Secured Debt
with the proceeds of asset dispositions, if and to the extent provided for under
the terms of the Collateral Agency and Intercreditor Agreement and (v) the
prepayment of the Junior Unsecured Debt in accordance with the terms of the
Junior Unsecured Debt Documents solely with the proceeds of a capital
contribution made by a shareholder of Parent.
(d) Amend, supplement, or modify the Rights Agreement in any material
respect.
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7.9 [INTENTIONALLY OMITTED].
7.10 CONSIGNMENTS.
Consign any Inventory or sell any Inventory on xxxx and hold, sale or
return, sale on approval, or other conditional terms of sale, or, except in
connection with the businesses of brokering, or entering into tolling agreements
regarding, scrap metal, have possession of any property on consignment to an
Obligor.
7.11 DISTRIBUTIONS.
Other than distributions or declaration and payment of dividends by an
Obligor to Parent or a wholly-owned Obligor, make any distribution or declare or
pay any dividends (in cash or other property, other than Stock) on, or purchase,
acquire, redeem, or retire any of any Obligor's Stock, of any class, whether now
or hereafter outstanding.
7.12 ACCOUNTING METHODS.
Modify or change its method of accounting (other than as may be required to
conform to GAAP). Each Borrower waives the right to assert a confidential
relationship, if any, it may have with any accounting firm or service bureau in
connection with any information requested by Agent pursuant to or in accordance
with this Agreement, and agrees that Agent may contact directly any such
accounting firm or service bureau in order to obtain such information; provided,
however, that, prior to contacting such accounting firm or service bureau, Agent
shall attempt, in good faith, to obtain such information from borrowers.
7.13 INVESTMENTS.
Except for Permitted Investments and Permitted Acquisitions, directly or
indirectly make, acquire, or incur any liabilities (including contingent
obligations) for or in connection with any Investment; provided, however, that,
if Combined Availability is $40,000,000 or less, and the Obligors have Permitted
Investments (other than in the Lockbox Accounts, the Collection Accounts, the
Designated Account (in amounts consistent with its ordinary course of business),
or the Project Accounts) in deposit accounts or securities accounts, in excess
of $10,000,000 in the aggregate for all Obligors in all such accounts at any one
time, then, upon Agent's request, such Obligors shall promptly enter into such
Control Agreements or similar arrangements governing such Permitted Investments,
as Agent shall determine in its Permitted Discretion, to perfect (and further
establish) Collateral Agent's Liens in such Permitted Investments.
7.14 TRANSACTIONS WITH AFFILIATES.
Except as set forth on Schedule 7.14, directly or indirectly enter into or
permit to exist any material transaction with any Affiliate of any Obligor
except for
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transactions between wholly-owned Obligors (other than Obligors that are neither
Borrowers nor Canadian Guarantors) and except for transactions that are in the
ordinary course of such Obligor's business, upon fair and reasonable terms, that
are fully disclosed to Agent, and that are no less favorable to such Obligor
than would be obtained in an arm's length transaction with a non-Affiliate.
7.15 SUSPENSION.
Permit the Obligors, taken as a whole, to suspend or go out of a
substantial portion of its business.
7.16 DIRECTORS' COMPENSATION.
Increase the annual fee or per-meeting fees paid to directors of any
Obligor during any year by more than 15% over the prior year.
7.17 USE OF PROCEEDS.
Use the proceeds of the Advances for any purpose other than (a) on the
Closing Date, (i) to repay in full the outstanding principal, accrued interest,
and accrued fees and expenses owing under the DIP Credit Agreement, and (ii) to
pay transactional fees, costs, and expenses incurred in connection with this
Agreement, the Plan of Reorganization, or the Junior Secured Debt Documents, and
the transactions contemplated thereby, and (b) thereafter, consistent with the
terms and conditions hereof, for its lawful and permitted corporate purposes.
Anything in the Loan Documents to the contrary notwithstanding, the proceeds of
any Tranche A Advance shall not be used to repay any outstanding Tranche B
Advance unless Tranche A Advance Availability is greater than $5,000,000 after
giving effect to such Tranche A Advance.
7.18 CHANGE IN LOCATION OF CHIEF EXECUTIVE OFFICE; INVENTORY AND EQUIPMENT
WITH BAILEES.
Relocate its chief executive office to a new location without providing 30
days prior written notification thereof to Collateral Agent and Agent and so
long as, at the time of such written notification, such Obligor provides any
financing statements or fixture filings necessary to perfect and continue
perfected the Collateral Agent's Liens. Except for immaterial (less than
$10,000,000 in market value as reasonably determined by Collateral Agent)
amounts of Inventory and Equipment that is stored with a bailee, warehouseman,
or similar party in the ordinary course of business, no Inventory or Equipment
shall at any time now or hereafter be stored with a bailee, warehouseman, or
similar party without Collateral Agent's prior written consent.
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7.19 FINANCIAL COVENANTS. Fail to maintain:
(a) EBITDA. EBITDA of Parent and its Subsidiaries (exclusive, however,
of all results of operation (including EBITDA) attributable to the UK Metals
Operations), on a consolidated basis, for the trailing period ended as of the
end of the applicable fiscal quarter set forth below, of at least the amount
corresponding thereto:
Fiscal Quarter Ending Minimum EBITDA
----------------------------------------------------------------
for the 3 months ended $4,000,000
March 31, 2000
----------------------------------------------------------------
for the 6 months ended June $10,000,000
30, 2000
----------------------------------------------------------------
for the 9 months ended $25,000,000
September 30, 2000
----------------------------------------------------------------
for the 12 months ended $45,000,000
December 31, 2000
----------------------------------------------------------------
for the 12 months ended $65,000,000
March 31, 2001
----------------------------------------------------------------
for the 12 months ended $79,500,000
June 30, 2001
----------------------------------------------------------------
for the 12 months ended $89,000,000
September 30, 2001
----------------------------------------------------------------
for the 12 months ended $96,000,000
December 31, 2001, and for
the 12 months ended as of
the end of each fiscal quarter
thereafter
(b) Interest Coverage Ratio. An Interest Coverage Ratio for Parent and
its Subsidiaries (exclusive, however, of all results of operation (including
EBITDA and Cash Interest Expense) attributable to the UK Metals Operations), on
a consolidated basis, for the trailing period ended as of the end of the
applicable fiscal quarter set forth below, of at least the amount corresponding
thereto:
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Minimum Interest Coverage
Fiscal Quarter Ending Ratio
-------------------------------------------------------------------------
for the 3 months ended 0.50:1.00
March 31, 2000
-------------------------------------------------------------------------
for the 6 months ended June 0.65:1.00
30, 2000
-------------------------------------------------------------------------
for the 9 months ended 1.00:1.00
September 30, 2000
-------------------------------------------------------------------------
for the 12 months ended 1.40:1.00
December 31, 2000
-------------------------------------------------------------------------
for the 12 months ended 2.00:1.00
March 31, 2001
-------------------------------------------------------------------------
for the 12 months ended June 2.40:1.00
30, 2001
-------------------------------------------------------------------------
for the 12 months ended 2.50:1.00
September 30, 2001
-------------------------------------------------------------------------
for the 12 months ended 2.50:1.00
December 31, 2001, and for
the 12 months ended as of
the end of each fiscal quarter
thereafter
7.20 CAPITAL EXPENDITURES.
Make capital expenditures in any fiscal quarter in excess of $30,000,000,
or, in the aggregate, in any fiscal year in excess of $80,000,000 (which amount
shall include all expenditures made in connection with any Permitted
Acquisition).
7.21 SECURITIES ACCOUNTS.
No Obligor shall establish or maintain any Securities Account unless
Collateral Agent shall have received a Control Agreement, duly executed and in
full force and effect, in respect of such Securities Account. Each Obligor
agrees that it will not transfer assets out of any Securities Accounts;
provided, however, that, so long as no Event of Default has occurred and is
continuing or would result therefrom, such Obligor may use such assets to the
extent permitted by this Agreement.
7.22 ERISA CONCERNS.
No Borrower shall directly or indirectly:
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(a) engage, or permit any Subsidiary of any Borrower to engage,
in any prohibited transaction which is reasonably likely to result in a civil
penalty or excise tax described in Sections 406 of ERISA or 4975 of the IRC for
which a statutory or class exemption is not available or a private exemption has
not been previously obtained from the Department of Labor;
(b) permit to exist with respect to any Benefit Plan any
accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of
the IRC), whether or not waived;
(c) fail, or permit any of its ERISA Affiliates to fail, to pay
timely required contributions or annual installments due with respect to any
waived funding deficiency to any Benefit Plan;
(d) terminate, or permit any of its ERISA Affiliates to
terminate, any Benefit Plan where such event would result in any liability of
such Borrower, any of its Subsidiaries or any ERISA Affiliate under Title IV of
ERISA;
(e) fail, or permit any of its ERISA Affiliates to fail, to make
any required contribution or payment to any Multiemployer Plan;
(f) fail, or permit any of its ERISA Affiliates to fail, to pay
any required installment or any other payment required under Section 412 of the
IRC on or before the due date for such installment or other payment;
(g) amend, or permit any of its ERISA Affiliates to amend, a Plan
resulting in an increase in current liability for the plan year such that either
of Borrower, any Subsidiary of Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the IRC; or
(h) withdraw, or permit any of its ERISA Affiliates to withdraw,
from any Multiemployer Plan where such withdrawal is reasonably likely to result
in any liability of any such entity under Title IV of ERISA;
which, individually or in the aggregate, results in or reasonably
would be expected to result in a claim against or liability of a Borrower, any
of its Subsidiaries or any ERISA Affiliate in excess of $2,500,000.
8. EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an event of
default (each, an "Event of Default") under this Agreement:
8.1 If any Obligor fails to pay when due and payable, or when declared due
and payable, any portion of the Obligations (whether of principal, interest
(including any interest which, but for the provisions of the Bankruptcy Code,
would have accrued on such
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amounts), fees and charges due the Lender Group, reimbursement of Lender Group
Expenses, or other amounts constituting Obligations); provided, however, that in
the case of Overadvances that are caused by the charging of interest, fees, or
Lender Group Expenses to the Loan Account, such event shall not constitute an
Event of Default if, within 3 Business Days of Administrative Borrower's receipt
of telephonic or other notice of such Overadvance, Borrowers eliminate such
Overadvance;
8.2 If any Obligor fails or neglects to (a) perform, keep, or observe any
covenant or other provision contained in Sections 6.2, 6.3, 6.6, 6.7, 6.11,
6.12, and 6.14 hereof and such failure or neglect continues for a period of 5
days after the date on which such failure or neglect first occurs, or (b)
perform, keep, or observe any covenant or other provision contained in any
Section of this Agreement (other than a Section that is expressly dealt with
elsewhere in this Section 8) or the other Loan Documents (other than a Section
of such other Loan Documents dealt with elsewhere in this Section 8) and such
failure or neglect is not cured within 15 days after the date on which such
failure or neglect first occurs, or (c) perform, keep, or observe any covenant
or other provision contained in Section 6 (other than a subsection of Section 6
that is dealt with elsewhere in this Section 8), or Section 7 of this Agreement
or any comparable provision contained in any of the other Loan Documents;
8.3 [intentionally omitted];
8.4 If any portion of an Obligor's property or assets with a value greater
than $2,500,000 individually or in the aggregate, is attached, seized, subjected
to a writ or distress warrant, or is levied upon, or comes into the possession
of any third Person and the same is not discharged before the earlier of 30 days
after the date it first arises or 5 days prior to the date on which such
property or asset is subject to forfeiture by such Obligor;
8.5 If an Insolvency Proceeding is commenced by any Obligor;
8.6 If an Insolvency Proceeding is commenced against any Obligor and any of
the following events occur: (a) such Obligor consents to the institution of the
Insolvency Proceeding against it; (b) the petition commencing the Insolvency
Proceeding is not timely controverted; (c) the petition commencing the
Insolvency Proceeding is not dismissed within 45 calendar days of the date of
the filing thereof; provided, however, that, during the pendency of such period,
each member of the Lender Group shall be relieved of its obligation to extend
credit hereunder; (d) an interim trustee is appointed to take possession of all
or a substantial portion of the properties or assets of, or to operate all or
any substantial portion of the business of, such Obligor; or (e) an order for
relief shall have been issued or entered therein;
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8.7 If any one or more of the Obligors is enjoined, restrained, or in any
way prevented by court order from continuing to conduct all or any material part
of the business affairs of the Obligors taken as a whole;
8.8 (a) If a notice of Lien, levy, or assessment is filed of record with
respect to any of Obligor's properties or assets by the United States
Government, or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time hereafter to any one or more of such entities
becomes a Lien, whether xxxxxx or otherwise, upon any of Obligor's properties or
assets and the same is not paid on the payment date thereof, or (b) if notices
of Lien, levy, or assessment in an aggregate amount in excess of $2,500,000 are
filed of record with respect to any of Obligor's properties or assets by any
state, county, municipal, or governmental agency, or if any taxes or debts owing
at any time hereafter to any one or more of such entities becomes a Lien
exceeding the foregoing aggregate limitation, whether xxxxxx or otherwise, upon
any of Obligor's properties or assets and the same is not paid on the payment
date thereof;
8.9 If one or more judgments or other claims involving an aggregate amount
of $2,500,000, or more, in excess of the amount covered by insurance, becomes a
Lien or encumbrance upon any material portion of any Obligor's assets and the
same is not released, discharged, bonded against, or stayed pending appeal
before the earlier of 30 days after the date it first arises or 5 days prior to
the date on which such asset is subject to being forfeited by such Obligor;
8.10 (a) If there is a default in any agreement to which an Obligor is a
party under which Indebtedness of such Obligor involving not less than
$2,500,000 is owing and such default (i) occurs at the final maturity of the
obligations thereunder, or (ii) results in a right of the holder of such
Indebtedness, irrespective of whether exercised, to accelerate the maturity of
such Obligor's obligations thereunder, and such default is not cured or waived
prior to the date that is the earlier of (y) the date that is 15 days after the
date on which such default first occurred, and (z) the date on which such
Obligor's obligations thereunder are accelerated or (iii) results in the
termination of such agreement;
(b) If there is a default by an Obligor with respect to any
performance or payment bond having a face amount of not less than $2,500,000 and
such default (i) occurs at the final maturity of the obligations thereunder, or
(ii) results in a right of the issuer of such performance or payment bond,
irrespective of whether exercised, to accelerate the maturity of such Obligor's
obligations thereunder;
8.11 If any Obligor makes any payment on account of Indebtedness that has
been contractually subordinated in right of payment to the payment of the
Obligations, except to the extent such payment is permitted by the terms hereof
and by the terms of the subordination provisions applicable to such
Indebtedness;
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8.12 If any material misstatement or misrepresentation exists now or
hereafter in any warranty, representation, statement, or report made to the
Lender Group by any Obligor or any officer, employee, agent, or director of any
Obligor in any Record furnished in compliance with this Agreement or any other
Loan Document or otherwise furnished in connection with the transactions
contemplated by this Agreement or any other Loan Document; or
8.13 If the obligation of any Guarantor under its guaranty under any Loan
Document is limited or terminated by operation of law or by such Guarantor
thereunder.
9. THE LENDER GROUP'S RIGHTS AND REMEDIES.
9.1 RIGHTS AND REMEDIES.
Upon the occurrence, and during the continuation, of an Event of
Default, the Required Lenders (at their election but without notice of their
election and without demand) may, except to the extent otherwise expressly
provided or required below, authorize and instruct Agent to do any one or more
of the following on behalf of the Lender Group (and Agent, acting upon the
instructions of the Required Lenders, shall do the same on behalf of the Lender
Group), all of which are authorized by Borrowers:
(a) Declare all Obligations, whether evidenced by this Agreement,
by any of the other Loan Documents, or otherwise, immediately due and payable;
(b) Cease advancing money or extending credit to or for the
benefit of Borrowers under this Agreement, under any of the Loan Documents, or
under any other agreement between Borrowers and the Lender Group;
(c) Terminate this Agreement and any of the other Loan Documents
as to any future liability or obligation of the Lender Group, but without
affecting Collateral Agent's Liens in the Collateral and without affecting the
Obligations;
(d) Without notice to or demand upon any Obligor, make such
payments and do such acts as Agent considers necessary or reasonable to protect
the Collateral Agent's Liens in and to the Collateral;
(e) Hold, as cash collateral, any and all balances and deposits
of Borrowers held by the Lender Group, and any amounts received in the Lockbox
Accounts, to secure the full and final repayment of all of the Obligations;
(f) Exercise any and all other rights and remedies available to
it at law or in equity or pursuant to any other Loan Documents.
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9.2 REMEDIES CUMULATIVE.
The rights and remedies of the Lender Group under this Agreement, the
other Loan Documents, and all other agreements shall be cumulative. The Lender
Group shall have all other rights and remedies not inconsistent herewith as
provided under the Code, by law, or in equity. No exercise by the Lender Group
of one right or remedy shall be deemed an election, and no waiver by the Lender
Group of any Event of Default shall be deemed a continuing waiver. No delay by
the Lender Group shall constitute a waiver, election, or acquiescence by it.
10. TAXES AND EXPENSES.
If any Obligor fails to pay any monies (whether taxes, assessments,
insurance premiums, or, in the case of leased properties or assets, rents or
other amounts payable under such leases) due to third Persons, or fails to make
any deposits or furnish any required proof of payment or deposit, all as
required under the terms of this Agreement, then, Agent, in its discretion and
without prior notice to the Obligors, may do any or all of the following: (a)
make payment of the same or any part thereof; (b) set up such reserves in
Borrowers' Loan Account as Agent deems necessary to protect the Lender Group
from the exposure created by such failure; or (c) obtain and maintain insurance
policies of the type described in Section 6.9 and take any action with respect
to such policies as Agent deems prudent. In connection with the foregoing, Agent
shall endeavor in good faith promptly to provide notice to Administrative
Borrower of any fee, cost, or expense incurred by Agent pursuant to this Section
10. Any such amounts paid by Agent shall constitute Lender Group Expenses. Any
such payments made by Agent shall not constitute an agreement by the Lender
Group to make similar payments in the future or a waiver by the Lender Group of
any Event of Default under this Agreement. Agent need not inquire as to, or
contest the validity of, any such expense, tax, or Lien and the receipt of the
usual official notice for the payment thereof shall be conclusive evidence that
the same was validly due and owing.
