REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT PNC BANK, NATIONAL ASSOCIATION (AS LENDER AND AS AGENT) WITH HYBROOK RESOURCES CORP. (to be renamed BEST ENERGY SERVICES, INC.), BOB BEEMAN DRILLING COMPANY and BEST WELL SERVICE, INC. (BORROWERS)...
REVOLVING
CREDIT, TERM LOAN
AND
SECURITY
AGREEMENT
PNC
BANK, NATIONAL ASSOCIATION
(AS
LENDER AND AS AGENT)
WITH
(to
be renamed BEST ENERGY SERVICES, INC.),
XXX
XXXXXX DRILLING COMPANY
and
BEST
WELL SERVICE, INC.
(BORROWERS)
February
14, 2008
TABLE
OF CONTENTS
I.
DEFINITIONS.
|
1
|
1.1. Accounting
Terms
|
1
|
1.2. General
Terms
|
1
|
1.3. Uniform
Commercial Code Terms
|
24
|
1.4. Certain
Matters of Construction
|
24
|
|
|
II. ADVANCES,
PAYMENTS.
|
25
|
2.1. Revolving
Advances.
|
25
|
2.2. Procedure
for Revolving Advances Borrowing.
|
26
|
2.3. Disbursement
of Advance Proceeds
|
28
|
2.4. Term
Loan
|
28
|
2.5. Maximum
Advances
|
29
|
2.6. Repayment
of Advances.
|
29
|
2.7. Repayment
of Excess Advances
|
29
|
2.8. Statement
of Account
|
29
|
2.9. Letters
of Credit
|
30
|
2.10. Issuance
of Letters of Credit.
|
30
|
2.11. Requirements
For Issuance of Letters of Credit.
|
31
|
2.12. Disbursements,
Reimbursement.
|
31
|
2.13. Repayment
of Participation Advances.
|
32
|
2.14. Documentation
|
33
|
2.15. Determination
to Honor Drawing Request
|
33
|
2.16. Nature
of Participation and Reimbursement Obligations
|
33
|
2.17. Indemnity
|
35
|
2.18. Liability
for Acts and Omissions
|
35
|
2.19. Additional
Payments
|
36
|
2.20. Manner
of Borrowing and Payment.
|
36
|
2.21. Mandatory
Prepayments.
|
38
|
2.22. Use
of Proceeds.
|
39
|
2.23. Defaulting
Lender.
|
39
|
|
|
III. INTEREST
AND FEES.
|
40
|
3.1. Interest
|
40
|
3.2. Letter
of Credit Fees.
|
41
|
3.3. Closing
Fee and Facility Fee.
|
41
|
3.4. Collateral
Evaluation Fee and Collateral Monitoring Fee.
|
42
|
3.5. Computation
of Interest and Fees
|
42
|
3.6. Maximum
Charges
|
42
|
3.7. Increased
Costs
|
42
|
3.8. Basis
For Determining Interest Rate Inadequate or Unfair
|
43
|
3.9. Capital
Adequacy.
|
44
|
3.10. Gross
Up for Taxes
|
44
|
3.11. Withholding
Tax Exemption.
|
45
|
|
|
IV. COLLATERAL: GENERAL
TERMS
|
46
|
4.1. Security
Interest in the Collateral
|
46
|
i
4.2. Perfection
of Security Interest
|
46
|
4.3. Disposition
of Collateral
|
46
|
4.4. Preservation
of Collateral
|
47
|
47
|
|
4.6. Defense
of Agent’s and Lenders’ Interests
|
48
|
4.7. Books
and Records
|
48
|
4.8. Financial
Disclosure
|
48
|
4.9. Compliance
with Laws
|
49
|
4.10. Inspection
of Premises
|
49
|
4.11. Insurance
|
49
|
4.12. Failure
to Pay Insurance
|
50
|
4.13. Payment
of Taxes
|
50
|
4.14. Payment
of Leasehold Obligations
|
51
|
4.15. Receivables.
|
51
|
4.16. Inventory
|
53
|
4.17. Maintenance
of Equipment
|
54
|
4.18. Exculpation
of Liability
|
54
|
4.19. Environmental
Matters.
|
54
|
4.20. Financing
Statements
|
56
|
4.21. Rig
Fleet Equipment
|
56
|
|
|
V. REPRESENTATIONS
AND WARRANTIES.
|
57
|
5.1. Authority
|
57
|
5.2. Formation
and Qualification.
|
57
|
5.3. Survival
of Representations and Warranties
|
57
|
5.4. Tax
Returns
|
58
|
5.5. Financial
Statements.
|
58
|
5.6. Entity
Names
|
59
|
5.7. O.S.H.A.
and Environmental Compliance.
|
59
|
5.8. Solvency;
No Litigation, Violation, Indebtedness or Default.
|
59
|
5.9. Patents,
Trademarks, Copyrights and Licenses
|
61
|
5.10. Licenses
and Permits
|
61
|
5.11. Default
of Indebtedness
|
61
|
5.12. No
Default
|
61
|
5.13. No
Burdensome Restrictions
|
61
|
5.14. No
Labor Disputes
|
61
|
5.15. Margin
Regulations
|
62
|
5.16. Investment
Company Act
|
62
|
5.17. Disclosure
|
62
|
5.18. Delivery
of Acquisition Documents
|
62
|
5.19. Swaps
|
62
|
5.20. Conflicting
Agreements
|
62
|
5.21. Application
of Certain Laws and Regulations
|
62
|
5.22. Business
and Property of Borrowers
|
63
|
5.23. Section
20 Subsidiaries
|
63
|
5.24. Anti-Terrorism
Laws.
|
63
|
5.25. Trading
with the Enemy
|
64
|
ii
5.26. Federal
Securities Laws
|
64
|
|
|
VI. AFFIRMATIVE
COVENANTS.
|
64
|
6.1. Payment
of Fees
|
64
|
6.2. Conduct
of Business and Maintenance of Existence and Assets
|
64
|
6.3. Violations
|
64
|
6.4. Government
Receivables
|
64
|
6.5. Financial
Covenants.
|
65
|
6.6. Execution
of Supplemental Instruments
|
66
|
6.7. Payment
of Indebtedness
|
66
|
6.8. Standards
of Financial Statements
|
66
|
6.9. Federal
Securities Laws
|
66
|
6.10. Exercise
of Rights
|
66
|
6.11. Identification
of Rig Fleet Equipment
|
66
|
|
|
VII. NEGATIVE
COVENANTS.
|
66
|
7.1. Merger,
Consolidation, Acquisition and Sale of Assets.
|
67
|
7.2. Creation
of Liens
|
67
|
7.3. Guarantees
|
67
|
7.4. Investments
|
67
|
7.5. Loans
|
67
|
7.6. Capital
Expenditures
|
68
|
7.7. Dividends
|
68
|
7.8. Indebtedness
|
68
|
7.9. Nature
of Business
|
68
|
7.10. Transactions
with Affiliates
|
68
|
7.11. Leases
|
68
|
7.12. Subsidiaries.
|
69
|
7.13. Fiscal
Year and Accounting Changes
|
69
|
7.14. Pledge
of Credit
|
69
|
7.15. Amendment
of Articles of Incorporation, By-Laws
|
69
|
7.16. Compliance
with ERISA
|
69
|
7.17. Prepayment
of Indebtedness
|
70
|
7.18. Anti-Terrorism
Laws
|
70
|
7.19. Membership/Partnership
Interests
|
70
|
7.20. Trading
with the Enemy Act
|
70
|
7.21. Other
Agreements
|
70
|
7.22. HRE
Exploration
|
70
|
|
|
VIII. CONDITIONS
PRECEDENT.
|
70
|
8.1. Conditions
to Initial Advances
|
70
|
8.2. Conditions
to Each Advance
|
74
|
8.3. Conditions
Precedent Applicable to Second Acquisitions
|
74
|
|
|
IX. INFORMATION
AS TO BORROWERS.
|
75
|
9.1. Disclosure
of Material Matters
|
75
|
9.2. Schedules
|
75
|
9.3. Environmental
Reports
|
76
|
iii
9.4. Litigation
|
76
|
9.5. Material
Occurrences
|
76
|
9.6. Government
Receivables
|
76
|
9.7. Annual
Financial Statements
|
76
|
9.8. Quarterly
Financial Statements
|
77
|
9.9. Monthly
Financial Statements
|
77
|
9.10. Other
Reports
|
77
|
9.11. Additional
Information
|
77
|
9.12. Projected
Operating Budget
|
77
|
9.13. Variances
From Operating Budget
|
78
|
9.14. Notice
of Suits, Adverse Events
|
78
|
9.15. ERISA
Notices and Requests
|
78
|
9.16. Appraisals
|
79
|
9.17. Additional
Documents
|
79
|
|
|
X. EVENTS
OF DEFAULT.
|
79
|
10.1. Nonpayment
|
79
|
10.2. Breach
of Representation
|
79
|
10.3. Financial
Information
|
79
|
10.4. Judicial
Actions
|
79
|
10.5. Noncompliance
|
80
|
10.6. Judgments
|
80
|
10.7. Bankruptcy
|
80
|
10.8. Inability
to Pay
|
80
|
10.9. Affiliate
Bankruptcy
|
80
|
10.10. Material
Adverse Effect
|
80
|
10.11. Lien
Priority
|
81
|
10.12. [Intentionally
Omitted.]
|
81
|
10.13. Cross
Default
|
81
|
10.14. Breach
of Guaranty
|
81
|
10.15. Change
of Control
|
81
|
10.16. Invalidity
|
81
|
10.17. Licenses
|
81
|
10.18. Seizures
|
81
|
10.19. Management
|
81
|
10.20. Second
Acquisitions
|
82
|
10.21. Pension
Plans
|
82
|
|
|
11.1. Rights
and Remedies.
|
82
|
11.2. Agent’s
Discretion
|
84
|
11.3. Setoff
|
84
|
11.4. Rights
and Remedies not Exclusive
|
84
|
11.5. Allocation
of Payments After Event of Default
|
84
|
|
|
XII. WAIVERS
AND JUDICIAL PROCEEDINGS
|
85
|
12.1. Waiver
of Notice
|
85
|
12.2. Delay
|
85
|
iv
12.3. Jury
Waiver
|
85
|
85
|
|
13.1. Term
|
85
|
13.2. Termination
|
86
|
XIV. REGARDING
AGENT.
|
86
|
14.1. Appointment
|
86
|
14.2. Nature
of Duties
|
87
|
14.3. Lack
of Reliance on Agent and Resignation
|
87
|
14.4. Certain
Rights of Agent
|
88
|
14.5. Reliance
|
88
|
14.6. Notice
of Default
|
88
|
14.7. Indemnification
|
88
|
14.8. Agent
in its Individual Capacity
|
89
|
14.9. Delivery
of Documents
|
89
|
14.10. Borrowers’
Undertaking to Agent
|
89
|
14.11. No
Reliance on Agent’s Customer Identification Program
|
89
|
14.12. Other
Agreements
|
89
|
XV. BORROWING
AGENCY.
|
89
|
15.1. Borrowing
Agency Provisions.
|
90
|
15.2. Waiver
of Subrogation
|
90
|
XVI. MISCELLANEOUS.
|
90
|
16.1. Governing
Law
|
90
|
16.2. Entire
Understanding.
|
91
|
16.3. Successors
and Assigns; Participations; New Lenders.
|
93
|
16.4. Application
of Payments
|
95
|
16.5. Indemnity
|
95
|
16.6. Notice
|
96
|
16.7. Survival
|
98
|
16.8. Severability
|
98
|
16.9. Expenses
|
98
|
16.10. Injunctive
Relief
|
98
|
16.11. Consequential
Damages
|
99
|
16.12. Captions
|
99
|
16.13. Counterparts;
Facsimile Signatures
|
99
|
16.14. Construction
|
99
|
16.15. Confidentiality;
Sharing Information
|
99
|
16.16. Publicity
|
100
|
16.17. Certifications
From Banks and Participants; US PATRIOT Act
|
100
|
v
LIST
OF EXHIBITS AND SCHEDULES
Exhibits
|
|
Exhibit
1.2
|
Borrowing
Base Certificate
|
Exhibit
2.1(a)
|
Revolving
Credit Note
|
Exhibit
2.4
|
Term
Note
|
Exhibit
5.5(b)
|
Financial
Projections
|
Exhibit
8.1(k)
|
Financial
Condition Certificate
|
Exhibit
9.16
|
OLV
Appraisal
|
Exhibit
16.3
|
Commitment
Transfer Supplement
|
Schedules | |
Schedule
1.2(a)
|
Original
Owners
|
Schedule
1.2(b)
|
Permitted
Encumbrances
|
Schedule
4.5
|
Equipment
and Inventory Locations
|
Schedule
4.5(c)
|
Chief
Executive Offices
|
Schedule
4.15(h)
|
Deposit
and Investment Accounts
|
Schedule
4.19
|
Real
Property
|
Schedule
4.21
|
Owned
Rig Fleet Equipment
|
Schedule
5.1
|
Consents
|
Schedule
5.2(a)
|
States
of Qualification and Good Standing
|
Schedule
5.2(b)
|
Subsidiaries
|
Schedule
5.4
|
Federal
Tax Identification Number
|
Schedule
5.6
|
Prior
Names
|
Schedule
5.8(b)
|
Litigation
|
Schedule 5.8(d) |
Plans
|
Schedule
5.9
|
Intellectual
Property, Source Code Escrow Agreements
|
Schedule
5.10
|
Licenses
and Permits
|
Schedule
5.14
|
Labor
Disputes
|
Schedule
7.3
|
Guarantees
|
Schedule
7.8
|
Existing
Indebtedness
|
vi
REVOLVING
CREDIT, TERM LOAN
AND
SECURITY
AGREEMENT
Revolving
Credit, Term Loan and Security Agreement dated as of February 14, 2008 among
HYBROOK RESOURCES CORP. (to be renamed BEST ENERGY SERVICES, INC. on the Closing
Date), a corporation organized under the laws of the State of Nevada (“Best”),
XXX XXXXXX DRILLING COMPANY, a corporation organized under the laws of the State
of Utah (“BBD”), and BEST WELL SERVICE, INC., a corporation organized under the
laws of the State of Kansas (“BWS”) (Best, BBD and BWS, each a “Borrower”, and
collectively “Borrowers”), the financial institutions which are now or which
hereafter become a party hereto (collectively, the “Lenders” and individually a
“Lender”) and PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent for Lenders (PNC,
in such capacity, the “Agent”).
IN
CONSIDERATION of the mutual covenants and undertakings herein contained,
Borrowers, Lenders and Agent hereby agree as follows:
I. DEFINITIONS.
1.1. Accounting
Terms. As used in this Agreement, the Other Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement, accounting terms not defined in Section 1.2 or elsewhere in this
Agreement and accounting terms partly defined in Section 1.2 to the extent not
defined, shall have the respective meanings given to them under GAAP; provided,
however, whenever such accounting terms are used for the purposes of determining
compliance with financial covenants in this Agreement, such accounting terms
shall be defined in accordance with GAAP as applied in preparation of the
audited financial statements of Borrowers for the fiscal year ended December 31,
2006.
1.2. General
Terms. For purposes of this Agreement the following terms
shall have the following meanings:
“Accountants” shall
have the meaning set forth in Section 9.7 hereof.
“Acquisitions” shall
mean, collectively, the Initial Acquisitions and the Second
Acquisitions.
“Acquisition
Documents” shall mean, collectively, the Initial Acquisition Documents
and the Second Acquisition Documents.
“Advance Rates” shall
mean, collectively, the Receivables Advance Rate, the Equipment Advance Rate and
the Cash Collateral Advance Rate.
“Advances” shall mean
and include the Revolving Advances, Letters of Credit, as well as the Term
Loan.
“Affiliate” of any
Person shall mean (a) any Person which, directly or indirectly, is in control
of, is controlled by, or is under common control with such Person, or (b) any
Person who is a director, managing member, general partner or officer (i) of
such Person, (ii) of any
Subsidiary
of such Person or (iii) of any Person described in clause (a)
above. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, (x) to vote 5% or more of the Equity
Interests having ordinary voting power for the election of directors of such
Person or other Persons performing similar functions for any such Person, or (y)
to direct or cause the direction of the management and policies of such Person
whether by ownership of Equity Interests, contract or otherwise.
“Agent” shall have the
meaning set forth in the preamble to this Agreement and shall include its
successors and assigns.
“Agreement” shall mean
this Revolving Credit, Term Loan and Security Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to
time.
“Alternate Base Rate”
shall mean, for any day, a rate per annum equal to the higher of (i) the Base
Rate in effect on such day and (ii) the Federal Funds Open Rate in effect on
such day plus 1/2 of 1%.
“Anti-Terrorism Laws”
shall mean any Applicable Laws relating to terrorism or money laundering,
including Executive Order No. 13224, the USA PATRIOT Act, the Applicable Laws
comprising or implementing the Bank Secrecy Act, and the Applicable Laws
administered by the United States Treasury Department’s Office of Foreign Asset
Control (as any of the foregoing Applicable Laws may from time to time be
amended, renewed, extended, or replaced).
“Applicable Law” shall
mean all laws, rules and regulations applicable to the Person, conduct,
transaction, covenant, Other Document or contract in question, including all
applicable common law and equitable principles; all provisions of all applicable
state, federal and foreign constitutions, statutes, rules, regulations,
treaties, directives and orders of any Governmental Body, and all orders,
judgments and decrees of all courts and arbitrators.
“ARH” shall mean,
American Rig Housing, Inc., a corporation organized under the laws of the State
of Texas.
“ARH Acquisition”
shall mean the acquisition by Best of substantially all of the assets of ARH
pursuant to the ARH Acquisition Agreement.
“ARH Acquisition
Agreement” shall mean the Asset Purchase Agreement to be entered into
after the Closing Date by and among Best, ARH and Xxxxx Xxxxxxxx, and all bills
of sale, disclosure schedules and certificates related thereto.
“ARH Acquisition
Documents” shall mean, collectively, (i) ARH Acquisition Agreement, (ii)
the Release executed by Xxxxx Xxxxxxxx in favor of Best and ARH and (iii) the
Lease Agreement between Xxxxx Xxxxxxxx and Best related to the yard located at
0000 XX Xxxxxxx 00 X., Xxxxxxxxx, Xxxxx 00000.
“Authority” shall have
the meaning set forth in Section 4.19(d).