11. WAIVERS; INDEMNIFICATION.
11.1 DEMAND; PROTEST; ETC.
Each Borrower waives demand, protest, notice of protest, notice of
default or dishonor, notice of payment and nonpayment, nonpayment at maturity,
release, compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees at any time held by the Lender Group
on which such Borrower may in any way be liable.
11.2 THE LENDER GROUP'S LIABILITY FOR COLLATERAL.
Each Borrower hereby agrees that: (a) so long as Collateral Agent
complies with its obligations, if any, under Section 9-207 of the Code, the
Lender Group shall not in any way or manner be liable or responsible for: (i)
the safekeeping of the
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Collateral; (ii) any loss or damage thereto occurring or arising in any manner
or fashion from any cause; (iii) any diminution in the value thereof; or (iv)
any act or default of any carrier, warehouseman, bailee, forwarding agency, or
other Person; and (b) all risk of loss, damage, or destruction of the Collateral
shall be borne by the Obligors.
11.3 INDEMNIFICATION.
Each Borrower shall pay, indemnify, defend, and hold the Agent-Related
Persons, the Lender-Related Persons with respect to each Lender, each
Participant, and each of their respective officers, directors, employees,
counsel, agents, and attorneys-in- fact (each, an "Indemnified Person") harmless
(to the fullest extent permitted by law) from and against any and all claims,
demands, suits, actions, investigations, proceedings, and damages, and all
reasonable attorneys fees and disbursements and other costs and expenses
actually incurred in connection therewith (as and when they are incurred and
irrespective of whether suit is brought), at any time asserted against, imposed
upon, or incurred by any of them in connection with or as a result of or related
to the execution, delivery, enforcement, performance, and administration of this
Agreement and any other Loan Documents or the transactions contemplated herein
(including the indemnification of the Agent in respect of its indemnification of
the Collateral Agent under the Collateral Agency and Intercreditor Agreement),
and with respect to any investigation, litigation, or proceeding related to this
Agreement, any other Loan Document, or the use of the proceeds of the credit
provided hereunder (irrespective of whether any Indemnified Person is a party
thereto), or any act, omission, event or circumstance in any manner related
thereto (all the foregoing, collectively, the "Indemnified Liabilities"). The
foregoing to the contrary notwithstanding, each such Borrower shall have no
obligation to any Indemnified Person under this Section 11.3 with respect to any
Indemnified Liability that a court of competent jurisdiction finally determines
to have resulted from the gross negligence or willful misconduct of such
Indemnified Person. This provision shall survive the termination of this
Agreement and the repayment of the Obligations. If any Indemnified Person makes
any payment to any other Indemnified Person with respect to an Indemnified
Liability for which Borrowers were required to indemnify the Indemnified Person
receiving such payment, the Indemnified Person making such payment is entitled
to be indemnified and reimbursed by Borrowers with respect thereto.
12. NOTICES.
Unless otherwise provided in this Agreement, all notices or demands by
any party relating to this Agreement or any other Loan Document shall be in
writing and shall be personally delivered or sent by overnight courier,
electronic mail (at such email addresses as the parties may designate to each
other in accordance herewith), or telefacsimile to the Administrative Borrower
or the Agent, as the case may be, at its address set forth below:
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If to Administrative
Borrower or
to an Obligor: XXXXXX SERVICES CORPORATION
000 Xxxx Xxxxxx Xxxx
X.X. Xxx 0000, XXX#0
Xxxxxxxx, Xxxxxxx X0X0X0
Attn: Chief Financial Officer
Fax No. 000.000.0000
to Agent: FOOTHILL CAPITAL CORPORATION
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Business Finance Division Manager
Fax No. 000.000.0000
with copies to: XXXXXXX, XXXXXXX & XXXXXXXX LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx Hilson, Esq.
Fax No. 000.000.0000
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to all
other parties. All notices or demands sent in accordance with this Section 12
shall be deemed to be received on the earlier of the date of actual receipt or 3
Business Days after the deposit thereof in the mail.
13. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS
EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH
OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF
AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO
ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL
BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND
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FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL, OR OTHER
PROPERTY MAY BE BROUGHT, AT THE REQUIRED LENDERS' OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE THE REQUIRED LENDERS ELECT TO BRING SUCH ACTION OR WHERE SUCH
COLLATERAL, OR OTHER PROPERTY MAY BE FOUND. BORROWERS AND THE LENDER GROUP
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 13.
BORROWERS AND THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF
THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. BORROWERS AND THE LENDER GROUP REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A
COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
14. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.
14.1 ASSIGNMENTS AND PARTICIPATIONS.
(a) Administrative Borrower shall maintain, or cause to be
maintained, a register (the "Register") on which it enters the name of each
Lender as the registered owner of the Advances held by such Lender. A Registered
Loan (and the Registered Note, if any, evidencing the same) may be assigned or
sold in whole or in part only by registration of such assignment or sale on the
Register (and each Registered Note shall expressly so provide). Any assignment
or sale of all or part of such Registered Loan (and the Registered Note, if any,
evidencing the same) may be effected only by registration of such assignment or
sale on the Register, together with the surrender of the Registered Note, if
any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or sale duly executed by) the holder of such Registered
Note, whereupon, at the request of the designated assignee(s) or transferee(s),
one or more new Registered Notes in the same aggregate principal amount shall be
issued to the designated assignee(s) or transferee(s). Prior to the registration
of assignment or sale of any Registered Loan (and the Registered Note, if any
evidencing the same), Borrowers shall treat the Person in whose name such
Advance (and the Registered Note, if any, evidencing the same) is registered as
the owner thereof for the
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purpose of receiving all payments thereon and for all other purposes,
notwithstanding notice to the contrary.
(b) In the event that any Lender sells participations in the
Registered Loan, such Lender shall maintain a register on which it enters the
name of all participants in the Registered Loans held by it (the "Participant
Register"). A Registered Loan (and the Registered Note, if any, evidencing the
same) may be participated in whole or in part only by registration of such
participation on the Participant Register (and each Registered Note shall
expressly so provide). Any participation of such Registered Loan (and the
Registered Note, if any, evidencing the same) may be effected only by the
registration of such participation on the Participant Register.
(c) Any Lender may, with the written consent of Agent and, unless
an Event of Default has occurred and is continuing, the written consent of
Administrative Borrower, assign and delegate to one or more assignees (provided
that no written consent of Agent or Administrative Borrower shall be required in
connection with any assignment and delegation by a Lender to an Eligible
Transferee relative to such Lender's Tranche A Commitment or such Lender's
Obligations (exclusive of Tranche B Obligations)) (each an "Assignee") all, or
any ratable part of all, of the Obligations, the Commitments and the other
rights and obligations of such Lender hereunder and under the other Loan
Documents, in a minimum amount of $5,000,000; provided, however, that Borrowers
and Agent may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to Borrowers and
Agent by such Lender and the Assignee; (ii) such Lender and its Assignee shall
have delivered to Administrative Borrower and Agent an Assignment and
Acceptance; and (iii) the assignor Lender or Assignee has paid to Agent for
Agent's sole and separate account a processing fee in the amount of $5,000.
Anything contained herein to the contrary notwithstanding, the consent of Agent
shall not be required (if such assignment relates to a Lender's Tranche A
Commitments and Obligations (exclusive of Tranche B Obligations (including any
fee, cost, or expense under the Loan Documents that is specifically identified
to the Tranche B Facility)) or unreasonably withheld (if such assignment relates
to a Lender's Tranche B Commitments or Tranche B Obligations (including any fee,
cost, or expense under the Loan Documents that is specifically identified to the
Tranche B Facility), and payment of any fees shall not be required, if such
assignment is in connection with any merger, consolidation, sale, transfer, or
other disposition of all or any substantial portion of the business or loan
portfolio of such Lender.
(d) From and after the date that Agent notifies the assignor
Lender (with a copy to Administrative Borrower) that it has received an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under the Loan Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
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assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except with respect to Section 11.3 hereof) and be released from its
obligations under this Agreement (and in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement and the other Loan Documents, such Lender
shall cease to be a party hereto and thereto), and such assignment shall effect
a novation between Borrowers and the Assignee.
(e) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (1) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto; (2) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Obligors or the performance or observance by Borrowers of any of their
obligations under this Agreement or any other Loan Document furnished pursuant
hereto; (3) such Assignee confirms that it has received a copy of this
Agreement, together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (4) such Assignee will, independently and without
reliance upon Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (5) such Assignee appoints and authorizes Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to Agent, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (6) such Assignee agrees that it will perform
in accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender. Agent will prepare on
the last Business Day of each month during which an assignment has become
effective in accordance with this Section 14.1, a new Schedule C-1 giving effect
to all such assignments effected during such month and will promptly provide
Administrative Borrower and the Lenders with copies of the same.
(f) Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance and receipt and acknowledgment by
Agent of such fully executed Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Lender pro tanto.
(g) Any Lender may at any time, with the written consent of
Agent, sell to one or more commercial banks, financial institutions, or other
Persons not Affiliates of such Lender (a "Participant") participating interests
in the Obligations, the Commitment, and the other rights and interests of that
Lender (the "Originating Lender") hereunder and under the other Loan Documents
(provided that no written consent of Agent shall be required in
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connection with any sale of any such participating interests by a Lender to an
Eligible Transferee relative to such Lender's Tranche A Commitment or such
Lender's Obligations (exclusive of Tranche B Obligations)); provided, however,
that (i) the Originating Lender shall remain a "Lender" for all purposes of this
Agreement and the other Loan Documents and the Participant receiving the
participating interest in the Obligations, the Commitment and the other rights
and interests of the Originating Lender hereunder shall not constitute a
"Lender" hereunder or under the Loan Documents and the Originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the Originating
Lender shall remain solely responsible for the performance of such obligations,
(iii) Borrowers, Agent, and Agent shall continue to deal solely and directly
with the Originating Lender in connection with the Originating Lender's rights
and obligations under this Agreement and the other Loan Documents, (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has the right to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment to, or consent or waiver with respect to this Agreement or of any
other Loan Document would (A) extend the final maturity date of the Obligations
hereunder in which such Participant is participating; (B) reduce the interest
rate applicable to the Obligations hereunder in which such Participant is
participating; (C) release all or a material portion of the Collateral or
guaranties (except to the extent expressly provided herein or in any of the Loan
Documents) supporting the Obligations hereunder in which such Participant is
participating; (D) postpone the payment of, or reduce the amount of, the
interest or fees payable to such Participant through such Lender; or (E) change
the amount or due dates of scheduled principal repayments or prepayments or
premiums; and (v) all amounts payable by Borrowers hereunder shall be determined
as if such Lender had not sold such participation; except that, if amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement. The rights of any Participant only shall be
derivative through the Originating Lender with whom such Participant
participates and no Participant shall have any rights under this Agreement or
the other Loan Documents or any direct rights as to the other Lenders, Agent,
Borrowers, the Collections, the Collateral, or otherwise in respect of the
Obligations. No Participant shall have the right to participate directly in the
making of decisions by the Lenders among themselves.
(h) In connection with any such assignment or participation or
proposed assignment or participation, a Lender may disclose all documents and
information which it now or hereafter may have relating to the Obligors or the
Obligors' business.
(i) Any other provision in this Agreement notwithstanding, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement in favor of any
Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank
or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner
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permitted under applicable law. No such assignment or pledge shall release the
assigning or pledging Lender from its obligations hereunder.
(j) Any other provisions of this Section 14.1 to the contrary
notwithstanding, no transfer or assignment of the interests or obligations of
any Lender or any grant of participations therein shall be permitted if such
transfer, assignment or grant would require any Borrower or Guarantor to file a
registration statement with the SEC or to file any registration statements or
other forms under any state "Blue Sky" laws.
14.2 SUCCESSORS.
This Agreement shall bind and inure to the benefit of the respective
successors and assigns of each of the parties; provided, however, that no
Obligor may assign this Agreement or any rights or duties hereunder without the
prior written consent of Agent and all Lenders and any prohibited assignment
shall be absolutely void ab initio. No consent to assignment by Agent and the
Lenders shall release any Borrower or any other Obligor from its Obligations. A
Lender may assign this Agreement and the other Loan Documents and its rights and
duties hereunder and thereunder pursuant to Section 14.1 hereof and, except as
expressly required pursuant to Section 14.1 hereof, no consent or approval by
any Borrower or any other Obligor is required in connection with any such
assignment.
15. AMENDMENTS; WAIVERS.
15.1 AMENDMENTS AND WAIVERS.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent with respect to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
the Required Lenders (or by Agent at the written request of the Required
Lenders) and Borrower and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that Administrative Borrower and Agent can agree to changes
to Schedules RPC-1 (to add Real Property or to subtract Real Property in
connection with Permitted Dispositions) 2.8, 5.7, 5.8, 5.13, 5.16, 5.19 (to add
Real Property or to subtract Real Property in connection with Permitted
Dispositions) 5.22, and 6.11 without the consent of the other Borrowers or the
Lenders; provided further, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Lenders affected thereby and
Administrative Borrower (on behalf of all Borrowers) and acknowledged by Agent,
do any of the following:
(a) increase or extend the Commitment of any Lender;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
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(c) reduce the principal of, or the rate of interest specified
herein on any Advance, or any fees or other amounts payable hereunder or under
any other Loan Document (except the waiver of additional interest or additional
Letter of Credit fees to thereafter be accrued under Section 2.7(c) in
connection with the waiver by the Required Lenders of the Event of Default
giving rise to the entitlement to such additional interest, but not with respect
to any such additional interest or additional Letter of Credit fees accrued
prior to such waiver);
(d) change the percentage of the Commitments or the percentage of
the Obligations outstanding, as the case may be, that is required for the
Lenders or any of them to take any action hereunder;
(e) amend this Section or any provision of the Agreement
providing for consent or other action by all Lenders;
(f) authorize the release of Collateral other than as permitted
by Section 16.12;
(g) change the definition of "Required Lenders," "Pro Rata
Share," "Collections," "Maximum Facility Amount," "Maximum Tranche A Amount,"
"Maximum Tranche B Amount," "Total Commitment," "Tranche A Advance
Availability," "Tranche A Commitment," "Tranche A Usage," "Tranche B
Availability," "Tranche B Commitment," or "Tranche B Usage";
(h) subordinate any Collateral Agent's Liens held for the benefit
of the Lender Group;
(i) except in connection with a Permitted Disposition involving
the Stock of a Borrower or a Guarantor, release any Borrower or any Guarantor
from any Obligation for the payment of money;
(j) amend any of the provisions of Section 7.8 or Section 16, or
(k) amend the definition of "Borrowing Base," "Eligible
Accounts," "Eligible Domestic Accounts," "Eligible Unbilled Account," "Eligible
Canadian Accounts," "Dilution," or "Dilution Reserve," in each case, in a manner
that increases the amount of credit available hereunder, or
(l) amend (i) Section 2.1(a) or 2.1(c) in a manner that increases
the obligations of the Tranche A Lenders, (ii) Section 2.1(b) in a manner that
impairs the ability of Agent to impose reserves, (iii) Section 2.2(a) in a
manner that increases the obligations of the Tranche A Lenders, (iv) Section
2.3(a), 2.3(b), or 2.3(c) in a manner that increases the obligations of the
Tranche B Lenders, (v) Section 2.4(b), 2.4(e), 2.4(i), or 2.5(b), or (vi) the
last sentence of Section 7.17.
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and, provided further, however, that no amendment, waiver or consent shall,
unless in writing and signed by Agent, affect the rights or duties of Agent
under this Agreement or any other Loan Document. The foregoing notwithstanding,
any amendment, modification, waiver, consent, termination, or release of or with
respect to any provision of this Agreement or any other Loan Document that
relates only to the relationship of the Lender Group among themselves, and that
does not affect the rights or obligations of Borrowers, shall not require
consent by or the agreement of Borrowers.
15.2 NO WAIVERS; CUMULATIVE REMEDIES.
No failure by Agent or any Lender to exercise any right, remedy, or
option under this Agreement, any other Loan Document, or any present or future
supplement hereto or thereto, or in any other agreement between or among
Borrowers and Agent or any Lender, or delay by Agent or any Lender in exercising
the same, will operate as a waiver thereof. No waiver by Agent or any Lender
will be effective unless it is in writing, and then only to the extent
specifically stated. No waiver by Agent or the Lenders on any occasion shall
affect or diminish Agent's and each Lender's rights thereafter to require strict
performance by Borrowers of any provision of this Agreement. Agent's and each
Lender's rights under this Agreement and the other Loan Documents will be
cumulative and not exclusive of any other right or remedy which Agent or any
Lender may have.
16. AGENT; THE LENDER GROUP.
16.1 APPOINTMENT AND AUTHORIZATION OF AGENT.
Each Lender hereby designates and appoints Foothill as its agent under
this Agreement and the other Loan Documents and each Lender hereby irrevocably
authorizes Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to Agent by the terms of this Agreement
or any other Loan Document, together with such powers as are reasonably
incidental thereto. Agent agrees to act as such on the express conditions
contained in this Section 16. The provisions of this Section 16 are solely for
the benefit of Agent and the Lenders, and Borrowers shall have no rights as a
third party beneficiary of any of the provisions contained herein; provided,
however, that certain of the provisions of Section 16.11 hereof also shall be
for the benefit of Borrowers. Any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document notwithstanding, Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
nor shall Agent have or be deemed to have any fiduciary relationship with each
other or any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against Agent; it being expressly
understood and agreed that the use of the word "Agent" is for convenience only,
that Foothill is merely the representatives of the Lenders, and has only the
contractual duties set forth herein. Except as expressly otherwise provided in
this Agreement, Agent shall have and may use its sole
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discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions which Agent
is expressly entitled to take or assert under or pursuant to this Agreement and
the other Loan Documents. Without limiting the generality of the foregoing, or
of any other provision of the Loan Documents that provides rights or powers to
Agent, Lenders agree that Agent shall have the right to exercise the following
powers as long as this Agreement remains in effect: (a) maintain, in accordance
with its customary business practices, ledgers and records reflecting the status
of the Advances, the Collateral, the Collections, and related matters; (b)
execute or file any and all financing or similar statements or notices,
amendments, renewals, supplements, documents, instruments, proofs of claim,
notices and other written agreements with respect to the Loan Documents; (c)
make Advances, for itself or on behalf of Lenders as provided in the Loan
Documents; (d) exclusively receive, apply, and distribute the Collections as
provided in the Loan Documents; (e) open and maintain such bank accounts and
lock boxes as Agent deems necessary and appropriate in accordance with the Loan
Documents for the foregoing purposes with respect to the Collateral and the
Collections; (f) perform, exercise, and enforce any and all other rights and
remedies of the Lender Group with respect to the Obligors, the Obligations, the
Collateral, the Collections, or otherwise related to any of same as provided in
the Loan Documents; and (g) incur and pay such Lender Group Expenses as Agent
may deem necessary or appropriate for the performance and fulfillment of its
functions and powers pursuant to the Loan Documents.