“Base Rate” shall mean
the base commercial lending rate of PNC as publicly announced to be in effect
from time to time, such rate to be adjusted automatically, without notice, on
the
2
effective
date of any change in such rate. This rate of interest is determined
from time to time by PNC as a means of pricing some loans to its customers and
is neither tied to any external rate of interest or index nor does it
necessarily reflect the lowest rate of interest actually charged by PNC to any
particular class or category of customers of PNC.
“BBD” shall have the
meaning set forth in the preamble to this Agreement.
“BBD Acquisition”
shall mean the acquisition by Best of all of the outstanding Equity Interests of
BBD from Xxxxxx, pursuant to the BBD Acquisition Agreement.
“BBD Acquisition
Agreement” shall mean the Stock Purchase Agreement dated as of February
14, 2008, by and between Best and Xxxxxx, and all bills of sale, disclosure
schedules and certificates related thereto.
“BBD Acquisition
Documents” shall mean, collectively, (i) BBD Acquisition Agreement, (ii)
the Escrow Agreement dated as of February 14, 2008, by and among Best, Xxxxxx,
and JPMorgan Chase Bank, N.A., as escrow agent, (iii) the Release dated as of
February 14, 2008, by and between Best and Xxxxxx, (iv) the Noncompetition,
Nondisclosure and Nonsolicitation Agreement dated as of February 14, 2008, by
and between Best and Xxxxxx and (v) Lease Agreement to be entered into by and
between Best and Xxxxxx with respect to the premises located at 0000 X. Xxxxxxx
000, Xxxx, Xxxx and 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx,
Xxxx.
“BB Drilling
Acquisition” shall mean the acquisition by Best of substantially all of
the assets of BB Drilling Co., from Xxxxxx pursuant to the BB Drilling
Acquisition Agreement.
“BB Drilling Acquisition
Agreement” shall mean the Asset Purchase Agreement to be entered into
after the Closing Date by and between Best and Xxxxxx, and all bills of sale,
disclosure schedules and certificates related thereto.
“BB Drilling Acquisition
Documents” shall mean, collectively, (i) BB Drilling Acquisition
Agreement, and (ii) the Noncompetition, Nondisclosure and Nonsolicitation
Agreement to be entered into, by and between Best and Xxxxxx .
“Xxxxxx” shall mean,
Xxxxxx X. Xxxxxx, an individual residing in Moab, Utah.
“Blocked Accounts”
shall have the meaning set forth in Section 4.15(h).
“Blocked Account Bank”
shall have the meaning set forth in Section 4.15(h).
“Blocked Person” shall
have the meaning set forth in Section 5.24(b) hereof.
“Borrower” or “Borrowers” shall have
the meaning set forth in the preamble to this Agreement and shall extend to all
permitted successors and assigns of such Persons.
“Borrowers on a Consolidated
Basis” shall mean the consolidation in accordance with GAAP of the
accounts or other items of Best and its Subsidiaries.
“Borrowers’ Account”
shall have the meaning set forth in Section 2.8.
3
“Borrowing Agent”
shall mean Best.
“Borrowing Base
Certificate” shall mean a certificate in substantially the form of
Exhibit 1.2 duly executed by the President, Chief Financial Officer or
Controller of the Borrowing Agent and delivered to the Agent, appropriately
completed, by which such officer shall certify to Agent the Formula Amount and
calculation thereof as of the date of such certificate.
“Xxxxx” shall mean
Xxxx Xxxxx, an individual residing in Liberal, Kansas.
“Business Day” shall
mean any day other than Saturday or Sunday or a legal holiday on which
commercial banks are authorized or required by law to be closed for business in
East Brunswick, New Jersey and, if the applicable Business Day relates to any
Eurodollar Rate Loans, such day must also be a day on which dealings are carried
on in the London interbank market.
“BWS” shall have the
meaning set forth in the preamble to this Agreement.
“BWS Acquisition”
shall mean the acquisition by Best of all of the outstanding Equity Interests of
BWS from Xxxxx, pursuant to the BWS Acquisition Agreement.
“BWS Acquisition
Agreement” shall mean the Stock Purchase Agreement dated as of February
14, 2008, by and between Best and Xxxxx, and all bills of sale, disclosure
schedules and certificates related thereto.
“BWS Acquisition
Documents” shall mean, collectively, (i) BWS Acquisition Agreement, (ii)
the Escrow Agreement dated as of February 14, 2008, by and among Best, Xxxxx,
and JPMorgan Chase Bank, N.A., as escrow agent, (iii) the Release dated as of
February 14, 2008, by and between Best and Xxxxx, (iv) the Noncompetition,
Nondisclosure and Nonsolicitation Agreement dated as of February 14, 2008, by
and between Best and Xxxxx, (v) the Employment Agreement dated as of February
14, 2008, by and between Best and Xxxxx and (vi) the Lease Agreement dated as of
February 14, 2008 by and between Best and Xxxxx for the premises located at 0000
Xxxxxxx Xxxxx Xxxx., Xxxxxxx, Xxxxxx.
“Capital Expenditures”
shall mean expenditures made or liabilities incurred for the acquisition of any
fixed assets or improvements, replacements, substitutions or additions thereto
which have a useful life of more than one year, including the total principal
portion of Capitalized Lease Obligations, which, in accordance with GAAP, would
be classified as capital expenditures.
“Capitalized Lease
Obligation” shall mean any Indebtedness of any Borrower represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
“Cash Collateral Advance
Rate” shall have the meaning set forth in Section 2.1(a)(y)(iii)
hereof.
“Cash
Collateral Agreement” shall mean the Cash Collateral Agreement dated as
of the Closing Date by and among Xxxxxx Xxx, as pledgor, Agent and PNC, as
depository bank.
4
“Cash Collateral
Deposit” shall mean cash or cash equivalents in an amount not to exceed
$2,500,000 deposited with Agent by Xxxxxx Xxx and held by Agent as collateral
security for the Obligations in a manner satisfactory to Agent.
“CERCLA” shall mean
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. §§9601 et seq.
“Change of Control”
shall mean (a) any Person or “group” (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act), other than the Original Owners, shall have
acquired beneficial ownership of 20% or more on a fully diluted basis of the
voting and/or economic interest in Bests’ Equity Interests, (b) the Board of
Directors of Best shall cease to consist of a majority of Continuing Directors,
(c) other than as permitted by Section 4.3 and 7.1, any merger or consolidation
of or with any Borrower or sale of all or substantially all of the property or
assets of any Borrower or (d) Best ceases to own 100% of the Equity Interests of
BBS and BWS.
“Charges” shall mean
all taxes, charges, fees, imposts, levies or other assessments, including all
net income, gross income, gross receipts, sales, use, ad valorem, value added,
transfer, franchise, profits, inventory, capital stock, license, withholding,
payroll, employment, social security, unemployment, excise, severance, stamp,
occupation and property taxes, custom duties, fees, assessments, liens, claims
and charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts, imposed by any taxing or
other authority, domestic or foreign (including the Pension Benefit Guaranty
Corporation or any environmental agency or superfund), upon the Collateral, any
Borrower or any of its Affiliates.
“Closing Date” shall
mean February 14, 2008 or such other date as may be agreed to by the parties
hereto.
“Code” shall mean the
Internal Revenue Code of 1986, as the same may be amended or supplemented from
time to time, and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.
“Collateral” shall
mean and include:
(a) all
Receivables;
(b) all
Equipment;
(c) all
General Intangibles;
(d) all
Inventory;
(e) all
Investment Property;
(f) all
Subsidiary Stock;
(g) the
Leasehold Interests;
5
(h) all of
each Borrower’s right, title and interest in and to, whether now owned or
hereafter acquired and wherever located, (i) its respective goods and other
property including, but not limited to, all merchandise returned or rejected by
Customers, relating to or securing any of the Receivables; (ii) all of each
Borrower’s rights as a consignor, a consignee, an unpaid vendor, mechanic,
artisan, or other lienor, including stoppage in transit, setoff, detinue,
replevin, reclamation and repurchase; (iii) all additional amounts due to
any Borrower from any Customer relating to the Receivables; (iv) other
property, including warranty claims, relating to any goods securing the
Obligations; (v) all of each Borrower’s contract rights, rights of payment which
have been earned under a contract right, instruments (including promissory
notes), documents, chattel paper (including electronic chattel paper), warehouse
receipts, deposit accounts, letters of credit and money; (vi) all commercial
tort claims (whether now existing or hereafter arising); (vii) if and when
obtained by any Borrower, all real and personal property of third parties in
which such Borrower has been granted a lien or security interest as security for
the payment or enforcement of Receivables; (viii) all letter of credit rights
(whether or not the respective letter of credit is evidenced by a writing); (ix)
all supporting obligations; and (x) any other goods, personal property or
real property now owned or hereafter acquired in which any Borrower has
expressly granted a security interest or may in the future grant a security
interest to Agent hereunder, or in any amendment or supplement hereto or
thereto, or under any other agreement between Agent and any
Borrower;
(i) all of
each Borrower’s ledger sheets, ledger cards, files, correspondence, records,
books of account, business papers, computers, computer software (owned by any
Borrower or in which it has an interest), computer programs, tapes, disks and
documents relating to (a), (b), (c), (d), (e), (f), (g) or (h) of this
Paragraph; and
(j) all
proceeds and products of (a), (b), (c), (d), (e), (f), (g), (h) or (i) in
whatever form, including, but not limited to: cash, deposit accounts
(whether or not comprised solely of proceeds), certificates of deposit,
insurance proceeds (including hazard, flood and credit insurance), negotiable
instruments and other instruments for the payment of money, chattel paper,
security agreements, documents, eminent domain proceeds, condemnation proceeds
and tort claim proceeds.
“Commitment
Percentage” of any Lender shall mean the percentage set forth below such
Lender’s name on the signature page hereof as same may be adjusted upon any
assignment by a Lender pursuant to Section 16.3(c) or (d) hereof.
“Commitment Transfer
Supplement” shall mean a document in the form of Exhibit 16.3 hereto,
properly completed and otherwise in form and substance satisfactory to Agent by
which the Purchasing Lender purchases and assumes a portion of the obligation of
Lenders to make Advances under this Agreement.
“Compliance
Certificate” shall mean a compliance certificate to be signed by the
Chief Financial Officer or Controller of Borrowing Agent, which shall state
that, based on an examination sufficient to permit such officer to make an
informed statement, no Default or Event of Default exists, or if such is not the
case, specifying such Default or Event of Default, its nature, when it occurred,
whether it is continuing and the steps being taken by Borrowers with respect to
such default and, such certificate shall have appended thereto calculations
which set
6
forth
Borrowers’ compliance with the requirements or restrictions imposed by Sections
6.5, 7.5, 7.6, 7.7, 7.8 and 7.11.
“Consents” shall mean
all filings and all licenses, permits, consents, approvals, authorizations,
qualifications and orders of Governmental Bodies and other third parties,
domestic or foreign, necessary to carry on any Borrower’s business or necessary
(including to avoid a conflict or breach under any agreement, instrument, other
document, license, permit or other authorization) for the execution, delivery or
performance of this Agreement, the Other Documents or the Acquisition Documents,
including any Consents required under all applicable federal, state or other
Applicable Law.
“Continuing Directors”
shall mean the directors of Best on the Closing Date and each other director if
such director’s nomination for the election to the Board of Directors of Best is
recommended by a majority of the then Continuing Directors.
“Contract Rate” shall
mean, as applicable, the Revolving Interest Rate or the Term Loan
Rate.
“Controlled Group”
shall mean, at any time, each Borrower and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control and all other entities which, together with any Borrower, are
treated as a single employer under Section 414 of the Code.
“Customer” shall mean
and include the account debtor with respect to any Receivable and/or the
prospective purchaser of goods, services or both with respect to any contract or
contract right, and/or any party who enters into or proposes to enter into any
contract or other arrangement with any Borrower, pursuant to which such Borrower
is to deliver any personal property or perform any services.
“Customs” shall have
the meaning set forth in Section 2.11(b) hereof.
“Default” shall mean
an event, circumstance or condition which, with the giving of notice or passage
of time or both, would constitute an Event of Default.
“Default Rate” shall
have the meaning set forth in Section 3.1 hereof.
“Defaulting Lender”
shall have the meaning set forth in Section 2.23(a) hereof.
“Demand Notes” shall
mean the demand promissory notes issued by Best to Xxxxx and Xxxxxx on the
Closing Date, having an aggregate principal amount equal to $24,050,000, and
which will be repaid with the proceeds of the initial Advances incurred by the
Borrowers under this Agreement on the Closing Date.
“Depository Accounts”
shall have the meaning set forth in Section 4.15(h) hereof.
“Documents” shall have
the meaning set forth in Section 8.1(c) hereof.
“Dollar” and the sign
“$” shall mean
lawful money of the United States of America.
7
“Domestic Rate Loan”
shall mean any Advance that bears interest based upon the Alternate Base
Rate.
“Drawing Date” shall
have the meaning set forth in Section 2.12(b) hereof.
“Drill Site Services
Acquisition” shall mean the acquisition by Best of substantially all of
the assets of Drill Site Services & Investments, LLC, a Wyoming limited
liability company, pursuant to the Drill Site Services Acquisition
Agreement.
“Drill Site Services
Acquisition Agreement” shall mean the Asset Purchase Agreement to be
entered into after the Closing Date by and among Best, Drill Site Services &
Investments, LLC, a Wyoming limited liability company, and Xxxx Xxxxxx, a
resident of Moab, Utah, and all bills of sale, disclosure schedules and
certificates related thereto.
“Drill Site Services
Acquisition Documents” shall mean, collectively, (i) Drill Site Services
Acquisition Agreement, (ii) the Employment Agreement, by and between Best and
Xxxx Xxxxxx, and (iii) the Noncompetition, Nondisclosure and Nonsolicitation
Agreement by and between Best and Xxxx Xxxxxx.
“Early Termination
Date” shall have the meaning set forth in Section 13.1
hereof.
“Earnings Before Interest and
Taxes” shall mean for any period the sum of (i) net income (or loss) of
Borrowers on a Consolidated Basis for such period (excluding extraordinary
gains), plus (ii) all interest expense of Borrowers on a Consolidated Basis for
such period, plus (iii) all charges against income of Borrowers on a
Consolidated Basis for such period for federal, state and local taxes actually
paid.
“EBITDA” shall mean
for any period the sum of (i) Earnings Before Interest and Taxes for such period
plus (ii) depreciation expenses for such period, plus (iii) amortization
expenses for such period.
“Eligible Equipment”
shall mean and include Equipment (other than Rig Fleet Equipment), owned by Best
(but only to the extent acquired in the ARH Acquisition or after the date of the
Second Acquisitions) and BWS, which Agent, in its reasonable credit judgment,
shall not deem ineligible Equipment, based on such considerations as Agent may
from time to time deem appropriate including whether the Equipment is subject to
a perfected, first priority security interest in favor of Agent and no other
Lien (other than a Permitted Encumbrance). In addition, Equipment
shall not be Eligible Equipment if (i) it is not in good condition, ordinary
wear and tear excepted, (ii) it is unmerchantable or does not conform to all
standards imposed by any Governmental Body which has regulatory authority over
such Equipment or the use or sale thereof, (iii) is located outside the
continental United States or at a location that is not otherwise in compliance
with this Agreement; (iv) is subject to any agreement that limits, conditions or
restricts any Borrower’s or Agent’s right to sell or otherwise dispose of such
Equipment, unless Agent is a party to such agreement; (v) is situated at a
location not owned by a Borrower unless the owner or occupier of such location
has executed in favor of Agent a Lien Waiver Agreement or is a customer and has
entered into a contract with Best or BWS reasonably acceptable to Agent; (vi) is
covered by a negotiable document of title or (vii) is not covered by insurance
to the extent required under this Agreement.
8
“Eligible Receivables”
shall mean and include with respect to each Borrower, each Receivable of such
Borrower arising in the Ordinary Course of Business and which Agent, in its
reasonable credit judgment, shall deem to be an Eligible Receivable, based on
such considerations as Agent may from time to time deem
appropriate. A Receivable shall not be deemed eligible unless such
Receivable is subject to Agent’s first priority perfected security interest and
no other Lien (other than Permitted Encumbrances), and is evidenced by an
invoice or other documentary evidence satisfactory to Agent. In
addition, no Receivable shall be an Eligible Receivable if:
(a) it arises
out of a sale made by any Borrower to an Affiliate of any Borrower or to a
Person controlled by an Affiliate of any Borrower;
(b) it is due
or unpaid more than ninety (90) days after the original invoice
date;
(c) fifty
percent (50%) or more of the Receivables from such Customer are not deemed
Eligible Receivables hereunder. Such percentage may, in Agent’s sole
discretion, be increased or decreased from time to time;
(d) any
covenant, representation or warranty contained in this Agreement with respect to
such Receivable has been breached;
(e) the
Customer shall (i) apply for, suffer, or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property or call a meeting of its
creditors, (ii) admit in writing its inability, or be generally unable, to pay
its debts as they become due or cease operations of its present business, (iii)
make a general assignment for the benefit of creditors, (iv) commence a
voluntary case under any state or federal bankruptcy laws (as now or hereafter
in effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a petition
seeking to take advantage of any other law providing for the relief of debtors,
(vii) acquiesce to, or fail to have dismissed, any petition which is filed
against it in any involuntary case under such bankruptcy laws, or (viii) take
any action for the purpose of effecting any of the foregoing;
(f) the sale
is to a Customer outside the continental United States of America, unless the
sale is on letter of credit, guaranty or acceptance terms, in each case
acceptable to Agent in its sole discretion;
(g) the sale
to the Customer is on a xxxx-and-hold, guaranteed sale, sale-and-return, sale on
approval, consignment or any other repurchase or return basis or is evidenced by
chattel paper;
(h) Agent
believes, in its sole judgment, that collection of such Receivable is insecure
or that such Receivable may not be paid by reason of the Customer’s financial
inability to pay;
(i) the
Customer is the United States of America, any state or any department, agency or
instrumentality of any of them, unless the applicable Borrower assigns its right
to payment of such Receivable to Agent pursuant to the Assignment of Claims Act
of 1940, as
9
amended
(31 U.S.C. Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.) or has
otherwise complied with other applicable statutes or ordinances;
(j) the goods
giving rise to such Receivable have not been delivered to and accepted by the
Customer or the services giving rise to such Receivable have not been performed
by the applicable Borrower and accepted by the Customer or the Receivable
otherwise does not represent a final sale;
(k) the
Receivables of the Customer exceed a credit limit determined by Agent, in its
sole discretion, to the extent such Receivable exceeds such limit;
(l) the
Receivable is subject to any offset, deduction, defense, dispute, or
counterclaim, the Customer is also a creditor or supplier of a Borrower or the
Receivable is contingent in any respect or for any reason;
(m) the
applicable Borrower has made any agreement with any Customer for any deduction
therefrom, except for discounts or allowances made in the Ordinary Course of
Business for prompt payment, all of which discounts or allowances are reflected
in the calculation of the face value of each respective invoice related
thereto;
(n) any
return, rejection or repossession of the merchandise has occurred or the
rendition of services has been disputed; or
(o) such
Receivable is not payable to a Borrower.
“Eligible Rig Fleet
Equipment” shall mean and include Rig Fleet Equipment owned by BWS, which
Agent, in its reasonable credit judgment, shall not deem ineligible Rig Fleet
Equipment, based on such considerations as Agent may from time to time deem
appropriate, including whether the Rig Fleet Equipment is subject to a
perfected, first priority security interest in favor of Agent and no other Lien
(other than a Permitted Encumbrance). In addition, Rig Fleet
Equipment shall not be Eligible Rig Fleet Equipment if it (i) is a vehicle
or other rolling stock not constituting Rig Fleet Equipment, (ii) does not
conform in all material respects to all standards imposed by any Governmental
Body which has regulatory authority over such goods or the use or sale thereof,
(iii) is located at a location that is not otherwise in compliance with
this Agreement, (iv) is subject to any agreement that limits, conditions or
restricts any Borrower’s or Agent’s right to sell or otherwise dispose of such
Rig Fleet Equipment, unless Agent is a party to such agreement; (v) is
situated at a location not owned by a Borrower unless the owner or occupier of
such location has executed in favor of Agent a Lien Waiver Agreement (unless
otherwise agreed by Agent) or is a customer and has entered into a contract with
BWS acceptable to Agent in its sole discretion, (vi) is covered by a
negotiable document of title; (vii) is not covered by insurance to the
extent required under this Agreement, or (viii) is not operable and
otherwise in good working condition. No Rig Fleet Equipment acquired
by BWS after the Closing Date shall be Eligible Rig Fleet Equipment unless a new
OLV Appraisal is completed valuing such new Rig Fleet Equipment and all existing
Rig Fleet Equipment and other Equipment of the Borrowers.
“Environmental
Complaint” shall have the meaning set forth in Section 4.19(d)
hereof.
10
“Environmental Laws”
shall mean all federal, state and local environmental, land use, zoning, health,
chemical use, safety and sanitation laws, statutes, ordinances and codes
relating to the protection of the environment and/or governing the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of Hazardous Substances and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives of federal, state
and local governmental agencies and authorities with respect
thereto.
“Equipment” shall mean
and include as to each Borrower all of such Borrower’s goods whether now owned
or hereafter acquired and wherever located including all equipment, machinery,
apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts,
accessories and all replacements and substitutions therefor or accessions
thereto.
“Equipment Advance
Rate” shall mean initially, 70%, but on each Excess Cash Flow Payment
Date shall be reduced by a percentage amount (rounded to the nearest one
hundredth of one percent) equal to the quotient obtained by dividing (x) the
Excess Cash Flow Prepayment Amount on such date by (y) $200,000, provided that
the Equipment Advance Rate shall not be reduced below 50% by operation of this
definition. For example, if the Equipment Advance Rate was 70% and
the Excess Cash Flow Prepayment Amount on a Excess Cash Flow Payment Date was
$1,000,000, the Equipment Advance Rate would be reduced by 5 percentage points,
to 65% on such date.
“Equity Interests” of
any Person shall mean any and all shares, rights to purchase, options, warrants,
general, limited or limited liability partnership interests, member interests,
participation or other equivalents of or interest in (regardless of how
designated) equity of such Person, whether voting or nonvoting, including common
stock, preferred stock, convertible securities 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).
“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as amended from time to time
and the rules and regulations promulgated thereunder.
“Eurodollar Rate”
shall mean for any Eurodollar Rate Loan for the then current Interest Period
relating thereto the interest rate per annum determined by Agent by dividing (i)
the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute
Bloomberg page that displays rates at which US dollar deposits are offered by
leading banks in the London interbank deposit market), or the rate which is
quoted by another source selected by Agent which has been approved by the
British Bankers’ Association as an authorized information vendor for the purpose
of displaying rates at which US dollar deposits are offered by leading banks in
the London interbank deposit market (an “Alternative Source”), at approximately
11:00 a.m., London time two (2) Business Days prior to the first day of such
Interest Period (or if there shall at any time, for any reason, no longer exist
a Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a
comparable replacement rate determined by the Agent at such time (which
determination shall be conclusive absent manifest error)) for an amount
comparable to such Eurodollar Rate Loan and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number equal to 1.00 minus
the Reserve Percentage.
11
The
Eurodollar Rate shall be adjusted with respect to any Eurodollar Rate Loan that
is outstanding on the effective date of any change in the Reserve Percentage as
of such effective date. The Agent shall give prompt notice to the
Borrowing Agent of the Eurodollar Rate as determined or adjusted in accordance
herewith, which determination shall be conclusive absent manifest
error.
“Eurodollar Rate Loan”
shall mean an Advance at any time that bears interest based on the Eurodollar
Rate.
“Event of Default”
shall have the meaning set forth in Article X hereof.
“Excess Cash Flow” for
any fiscal period shall mean EBITDA of Borrowers on a Consolidated Basis for
such fiscal period minus Unfinanced Capital Expenditures made by Borrowers on a
Consolidated Basis during such fiscal period minus taxes actually paid by
Borrowers on a Consolidated Basis during such fiscal period minus payments of
principal of the Term Loan and interest on indebtedness for borrowed money minus
all amounts paid to the holders of Best’s Series A Convertible Preferred Stock
in accordance with the provisions of the Certificate of Designation therefor as
in effect on the Closing Date, but only to the extent such payments are
permitted by Section 7.7 of this Agreement.
“Excess Cash
Flow Payment Amount” shall have the meaning set forth in Section 2.21(b)
hereof.
“Excess Cash
Flow Payment Date” shall have the meaning set forth in Section 2.21(b)
hereof.
“Exchange Act” shall
have the mean the Securities Exchange Act of 1934, as amended.
“Executive Order No.
13224” shall mean the Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, as the same has been, or shall hereafter be,
renewed, extended, amended or replaced.
“Federal Funds Effective
Rate” for any day shall mean the rate per annum (based on a year of 360
days and actual days elapsed and rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the “Federal Funds Effective
Rate” as of the date of this Agreement; provided, if such Federal Reserve Bank
(or its successor) does not announce such rate on any day, the "Federal Funds
Effective Rate" for such day shall be the Federal Funds Effective Rate for the
last day on which such rate was announced.
“Federal Funds Open
Rate” shall mean the rate per annum determined by the Agent in accordance
with its usual procedures (which determination shall be conclusive absent
manifest error) to be the "open" rate for federal funds transactions as of the
opening of business for federal funds transactions among members of the Federal
Reserve System arranged by federal funds brokers on such day, as quoted by
Xxxxxx Guybutler Corporation, any successor entity thereto, or any other broker
selected by the Agent, as set forth on the applicable Telerate display page;
provided, however; that if such day is not a Business Day, the Federal Funds
Open Rate for such day shall be the "open" rate on the immediately preceding
Business Day, or if no such rate shall be quoted by a Federal funds broker at
such time, such other rate as determined by the Agent in accordance with its
usual procedures.
12
“Fee Deferral Agreements” shall mean one or more
agreements to be entered into on the Closing Date by Best with Xxxxxx Xxxxxxx
Inc. and ECH Consulting, pursuant to which Xxxxxx Xxxxxxx Inc. and ECH
Consulting agree to defer certain fees related to the
Transactions.
“Fixed Charge Coverage
Ratio” shall mean and include, with respect to any fiscal period, the
ratio of (a) EBITDA minus Unfinanced Capital Expenditures made during such
period minus cash taxes paid during such period minus all dividends and
distributions paid during such period (including, without limitation, all
payments to the holders of the Series A Convertible Preferred Stock of Best) to
(b) all Senior Debt Payments during such period.
“Foreign Subsidiary”
of any Person, shall mean any Subsidiary of such Person that is not organized or
incorporated in the United States or any State or territory
thereof.
“Formula Amount” shall
have the meaning set forth in Section 2.1(a).
“Funded Debt” shall
mean, with respect to any Person, without duplication, all Indebtedness for
borrowed money evidenced by notes, bonds, debentures, or similar evidences of
Indebtedness that by its terms matures more than one year from, or is directly
or indirectly renewable or extendible at such Person’s option under a revolving
credit or similar agreement obligating the lender or lenders to extend credit
over a period of more than one year from the date of creation thereof, and
specifically including Capitalized Lease Obligations, current maturities of
long-term debt, revolving credit and short-term debt extendible beyond one year
at the option of the debtor, and also including, in the case of Borrower, the
Obligations and, without duplication, Indebtedness consisting of guaranties of
Funded Debt of other Persons.
“GAAP” shall mean
generally accepted accounting principles in the United States of America in
effect from time to time.
“General Intangibles”
shall mean and include as to each Borrower all of such Borrower’s general
intangibles, whether now owned or hereafter acquired, including all payment
intangibles, all choses in action, causes of action, corporate or other business
records, inventions, designs, patents, patent applications, equipment
formulations, manufacturing procedures, quality control procedures, trademarks,
tradenames, trademark applications, service marks, trade secrets, goodwill,
copyrights, design rights, software, computer information, source codes, codes,
records and updates, registrations, licenses, franchises, customer lists, tax
refunds, tax refund claims, computer programs, all claims under guaranties,
security interests or other security held by or granted to such Borrower to
secure payment of any of the Receivables by a Customer (other than to the extent
covered by Receivables) all rights of indemnification and all other intangible
property of every kind and nature (other than Receivables).
“Governmental Acts”
shall have the meaning set forth in Section 2.17.
“Governmental Body”
shall mean any nation or government, any state or other political subdivision
thereof or any entity, authority, agency, division or department exercising the
legislative, judicial, regulatory or administrative functions of or pertaining
to a government.
“Guarantor” shall mean
any Person who may hereafter guarantee payment or performance of the whole or
any part of the Obligations and “Guarantors” means collectively all such
Persons.
13
“Guarantor Security
Agreement” shall mean any Security Agreement executed by any Guarantor in
favor of Agent securing the Guaranty of such Guarantor, in form and substance
satisfactory to the Agent.
“Guaranty” shall mean
any guaranty of the obligations of Borrowers executed by a Guarantor in favor of
Agent for its benefit and for the ratable benefit of Lenders, in form and
substance satisfactory to the Agent.
“Hazardous Discharge”
shall have the meaning set forth in Section 4.19(d) hereof.
“Hazardous Substance”
shall mean, without limitation, any flammable explosives, radon, radioactive
materials, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum and petroleum products, methane, hazardous materials,
Hazardous Wastes, hazardous or Toxic Substances or related materials as defined
in CERCLA, the Hazardous Materials Transportation Act, as amended (49 U.S.C.
Sections 1801, et seq.), RCRA, or any other applicable Environmental
Law and in the regulations adopted pursuant thereto.
“Hazardous Wastes”
shall mean all waste materials subject to regulation under CERCLA, RCRA or
applicable state law, and any other applicable Federal and state laws now in
force or hereafter enacted relating to hazardous waste disposal.
“Hedge Liabilities”
shall have the meaning provided in the definition of “Lender-Provided Interest
Rate Hedge”.
“Indebtedness” of a
Person at a particular date shall mean all obligations of such Person which in
accordance with GAAP would be classified upon a balance sheet as liabilities
(except capital stock and surplus earned or otherwise) and in any event, without
limitation by reason of enumeration, shall include all indebtedness, debt and
other similar monetary obligations of such Person whether direct or guaranteed,
and all premiums, if any, due at the required prepayment dates of such
indebtedness, and all indebtedness secured by a Lien on assets owned
by such Person, whether or not such indebtedness actually shall have been
created, assumed or incurred by such Person. Any indebtedness of such
Person resulting from the acquisition by such Person of any assets subject to
any Lien shall be deemed, for the purposes hereof, to be the equivalent of the
creation, assumption and incurring of the indebtedness secured thereby, whether
or not actually so created, assumed or incurred.
“Ineligible Security”
shall mean any security which may not be underwritten or dealt in by member
banks of the Federal Reserve System under Section 16 of the Banking Act of 1933
(12 U.S.C. Section 24, Seventh), as amended.
“Initial Acquisition
Documents” shall mean collectively, the BWS Acquisition Documents and the
BBD Acquisition Documents.
“Initial Acquisitions”
shall mean, collectively, the BWS Acquisition and the BBD
Acquisition.
14
“Intellectual
Property” shall mean property constituting under any Applicable Law a
patent, patent application, copyright, trademark, service xxxx, trade name, mask
work, trade secret or license or other right to use any of the
foregoing.
“Intellectual Property
Claim” shall mean the assertion by any Person of a claim (whether
asserted in writing, by action, suit or proceeding or otherwise) that any
Borrower’s ownership, use, marketing, sale or distribution of any Inventory,
Equipment, Intellectual Property or other property or asset is violative of any
ownership of or right to use any Intellectual Property of such
Person.
“Interest Period”
shall mean the period provided for any Eurodollar Rate Loan pursuant to Section
2.2(b).
“Interest Rate Hedge”
shall mean an interest rate exchange, collar, cap, swap, adjustable strike cap,
adjustable strike corridor or similar agreements entered into by any Borrower or
its Subsidiaries in order to provide protection to, or minimize the impact upon,
such Borrower, any Guarantor and/or their respective Subsidiaries of increasing
floating rates of interest applicable to Indebtedness.
“Inventory” shall mean
and include as to each Borrower all of such Borrower’s now owned or hereafter
acquired goods, merchandise and other personal property, wherever located, to be
furnished under any consignment arrangement, contract of service or held for
sale or lease, all raw materials, work in process, finished goods and materials
and supplies of any kind, nature or description which are or might be used or
consumed in such Borrower’s business or used in selling or furnishing such
goods, merchandise and other personal property, and all documents of title or
other documents representing them.
“Investment Property”
shall mean and include as to each Borrower, all of such Borrower’s now owned or
hereafter acquired securities (whether certificated or uncertificated),
securities entitlements, securities accounts, commodities contracts and
commodities accounts.
“Issuer” shall mean
any Person who issues a Letter of Credit and/or accepts a draft pursuant to the
terms hereof.
“Leasehold Interests”
shall mean all of each Borrower’s right, title and interest in and to the
premises listed on Schedule 4.19.
“Lender” and “Lenders” shall have
the meaning ascribed to such term in the preamble to this Agreement and shall
include each Person which becomes a transferee, successor or assign of any
Lender.
“Lender-Provided Interest
Rate Hedge” shall mean an Interest Rate Hedge which is provided by any
Lender and with respect to which the Agent confirms meets the following
requirements: such Interest Rate Hedge (i) is documented in a standard
International Swap Dealer Association Agreement, (ii) provides for the method of
calculating the reimbursable amount of the provider's credit exposure in a
reasonable and customary manner, and (iii) is entered into for hedging (rather
than speculative) purposes. The liabilities of any Borrower to the
provider of any Lender-Provided Interest Rate Hedge (the “Hedge Liabilities”)
shall be
15
“Obligations”
hereunder, guaranteed obligations under any Guaranty and secured obligations
under any Guarantor Security Agreement and otherwise treated as Obligations for
purposes of each of the Other Documents. The Liens securing the Hedge
Liabilities shall be pari passu with the Liens securing all other Obligations
under this Agreement and the Other Documents.
“Letter of Credit
Fees” shall have the meaning set forth in Section 3.2.
“Letter of Credit
Borrowing” shall have the meaning set forth in Section
2.12(d).
“Letter of Credit
Sublimit” shall mean $0.
“Letters of Credit”
shall have the meaning set forth in Section 2.9.
“License Agreement”
shall mean any agreement between any Borrower and a Licensor pursuant to which
such Borrower is authorized to use any Intellectual Property in connection with
the manufacturing, marketing, sale or other distribution of any Inventory of
such Borrower or otherwise in connection with such Borrower’s business
operations.
“Licensor” shall mean
any Person from whom any Borrower obtains the right to use (whether on an
exclusive or non-exclusive basis) any Intellectual Property in connection with
such Borrower’s manufacture, marketing, sale or other distribution of any
Inventory or otherwise in connection with such Borrower’s business
operations.
“Licensor/Agent
Agreement” shall mean an agreement between Agent and a Licensor, in form
and content satisfactory to Agent, by which Agent is given the unqualified
right, vis-a-vis such Licensor, to enforce Agent’s Liens with respect to and to
dispose of any Borrower’s Inventory with the benefit of any Intellectual
Property applicable thereto, irrespective of such Borrower’s default under any
License Agreement with such Licensor.
“Lien” shall mean any
mortgage, deed of trust, pledge, hypothecation, assignment, security interest,
lien (whether statutory or otherwise), Charge, claim or encumbrance, or
preference, priority or other security agreement or preferential arrangement
held or asserted in respect of any asset of any kind or nature whatsoever
including any conditional sale or other title retention agreement, any lease
having substantially the same economic effect as any of the foregoing, and the
filing of, or agreement to give, any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction.
“Lien Waiver
Agreement” shall mean an agreement which is executed in favor of Agent by
a Person who owns or occupies premises at which any Collateral may be located
from time to time and by which such Person shall waive any Lien that such Person
may ever have with respect to any of the Collateral and shall authorize Agent
from time to time to enter upon the premises to inspect or remove the Collateral
from such premises or to use such premises to store or dispose of such
Inventory.
“Material Adverse
Effect” shall mean a material adverse effect on (a) the condition
(financial or otherwise), results of operations, assets, business, properties or
prospects of any Borrower or any Guarantor, (b) any Borrower’s ability to duly
and punctually pay or perform the Obligations in accordance with the terms
thereof, (c) the value of the Collateral, or Agent’s Liens
16
on the
Collateral or the priority of any such Lien or (d) the practical realization of
the benefits of Agent’s and each Lender’s rights and remedies under this
Agreement and the Other Documents.
“Maximum Face Amount”
shall mean, with respect to any outstanding Letter of Credit, the face amount of
such Letter of Credit including all automatic increases provided for in such
Letter of Credit, whether or not any such automatic increase has become
effective.