16.2 DELEGATION OF DUTIES.
Except as otherwise provided in this section, Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneysinfact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Agent shall not be responsible
for the negligence or misconduct of any agent or attorneyinfact that it selects
as long as such selection was made in compliance with this section and without
gross negligence or willful misconduct.
16.3 LIABILITY OF AGENT.
None of the AgentRelated Persons shall (i) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by any Obligor or any Subsidiary or Affiliate of
any Obligor, or any officer or director thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Obligor or any other party to
any Loan Document to perform its obligations
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hereunder or thereunder. No AgentRelated Person shall be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the Books or properties of the Obligors or the
books or records or properties of any of the Subsidiaries or Affiliates of any
Obligor.
16.4 RELIANCE BY AGENT.
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent, or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Obligor or counsel to any
Lender), independent accountants and other experts selected by Agent. Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless Agent shall first receive such
advice or concurrence of the Lenders as it deems appropriate and until such
instructions are received, Agent shall act, or refrain from acting, as it deems
advisable. If Agent so requests, it shall first be indemnified to its reasonable
satisfaction by Lenders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action. Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
16.5 NOTICE OF DEFAULT OR EVENT OF DEFAULT.
Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest, fees, and expenses required to be paid to
Agent for the account of the Lenders, except with respect to Events of Default
of which Agent has actual knowledge, unless Agent shall have received written
notice from a Lender or Borrowers referring to this Agreement, describing such
Default or Event of Default, and stating that such notice is a "notice of
default." Agent promptly will notify the Lenders of its receipt of any such
notice or of any Event of Default of which Agent has actual knowledge. If any
Lender obtains actual knowledge of any Event of Default, such Lender promptly
shall notify the other Lenders and Agent of such Event of Default. Each Lender
shall be solely responsible for giving any notices to its Participants, if any.
Subject to Section 16.4, Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 9; provided, however, that unless and until Agent has
received any such request, Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable.
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16.6 CREDIT DECISION.
Each Lender acknowledges that none of the AgentRelated Persons has
made any representation or warranty to it, and that no act by Agent hereinafter
taken, including any review of the affairs of Borrowers and their Subsidiaries
or Affiliates, shall be deemed to constitute any representation or warranty by
any Agent-Related Person to any Lender. Each Lender represents to Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrowers and
any other Person (other than the Lender Group) party to a Loan Document, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to Borrowers. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrowers and
any other Person (other than the Lender Group) party to a Loan Document. Except
for notices, reports and other documents expressly herein required to be
furnished to the Lenders by Agent, Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrowers and any other Person party to a Loan
Document that may come into the possession of any of the AgentRelated Persons.
16.7 COSTS AND EXPENSES; INDEMNIFICATION.
Agent may incur and pay Lender Group Expenses to the extent Agent
reasonably deems necessary or appropriate for the performance and fulfillment of
its functions, powers, and obligations pursuant to the Loan Documents, including
without limiting the generality of the foregoing, court costs, reasonable
attorneys fees and expenses, costs of collection by outside collection agencies
and auctioneer fees and costs of security guards or insurance premiums paid to
maintain the Collateral, any and all charges, commissions, fees, and costs in
connection with the issuance of letters of credit that are the subject of an L/C
Undertaking (including such expenses and fees in excess of the limitations set
forth in Section 2.2(e) hereof), whether or not Borrowers are obligated to
reimburse Agent or Lenders for such expenses pursuant to the Loan Documents or
otherwise. Agent is authorized and directed to deduct and retain sufficient
amounts from Collections to reimburse Agent for such out-of-pocket costs and
expenses prior to the distribution of any amounts to Lenders. In the event Agent
is not reimbursed for such costs and expenses from Collections, each Lender
hereby agrees that it is and shall be
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obligated to pay to or reimburse Agent for the amount of such Lender's Pro Rata
Share thereof. Whether or not the transactions contemplated hereby are
consummated, the Lenders shall indemnify upon demand the AgentRelated Persons
(to the extent not reimbursed by or on behalf of Borrowers and without limiting
the obligation of Borrowers to do so), according to their Pro Rata Shares, from
and against any and all Indemnified Liabilities; provided, however, that no
Lender shall be liable for the payment to any AgentRelated Person of any portion
of such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse Agent upon demand for such Lender's ratable share of any
costs or outofpocket expenses (including attorneys fees and expenses) incurred
by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that Agent is
not reimbursed for such expenses by or on behalf of Borrowers. The undertaking
in this section shall survive the payment of all Obligations hereunder and the
resignation or replacement of Agent.
16.8 AGENT IN INDIVIDUAL CAPACITY.
Foothill and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with Borrowers and their Subsidiaries and Affiliates and any
other Person (other than the Lender Group) party to any Loan Documents as though
Foothill were not Agent hereunder, and, in each case, without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Foothill or its Affiliates may receive information regarding
Borrowers or their Affiliates and any other Person (other than the Lender Group)
party to any Loan Documents that is subject to confidentiality obligations in
favor of Borrowers or such other Person and that prohibit the disclosure of such
information to the Lenders, and the Lenders acknowledge that, in such
circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver Agent will use its reasonable efforts to obtain),
Agent shall not be under any obligation to provide such information to them. The
terms "Lender" and "Lenders" include Foothill in its individual capacity.
16.9 SUCCESSOR AGENT.
Agent may resign as Agent upon 45 days notice to the Lenders. If Agent
resigns under this Agreement, the Required Lenders, after consultation with
Administrative Borrower, shall appoint a successor Agent for the Lenders. If no
successor Agent is appointed prior to the effective date of the resignation of
Agent, Agent may appoint, after consulting with the Lenders and Administrative
Borrower, a successor Agent. If Agent has materially breached or failed to
perform any material provision of this Agreement or of
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applicable law, the Required Lenders may agree in writing, after consultation
with Administrative Borrower, to remove and replace Agent with a successor Agent
from among the Lenders. In any such event, upon the acceptance of its
appointment as successor Agent hereunder, such successor Agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor Agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 16 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement. If no successor Agent has accepted appointment as Agent by the
date which is 45 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of Agent hereunder until such time,
if any, as the Lenders appoint a successor Agent as provided for above.
16.10 LENDER IN INDIVIDUAL CAPACITY.
Any Lender and its respective Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with Borrowers and their Subsidiaries
and Affiliates and any other Person (other than the Lender Group) party to any
Loan Documents as though such Lender were not a Lender hereunder without notice
to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, such Lender and its respective Affiliates may receive information
regarding Borrowers or their Affiliates and any other Person (other than the
Lender Group) party to any Loan Documents that is subject to confidentiality
obligations in favor of Borrowers or such other Person and that prohibit the
disclosure of such information to the Lenders, and the Lenders acknowledge that,
in such circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver such Lender will use its reasonable efforts to
obtain), such Lender not shall be under any obligation to provide such
information to them. With respect to the Swing Loans and Agent Advances, Swing
Lender shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the sub-agent of the
Agent.
16.11 WITHHOLDING TAXES.
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the IRC and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the IRC, such
Lender agrees with and in favor of Agent and Borrowers, to deliver to Agent and
Borrowers:
(i) if such Lender claims an exemption from withholding tax
pursuant to its portfolio interest exception, (a) a statement of the
Lender, signed under penalty of perjury, that it is not a (I) a "bank"
as described in Section 881(c)(3)(A) of the IRC, (II) a 10%
shareholder (within the meaning
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of Section 881(c)(3)(B) of the IRC), or (III) a controlled foreign
corporation described in Section 881(c)(3)(C) of the IRC, and (B) a
properly completed IRS Form W-8BEN, before the first payment of any
interest under this Agreement and at any other time reasonably
requested by Agent or Borrowers;
(ii) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed
IRS Form W8BEN before the first payment of any interest under this
Agreement and at any other time reasonably requested by Agent or
Borrowers;
(iii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form W-8ECI
before the first payment of any interest under this Agreement and at
any other time reasonably requested by Agent or Borrowers;
(iv) such other form or forms as may be required under the IRC or
other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Lender agrees promptly to notify Agent and Borrowers of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form W-8BEN and such
Lender sells, assigns, or otherwise transfers all or part of the Obligations of
Borrowers to such Lender, such Lender agrees to notify Agent of the percentage
amount in which it is no longer the beneficial owner of Obligations of Borrowers
to such Lender. To the extent of such percentage amount, Agent will treat such
Lender's IRS Form W-8BEN as no longer valid.
(c) If any Lender is entitled to a reduction in the applicable
withholding tax, Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to Agent, then Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.
(d) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify Agent fully for all amounts paid, directly
or indirectly, by Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
Agent under this
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Section, together with all costs and expenses (including attorneys fees and
expenses). The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of Agent.
(e) All payments made by the Borrowers hereunder or under any note
will be made without setoff, counterclaim or other defense, except as required
by applicable law other than for Taxes (as discussed below). All such payments
will be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction (other
than the United States) or by any political subdivision or taxing authority
thereof or therein (other than one of or in the United States) with respect to
such payments (but excluding, any tax imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein (i) measured by or
based on the net income or net profits of a Lender or (ii) to the extent that
such tax results from the granting of a participation in, or other transfer of
all or part of, the Obligations of Borrowers, or a change in the circumstances
of the Lender, including without limitation, a change in the residence, place of
incorporation, or principal place of business of the Lender, or a change in the
branch or lending office of the Lender participating in the transactions set
forth herein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments
or other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrowers agree to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any note, including any amount paid pursuant
to this Section 16.11(e) after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein; provided, however,
that the Borrowers shall not be required to increase any such amounts payable to
the Agent or any Lender (i) that is not organized under the laws of the United
States, if such Person fails to comply with the other requirements of this
Section 16.11, or (ii) if the increase in such amount payable results from the
Agent's or Lender's own willful misconduct or gross negligence. The Borrowers
will furnish to the Administrative Agent as promptly as possible after the date
the payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by the Borrowers.
16.12 COLLATERAL MATTERS.
(a) The Lenders hereby irrevocably authorize Agent, at its option and
in its sole discretion, to authorize Collateral Agent to release any Collateral
Agent's Lien on any Collateral (i) upon the termination of the Commitments and
payment and satisfaction in full by Borrowers of all Obligations; (ii)
constituting property being sold or disposed of if a release is required or
desirable in connection therewith and if Administrative Borrower certifies to
Agent that the sale or disposition is permitted under Section 7.4 of this
Agreement (and Agent may rely conclusively on any such certificate, without
further inquiry); (iii) constituting property in which the Obligors owned no
interest at the time the security interest was granted or at any time
thereafter; or (iv) constituting property leased to an Obligor under a lease
that has expired or is terminated in a transaction permitted under this
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Agreement. Except as provided above, Agent will not execute and deliver an
authorization of a release of any Collateral Agent's Lien on any Collateral
without the prior written authorization of (y) if the release is of all or any
substantial portion of the Collateral, all of the Lenders, or (z) otherwise, the
Required Lenders. Upon request by Agent or Borrowers at any time, the Lenders
will confirm in writing Agent's authority to authorize the release any such
Collateral Agent's Liens on particular types or items of Collateral pursuant to
this Section 16.12; provided, however, that (1) Agent shall not be required to
execute any document necessary to evidence such authorization to release on
terms that, in Agent's opinion, would expose Agent to liability or create any
obligation or entail any consequence other than the authorization to release
such Collateral Agent's Lien without recourse, representation, or warranty, and
(2) such authorization or Collateral Agent's release shall not in any manner
discharge, affect, or impair the Obligations or any Collateral Agent's Liens
(other than those expressly being released) upon (or obligations of Borrowers in
respect of) all interests retained by the Obligors, including, the proceeds of
any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the Lenders to
assure that the Collateral exists or is owned by the Obligors or is cared for,
protected, or insured or has been encumbered, or that the Collateral Agent's
Liens have been properly or sufficiently or lawfully created, perfected,
protected, or enforced or are entitled to any particular priority, or to
exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to Agent pursuant to any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its
sole discretion given Agent's own interest in the Collateral in its capacity as
one of the Lenders and that Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing, except as otherwise
provided herein.
16.13 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS.
(a) Each of the Lenders agrees that it shall not, without the express
consent of Agent, and that it shall, to the extent it is lawfully entitled to do
so, upon the request of Agent, set off against the Obligations, any amounts
owing by such Lender to Borrowers or any accounts of Borrowers now or hereafter
maintained with such Lender. Each of the Lenders further agrees that it shall
not, unless specifically requested to do so by Agent, take or cause to be taken
any action, including, the commencement of any legal or equitable proceedings,
to foreclose any Lien on, or otherwise enforce any security interest in, any of
the Collateral the purpose of which is, or could be, to give such Lender any
preference or priority against the other Lenders with respect to the Collateral.
(b) If, at any time or times any Lender shall receive (i) by payment,
foreclosure, setoff or otherwise, any proceeds of Collateral or any payments
with respect to the Obligations arising under, or relating to, this Agreement or
the other Loan Documents, except for any such proceeds or payments received by
such Lender from Agent pursuant to
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the terms of this Agreement, or (ii) payments from Agent in excess of such
Lender's ratable portion of all such distributions by Agent, such Lender
promptly shall (1) turn the same over to Agent, in kind, and with such
endorsements as may be required to negotiate the same to Agent, or in same day
funds, as applicable, for the account of all of the Lenders and for application
to the Obligations in accordance with the applicable provisions of this
Agreement or the relevant Fee Split Letter, as applicable, or (2) purchase,
without recourse or warranty, an undivided interest and participation in the
Obligations owed to the other Lenders so that such excess payment received shall
be applied ratably as among the Lenders in accordance with their Pro Rata
Shares; provided, however, that if all or part of such excess payment received
by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to such
purchasing party, but without interest except to the extent that such purchasing
party is required to pay interest in connection with the recovery of the excess
payment.
16.4 AGENCY FOR PERFECTION.
Agent and each Lender hereby appoints each other Lender as agent for
the purpose of perfecting the Collateral Agent's Liens in assets which, in
accordance with Article 9 of the UCC can be perfected only by possession. Should
any Lender obtain possession of any such Collateral, such Lender shall notify
Agent thereof, and, promptly upon Agent's request therefor shall deliver such
Collateral to Agent or in accordance with Agent's instructions.
16.5 PAYMENTS BY AGENT TO THE LENDERS.
All payments to be made by Agent to the Lenders shall be made by bank
wire transfer or internal transfer of immediately available funds pursuant to
such wire transfer instructions as each party may designate for itself by
written notice to Agent. Concurrently with each such payment, Agent shall
identify whether such payment (or any portion thereof) represents principal,
premium or interest on Advances or otherwise.
16.16 CONCERNING THE COLLATERAL AND RELATED LOAN DOCUMENTS.
Each member of the Lender Group authorizes and directs Agent to enter
into this Agreement and the other Loan Documents relating to the Collateral, for
the benefit of the Lender Group. Each member of the Lender Group agrees that any
action taken by Agent or all Lenders, as applicable, in accordance with the
terms of this Agreement or the other Loan Documents relating to the Collateral
and the exercise by Agent or all Lenders, as applicable, of their respective
powers set forth therein or herein, together with such other powers that are
reasonably incidental thereto, shall be binding upon all of the Lenders.
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16.17 FIELD AUDITS AND EXAMINATION REPORTS; CONFIDENTIALITY; DISCLAIMERS
BY LENDERS; OTHER REPORTS AND INFORMATION.
By signing this Agreement, each Lender:
(a) is deemed to have requested that Agent furnish such Lender,
promptly after it becomes available, a copy of each field audit or examination
report (each a "Report" and collectively, "Reports") prepared by Agent, and
Agent shall so furnish each Lender with such Reports;
(b) expressly agrees and acknowledges that Agent does not (i)
make any representation or warranty as to the accuracy of any Report, and (ii)
shall not be liable for any information contained in any Report;
(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that Agent or other party performing any
audit or examination will inspect only specific information regarding the
Obligors and will rely significantly upon the Books, as well as on
representations of the Obligors' personnel;
(d) agrees to keep all Reports and other material, non-public
information regarding Borrowers and their Subsidiaries and their operations,
assets, and existing and contemplated business plans in a confidential manner;
it being understood and agreed by Borrowers that in any event such Lender may
make disclosures (a) to counsel for and other advisors, accountants, and
auditors to such Lender, (b) reasonably required by any bona fide potential or
actual Assignee, transferee, or Participant in connection with any contemplated
or actual assignment or transfer by such Lender of an interest herein or any
participation interest in such Lender's rights hereunder, (c) of information
that has become public by disclosures made by Persons other than such Lender,
its Affiliates, assignees, transferees, or participants, or (d) as required or
requested by any court, governmental or administrative agency, pursuant to any
subpoena or other legal process, or by any law, statute, regulation, or court
order; provided, however, that, unless prohibited by applicable law, statute,
regulation, or court order, such Lender shall notify Borrowers of any request by
any court, governmental or administrative agency, or pursuant to any subpoena or
other legal process for disclosure of any such non-public material information
concurrent with, or where practicable, prior to the disclosure thereof; and
(e) without limiting the generality of any other indemnification
provision contained in this Agreement, agrees: (i) to hold Agent and any such
other Lender preparing a Report harmless from any action the indemnifying Lender
may take or conclusion the indemnifying Lender may reach or draw from any Report
in connection with any loans or other credit accommodations that the
indemnifying Lender has made or may make to Borrowers, or the indemnifying
Lender's participation in, or the indemnifying Lender's purchase of, a loan or
loans of Borrowers; and (ii) to pay and protect, and indemnify, defend and hold
Agent, and any such other Lender preparing a Report harmless from and against,
the claims, actions, proceedings, damages, costs, expenses and other amounts
(including, attorney costs) incurred by Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties who
might obtain all or part of any Report through the indemnifying Lender.