“Maximum Revolving Advance
Amount” shall mean $19,150,000.
“Maximum Undrawn
Amount” shall mean with respect to any outstanding Letter of Credit, the
amount of such Letter of Credit that is or may become available to be drawn,
including all automatic increases provided for in such Letter of Credit, whether
or not any such automatic increase has become effective.
“Minimum Rig
Utilization” shall mean, for any fiscal quarter, the ratio (expressed as
a percentage) of (a) the sum for all Rigs of the total days during such period
that each such Rig in the Borrowers’ Rig Fleet Equipment earned revenue to (b)
the sum for all Rigs of the total days that each such Rig in the Borrowers’ Rig
Fleet Equipment was available to earn revenue excluding days in which a Rig is
undergoing refurbishment, upgrades or other scheduled equipment maintenance
projects that are in the ordinary course of business consistent with reasonable
industry standards; provided, that, Borrowers will provide written notice to
Agent if such refurbishment, upgrade or other scheduled equipment maintenance
project causes any Rig to be unable to earn revenue for a period of more than 90
days.
“Mobile Rigs” shall
mean Rig Fleet Equipment and Rig Accessories which are attached or affixed to,
or comprise of an integral part of a vehicle, trailer or carrier.
“Modified Commitment Transfer
Supplement” shall have the meaning set forth in Section
16.3(d).
“Multiemployer Plan”
shall mean a “multiemployer plan” as defined in Sections 3(37) and 4001(a)(3) of
ERISA.
“Multiple Employer
Plan” shall mean a Plan which has two or more contributing sponsors
(including any Borrower or any member of the Controlled Group) at least two of
whom are not under common control, as such a plan is described in Section 4064
of ERISA.
“Note” shall mean
collectively, the Term Note and the Revolving Credit Note.
“Obligations” shall
mean and include any and all loans, advances, debts, liabilities, obligations,
covenants and duties owing by any Borrower to Lenders or Agent or to any other
direct or indirect subsidiary or affiliate of Agent or any Lender of any kind or
nature, present or future (including any interest or other amounts accruing
thereon after maturity, or after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding relating
to any Borrower, whether or not a claim for post-filing or post-petition
interest or other amounts is allowed in such proceeding), whether or not
evidenced by any note, guaranty or other instrument, whether arising under any
agreement, instrument or document, (including this Agreement and the Other
Documents) whether or not for the payment of money,
17
whether
arising by reason of an extension of credit, opening of a letter of credit,
loan, equipment lease or guarantee, under any interest or currency swap, future,
option or other similar agreement, or in any other manner, whether arising out
of overdrafts or deposit or other accounts or electronic funds transfers
(whether through automated clearing houses or otherwise) or out of the Agent’s
or any Lenders non-receipt of or inability to collect funds or otherwise not
being made whole in connection with depository transfer check or other similar
arrangements, whether direct or indirect (including those acquired by assignment
or participation), absolute or contingent, joint or several, due or to become
due, now existing or hereafter arising, contractual or tortious, liquidated or
unliquidated, regardless of how such indebtedness or liabilities arise or by
what agreement or instrument they may be evidenced or whether evidenced by any
agreement or instrument, including, but not limited to, any and all of any
Borrower’s Indebtedness and/or liabilities under this Agreement, the Other
Documents or under any other agreement between Agent or Lenders and any Borrower
and any amendments, extensions, renewals or increases and all costs and expenses
of Agent and any Lender incurred in the documentation, negotiation,
modification, enforcement, collection or otherwise in connection with any of the
foregoing, including but not limited to reasonable attorneys’ fees and expenses
and all obligations of any Borrower to Agent or Lenders to perform acts or
refrain from taking any action.
“OLV Appraisal” shall
have the meaning set forth in Section 9.16.
“Orderly Liquidation
Value” shall mean, as of any date, the orderly liquidation value of the
Rig Fleet Equipment and other Equipment as determined by the most recent OLV
Appraisal.
“Ordinary Course of
Business” shall mean with respect to any Borrower, the ordinary course of
such Borrower’s business as conducted on the Closing Date.
“Original Owners”
shall mean the Persons set forth on Schedule 1.2(a).
“Other Documents”
shall mean the Note, the Questionnaire, any Guaranty, any Guarantor Security
Agreement, any Lender-Provided Interest Rate Hedge, the Cash Collateral Agreement and any and all
other agreements, instruments and documents, including guaranties, pledges,
powers of attorney, consents, interest or currency swap agreements or other
similar agreements and all other writings heretofore, now or hereafter executed
by any Borrower or any Guarantor and/or delivered to Agent or any Lender in
respect of the transactions contemplated by this Agreement.
“Out-of-Formula Loans”
shall have the meaning set forth in Section 16.2(b).
“Parent” of any Person
shall mean a corporation or other entity owning, directly or indirectly at least
50% of the shares of stock or other ownership interests having ordinary voting
power to elect a majority of the directors of the Person, or other Persons
performing similar functions for any such Person.
“Participant” shall
mean each Person who shall be granted the right by any Lender to participate in
any of the Advances and who shall have entered into a participation agreement in
form and substance satisfactory to such Lender.
“Participation
Advance” shall have the meaning set forth in Section
2.12(d).
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“Participation
Commitment” shall mean each Lender’s obligation to buy a participation of
the Letters of Credit issued hereunder.
“Payee” shall have the
meaning set forth in Section 3.10.
“Payment Office” shall
mean initially Xxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000;
thereafter, such other office of Agent, if any, which it may designate by notice
to Borrowing Agent and to each Lender to be the Payment Office.
“PBGC” shall mean the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title
IV of ERISA or any successor.
“Pension Benefit Plan”
shall mean at any time any employee pension benefit plan (including a Multiple
Employer Plan, but not a Multiemployer Plan) which is covered by Title IV of
ERISA or is subject to the minimum funding standards under Section 412 of the
Code and either (i) is maintained by any member of the Controlled Group for
employees of any member of the Controlled Group; or (ii) has at any time within
the preceding five years been maintained by any entity which was at such time a
member of the Controlled Group for employees of any entity which was at such
time a member of the Controlled Group.
“Permitted
Encumbrances” shall mean (a) Liens in favor of Agent for the benefit of
Agent and Lenders; (b) Liens for taxes, assessments or other governmental
charges not delinquent or Properly Contested; (c) Liens disclosed in the
financial statements referred to in Section 5.5, the existence of which Agent
has consented to in writing, provided that such Liens shall secure only those
obligations which they secure on the Closing Date (and extensions, renewals and
refinancings of such obligations permitted by Section 7.8) and shall not
subsequently apply to any other property or assets of any Borrower or any
Guarantor ; (d) deposits or pledges to secure obligations under worker’s
compensation, social security or similar laws, or under unemployment insurance;
(e) deposits or pledges to secure bids, tenders, contracts (other than contracts
for the payment of money), leases, statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the Ordinary Course of
Business; (f) Liens arising by virtue of the rendition, entry or issuance
against any Borrower or any Subsidiary, or any property of any Borrower or any
Subsidiary, of any judgment, writ, order, or decree for so long as each such
Lien (a) is in existence for less than 20 consecutive days after it first arises
or is being Properly Contested and (b) is at all times junior in priority to any
Liens in favor of Agent; (g) mechanics’, workers’, materialmen’s or other like
Liens arising in the Ordinary Course of Business with respect to obligations
which are not due or which are being contested in good faith by the applicable
Borrower; (h) Liens placed upon fixed assets hereafter acquired to secure a
portion of the purchase price thereof, provided that (x) any such lien shall not
encumber any other property of any Borrower and (y) the aggregate amount of
Indebtedness secured by such Liens incurred as a result of such purchases during
any fiscal year shall not exceed the amount provided for in Section 7.6; and (i)
Liens disclosed on Schedule 1.2(b), provided that such Liens shall secure only
those obligations which they secure on the Closing Date (and extensions,
renewals and refinancings of such obligations permitted by Section 7.8) and
shall not subsequently apply to any other property or assets of any Borrower or
any Guarantor; (j) easements, rights-of-way, restrictions, encroachments,
protrusions and other similar encumbrances and minor title defects affecting
real property of any Borrower which, in the
19
aggregate,
do not in any case materially interfere with the Ordinary Course of Business;
(k) Liens existing on property at the time of its acquisition; provided that (i)
such Lien was not created in contemplation of such acquisition, and (ii) the
Indebtedness secured thereby is permitted under Section 7.8; and (l) other Liens
securing Indebtedness outstanding in an aggregate principal amount not to exceed
$500,000.
“Person” shall mean
any individual, sole proprietorship, partnership, corporation, business trust,
joint stock company, trust, unincorporated organization, association, limited
liability company, limited liability partnership, institution, public benefit
corporation, joint venture, entity or Governmental Body (whether federal, state,
county, city, municipal or otherwise, including any instrumentality, division,
agency, body or department thereof).
“Plan” shall mean any
employee benefit plan within the meaning of Section 3(3) of ERISA (including a
Pension Benefit Plan), maintained for employees of any Borrower or any member of
the Controlled Group or any such Plan to which any Borrower or any member of the
Controlled Group is required to contribute on behalf of any of its
employees.
“PNC” shall have the
meaning set forth in the preamble to this Agreement and shall extend to all of
its successors and assigns.
“Pro Forma Balance
Sheet” shall have the meaning set forth in Section 5.5(a)
hereof.
“Pro Forma Financial
Statements” shall have the meaning set forth in Section 5.5(b)
hereof.
“Properly Contested”
shall mean, in the case of any Indebtedness or Lien, as applicable, of any
Person (including any taxes) that is not paid as and when due or payable by
reason of such Person’s bona fide dispute concerning its liability to pay same
or concerning the amount thereof, (i) such Indebtedness or Lien, as applicable,
is being properly contested in good faith by appropriate proceedings promptly
instituted and diligently conducted; (ii) such Person has established
appropriate reserves as shall be required in conformity with GAAP; (iii) the
non-payment of such Indebtedness will not have a Material Adverse Effect and
will not result in the forfeiture of any assets of such Person; (iv) no Lien is
imposed upon any of such Person’s assets with respect to such Indebtedness
unless such Lien is at all times junior and subordinate in priority to the Liens
in favor of the Agent (except only with respect to property taxes that have
priority as a matter of applicable state law) and enforcement of such Lien is
stayed during the period prior to the final resolution or disposition of such
dispute; (v) if such Indebtedness or Lien, as applicable, results from, or is
determined by the entry, rendition or issuance against a Person or any of its
assets of a judgment, writ, order or decree, enforcement of such judgment, writ,
order or decree is stayed pending a timely appeal or other judicial review; and
(vi) if such contest is abandoned, settled or determined adversely (in whole or
in part) to such Person, such Person forthwith pays such Indebtedness and all
penalties, interest and other amounts due in connection therewith.
“Projections” shall
have the meaning set forth in Section 5.5(b) hereof.
“Purchasing CLO” shall
have the meaning set forth in Section 16.3(d) hereof.
20
“Purchasing Lender”
shall have the meaning set forth in Section 16.3(c) hereof.
“Questionnaire” shall
mean the Documentation Information Questionnaire and the responses thereto
provided by Borrowing Agent and delivered to Agent.
“RCRA” shall mean the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., as same may
be amended from time to time.
“Real Property” shall
mean all of each Borrower’s right, title and interest in and to the owned and
leased premises identified on Schedule 4.19 hereto or which is hereafter owned
or leased by any Borrower.
“Receivables” shall
mean and include, as to each Borrower, all of such Borrower’s accounts, contract
rights, instruments (including those evidencing indebtedness owed to such
Borrower by its Affiliates), documents, chattel paper (including electronic
chattel paper), general intangibles relating to accounts, drafts and
acceptances, credit card receivables and all other forms of obligations owing to
such Borrower arising out of or in connection with the sale or lease of
Inventory or the rendition of services, all supporting obligations, guarantees
and other security therefor, whether secured or unsecured, now existing or
hereafter created, and whether or not specifically sold or assigned to Agent
hereunder.
“Receivables Advance
Rate” shall have the meaning set forth in Section 2.1(a)(y)(i)
hereof.
“Register” shall have
the meaning set forth in Section 16.3(e).
“Reimbursement
Obligation” shall have the meaning set forth in Section
2.12(b)hereof.
“Release” shall have
the meaning set forth in Section 5.7(c)(i) hereof.
“Reportable Event”
shall mean a reportable event described in Section 4043(c) of ERISA or the
regulations promulgated thereunder.
“Required Lenders”
shall mean Lenders holding greater than fifty percent (50%) of the Advances and,
if no Advances are outstanding, shall mean Lenders holding greater fifty percent
(50%) of the Commitment Percentages; provided, however, if there are fewer than
three (3) Lenders, Required Lenders shall mean all Lenders.
“Reserve Percentage”
shall mean as of any day the maximum percentage in effect on such day as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency
funding (currently referred to as “Eurocurrency Liabilities”.
“Revolving Advances”
shall mean Advances made other than Letters of Credit and the Term
Loan.
21
“Revolving Credit
Note” shall mean, collectively, the promissory notes referred to in
Section 2.1(a) hereof.
“Revolving Interest
Rate” shall mean an interest rate per annum equal to (a) the sum of the
Alternate Base Rate plus one percent (1.0%) with respect to Domestic Rate Loans
and (b) the sum of the Eurodollar Rate plus three percent (3.0%) with respect to
Eurodollar Rate Loans.
“Rig(s)” shall mean
any drilling and workover rigs held or owned by any Borrower.
“Rig Accessories”
shall mean tubulars, pumps, drilling equipment, machinery, equipment and parts
and all other equipment ancillary to Rig Fleet Equipment.
“Rig Fleet Equipment”
shall mean any Rigs, together with all Rig Accessories and related parts, held
or owned by any Borrower.
“SEC” shall mean the
Securities and Exchange Commission or any successor thereto.
“Second Acquisition
Documents” shall mean collectively, the ARH Acquisition Documents, BB
Drilling Acquisition Documents and the Drill Site Services Acquisition
Documents.
“Second Acquisitions”
shall mean, collectively, the ARH Acquisition, the BB Drilling Acquisition and
the Drill Site Services Acquisition.
“Section 20
Subsidiary” shall mean the Subsidiary of the bank holding company
controlling PNC, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible
Securities.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Senior Debt Payments”
shall mean and include all cash actually expended by any Borrower to make (a)
interest payments on any Advances hereunder, plus (b) scheduled principal
payments on the Term Loan, plus (c) payments for all fees, commissions and
charges set forth herein and with respect to any Advances, plus (d) capitalized
lease payments, plus (e) payments with respect to any other Indebtedness for
borrowed money.
“Series
A Convertible Preferred Stock” shall mean the Series A Convertible Preferred
Stock of Best issued on the Closing Date pursuant to those certain Stock
Subscription Agreements dated the Closing Date.
“Settlement Date”
shall mean the Closing Date and thereafter Wednesday or Thursday of each week or
more frequently if Agent deems appropriate unless such day is not a Business Day
in which case it shall be the next succeeding Business Day.
“Subsidiary” of any
Person shall mean a corporation or other entity of whose Equity Interests having
ordinary voting power (other than Equity Interests having such power only by
reason of the happening of a contingency) to elect a majority of the directors
of such corporation, or other Persons performing similar functions for such
entity, are owned, directly or indirectly, by such Person.
22
“Subsidiary Stock”
shall mean all of the issued and outstanding Equity Interests of any Subsidiary
owned by any Borrower (not to exceed 65% of the Equity Interests of any Foreign
Subsidiary).
“Term” shall have the
meaning set forth in Section 13.1 hereof.
“Term Loan” shall mean
the Advances made pursuant to Section 2.4 hereof.
“Term Loan Rate” shall
mean an interest rate per annum equal to (a) the sum of the Alternate Base Rate
plus one percent (1.0%) with respect to Domestic Rate Loans and (b) the sum of
the Eurodollar Rate plus three percent (3.0%) with respect to Eurodollar Rate
Loans.
“Term Note” shall
mean, collectively, the promissory notes described in Section 2.4
hereof.
“Termination Event”
shall mean (i) a Reportable Event with respect to any Plan or Multiemployer
Plan; (ii) the withdrawal of any Borrower or any member of the Controlled Group
from a Plan or Multiemployer Plan during a plan year in which such entity was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA; (iii) the
providing of notice of intent to terminate a Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of
proceedings to terminate a Plan or Multiemployer Plan; (v) any event or
condition (a) which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or
Multiemployer Plan, or (b) that may result in termination of a Multiemployer
Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete
withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of any
Borrower or any member of the Controlled Group from a Multiemployer
Plan.
“Toxic Substance”
shall mean and include any material present on the Real Property or the
Leasehold Interests which has been shown to have significant adverse effect on
human health or which is subject to regulation under the Toxic Substances
Control Act (TSCA), 15 U.S.C. §§ 2601 et seq., applicable state law, or any
other applicable Federal or state laws now in force or hereafter enacted
relating to toxic substances. “Toxic Substance” includes but is not
limited to asbestos, polychlorinated biphenyls (PCBs) and lead-based
paints.
“Trading with the Enemy
Act” shall mean the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
enabling legislation or executive order relating thereto.
“Transactions” shall
have the meaning set forth in Section 5.5 hereof.
“Transferee” shall
have the meaning set forth in Section 16.3(d) hereof.
“Undrawn Availability”
at a particular date shall mean an amount equal to (a) the lesser of (i) the
Formula Amount or (ii) the Maximum Revolving Advance Amount, minus (b) the sum
of (i) the outstanding amount of Advances (other than the Term Loan) plus (ii)
all amounts due and owing to any Borrower’s trade creditors which are more than
sixty (60) days past due, plus (iii) fees and expenses for which Borrowers are
liable but which have not been paid or charged to Borrowers’
Account..
23
“Unfinanced Capital
Expenditures” shall mean all Capital Expenditures of Borrower other than
those made utilizing financing provided by the applicable seller or third party
lenders. For the avoidance of doubt, Capital Expenditures made by a
Borrower utilizing Revolving Advances shall be deemed Unfinanced Capital
Expenditures.
“Uniform Commercial
Code” shall have the meaning set forth in Section 1.3
hereof.
“USA PATRIOT Act”
shall mean the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as
the same has been, or shall hereafter be, renewed, extended, amended or
replaced.
“Week” shall mean the
time period commencing with the opening of business on a Wednesday and ending on
the end of business the following Tuesday.