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In addition to the foregoing: (x) Any Lender may from time to time request of
Agent in writing that Agent provide to such Lender a copy of any report or
document provided by Borrowers to Agent that has not been contemporaneously
provided by Borrowers to such Lender, and, upon receipt of such request, Agent
shall provide a copy of same to such Lender promptly upon receipt thereof from
Borrowers; (y) To the extent that Agent is entitled, under any provision of the
Loan Documents, to request additional reports or information from Borrowers, any
Lender may, from time to time, reasonably request Agent to exercise such right
as specified in such Lender's notice to Agent, whereupon Agent promptly shall
request of Borrowers the additional reports or information specified by such
Lender, and, upon receipt thereof from Borrowers, Agent promptly shall provide a
copy of same to such Lender; and (z) Any time that Agent renders to Borrowers a
statement regarding the Loan Account, Agent shall send a copy of such statement
to each Lender.
16.18 SEVERAL OBLIGATIONS; NO LIABILITY.
Notwithstanding that certain of the Loan Documents now or hereafter
may have been or will be executed only by or in favor of Agent in its capacity
as such, and not by or in favor of the Lenders, any and all obligations on the
part of Agent (if any) to make any credit available hereunder shall constitute
the several (and not joint) obligations of the respective Lenders on a ratable
basis, according to their respective Commitments, to make an amount of such
credit not to exceed, in principal amount, at any one time outstanding, the
amount of their respective Commitments. Nothing contained herein shall confer
upon any Lender any interest in, or subject any Lender to any liability for, or
in respect of, the business, assets, profits, losses, or liabilities of any
other Lender. Each Lender shall be solely responsible for notifying its
Participants of any matters relating to the Loan Documents to the extent any
such notice may be required, and no Lender shall have any obligation, duty, or
liability to any Participant of any other Lender. Except as provided in Section
16.7, no member of the Lender Group shall have any liability for the acts of any
other member of the Lender Group. No Lender shall be responsible to Borrowers or
any other Person for any failure by any other Lender to fulfill its obligations
to make credit available hereunder, nor to advance for it or on its behalf in
connection with its Commitment, nor to take any other action on its behalf
hereunder or in connection with the financing contemplated herein.
17. GENERAL PROVISIONS.
17.1 EFFECTIVENESS.
This Agreement shall be binding and deemed effective when executed by
Borrowers and each member of the Lender Group whose signature is provided for on
the signature pages hereof. Provided, however, that notwithstanding that this
Agreement is expressed to be dated as of March 31, 2000, it is agreed that this
Agreement shall be delivered on and take effect as and from the Closing Date.
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17.2 SECTION HEADINGS.
Headings and numbers have been set forth herein for convenience only.
Unless the contrary is compelled by the context, everything contained in each
section applies equally to this entire Agreement.
17.3 INTERPRETATION.
Neither this Agreement nor any uncertainty or ambiguity herein shall
be construed or resolved against the Lender Group or Borrowers, whether under
any rule of construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of all parties hereto.
17.4 SEVERABILITY OF PROVISIONS.
Each provision of this Agreement shall be severable from every other
provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
17.5 AMENDMENTS IN WRITING.
This Agreement only can be amended by a writing signed by
Agent, on behalf of the Lenders, and Borrowers.
17.6 COUNTERPARTS; TELEFACSIMILE EXECUTION.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Agreement. Delivery of an
executed counterpart of this Agreement by telefacsimile shall be equally as
effective as delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile also
shall deliver an original executed counterpart of this Agreement but the failure
to deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement. The foregoing shall apply
to each other Loan Document mutatis mutandis.
17.7 REVIVAL AND REINSTATEMENT OF OBLIGATIONS.
If the incurrence or payment of the Obligations by Borrowers or any
Guarantor or the transfer by either or both of such parties to the Lender Group
of any property of either or both of such parties should for any reason
subsequently be declared to be void or voidable under any state or federal law
relating to creditors' rights, including provisions of the Bankruptcy Code
relating to fraudulent conveyances, preferences, and
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other voidable or recoverable payments of money or transfers of property
(collectively, a "Voidable Transfer"), and if the Lender Group is required to
repay or restore, in whole or in part, any such Voidable Transfer, or elects to
do so upon the reasonable advice of its counsel, then, as to any such Voidable
Transfer, or the amount thereof that the Lender Group is required or elects to
repay or restore, and as to all reasonable costs, expenses, and attorneys fees
of the Lender Group related thereto, the liability of Borrowers and the
Guarantors automatically shall be revived, reinstated, and restored and shall
exist as though such Voidable Transfer had never been made.
17.8 INTEGRATION.
This Agreement, together with the other Loan Documents, reflects the
entire understanding of the parties with respect to the transactions
contemplated hereby and shall not be contradicted or qualified by any other
agreement, oral or written, before the date hereof.
17.9 PARENT AS AGENT FOR BORROWERS.
Each Borrower hereby irrevocably appoints Parent as the borrowing
agent and attorney-in-fact for all Borrowers (the "Administrative Borrower")
which appointment shall remain in full force and effect unless and until Agent
shall have received prior written notice signed by each Borrower that such
appointment has been revoked and that another Borrower has been appointed
Administrative Borrower. Each Borrower hereby irrevocably appoints and
authorizes the Administrative Borrower (i) to provide Agent with all notices
with respect to Advances and Letters of Credit obtained for the benefit of any
Borrower and all other notices and instructions under this Agreement and (ii) to
take such action as the Administrative Borrower deems appropriate on its behalf
to obtain Advances and Letters of Credit and to exercise such other powers as
are reasonably incidental thereto to carry out the purposes of this Agreement.
It is understood that the handling of the Loan Account and Collateral of
Borrowers in a combined fashion, as more fully set forth herein, is done solely
as an accommodation to Borrowers in order to utilize the collective borrowing
powers of Borrowers in the most efficient and economical manner and at their
request, and that Lender Group shall not incur liability to any Borrower as a
result hereof. Each Borrower expects to derive benefit, directly or indirectly,
from the handling of the Loan Account and the Collateral in a combined fashion
since the successful operation of each Borrower is dependent on the continued
successful performance of the integrated group. To induce the Lender Group to do
so, and in consideration thereof, each Borrower hereby jointly and severally
agrees to indemnify each member of the Lender Group and hold each member of the
Lender Group harmless against any and all liability, expense, loss or claim of
damage or injury, made against the Lender Group by any Borrower or by any third
party whosoever, arising from or incurred by reason of (a) the handling of the
Loan Account and Collateral of Borrowers as herein provided, (b) the Lender
Group's relying on any instructions of the Administrative Borrower, or (c) any
other action taken by the Lender Group hereunder or under the other Loan
Documents, except that Borrowers will have no liability to the relevant
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Agent-Related Person or Lender-Related Person under this Section 17.9 with
respect to any liability that has been finally determined by a court of
competent jurisdiction to have resulted solely from the gross negligence or
willful misconduct of such Agent-Related Person or Lender-Related Person, as the
case may be.
17.10 BROKERAGE FEES - LENDER GROUP.
No member of the Lender Group has utilized the services of any broker
or finder in connection with the financing provided by the Lender Group under
this Agreement and no brokerage commission or finders fee is payable in
connection herewith.