1.3. Uniform Commercial Code
Terms. All terms used herein and defined in the Uniform
Commercial Code as adopted in the State of New York from time to time (the
“Uniform Commercial Code”) shall have the meaning given therein unless otherwise
defined herein. Without limiting the foregoing, the terms “accounts”,
“chattel paper”, “instruments”, “general intangibles”, “goods”, “payment
intangibles”, “proceeds”, “supporting obligations”, “securities”, “investment
property”, “documents”, “deposit accounts”, “software”, “letter of credit
rights”, “inventory”, “equipment” and “fixtures”, as and when used in the
description of Collateral shall have the meanings given to such terms in
Articles 8 or 9 of the Uniform Commercial Code. To the extent the
definition of any category or type of collateral is expanded by any amendment,
modification or revision to the Uniform Commercial Code, such expanded
definition will apply automatically as of the date of such amendment,
modification or revision.
1.4. Certain Matters of
Construction. The terms “herein”, “hereof” and “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any
particular section, paragraph or subdivision. All references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this
Agreement. Any pronoun used shall be deemed to cover all
genders. Wherever appropriate in the context, terms used herein in
the singular also include the plural and vice versa. All references
to statutes and related regulations shall include any amendments of same and any
successor statutes and regulations. Unless otherwise provided, all
references to any instruments or agreements to which Agent is a party, including
references to any of the Other Documents, shall include any and all
modifications or amendments thereto and any and all extensions or renewals
thereof. All references herein to the time of day shall mean the time
in New York, New York. Whenever the words “including” or “include”
shall be used, such words shall be understood to mean “including, without
limitation” or “include, without limitation”. A Default or Event of
Default shall be deemed to exist at all times during the period commencing on
the date that such Default or Event of Default occurs to the date on which such
Default or Event of Default is waived in writing pursuant to this Agreement or,
in the case of a Default, is cured within any period of cure expressly provided
for in this Agreement; and an Event of Default shall “continue” or be
“continuing” until such Event of Default has been waived in writing by the
Required Lenders. Any Lien referred to in this Agreement or any of
the Other Documents as having been created in favor of Agent, any agreement
entered into by Agent pursuant to this Agreement or any of the Other Documents,
any payment made by or to or funds received by
24
Agent
pursuant to or as contemplated by this Agreement or any of the Other Documents,
or any act taken or omitted to be taken by Agent, shall, unless otherwise
expressly provided, be created, entered into, made or received, or taken or
omitted, for the benefit or account of Agent and Lenders. Wherever the phrase
“to the best of Borrowers’ knowledge” or words of similar import relating to the
knowledge or the awareness of any Borrower are used in this Agreement or Other
Documents, such phrase shall mean and refer to (i) the actual knowledge of a
senior officer of any Borrower or (ii) the knowledge that a senior officer would
have obtained if he had engaged in good faith and diligent performance of his
duties, including the making of such reasonably specific inquiries as may be
necessary of the employees or agents of such Borrower and a good faith attempt
to ascertain the existence or accuracy of the matter to which such phrase
relates. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or otherwise
within the limitations of, another covenant shall not avoid the occurrence of a
default if such action is taken or condition exists. In addition, all
representations and warranties hereunder shall be given independent effect so
that if a particular representation or warranty proves to be incorrect or is
breached, the fact that another representation or warranty concerning the same
or similar subject matter is correct or is not breached will not affect the
incorrectness of a breach of a representation or warranty
hereunder.
II. ADVANCES,
PAYMENTS.
2.1. Revolving
Advances.
(a) Amount of Revolving
Advances. Subject to the terms and conditions set forth in
this Agreement, including Section 2.1(b), each Lender, severally and not
jointly, will make Revolving Advances to Borrowers in aggregate amounts
outstanding at any time equal to such Lender’s Commitment Percentage of the
lesser of (x) the Maximum Revolving Advance Amount less the aggregate Maximum
Undrawn Amount of all outstanding Letters of Credit or (y) an amount
equal to the sum of:
(i) up to
85%, subject to the provisions of Section 2.1(b) hereof (“Receivables Advance
Rate”), of Eligible Receivables, plus
(ii) up to the
Equipment Advance Rate, subject to the provisions of Section 2.1(b) hereof, of
the Orderly Liquidation Value of the Eligible Equipment and Eligible Rig Fleet
Equipment, plus
(iii) up to
100%, subject to the provisions of Section 2.1(b) hereof (the “Cash Collateral
Advance Rate”), of the Cash Collateral Deposit, minus
(iv) the
aggregate Maximum Undrawn Amount of all outstanding Letters of Credit,
minus
(v) such
reserves as Agent may reasonably deem proper and necessary from time to time in
Agent’s reasonable credit judgment.
The
amount derived from the sum of (x) Sections 2.1(a)(y)(i), (ii) and (iii) minus
(y) Section 2.1 (a)(y)(v) at any time and from time to time shall be referred to
as the “Formula
25
Amount”. Notwithstanding
the foregoing, Advances against the Orderly Liquidation Value of modular homes
and related assets included as Eligible Equipment for purposes of calculating
the Formula Amount shall not exceed $3,000,000. The Revolving Advances shall be
evidenced by one or more secured promissory notes (collectively, the “Revolving
Credit Note”) substantially in the form attached hereto as Exhibit
2.1(a).
(b) Discretionary
Rights. The Advance Rates may be increased or decreased by
Agent at any time and from time to time in the exercise of its reasonable credit
judgment. Each Borrower consents to any such increases or decreases
and acknowledges that decreasing the Advance Rates or increasing or imposing
reserves may limit or restrict Advances requested by Borrowing
Agent. The rights of Agent under this subsection are subject to the
provisions of Section 16.2(b).
2.2. Procedure for Revolving
Advances Borrowing.
(a) Borrowing
Agent on behalf of any Borrower may notify Agent prior to 10:00 a.m. on a
Business Day of a Borrower’s request to incur, on that day, a Revolving Advance
hereunder. Should any amount required to be paid as interest
hereunder, or as fees or other charges under this Agreement or any other
agreement with Agent or Lenders, or with respect to any other Obligation, become
due, same shall be deemed a request for a Revolving Advance as of the date such
payment is due, in the amount required to pay in full such interest, fee, charge
or Obligation under this Agreement or any other agreement with Agent or Lenders,
and such request shall be irrevocable.
(b) Notwithstanding
the provisions of subsection (a) above, in the event any Borrower desires to
obtain a Eurodollar Rate Loan, Borrowing Agent shall give Agent written notice
by no later than 10:00 a.m. on the day which is three (3) Business Days prior to
the date such Eurodollar Rate Loan is to be borrowed, specifying (i) the date of
the proposed borrowing (which shall be a Business Day), (ii) the type of
borrowing and the amount on the date of such Advance to be borrowed, which
amount shall be a minimum of $100,000 and integral multiples of $100,000 in
excess thereof, and (iii) the duration of the first Interest Period
therefor. Interest Periods for Eurodollar Rate Loans shall be for
one, two or three months; provided, if an Interest Period would end on a day
that is not a Business Day, it shall end on the next succeeding Business Day
unless such day falls in the next succeeding calendar month in which case the
Interest Period shall end on the next preceding Business Day. No
Eurodollar Rate Loan shall be made available to any Borrower during the
continuance of a Default or an Event of Default. After giving effect
to each requested Eurodollar Rate Loan, including those which are converted from
a Domestic Rate Loan under Section 2.2(d), there shall not be outstanding more
than three (3) Eurodollar Rate Loans, in the aggregate.
(c) Each
Interest Period of a Eurodollar Rate Loan shall commence on the date such
Eurodollar Rate Loan is made and shall end on such date as Borrowing Agent may
elect as set forth in subsection (b)(iii) above provided that the exact length
of each Interest Period shall be determined in accordance with the practice of
the interbank market for offshore Dollar deposits and no Interest Period shall
end after the last day of the Term.
26
Borrowing
Agent shall elect the initial Interest Period applicable to a Eurodollar Rate
Loan by its notice of borrowing given to Agent pursuant to Section 2.2(b) or by
its notice of conversion given to Agent pursuant to Section 2.2(d), as the case
may be. Borrowing Agent shall elect the duration of each succeeding
Interest Period by giving irrevocable written notice to Agent of such duration
not later than 10:00 a.m. on the day which is three (3) Business Days prior to
the last day of the then current Interest Period applicable to such Eurodollar
Rate Loan. If Agent does not receive timely notice of the Interest
Period elected by Borrowing Agent, Borrowing Agent shall be deemed to have
elected to convert to a Domestic Rate Loan subject to Section 2.2(d)
hereinbelow.
(d) Provided
that no Event of Default shall have occurred and be continuing, Borrowing Agent
may, on the last Business Day of the then current Interest Period applicable to
any outstanding Eurodollar Rate Loan, or on any Business Day with respect to
Domestic Rate Loans, convert any such loan into a loan of another type in the
same aggregate principal amount provided that any conversion of a Eurodollar
Rate Loan shall be made only on the last Business Day of the then current
Interest Period applicable to such Eurodollar Rate Loan. If Borrowing
Agent desires to convert a loan, Borrowing Agent shall give Agent written notice
by no later than 10:00 a.m. (i) on the day which is three (3) Business Days’
prior to the date on which such conversion is to occur with respect to a
conversion from a Domestic Rate Loan to a Eurodollar Rate Loan, or (ii) on the
day which is one (1) Business Day prior to the date on which such conversion is
to occur with respect to a conversion from a Eurodollar Rate Loan to a Domestic
Rate Loan, specifying, in each case, the date of such conversion, the loans to
be converted and if the conversion is from a Domestic Rate Loan to any other
type of loan, the duration of the first Interest Period therefor.
(e) At its
option and upon written notice given prior to 10:00 a.m. (New York time) at
least three (3) Business Days’ prior to the date of such prepayment, any
Borrower may prepay the Eurodollar Rate Loans in whole at any time or in part
from time to time with accrued interest on the principal being prepaid to the
date of such repayment. Such Borrower shall specify the date of
prepayment of Advances which are Eurodollar Rate Loans and the amount of such
prepayment. In the event that any prepayment of a Eurodollar Rate
Loan is required or permitted on a date other than the last Business Day of the
then current Interest Period with respect thereto, such Borrower shall indemnify
Agent and Lenders therefor in accordance with Section 2.2(f)
hereof.
(f) Each
Borrower shall indemnify Agent and Lenders and hold Agent and Lenders harmless
from and against any and all losses or expenses that Agent and Lenders may
sustain or incur as a consequence of any prepayment, conversion of or any
default by any Borrower in the payment of the principal of or interest on any
Eurodollar Rate Loan or failure by any Borrower to complete a borrowing of, a
prepayment of or conversion of or to a Eurodollar Rate Loan after notice thereof
has been given, including, but not limited to, any interest payable by Agent or
Lenders to lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by Agent or any
Lender to Borrowing Agent shall be conclusive absent manifest
error.
27
(g) Notwithstanding
any other provision hereof, if any Applicable Law, or any change therein or in
the interpretation or application thereof, shall make it unlawful for any Lender
(for purposes of this subsection (g), the term “Lender” shall include any Lender
and the office or branch where any Lender or any corporation or bank controlling
such Lender makes or maintains any Eurodollar Rate Loans) to make or maintain
its Eurodollar Rate Loans, the obligation of Lenders to make Eurodollar Rate
Loans hereunder shall forthwith be cancelled and Borrowers shall, if any
affected Eurodollar Rate Loans are then outstanding, promptly upon request from
Agent, either pay all such affected Eurodollar Rate Loans or convert such
affected Eurodollar Rate Loans into loans of another type. If any
such payment or conversion of any Eurodollar Rate Loan is made on a day that is
not the last day of the Interest Period applicable to such Eurodollar Rate Loan,
Borrowers shall pay Agent, upon Agent’s request, such amount or amounts as may
be necessary to compensate Lenders for any loss or expense sustained or incurred
by Lenders in respect of such Eurodollar Rate Loan as a result of such payment
or conversion, including (but not limited to) any interest or other amounts
payable by Lenders to lenders of funds obtained by Lenders in order to make or
maintain such Eurodollar Rate Loan. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by
Lenders to Borrowing Agent shall be conclusive absent manifest
error.
2.3. Disbursement of Advance
Proceeds. All Advances shall be disbursed from whichever
office or other place Agent may designate from time to time and, together with
any and all other Obligations of Borrowers to Agent or Lenders, shall be charged
to Borrowers’ Account on Agent’s books. During the Term, Borrowers
may use the Revolving Advances by borrowing, prepaying and reborrowing, all in
accordance with the terms and conditions hereof. The proceeds of each
Revolving Advance requested by Borrowing Agent on behalf of any Borrower or
deemed to have been requested by any Borrower under Section 2.2(a) hereof shall,
with respect to requested Revolving Advances to the extent Lenders make such
Revolving Advances, be made available to the applicable Borrower on the day so
requested by way of credit to such Borrower’s operating account at PNC, or such
other bank as Borrowing Agent may designate following notification to Agent, in
immediately available federal funds or other immediately available funds or,
with respect to Revolving Advances deemed to have been requested by any
Borrower, be disbursed to Agent to be applied to the outstanding Obligations
giving rise to such deemed request.
2.4. Term
Loan. Subject to the terms and conditions of this Agreement,
each Lender, severally and not jointly, will make a Term Loan to Borrowers in
the sum equal to such Lender’s Commitment Percentage of the lesser of (x)
$5,850,000 and (y) 80% of the OLV of the equipment and machinery of BBD and Best
(in the case of Best, only to the extent such equipment or machinery is to be
acquired in the Drill Site Services Acquisition or BB Drilling Acquisition, and
expressly excluding any machinery and equipment to be acquired in the ARH
Acquisition) that is satisfactory to Agent in its reasonable credit
judgment. Subject to the terms and conditions of this Agreement, the
Term Loan shall be advanced in two draws, the first on the Closing Date, in an
amount equal to $2,850,000 and the second, on the date the Second
Acquisitions are consummated, in an amount equal
to $3,000,000. The Term Loan shall be, with respect to
principal, payable in sixty equal monthly installments (i.e., $97,500 per month
if the full $5,850,000 is advanced) commencing on March 1, 2008 and on the first
day of each
28
month
thereafter with the balance payable upon expiration of the Term, subject to
acceleration upon the occurrence of an Event of Default under this Agreement or
termination of this Agreement. The Term Loan shall be evidenced by
one or more secured promissory notes (collectively, the “Term Note”) in
substantially the form attached hereto as Exhibit 2.4.
2.5. Maximum
Advances. The aggregate balance of Revolving Advances
outstanding at any time shall not exceed the lesser of (a) the Maximum Revolving
Advance Amount or (b) the Formula Amount less, in each case, the aggregate
Maximum Undrawn Amount of all issued and outstanding Letters of
Credit.
2.6. Repayment of
Advances.
(a) The
Revolving Advances shall be due and payable in full on the last day of the Term
subject to earlier prepayment as herein provided. The Term Loan shall
be due and payable as provided in Section 2.4 hereof and in the Term Note,
subject to mandatory prepayments as herein provided.
(b) Each
Borrower recognizes that the amounts evidenced by checks, notes, drafts or any
other items of payment relating to and/or proceeds of Collateral may not be
collectible by Agent on the date received. In consideration of
Agent’s agreement to conditionally credit Borrowers’ Account as of the Business
Day on which Agent receives those items of payment, each Borrower agrees that,
in computing the charges under this Agreement, all items of payment shall be
deemed applied by Agent on account of the Obligations one (1) Business Day after
(i) the Business Day Agent receives such payments via wire transfer or
electronic depository check or (ii) in the case of payments received by Agent in
any other form, the Business Day such payment constitutes good funds in Agent’s
account. Agent is not, however, required to credit Borrowers’ Account
for the amount of any item of payment which is unsatisfactory to Agent and Agent
may charge Borrowers’ Account for the amount of any item of payment which is
returned to Agent unpaid.
(c) All
payments of principal, interest and other amounts payable hereunder, or under
any of the Other Documents shall be made to Agent at the Payment Office not
later than 1:00 P.M. (New York time) on the due date therefor in lawful money of
the United States of America in federal funds or other funds immediately
available to Agent. Agent shall have the right to effectuate payment
on any and all Obligations due and owing hereunder by charging Borrowers’
Account or by making Advances as provided in Section 2.2 hereof.
(d) Borrowers
shall pay principal, interest, and all other amounts payable hereunder, or under
any related agreement, without any deduction whatsoever, including, but not
limited to, any deduction for any setoff or counterclaim.
2.7. Repayment of Excess
Advances. The aggregate balance of Advances outstanding at any
time in excess of the maximum amount of Advances permitted hereunder shall be
immediately due and payable without the necessity of any demand, at the Payment
Office, whether or not a Default or Event of Default has occurred.
2.8. Statement of
Account. Agent shall maintain, in accordance with its
customary procedures, a loan account (“Borrowers’ Account”) in the name of
Borrowers in which shall be
29
recorded
the date and amount of each Advance made by Agent and the date and amount of
each payment in respect thereof; provided, however, the failure by Agent to
record the date and amount of any Advance shall not adversely affect Agent or
any Lender. Each month, Agent shall send to Borrowing Agent a
statement showing the accounting for the Advances made, payments made or
credited in respect thereof, and other transactions between Agent and Borrowers
during such month. The monthly statements shall be deemed correct and
binding upon Borrowers in the absence of manifest error and shall constitute an
account stated between Lenders and Borrowers unless Agent receives a written
statement of Borrowers’ specific exceptions thereto within thirty (30) days
after such statement is received by Borrowing Agent. The records of
Agent with respect to the loan account shall be conclusive evidence absent
manifest error of the amounts of Advances and other charges thereto and of
payments applicable thereto.
2.9. Letters of
Credit. Subject to the terms and conditions hereof, Agent
shall (a) issue or cause the issuance of standby and/or trade Letters of Credit
(“Letters of Credit”) for the account of any Borrower; provided, however, that
Agent will not be required to issue or cause to be issued any Letters of Credit
to the extent that the issuance thereof would then cause the sum of (i) the
outstanding Revolving Advances plus (ii) the Maximum Undrawn Amount of all
outstanding Letters of Credit to exceed the lesser of (x) the Maximum Revolving
Advance Amount or (y) the Formula Amount. The Maximum Undrawn Amount
of outstanding Letters of Credit shall not exceed in the aggregate at any time
the Letter of Credit Sublimit. All disbursements or payments related
to Letters of Credit shall be deemed to be Domestic Rate Loans consisting of
Revolving Advances and shall bear interest at the Revolving Interest Rate for
Domestic Rate Loans; Letters of Credit that have not been drawn upon shall not
bear interest.
2.10. Issuance of Letters of
Credit.
(a) Borrowing
Agent, on behalf of Borrowers, may request Agent to issue or cause the issuance
of a Letter of Credit by delivering to Agent at the Payment Office, prior to
10:00 a.m. (New York time), at least five (5) Business Days’ prior to
the proposed date of issuance, Agent’s form of Letter of Credit Application (the
“Letter of Credit Application”) completed to the satisfaction of Agent; and,
such other certificates, documents and other papers and information as Agent may
reasonably request. Borrowing Agent, on behalf of Borrowers, also has
the right to give instructions and make agreements with respect to any
application, any applicable letter of credit and security agreement, any
applicable letter of credit reimbursement agreement and/or any other applicable
agreement, any letter of credit and the disposition of documents, disposition of
any unutilized funds, and to agree with Agent upon any amendment, extension or
renewal of any Letter of Credit.
(b) Each
Letter of Credit shall, among other things, (i) provide for the payment of sight
drafts, other written demands for payment, or acceptances of usance drafts when
presented for honor thereunder in accordance with the terms thereof and when
accompanied by the documents described therein and (ii) have an expiry date not
later than twenty-four (24) months after such Letter of Credit’s date of
issuance and in no event later than the last day of the Term. Each
standby Letter of Credit shall be subject either to the Uniform Customs and
Practice for Documentary Credits as most recently published by the
International Chamber of Commerce at the time a Letter of Credit is issued (the
“UCP”) or the International
30
Standby
Practices (ISP98 International Chamber of Commerce Publication Number 590) (the
“ISP98 Rules”)), and any subsequent revision thereof at the time a standby
Letter of Credit is issued, as determined by Agent, and each trade Letter of
Credit shall be subject to the UCP.
(c) Agent
shall use its reasonable efforts to notify Lenders of the request by Borrowing
Agent for a Letter of Credit hereunder.
2.11. Requirements For Issuance of
Letters of Credit.
(a) Borrowing
Agent shall authorize and direct any Issuer to name the applicable Borrower as
the “Applicant” or “Account Party” of each Letter of Credit. If Agent
is not the Issuer of any Letter of Credit, Borrowing Agent shall authorize and
direct the Issuer to deliver to Agent all instruments, documents, and other
writings and property received by the Issuer pursuant to the Letter of Credit
and to accept and rely upon Agent’s instructions and agreements with respect to
all matters arising in connection with the Letter of Credit or the application
therefor.
(b) In
connection with all Letters of Credit issued or caused to be issued by Agent
under this Agreement, each Borrower hereby appoints Agent, or its designee, as
its attorney, with full power and authority if an Event of Default shall have
occurred, (i) to sign and/or endorse such Borrower’s name upon any warehouse or
other receipts, letter of credit applications and acceptances, (ii) to sign such
Borrower’s name on bills of lading; (iii) to clear Inventory through the United
States of America Customs Department (“Customs”) in the name of such Borrower or
Agent or Agent’s designee, and to sign and deliver to Customs officials powers
of attorney in the name of such Borrower for such purpose; and (iv) to complete
in such Borrower’s name or Agent’s, or in the name of Agent’s designee, any
order, sale or transaction, obtain the necessary documents in connection
therewith, and collect the proceeds thereof. Neither Agent nor its
attorneys will be liable for any acts or omissions nor for any error of judgment
or mistakes of fact or law, except for Agent’s or its attorney’s willful
misconduct. This power, being coupled with an interest, is
irrevocable as long as any Letters of Credit remain outstanding.
2.12. Disbursements,
Reimbursement.
(a) Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from Agent a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to such Lender’s Commitment Percentage of the Maximum Face Amount of such
Letter of Credit and the amount of such drawing, respectively.
(b) In the
event of any request for a drawing under a Letter of Credit by the beneficiary
or transferee thereof, Agent will promptly notify Borrowing
Agent. Provided that Borrowing Agent shall have received such notice,
the Borrowers shall reimburse (such obligation to reimburse Agent shall
sometimes be referred to as a “Reimbursement Obligation”) Agent prior to 12:00
Noon, New York time on each date that an amount is paid by Agent under any
Letter of Credit (each such date, a “Drawing Date”) in an amount equal to the
amount so paid by Agent. In the event Borrowers fail to reimburse
Agent for the full amount of any
31
drawing
under any Letter of Credit by 12:00 Noon, New York time, on the Drawing Date,
Agent will promptly notify each Lender thereof, and Borrowers shall be deemed to
have requested that a Domestic Rate Loan be made by the Lenders to be disbursed
on the Drawing Date under such Letter of Credit, subject to the amount of the
unutilized portion of the lesser of Maximum Revolving Advance Amount or the
Formula Amount and subject to Section 8.2 hereof. Any notice given by
Agent pursuant to this Section 2.12(b) may be oral if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(c) Each
Lender shall upon any notice pursuant to Section 2.12(b) make available to Agent
an amount in immediately available funds equal to its Commitment Percentage of
the amount of the drawing, whereupon the participating Lenders shall (subject to
Section 2.12(d)) each be deemed to have made a Domestic Rate Loan to Borrowers
in that amount. If any Lender so notified fails to make available to
Agent the amount of such Lender’s Commitment Percentage of such amount by no
later than 2:00 p.m., New York time on the Drawing Date, then interest shall
accrue on such Lender’s obligation to make such payment, from the Drawing Date
to the date on which such Lender makes such payment (i) at a rate per annum
equal to the Federal Funds Effective Rate during the first three days following
the Drawing Date and (ii) at a rate per annum equal to the rate applicable to
Revolving Advances maintained as Domestic Rate Loans on and after the fourth day
following the Drawing Date. Agent will promptly give notice of the
occurrence of the Drawing Date, but failure of Agent to give any such notice on
the Drawing Date or in sufficient time to enable any Lender to effect such
payment on such date shall not relieve such Lender from its obligation under
this Section 2.12(c), provided that such Lender shall not be obligated to pay
interest as provided in Section 2.12(c) (i) and (ii) until and commencing from
the date of receipt of notice from Agent of a drawing.
(d) With
respect to any unreimbursed drawing that is not converted into a Revolving
Advance maintained as a Domestic Rate Loan to Borrowers in whole or in part as
contemplated by Section 2.12(b), because of Borrowers’ failure to satisfy the
conditions set forth in Section 8.2 (other than any notice requirements) or for
any other reason, Borrowers shall be deemed to have incurred from Agent a
borrowing (each a “Letter of Credit Borrowing”) in the amount of such drawing.
Such Letter of Credit Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the rate per annum applicable to a
Revolving Advance maintained as a Domestic Rate Loan. Each Lender’s
payment to Agent pursuant to Section 2.12(c) shall be deemed to be a payment in
respect of its participation in such Letter of Credit Borrowing and shall
constitute a “Participation Advance” from such Lender in satisfaction of its
Participation Commitment under this Section 2.12.
(e) Each
Lender’s Participation Commitment shall continue until the last to occur of any
of the following events: (x) Agent ceases to be obligated to issue or
cause to be issued Letters of Credit hereunder; (y) no Letter of Credit issued
or created hereunder remains outstanding and uncancelled and (z) all Persons
(other than the Borrowers) have been fully reimbursed for all payments made
under or relating to Letters of Credit.
2.13. Repayment of Participation
Advances.
32
(a) Upon (and
only upon) receipt by Agent for its account of immediately available funds from
Borrowers (i) in reimbursement of any payment made by the Agent under the Letter
of Credit with respect to which any Lender has made a Participation Advance to
Agent, or (ii) in payment of interest on such a payment made by Agent under such
a Letter of Credit, Agent will pay to each Lender, in the same funds as those
received by Agent, the amount of such Lender’s Commitment Percentage of such
funds, except Agent shall retain the amount of the Commitment Percentage of such
funds of any Lender that did not make a Participation Advance in respect of such
payment by Agent.
(b) If Agent
is required at any time to return to any Borrower, or to a trustee, receiver,
liquidator, custodian, or any official in any insolvency proceeding, any portion
of the payments made by Borrowers to Agent pursuant to Section 2.13(a) in
reimbursement of a payment made under the Letter of Credit or interest or fee
thereon, each Lender shall, on demand of Agent, forthwith return to Agent the
amount of its Commitment Percentage of any amounts so returned by Agent plus
interest at the Federal Funds Effective Rate.
2.14. Documentation. Each
Borrower agrees to be bound by the terms of the Letter of Credit Application and
by Agent’s interpretations of any Letter of Credit issued on behalf of such
Borrower and by Agent’s written regulations and customary practices relating to
letters of credit, though Agent’s interpretations may be different from such
Borrower’s own. In the event of a conflict between the Letter of
Credit Application and this Agreement, this Agreement shall
govern. It is understood and agreed that, except in the case of gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final non-appealable judgment), Agent shall not be liable for
any error, negligence and/or mistakes, whether of omission or commission, in
following the Borrowing Agent’s or any Borrower’s instructions or those
contained in the Letters of Credit or any modifications, amendments or
supplements thereto.
2.15. Determination to Honor
Drawing Request. In determining whether to honor any request
for drawing under any Letter of Credit by the beneficiary thereof, Agent shall
be responsible only to determine that the documents and certificates required to
be delivered under such Letter of Credit have been delivered and that they
comply on their face with the requirements of such Letter of Credit and that any
other drawing condition appearing on the face of such Letter of Credit has been
satisfied in the manner so set forth.
2.16. Nature of Participation and
Reimbursement Obligations. Each Lender’s obligation in
accordance with this Agreement to make the Revolving Advances or Participation
Advances as a result of a drawing under a Letter of Credit, and the obligations
of Borrowers to reimburse Agent upon a draw under a Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Section 2.16 under all circumstances,
including the following circumstances:
(i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against Agent, any Borrower or any other Person for any reason
whatsoever;
33
(ii) the
failure of any Borrower or any other Person to comply, in connection with a
Letter of Credit Borrowing, with the conditions set forth in this Agreement for
the making of a Revolving Advance, it being acknowledged that such conditions
are not required for the making of a Letter of Credit Borrowing and the
obligation of the Lenders to make Participation Advances under Section
2.12;
(iii) any lack
of validity or enforceability of any Letter of Credit;
(iv) any claim
of breach of warranty that might be made by Borrower or any Lender against the
beneficiary of a Letter of Credit, or the existence of any claim, set-off,
recoupment, counterclaim, crossclaim, defense or other right which any Borrower
or any Lender may have at any time against a beneficiary, any successor
beneficiary or any transferee of any Letter of Credit or the proceeds thereof
(or any Persons for whom any such transferee may be acting), Agent or any Lender
or any other Person, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between any Borrower or any Subsidiaries of such Borrower and the
beneficiary for which any Letter of Credit was procured);
(v) the lack
of power or authority of any signer of (or any defect in or forgery of any
signature or endorsement on) or the form of or lack of validity, sufficiency,
accuracy, enforceability or genuineness of any draft, demand, instrument,
certificate or other document presented under or in connection with any Letter
of Credit, or any fraud or alleged fraud in connection with any Letter of
Credit, or the transport of any property or provisions of services relating to a
Letter of Credit, in each case even if Agent or any of Agent’s Affiliates has
been notified thereof;
(vi) payment
by Agent under any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such
Letter of Credit;
(vii) the
solvency of, or any acts or omissions by, any beneficiary of any Letter of
Credit, or any other Person having a role in any transaction or obligation
relating to a Letter of Credit, or the existence, nature, quality, quantity,
condition, value or other characteristic of any property or services relating to
a Letter of Credit;
(viii) any
failure by the Agent or any of Agent’s Affiliates to issue any Letter of Credit
in the form requested by Borrowing Agent, unless the Agent has received written
notice from Borrowing Agent of such failure within three (3) Business Days after
the Agent shall have furnished Borrowing Agent a copy of such Letter of Credit
and such error is material and no drawing has been made thereon prior to receipt
of such notice;
(ix) any
Material Adverse Effect on any Borrower or any Guarantor;
(x) any
breach of this Agreement or any Other Document by any party
thereto;
(xi) the
occurrence or continuance of an insolvency proceeding with respect to any
Borrower or any Guarantor;
34
(xii) the fact
that a Default or Event of Default shall have occurred and be
continuing;
(xiii) the fact
that the Term shall have expired or this Agreement or the Obligations hereunder
shall have been terminated; and
(xiv) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing.
2.17. Indemnity. In
addition to amounts payable as provided in Section 16.5, each Borrower hereby
agrees to protect, indemnify, pay and save harmless Agent and any of Agent’s
Affiliates that have issued a Letter of Credit from and against any and all
claims, demands, liabilities, damages, taxes, penalties, interest, judgments,
losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which the
Agent or any of Agent’s Affiliates may incur or be subject to as a consequence,
direct or indirect, of the issuance of any Letter of Credit, other than as a
result of (A) the gross negligence or willful misconduct of the Agent as
determined by a final and non-appealable judgment of a court of competent
jurisdiction or (b) the wrongful dishonor by the Agent or any of Agent’s
Affiliates of a proper demand for payment made under any Letter of Credit,
except if such dishonor resulted from any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto Governmental Body (all
such acts or omissions herein called “Governmental Acts”).
2.18. Liability for Acts and
Omissions. As between Borrowers and Agent and Lenders, each
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of
Credit. In furtherance and not in limitation of the respective
foregoing, Agent shall not be responsible for: (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for an issuance of any such Letter
of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged (even if Agent shall have been
notified thereof); (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) the
failure of the beneficiary of any such Letter of Credit, or any other party to
which such Letter of Credit may be transferred, to comply fully with any
conditions required in order to draw upon such Letter of Credit or any other
claim of any Borrower against any beneficiary of such Letter of Credit, or any
such transferee, or any dispute between or among any Borrower and any
beneficiary of any Letter of Credit or any such transferee; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of Agent, including any governmental acts, and
none of the above shall affect or impair, or prevent the vesting of, any of
Agent’s rights or powers hereunder. Nothing in the preceding sentence shall
relieve Agent from liability for Agent’s gross negligence or willful misconduct
(as
35
determined
by a court of competent jurisdiction in a final non-appealable judgment) in
connection with actions or omissions described in such clauses (i) through
(viii) of such sentence. In no event shall Agent or Agent’s
Affiliates be liable to any Borrower for any indirect, consequential,
incidental, punitive, exemplary or special damages or expenses (including
without limitation attorneys’ fees), or for any damages resulting from any
change in the value of any property relating to a Letter of Credit.
Without
limiting the generality of the foregoing, Agent and each of its Affiliates (i)
may rely on any oral or other communication believed in good faith by Agent
or such Affiliate to have been authorized or given by or on behalf of
the applicant for a Letter of Credit, (ii) may honor any presentation if the
documents presented appear on their face substantially to comply with the terms
and conditions of the relevant Letter of Credit; (iii) may honor a previously
dishonored presentation under a Letter of Credit, whether such dishonor was
pursuant to a court order, to settle or compromise any claim of wrongful
dishonor, or otherwise, and shall be entitled to reimbursement to the same
extent as if such presentation had initially been honored, together with any
interest paid by Agent or its Affiliates; (iv) may honor any drawing that is
payable upon presentation of a statement advising negotiation or payment, upon
receipt of such statement (even if such statement indicates that a draft or
other document is being delivered separately), and shall not be liable for any
failure of any such draft or other document to arrive, or to conform in any way
with the relevant Letter of Credit; (v) may pay any paying or negotiating bank
claiming that it rightfully honored under the laws or practices of the place
where such bank is located; and (vi) may settle or adjust any claim or demand
made on Agent or its Affiliate in any way related to any order issued at the
applicant’s request to an air carrier, a letter of guarantee or of indemnity
issued to a carrier or any similar document (each an “Order”) and honor any
drawing in connection with any Letter of Credit that is the subject of such
Order, notwithstanding that any drafts or other documents presented in
connection with such Letter of Credit fail to conform in any way with such
Letter of Credit.
In
furtherance and extension and not in limitation of the specific provisions set
forth above, any action taken or omitted by Agent under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith and without gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final non-appealable judgment), shall not put Agent under any resulting
liability to any Borrower or any Lender.
2.19. Additional
Payments. Any sums expended by Agent or any Lender due to any
Borrower’s failure to perform or comply with its obligations under this
Agreement or any Other Document including any Borrower’s obligations under
Sections 4.2, 4.4, 4.12, 4.13, 4.14 and 6.1 hereof, may be charged to Borrowers’
Account as a Revolving Advance and added to the Obligations.
2.20. Manner of Borrowing and
Payment.
(a) Each
borrowing of Revolving Advances shall be advanced according to the applicable
Commitment Percentages of Lenders. The Term Loan shall be advanced
according to the Commitment Percentages of Lenders.
36
(b) Each
payment (including each prepayment) by any Borrower on account of the principal
of and interest on the Revolving Advances, shall be applied to the Revolving
Advances pro rata according to the applicable Commitment Percentages of
Lenders. Each payment (including each prepayment) by any Borrower on
account of the principal of and interest on the Term Note, shall be made from or
to, or applied to that portion of the Term Loan evidenced by the Term Note pro
rata according to the Commitment Percentages of Lenders. Except as
expressly provided herein, all payments (including prepayments) to be made by
any Borrower on account of principal, interest and fees shall be made without
set off or counterclaim and shall be made to Agent on behalf of the Lenders to
the Payment Office, in each case on or prior to 1:00 P.M., New York time, in
Dollars and in immediately available funds.
(c) (i) Notwithstanding
anything to the contrary contained in Sections 2.20(a) and (b) hereof,
commencing with the first Business Day following the Closing Date, each
borrowing of Revolving Advances shall be advanced by Agent and each payment by
any Borrower on account of Revolving Advances shall be applied first to those
Revolving Advances advanced by Agent. On or before 1:00 P.M., New
York time, on each Settlement Date commencing with the first Settlement Date
following the Closing Date, Agent and Lenders shall make certain payments as
follows: (I) if the aggregate amount of new Revolving Advances made by Agent
during the preceding Week (if any) exceeds the aggregate amount of repayments
applied to outstanding Revolving Advances during such preceding Week, then each
Lender shall provide Agent with funds in an amount equal to its applicable
Commitment Percentage of the difference between (w) such Revolving Advances and
(x) such repayments and (II) if the aggregate amount of repayments applied to
outstanding Revolving Advances during such Week exceeds the aggregate amount of
new Revolving Advances made during such Week, then Agent shall provide each
Lender with funds in an amount equal to its applicable Commitment Percentage of
the difference between (y) such repayments and (z) such Revolving
Advances.