[Signature pages to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
XXXXXX SERVICES CORPORATION,a
Delaware corporation
By:
--------------------------------------
Title:
------------------------------------
By:
--------------------------------------
Title:
------------------------------------
GEORGIA RECOVERY SYSTEMS,
a Georgia partnership
By:
--------------------------------------
Title: Corporate Secretary of Allwaste
Recovery Systems, Inc., general partner
GRS/LAKE XXXXXXX, LTD.,
a Louisiana limited partnership
By:
--------------------------------------
Title: Corporate Secretary of Allwaste
Recovery Systems, Inc., general partner
S - 1
135
RESI ACQUISITION (DELAWARE) ENVIRONMENTAL MANAGEMENT COMPANY, a
CORPORATION,a Delaware corporation, Florida corporation
21ST CENTURY ENVIRONMENTAL CHEMICAL POLLUTION CONTROL, INC. OF
MANAGEMENT, INC. OF NEVADA,a NEW YORK-A 21ST CENTURY
Nevada corporation ENVIRONMENTAL MANAGEMENT
COMPANY, a New York corporation
21ST CENTURY ENVIRONMENTAL
MANAGEMENT, INC. OF RHODE CHEMICAL RECLAMATION SERVICES, INC.,a
ISLAND,a Rhode Island corporation Texas corporation
ACE/ALLWASTE ENVIRONMENTAL COUSINS WASTE CONTROL
SERVICES OF INDIANA, INC.,an Illinois CORPORATION,an Ohio corporation
corporation
CYANOKEM INC.,a Michigan corporation
ADVANCED ENVIRONMENTAL
SYSTEMS, INC. DEEP CLEAN, INC.,a Michigan corporation
a New York corporation
DELTA MAINTENANCE, INC.,
ALL SAFETY AND SUPPLY, INC.,a Texas a Louisiana corporation
corporation
XXXXXXX CORPORATION,a Nevada
ALLWASTE TANK CLEANING, INC.,a corporation
Georgia corporation
INDUSTRIAL SERVICES TECHNOLOGIES,
ALLWASTE RECOVERY SYSTEMS, INC.,a INC.,a Colorado corporation
Georgia corporation
IST HOLDING CORP.,
ALLWORTH, INC.,an Alabama corporation a Colorado corporation
ALRC, INC.,a Delaware corporation JESCO INDUSTRIAL SERVICE, INC.,a
Kentucky corporation
APLC, INC.,a Delaware corporation
LUNTZ ACQUISITION (DELAWARE)
XXXXXX SERVICES/BIRMINGHAM, CORPORATION,a Delaware corporation
INC.,an Alabama corporation
LUNTZ CORPORATION,a Delaware
BURLINGTON ENVIRONMENTAL corporation
INC.,a Delaware corporation
NORTHLAND ENVIRONMENTAL, INC.,a
BURLINGTON ENVIRONMENTAL INC.,a Delaware corporation
Washington corporation
NORTRU, INC.,a Michigan corporation
CAPPCO TUBULAR PRODUCTS USA, INC.,a
Georgia corporation ONEIDA ASBESTOS ABATEMENT INC.,
a Delaware corporation
CHEM-FAB, INC.,a Texas corporation
ONEIDA ASBESTOS REMOVAL, INC.,
CHEM-FREIGHT, INC.,an Ohio corporation a New York corporation
CHEMICAL POLLUTION CONTROL, INC. OF XXXXXX AUTOMOTIVE, LTD.,a Pennsylvania
FLORIDA-A 21ST CENTURY corporation
By:
------------------------------------------------------------
Xxxxx Xxxxx Corporate Secretary of the above corporations
S-2
136
XXXXXX CHEMI-SOLV, INC., a Texas XXXXXX METALS RECOVERY (USA) INC., an
corporation Arizona corporation
XXXXXX CORROSION SERVICES, INC., a XXXXXX OIL RECYCLING, INC., a North
Nevada corporation Dakota corporation
XXXXXX ENVIRONMENTAL SERVICES XXXXXX PLANT SERVICES, INC., a Delaware
CORPORATION, a Missouri corporation corporation
XXXXXX ENVIRONMENTAL SERVICES, INC., XXXXXX RECLAMATION SERVICES, HOUSTON,
a Delaware corporation INC., a Texas corporation
XXXXXX ENVIRONMENTAL (WASHINGTON) XXXXXX REFRACTORY SERVICES, INC.,
INC., a Washington corporation a Nevada corporation
XXXXXX HYDRO-ENGINEERING & XXXXXX SCAFFOLD CORPORATION, a
SERVICE, INC., a Texas Colorado corporation
corporation
XXXXXX/SECO INDUSTRIES, INC., a
XXXXXX INDUSTRIAL SERVICES (USA), INC., Louisiana corporation
a Delaware corporation
XXXXXX SERVICES (PENNSYLVANIA), INC., a
XXXXXX INDUSTRIAL SERVICES GROUP, INC., Pennsylvania corporation
a Delaware corporation
XXXXXX SERVICES/ATLANTA, INC., a
XXXXXX INDUSTRIAL SERVICES OF TEXAS, Georgia corporation
INC., a Texas corporation
XXXXXX SERVICES CECATUR INC.,
XXXXXX/X.X. XXXXXXX, INC., a a Delaware corporation
Massachusetts corporation
XXXXXX SERVICES CECATUR HOLDINGS LLC,
XXXXXX MECHANICAL SERVICES OF a Delaware limited liability company
LOUISIANA, INC., a Louisiana corporation
XXXXXX SERVICES HAWAII, LTD., a Hawaii
XXXXXX METALS (NEW YORK), INC., a New corporation
York corporation
XXXXXX SERVICES (INTERNATIONAL),
XXXXXX METALS (USA), INC., an Ohio INC.,
corporation a Delaware corporation
XXXXXX METALS, INC., an Ohio XXXXXX SERVICES/LOUISIANA, INC., a
corporation Louisiana corporation
XXXXXX SERVICES/MISSOURI, INC., a
Delaware corporation
XXXXXX SERVICES/MOBILE, INC., an
Alabama corporation
XXXXXX SERVICES/NORTH ATLANTIC, INC.,
a Delaware corporation
By:
------------------------------------------------------------
Xxxxx Xxxxx Corporate Secretary of the above corporations
X-0
000
XXXXXX XXXXXXXX/XXXXX XXXXXXX, INC., corporation
an Iowa corporation
REPUBLIC ENVIRONMENTAL RECYCLING
XXXXXX SERVICES/OHIO, INC., an Ohio (NEW JERSEY), INC., a New Jersey
corporation corporation
XXXXXX SERVICES/OKLAHOMA, INC., a REPUBLIC ENVIRONMENTAL SYSTEMS
Oklahoma corporation (TRANSPORTATION GROUP), INC., a
Pennsylvania corporation
XXXXXX SERVICES PHENCORP
INTERNATIONAL INC., a Delaware REPUBLIC ENVIRONMENTAL SYSTEMS
corporation (TECHNICAL SERVICES GROUP), INC., a
New Jersey corporation
XXXXXX SERVICES (PHENCORP) LLC, a
Delaware limited liability company RESOURCE RECOVERY CORPORATION, a
Washington corporation
XXXXXX SERVICES/SOUTH CENTRAL, INC.,
a Colorado corporation RHO-CHEM CORPORATION,a California
corporation
XXXXXX SERVICES/SOUTHWEST, INC., an
Arizona corporation RMF GLOBAL, INC., an Ohio corporation
XXXXXX ST, INC., a Texas corporation RMF INDUSTRIAL CONTRACTING, INC., a
Michigan corporation
XXXXXX ST PIPING, INC.,a Texas
corporation SERV-TECH EPC, INC., a Nevada
corporation
XXXXXX TECHNICAL SERVICES, INC., a
Texas corporation SERV-TECH INTERNATIONAL SALES,
INC., U.S. Virgin Islands corporation
XXXXXX TRANSPORTATION AND
REMEDIATION, INC., a California SERV-TECH SERVICES, INC., a Texas
corporation corporation
XXXXXX XXXX INDUSTRIAL SERVICES, INC., SOLVENT RECOVERY CORPORATION, a
a California corporation Missouri corporation
XXXXXX/XXXXXXX, INC., a Delaware TERMINAL TECHNOLOGIES, INC., a Texas
corporation corporation
PIPING COMPANIES, INC., an Oklahoma THERMALKEM, INC., a Delaware
corporation corporation
PIPING HOLDINGS CORP., TOTAL REFRACTORY SYSTEM, INC., a
an Oklahoma corporation Nevada corporation
PIPING MECHANICAL CORPORATION, a UNITED INDUSTRIAL MATERIALS, INC., a
Colorado corporation Nevada corporation
PSC ENTERPRISES, INC., a Delaware
corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(PENNSYLVANIA), INC., a Pennsylvania
By:
------------------------------------------------------------
Xxxxx Xxxxx Corporate Secretary of the above corporations
S-4
138
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and a
Lender
By:
-------------------------------------
Title:
ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By:
-------------------------------------
Title:
XXXXXXXXX LLC,
as a Lender
By:
-------------------------------------
Title:
FOOTHILL PARTNERS III, L.P.,
a Delaware limited partnership,
as a Lender
By:
-------------------------------------
Its Managing General Partner
FOOTHILL INCOME TRUST, L.P.,
a Delaware limited partnership,
as a Lender
By: FIT GP, LLC, its general partner
By:
-------------------------------------
Its Managing Member
By:
------------------------------------------------------------
Xxxxx Xxxxx Corporate Secretary of the above corporations
X-0
000
XXXXX CORPORATION,
a Nevada corporation, as a Lender
By:
-------------------------------------
Title:
S-6
140
SCHEDULE C-1
COMMITMENTS
LENDER TRANCHE A TRANCHE B TOTAL COMMITMENT
COMMITMENT COMMITMENT
------ ---------- ---------- ----------------
Foothill Capital $35,000,000 -0- $35,000,000
Corporation
ABLECO FINANCE LLC -0- $12,500,000 $12,500,000
XXXXXXXXX LLC $32,500,000 -0- $32,500,000
FOOTHILL PARTNERS III, $16,250,000 $6,250,000 $22,500,000
L.P.
FOOTHILL INCOME $16,250,000 $6,250,000 $22,500,000
TRUST, X.X.
XXXXX CORPORATION -0- $50,000,000 $50,000,000
------------ ----------- ------------
ALL LENDERS $100,000,000 $75,000,000 $175,000,000
============ =========== ============