(ii) Each
Lender shall be entitled to earn interest at the applicable Contract Rate on
outstanding Advances which it has funded.
(iii) Promptly
following each Settlement Date, Agent shall submit to each Lender a certificate
with respect to payments received and Advances made during the Week immediately
preceding such Settlement Date. Such certificate of Agent shall be
conclusive in the absence of manifest error.
(d) If any
Lender or Participant (a “benefited Lender”) shall at any time receive any
payment of all or part of its Advances, or interest thereon, or receive any
Collateral in respect thereof (whether voluntarily or involuntarily or by
set-off) in a greater proportion than any such payment to and Collateral
received by any other Lender, if any, in respect of such other Lender’s
Advances, or interest thereon, and such greater proportionate payment or receipt
of Collateral is not expressly permitted hereunder, such benefited Lender shall
purchase for cash from the other Lenders a participation in such portion of each
such other Lender’s Advances, or shall provide such other Lender with the
benefits of any such Collateral, or the proceeds thereof, as shall be necessary
to cause such benefited Lender to share the excess payment or benefits of such
Collateral or proceeds ratably with each of the other Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the
37
extent of
such recovery, but without interest. Each Lender so purchasing a
portion of another Lender’s Advances may exercise all rights of payment
(including rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(e) Unless
Agent shall have been notified by telephone, confirmed in writing, by any Lender
that such Lender will not make the amount which would constitute its applicable
Commitment Percentage of the Advances available to Agent, Agent may (but shall
not be obligated to) assume that such Lender shall make such amount available to
Agent on the next Settlement Date and, in reliance upon such assumption, make
available to Borrowers a corresponding amount. Agent will promptly
notify Borrowing Agent of its receipt of any such notice from a
Lender. If such amount is made available to Agent on a date after
such next Settlement Date, such Lender shall pay to Agent on demand an amount
equal to the product of (i) the daily average Federal Funds Rate (computed on
the basis of a year of 360 days) during such period as quoted by Agent, times
(ii) such amount, times (iii) the number of days from and including such
Settlement Date to the date on which such amount becomes immediately available
to Agent. A certificate of Agent submitted to any Lender with respect
to any amounts owing under this paragraph (e) shall be conclusive, in the
absence of manifest error. If such amount is not in fact made
available to Agent by such Lender within three (3) Business Days after such
Settlement Date, Agent shall be entitled to recover such an amount, with
interest thereon at the rate per annum then applicable to such Revolving
Advances hereunder, on demand from Borrowers; provided, however, that Agent’s
right to such recovery shall not prejudice or otherwise adversely affect
Borrowers’ rights (if any) against such Lender.
2.21. Mandatory
Prepayments.
(a) Subject
to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any
Collateral other than Inventory in the Ordinary Course of Business, Borrowers
shall repay the Advances in an amount equal to the net proceeds of such sale
(i.e., gross proceeds less the reasonable costs of such sales or other
dispositions), such repayments to be made promptly but in no event more than one
(1) Business Day following receipt of such net proceeds, and until the date of
payment, such proceeds shall be held in trust for Agent. The
foregoing shall not be deemed to be implied consent to any such sale otherwise
prohibited by the terms and conditions hereof. Such repayments shall
be applied (y) first, to the outstanding principal installments of the Term Loan
in the inverse order of the maturities thereof and (z) second, to the remaining
Advances in such order as Agent may determine, subject to Borrowers’ ability to
reborrow Revolving Advances in accordance with the terms hereof. Notwithstanding
the foregoing, if any Borrower reasonably expects the proceeds of any
disposition of Collateral to be reinvested within one hundred eighty (180) days
to repair or replace such assets with like assets, such Borrower shall deliver
the proceeds to Agent to be applied to the Revolving Advances and Agent shall
establish a reserve against available funds for borrowing purposes under the
Revolving Advances for such amount until such time as such proceeds have been
re-borrowed or applied to other Obligations as set forth herein. If
such Borrower so elects to deliver such proceeds to Agent, such Borrower may, so
long as no Default or Event of Default shall have occurred and be continuing,
reborrow such proceeds only for such repair or replacement. If such
Borrower fails to reinvest such proceeds within one hundred eighty (180) days,
the Borrowers hereby authorize Agent and Lenders to make a Revolving Advance in
the amount of the
38
remaining
reserve to repay the Obligations in the manner set forth in the third sentence
of this Section 2.21(a).
(b) Borrowers
shall prepay the outstanding amount of the Advances in an amount equal to the
greater of (x) 25% of Excess Cash Flow or (y) all payments made to the holders
of Best's Series A Convertible Preferred Stock (the “Excess Cash Flow Payment
Amount”) for each fiscal year commencing on or after January 1, 2008, payable
upon delivery of the financial statements to Agent referred to in and required
by Section 9.7 for such fiscal year but in any event not later than ninety (90)
days after the end of each such fiscal year (each, an “Excess Cash Flow Payment
Date”), which amount shall be applied to the Revolving Advances in such order as
Agent may determine subject to Borrowers’ ability to reborrow Revolving Advances
in accordance with the terms hereof. In the event that the financial
statement is not so delivered, then a calculation based upon estimated amounts
shall be made by Agent upon which calculation Borrowers shall make the
prepayment required by this Section 2.21(b), subject to adjustment when the
financial statement is delivered to Agent as required hereby. The
calculation made by Agent shall not be deemed a waiver of any rights Agent or
Lenders may have as a result of the failure by Borrowers to deliver such
financial statement. For the avoidance of doubt, it is understood and
agreed that no payment of Revolving Advances will be required on any Excess Cash
Flow Payment Date to the extent such amounts have already been applied to reduce
the outstanding Revolving Advances as a result of the application of Section
4.15(h) of this Agreement.
(c) If Best
issues any Equity Interests to any Person after the Closing Date, Borrowers
shall repay the Advances in an amount equal to 100% of the net proceeds received
from such issuance (i.e., gross proceeds less the reasonable costs of such
issuance) of Equity Interests (excluding any proceeds permitted to be utilized
pay fees owing pursuant to the Fee Deferral Agreements), such repayments to be
made promptly but in no event more than (1) Business Day following receipt of
such net proceeds, and until the date of payment, such proceeds shall be held in
trust for Agent. The forgoing shall not be deemed to be implied
consent to such sale or issuance otherwise prohibited by the terms and
conditions hereof. Such repayments shall be applied to any Revolving
Advances then outstanding, subject to Borrowers’ ability to reborrow Revolving
Advances in accordance with the terms hereof. Notwithstanding the
foregoing, the Borrowers shall only be required to repay Advances pursuant to
this Section 2.21(c) until such time as the aggregate amount of net proceeds
received by Best from the issuance of Equity Interests (including proceeds
received on or prior to the Closing Date) shall be greater than 12,000,000, at
which time Borrowers shall permitted to retain such proceeds to be utilized in a
manner permitted by this Agreement.
2.22. Use of
Proceeds.
(a) Borrowers
shall apply the proceeds of Advances (x) incurred on Closing Date to (i) pay a
portion of purchase price in connection with Initial Acquisitions by repayment
of the Demand Notes, and (ii) pay fees and expenses relating to this transaction
and the Initial Acquisitions and (y) after the Closing Date to (i) pay a portion
of purchase price in connection with Second Acquisitions, (ii) pay fees and
expenses relating to the Second Acquisitions, and (iii) provide for its working
capital needs and reimburse drawings under Letters of Credit.
(b) Without
limiting the generality of Section 2.22(a) above, neither the Borrowers nor any
other Person which may in the future become party to this Agreement or the Other
Documents as a Borrower intends to use nor shall they use any portion of the
proceeds of the Advances, directly or indirectly, for any purpose in violation
of the Trading with the Enemy Act.
(c) If Best
issues any Equity Interests to any Person after the Closing Date, Borrowers
shall repay the Advances in an amount equal to 100% of the net proceeds
received from such issuance (i.e., gross proceeds less the reasonable
costs of such issuance) of Equity Interests (excluding any proceeds permitted to
be utilized to pay fees owing pursuant to the Fee Deferral Agreements), such
repayments to be made promptly but in no event more than one (1) Business Day
following receipt of such net proceeds, and until the date of payment, such
proceeds shall be held in trust for Agent. The foregoing shall not be
deemed to be implied consent to any such sale or issuance otherwise prohibited
by the terms and conditions hereof. Such repayments shall be applied
to any Revolving Advances then outstanding, subject to Borrowers’ ability to
reborrow Revolving Advances in accordance with the terms
hereof. Notwithstanding the foregoing, the Borrowers shall only be
required to repay Advances pursuant to this Section 2.21(c) until such time as
the aggregate amount of net proceeds received by Best from the issuance of
Equity Interests (including proceeds received on or prior to the Closing Date)
shall be greater than $12,000,000, at which time Borrowers shall be permitted to
retain such proceeds to be utilized in a manner permitted by this
Agreement.
2.23. Defaulting
Lender.
(a) Notwithstanding
anything to the contrary contained herein, in the event any Lender (x) has
refused (which refusal constitutes a breach by such Lender of its obligations
under this Agreement) to make available its portion of any Advance or (y)
notifies either Agent or Borrowing Agent that it does not intend to make
available its portion of any Advance (if the actual refusal would constitute a
breach by such Lender of its obligations under this Agreement) (each, a “Lender
Default”), all rights and obligations hereunder of such Lender (a “Defaulting
Lender”) as to which a Lender Default is in effect and of the other parties
hereto shall be modified to the extent of the express provisions of this Section
2.23 while such Lender Default remains in effect.
39
(b) Advances
shall be incurred pro rata from Lenders (the “Non-Defaulting Lenders”) which are
not Defaulting Lenders based on their respective Commitment Percentages, and no
Commitment Percentage of any Lender or any pro rata share of any Advances
required to be advanced by any Lender shall be increased as a result of such
Lender Default. Amounts received in respect of principal of any type
of Advances shall be applied to reduce the applicable Advances of each Lender
(other than any Defaulting Lender) pro rata based on the aggregate of the
outstanding Advances of that type of all Lenders at the time of such
application; provided, that, Agent
shall not be obligated to transfer to a Defaulting Lender any payments received
by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be
entitled to the sharing of any payments hereunder (including any principal,
interest or fees). Amounts payable to a Defaulting Lender shall
instead be paid to or retained by Agent. Agent may hold and, in its
discretion, re-lend to a Borrower the amount of such payments received or
retained by it for the account of such Defaulting Lender.
(c) A
Defaulting Lender shall not be entitled to give instructions to Agent or to
approve, disapprove, consent to or vote on any matters relating to this
Agreement and the Other Documents. All amendments, waivers and other
modifications of this Agreement and the Other Documents may be made without
regard to a Defaulting Lender and, for purposes of the definition of “Required
Lenders”, a Defaulting Lender shall be deemed not to be a Lender and not to have
Advances outstanding.
(d) Other
than as expressly set forth in this Section 2.23, the rights and obligations of
a Defaulting Lender (including the obligation to indemnify Agent) and the other
parties hereto shall remain unchanged. Nothing in this Section 2.23
shall be deemed to release any Defaulting Lender from its obligations under this
Agreement and the Other Documents, shall alter such obligations, shall operate
as a waiver of any default by such Defaulting Lender hereunder, or shall
prejudice any rights which any Borrower, Agent or any Lender may have against
any Defaulting Lender as a result of any default by such Defaulting Lender
hereunder.
(e) In the
event a Defaulting Lender retroactively cures to the satisfaction of Agent the
breach which caused a Lender to become a Defaulting Lender, such Defaulting
Lender shall no longer be a Defaulting Lender and shall be treated as a Lender
under this Agreement.
III. INTEREST
AND FEES.
3.1. Interest. Interest
on Advances shall be payable in arrears on the first day of each month with
respect to Domestic Rate Loans and, with respect to Eurodollar Rate Loans, at
the end of each Interest Period and upon conversion to a Domestic Rate Loan (if
such conversion occurs other than on the last day of an applicable Interest
Perid). Interest charges shall be computed on the actual principal
amount of Advances outstanding during the month at a rate per annum equal to (i)
with respect to Revolving Advances, the applicable Revolving Interest Rate and
(ii) with respect to the Term Loan, the applicable Term Loan Rate (as
applicable, the “Contract Rate”). Whenever, subsequent to the date of
this Agreement, the Alternate Base Rate is increased or decreased, the
applicable Contract Rate shall be similarly changed without notice or demand of
any kind by an amount equal to the amount of such change in the Alternate Base
Rate during the time such change or changes remain in effect. The
Eurodollar Rate shall be adjusted with respect to Eurodollar Rate Loans without
notice or demand of any kind on the
40
effective
date of any change in the Reserve Percentage as of such effective
date. Upon and after the occurrence of an Event of Default, and
during the continuation thereof, at the option of Agent or at the direction of
Required Lenders, the Obligations shall bear interest at the applicable Contract
Rate plus two (2%) percent per annum (the “Default Rate”).
3.2. Letter of Credit
Fees.
(a) Borrowers
shall pay (x) to Agent, for the ratable benefit of Lenders, fees for each Letter
of Credit for the period from and excluding the date of issuance of same to and
including the date of expiration or termination, equal to the average daily face
amount of each outstanding Letter of Credit multiplied by two percent (2.0%)per
annum, such fees to be calculated on the basis of a 360-day year for the actual
number of days elapsed and to be payable quarterly in arrears on the first day
of each quarter and on the last day of the Term, and (y) to the Issuer, a
fronting fee of one quarter of one percent (0.25%) per annum, together with any
and all administrative, issuance, amendment, payment and negotiation charges
with respect to Letters of Credit and all fees and expenses as agreed upon by
the Issuer and the Borrowing Agent in connection with any Letter of Credit,
including in connection with the opening, amendment or renewal of any such
Letter of Credit and any acceptances created thereunder and shall reimburse
Agent for any and all fees and expenses, if any, paid by Agent to the Issuer
(all of the foregoing fees, the “Letter of Credit Fees”). All such
charges shall be deemed earned in full on the date when the same are due and
payable hereunder and shall not be subject to rebate or pro-ration upon the
termination of this Agreement for any reason. Any such charge in
effect at the time of a particular transaction shall be the charge for that
transaction, notwithstanding any subsequent change in the Issuer’s prevailing
charges for that type of transaction. All Letter of Credit Fees
payable hereunder shall be deemed earned in full on the date when the same are
due and payable hereunder and shall not be subject to rebate or pro-ration upon
the termination of this Agreement for any reason.
On demand
after the occurrence and during the continuance of an Event of Default,
Borrowers will cause cash to be deposited and maintained in an account with
Agent, as cash collateral, in an amount equal to one hundred and five percent
(105%) of the Maximum Undrawn Amount of all outstanding Letters of Credit, and
each Borrower hereby irrevocably authorizes Agent, in its discretion, on such
Borrower’s behalf and in such Borrower’s name, to open such an account and to
make and maintain deposits therein, or in an account opened by such Borrower, in
the amounts required to be made by such Borrower, out of the proceeds of
Receivables or other Collateral or out of any other funds of such Borrower
coming into any Lender’s possession at any time. Agent will invest
such cash collateral (less applicable reserves) in such short-term money-market
items as to which Agent and such Borrower mutually agree and the net return on
such investments shall be credited to such account and constitute additional
cash collateral. No Borrower may withdraw amounts credited to any
such account except upon the occurrence of all of the following: (w) payment and
performance in full of all Obligations, (x) expiration of all Letters of Credit,
(y) termination of this Agreement or (z) upon waiver of all existing Events of
Default.
3.3. Closing Fee and Facility
Fee.
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(a) Closing
Fee. Upon the execution of this Agreement, Borrowers shall pay
to Agent for the ratable benefit of Lenders a closing fee of $250,000 less that portion of
the deposit fee of $100,000 heretofore paid by Borrowers to Agent remaining
after application of such fee to out of pocket expenses.
(b) Facility
Fee. If, for any calendar quarter during the Term, the average
daily unpaid balance of the Revolving Advances and undrawn amount of any
outstanding Letters of Credit for each day of such calendar quarter does not
equal the Maximum Revolving Advance Amount, then Borrowers shall pay to Agent
for the ratable benefit of Lenders a fee at a rate equal to one quarter of one
percent (0.25%) per annum on the amount by which the Maximum Revolving Advance
Amount exceeds such average daily unpaid balance. Such fee shall be
payable to Agent in arrears on the first day of each calendar quarter with
respect to the previous calendar quarter.
3.4. Collateral Evaluation Fee
and Collateral Monitoring Fee.
(a) Collateral Evaluation
Fee. Borrowers shall pay Agent a collateral evaluation fee
equal to $1,500 per month commencing on the first day of the month following the
Closing Date and on the first day of each month thereafter during the
Term. The collateral evaluation fee shall be deemed earned in full on
the date when same is due and payable hereunder and shall not be subject to
rebate or proration upon termination of this Agreement for any
reason.
(b) Collateral Monitoring
Fee. Borrowers shall pay to Agent on the first day of each
month following any month in which Agent performs any collateral monitoring -
namely any field examination, collateral analysis or other business analysis,
the need for which is to be determined by Agent and which monitoring is
undertaken by Agent or for Agent’s benefit - a collateral monitoring fee in an
amount equal to $750 per day for each person employed to perform such
monitoring, plus all costs and disbursements incurred by Agent in the
performance of such examination or analysis.
3.5. Computation of Interest and
Fees. Interest and fees hereunder shall be computed on the
basis of a year of 360 days and for the actual number of days
elapsed. If any payment to be made hereunder becomes due and payable
on a day other than a Business Day, the due date thereof shall be extended to
the next succeeding Business Day and interest thereon shall be payable at the
applicable Contract Rate during such extension.
3.6. Maximum
Charges. In no event whatsoever shall interest and other
charges charged hereunder exceed the highest rate permissible under law. In the
event interest and other charges as computed hereunder would otherwise exceed
the highest rate permitted under law, such excess amount shall be first applied
to any unpaid principal balance owed by Borrowers, and if the then remaining
excess amount is greater than the previously unpaid principal balance, Lenders
shall promptly refund such excess amount to Borrowers and the provisions hereof
shall be deemed amended to provide for such permissible rate.
3.7. Increased
Costs. In the event that any Applicable Law, or any change
therein or in the interpretation or application thereof, or compliance by any
Lender (for purposes of this
42
Section
3.7, the term “Lender” shall include Agent or any Lender and any corporation or
bank controlling Agent or any Lender) and the office or branch where Agent or
any Lender (as so defined) makes or maintains any Eurodollar Rate Loans with any
request or directive (whether or not having the force of law) from any central
bank or other financial, monetary or other authority, shall:
(a) subject
Agent or any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Other Document or change the basis of taxation of payments to
Agent or any Lender of principal, fees, interest or any other amount payable
hereunder or under any Other Documents (except for changes in the rate of tax on
the overall net income of Agent or any Lender by the jurisdiction in which it
maintains its principal office);
(b) impose,
modify or hold applicable any reserve, special deposit, assessment or similar
requirement against assets held by, or deposits in or for the account of,
advances or loans by, or other credit extended by, any office of Agent or any
Lender, including pursuant to Regulation D of the Board of Governors of the
Federal Reserve System; or
(c) impose on
Agent or any Lender or the London interbank Eurodollar market any other
condition with respect to this Agreement or any Other Document;
and the
result of any of the foregoing is to increase the cost to Agent or any Lender of
making, renewing or maintaining its Advances hereunder by an amount that Agent
or such Lender deems to be material or to reduce the amount of any payment
(whether of principal, interest or otherwise) in respect of any of the Advances
by an amount that Agent or such Lender deems to be material, then, in any case
Borrowers shall promptly pay Agent or such Lender, upon its demand, such
additional amount as will compensate Agent or such Lender for such additional
cost or such reduction, as the case may be, provided that the foregoing shall
not apply to increased costs which are reflected in the Eurodollar Rate, as the
case may be. Agent or such Lender shall certify the amount of such
additional cost or reduced amount to Borrowing Agent, and such certification
shall be conclusive absent manifest error.
3.8. Basis For Determining
Interest Rate Inadequate or Unfair. In the event that Agent or
any Lender shall have determined that:
(a) reasonable
means do not exist for ascertaining the Eurodollar Rate applicable pursuant to
Section 2.2 hereof for any Interest Period; or
(b) Dollar
deposits in the relevant amount and for the relevant maturity are not available
in the London interbank Eurodollar market, with respect to an outstanding
Eurodollar Rate Loan, a proposed Eurodollar Rate Loan, or a proposed conversion
of a Domestic Rate Loan into a Eurodollar Rate Loan,
then
Agent shall give Borrowing Agent prompt written, telephonic or telegraphic
notice of such determination. If such notice is given, (i) any such
requested Eurodollar Rate Loan shall be made as a Domestic Rate Loan, unless
Borrowing Agent shall notify Agent no later than 10:00 a.m. (New York City time)
two (2) Business Days prior to the date of such proposed borrowing, that its
request for such borrowing shall be cancelled or made as an unaffected type of
Eurodollar Rate Loan, (ii) any Domestic Rate Loan or Eurodollar Rate Loan which
was to have been
43
converted
to an affected type of Eurodollar Rate Loan shall be continued as or converted
into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later
than 10:00 a.m. (New York City time) two (2) Business Days prior to the proposed
conversion, shall be maintained as an unaffected type of Eurodollar Rate Loan,
and (iii) any outstanding affected Eurodollar Rate Loans shall be converted into
a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than
10:00 a.m. (New York City time) two (2) Business Days prior to the last Business
Day of the then current Interest Period applicable to such affected Eurodollar
Rate Loan, shall be converted into an unaffected type of Eurodollar Rate Loan,
on the last Business Day of the then current Interest Period for such affected
Eurodollar Rate Loans. Until such notice has been withdrawn, Lenders
shall have no obligation to make an affected type of Eurodollar Rate Loan or
maintain outstanding affected Eurodollar Rate Loans and no Borrower shall have
the right to convert a Domestic Rate Loan or an unaffected type of Eurodollar
Rate Loan into an affected type of Eurodollar Rate Loan.
3.9. Capital
Adequacy.
(a) In the
event that Agent or any Lender shall have determined that any Applicable Law or
guideline regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Body, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Agent or any Lender (for purposes of this Section 3.9,
the term “Lender” shall include Agent or any Lender and any corporation or bank
controlling Agent or any Lender) and the office or branch where Agent or any
Lender (as so defined) makes or maintains any Eurodollar Rate Loans with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on Agent or any Lender’s capital
as a consequence of its obligations hereunder to a level below that which Agent
or such Lender could have achieved but for such adoption, change or compliance
(taking into consideration Agent’s and each Lender’s policies with respect to
capital adequacy) by an amount deemed by Agent or any Lender to be material,
then, from time to time, Borrowers shall pay upon demand to Agent or such Lender
such additional amount or amounts as will compensate Agent or such Lender for
such reduction. In determining such amount or amounts, Agent or such
Lender may use any reasonable averaging or attribution methods. The
protection of this Section 3.9 shall be available to Agent and each Lender
regardless of any possible contention of invalidity or inapplicability with
respect to the Applicable Law or condition.
(b) A
certificate of Agent or such Lender setting forth such amount or amounts as
shall be necessary to compensate Agent or such Lender with respect to Section
3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent
manifest error.
3.10. Gross Up for
Taxes. If any Borrower shall be required by Applicable Law to
withhold or deduct any taxes from or in respect of any sum payable under this
Agreement or any of the Other Documents to Agent, or any Lender, assignee of any
Lender, or Participant (each, individually, a “Payee” and collectively, the
“Payees”), (a) the sum payable to such Payee or Payees, as the case may be,
shall be increased as may be necessary so that, after making all required
withholding or deductions, the applicable Payee or Payees receives an amount
equal to the sum it would have received had no such withholding or deductions
been made (the “Gross
44
-Up
Payment”), (b) such Borrower shall make such withholding or deductions, and (c)
such Borrower shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with Applicable
Law. Notwithstanding the foregoing, no Borrower shall be obligated to
make any portion of the Gross-Up Payment that is attributable to any withholding
or deductions that would not have been paid or claimed had the applicable Payee
or Payees properly claimed a complete exemption with respect thereto pursuant to
Section 3.11 hereof.
3.11. Withholding Tax
Exemption.
(a) Each
Payee that is not incorporated under the Laws of the United States of America or
a state thereof (and, upon the written request of Agent, each other Payee)
agrees that it will deliver to Borrowing Agent and Agent two (2) duly completed
appropriate valid Withholding Certificates (as defined under §1.1441-1(c)(16) of
the Income Tax Regulations (“Regulations”)) certifying its status (i.e., U.S. or
foreign person) and, if appropriate, making a claim of reduced, or exemption
from, U.S. withholding tax on the basis of an income tax treaty or an exemption
provided by the Code. The term “Withholding Certificate” means a Form
W-9; a Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related statements and
certifications as required under §1.1441-1(e)(2) and/or (3) of the Regulations;
a statement described in §1.871-14(c)(2)(v) of the Regulations; or any other
certificates under the Code or Regulations that certify or establish the status
of a payee or beneficial owner as a U.S. or foreign person.
(b) Each
Payee required to deliver to Borrowing Agent and Agent a valid Withholding
Certificate pursuant to Section 3.11(a) hereof shall deliver such valid
Withholding Certificate as follows: (A) each Payee which is a party
hereto on the Closing Date shall deliver such valid Withholding Certificate at
least five (5) Business Days prior to the first date on which any interest or
fees are payable by any Borrower hereunder for the account of such Payee; (B)
each Payee shall deliver such valid Withholding Certificate at least five (5)
Business Days before the effective date of such assignment or participation
(unless Agent in its sole discretion shall permit such Payee to deliver such
Withholding Certificate less than five (5) Business Days before such date in
which case it shall be due on the date specified by Agent). Each
Payee which so delivers a valid Withholding Certificate further undertakes to
deliver to Borrowing Agent and Agent two (2) additional copies of such
Withholding Certificate (or a successor form) on or before the date that such
Withholding Certificate expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent Withholding Certificate so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by Borrowing Agent or Agent.
(c) Notwithstanding
the submission of a Withholding Certificate claiming a reduced rate of or
exemption from U.S. withholding tax required under Section 3.11(b) hereof, Agent
shall be entitled to withhold United States federal income taxes at the full 30%
withholding rate if in its reasonable judgment it is required to do so under the
due diligence requirements imposed upon a withholding agent under §1.1441-7(b)
of the Regulations. Further, Agent is indemnified under §1.1461-1(e)
of the Regulations against any claims and demands of any Payee for the amount of
any tax it deducts and withholds in accordance with regulations under §1441 of
the Code.
45
IV. COLLATERAL: GENERAL
TERMS
4.1. Security Interest in the
Collateral. To secure the prompt payment and performance to
Agent and each Lender of the Obligations, each Borrower hereby assigns, pledges
and grants to Agent for its benefit and for the ratable benefit of each Lender a
continuing security interest in and to and Lien on all of its Collateral,
whether now owned or existing or hereafter acquired or arising and wheresoever
located. Each Borrower shall xxxx its books and records as may be
necessary or appropriate to evidence, protect and perfect Agent’s security
interest and shall cause its financial statements to reflect such security
interest. Each Borrower shall promptly provide Agent with written
notice of all commercial tort claims, such notice to contain the case title
together with the applicable court and a brief description of the
claim(s). Upon delivery of each such notice, such Borrower shall be
deemed to hereby grant to Agent a security interest and lien in and to such
commercial tort claims and all proceeds thereof.
4.2. Perfection of Security
Interest. Each Borrower shall take all action that may be
necessary or desirable, or that Agent may request, so as at all times to
maintain the validity, perfection, enforceability and priority of Agent’s
security interest in and Lien on the Collateral or to enable Agent to protect,
exercise or enforce its rights hereunder and in the Collateral, including, but
not limited to, (i) immediately discharging all Liens other than Permitted
Encumbrances, (ii) obtaining Lien Waiver Agreements, (iii) delivering to Agent,
endorsed or accompanied by such instruments of assignment as Agent may specify,
and stamping or marking, in such manner as Agent may specify, any and all
chattel paper, instruments, letters of credits and advices thereof and documents
evidencing or forming a part of the Collateral, (iv) entering into warehousing,
lockbox and other custodial arrangements satisfactory to Agent, and (v)
executing and delivering financing statements, control agreements, instruments
of pledge, mortgages, notices and assignments, in each case in form and
substance satisfactory to Agent, relating to the creation, validity, perfection,
maintenance or continuation of Agent’s security interest and Lien under the
Uniform Commercial Code or other Applicable Law. By its signature
hereto, each Borrower hereby authorizes Agent to file against such Borrower, one
or more financing, continuation or amendment statements pursuant to the Uniform
Commercial Code in form and substance satisfactory to Agent (which statements
may have a description of collateral which is broader than that set forth
herein). All charges, expenses and fees Agent may incur in doing any
of the foregoing, and any local taxes relating thereto, shall be charged to
Borrowers’ Account as a Revolving Advance of a Domestic Rate Loan and added to
the Obligations, or, at Agent’s option, shall be paid to Agent for its benefit
and for the ratable benefit of Lenders immediately upon demand.
4.3. Disposition of
Collateral. Each Borrower will safeguard and protect all
Collateral for Agent’s general account and make no disposition thereof whether
by sale, lease or otherwise except (a) the sale of Inventory in the Ordinary
Course of Business, (b) the disposition or transfer of obsolete and worn-out
Equipment in the Ordinary Course of Business or Equipment no longer used or
useful to the Business during any fiscal year having an aggregate fair market
value of not more than $100,000 and only to the extent that (i) the proceeds of
any such disposition are used to acquire replacement Equipment which is subject
to Agent’s first priority security interest or (ii) the proceeds of which are
remitted to Agent to be applied pursuant to Section 2.21, (c) dispositions of
Equipment by any Borrower to any other Borrower; and (d) dispositions of
Equipment to the extent that (i) such Equipment is exchanged for similar
replacement Equipment
46
which is
subject to Agent’s first priority security interest or (ii) the proceeds of
which are remitted to Agent to be applied pursuant to Section 2.21.
4.4. Preservation of
Collateral. Following the occurrence and during the
continuance of a Default or Event of Default in addition to the rights and
remedies set forth in Section 11.1 hereof, Agent: (a) may at any time take such
steps as Agent deems necessary to protect Agent’s interest in and to preserve
the Collateral, including the hiring of such security guards or the placing of
other security protection measures as Agent may deem appropriate; (b) may employ
and maintain at any of any Borrower’s premises a custodian who shall have full
authority to do all acts necessary to protect Agent’s interests in the
Collateral; (c) may lease warehouse facilities to which Agent may move all or
part of the Collateral; (d) may use any Borrower’s owned or leased lifts,
hoists, trucks and other facilities or equipment for handling or removing the
Collateral; and (e) shall have, and is hereby granted, a right of ingress and
egress to the places where the Collateral is located, and may proceed over and
through any of Borrower’s owned or leased property. Each Borrower
shall cooperate fully with all of Agent’s efforts to preserve the Collateral and
will take such actions to preserve the Collateral as Agent may
direct. All of Agent’s expenses of preserving the Collateral,
including any expenses relating to the bonding of a custodian, shall be charged
to Borrowers’ Account as a Revolving Advance and added to the
Obligations.
4.5. Ownership of
Collateral.
(a) With
respect to the Collateral, at the time the Collateral becomes subject to Agent’s
security interest: (i) each Borrower shall be the sole owner of and
fully authorized and able to sell, transfer, pledge and/or grant a first
priority security interest in each and every item of its respective Collateral
to Agent; and, except for Permitted Encumbrances the Collateral shall be free
and clear of all Liens and encumbrances whatsoever; (ii) each document and
agreement executed by each Borrower or delivered to Agent or any Lender in
connection with this Agreement shall be true and correct in all respects;
(iii) all signatures and endorsements of each Borrower that appear on such
documents and agreements shall be genuine and each Borrower shall have full
capacity to execute same; and (iv) each Borrower’s Equipment and Inventory
shall be located as set forth on Schedule 4.5 and shall not be removed from
such location(s) without the prior written consent of Agent except with respect
to (x) the sale of Inventory in the Ordinary Course of Business, (y) the sale of
Equipment to the extent permitted in Section 4.3 hereof and (z) Equipment
in-transit to and from, and in use at, Customers’ premises, provided that such
premises are properly reflected on the Rig Fleet Equipment status report
delivered to Agent pursuant to Section 9.2 hereof.
(b) (i) There
is no location at which any Borrower has any Inventory (except for Inventory in
transit) other than those locations listed on Schedule 4.5; (ii) Schedule 4.5
hereto contains a correct and complete list, as of the Closing Date, of the
legal names and addresses of each warehouse at which Inventory of any Borrower
is stored; none of the receipts received by any Borrower from any
warehouse states that the goods covered thereby are to be delivered to bearer or
to the order of a named Person or to a named Person and such named Person’s
assigns; (iii) Schedule 4.5 hereto sets forth a correct and complete
list as of the Closing Date of (A) each place of business of each Borrower and
(B) the chief executive office of each Borrower; and (iv) Schedule 4.5 hereto
sets forth a correct and complete list as of the Closing Date of the location,
47
by state
and street address, of all Real Property owned or leased by each Borrower,
together with the names and addresses of any landlords.
4.6. Defense of Agent’s and
Lenders’ Interests. Until (a) payment and performance in full
of all of the Obligations and (b) termination of this Agreement, Agent’s
interests in the Collateral shall continue in full force and
effect. During such period no Borrower shall, without Agent’s prior
written consent, pledge, sell (except Inventory in the Ordinary Course of
Business and Equipment to the extent permitted in Section 4.3 hereof), assign,
transfer, create or suffer to exist a Lien upon or encumber or allow or suffer
to be encumbered in any way except for Permitted Encumbrances, any part of the
Collateral. Each Borrower shall defend Agent’s interests in the
Collateral against any and all Persons whatsoever. At any time
following demand by Agent for payment of all Obligations, Agent shall have the
right to take possession of the indicia of the Collateral and the Collateral in
whatever physical form contained, including: labels, stationery,
documents, instruments and advertising materials. If Agent exercises
this right to take possession of the Collateral, Borrowers shall, upon demand,
assemble it in the best manner possible and make it available to Agent at a
place reasonably convenient to Agent. In addition, with respect to
all Collateral, Agent and Lenders shall be entitled to all of the rights and
remedies set forth herein and further provided by the Uniform Commercial Code or
other Applicable Law. Each Borrower shall, and Agent may, at its
option, instruct all suppliers, carriers, forwarders, warehousers or others
receiving or holding cash, checks, Inventory, documents or instruments in which
Agent holds a security interest to deliver same to Agent and/or subject to
Agent’s order and if they shall come into any Borrower’s possession, they, and
each of them, shall be held by such Borrower in trust as Agent’s trustee, and
such Borrower will immediately deliver them to Agent in their original form
together with any necessary endorsement.
4.7. Books and
Records. Each Borrower shall (a) keep proper books of record
and account in which full, true and correct entries will be made of all dealings
or transactions of or in relation to its business and affairs; (b) set up on its
books accruals with respect to all taxes, assessments, charges, levies and
claims; and (c) on a reasonably current basis set up on its books, from its
earnings, allowances against doubtful Receivables, advances and investments and
all other proper accruals (including by reason of enumeration, accruals for
premiums, if any, due on required payments and accruals for depreciation,
obsolescence, or amortization of properties), which should be set aside from
such earnings in connection with its business. All determinations
pursuant to this subsection shall be made in accordance with, or as required by,
GAAP consistently applied in the opinion of such independent public accountant
as shall then be regularly engaged by Borrowers.
4.8. Financial
Disclosure. Each Borrower hereby irrevocably authorizes and
directs all accountants and auditors employed by such Borrower at any time
during the Term to exhibit and deliver to Agent and each Lender copies of any of
such Borrower’s financial statements, trial balances or other accounting records
of any sort in the accountant’s or auditor’s possession, and to disclose to
Agent and each Lender any information such accountants may have concerning such
Borrower’s financial status and business operations. Each Borrower
hereby authorizes all Governmental Bodies to furnish to Agent and each Lender
copies of reports or examinations relating to such Borrower, whether made by
such Borrower or otherwise; however, Agent and
48
each
Lender will attempt to obtain such information or materials directly from such
Borrower prior to obtaining such information or materials from such accountants
or Governmental Bodies.
4.9. Compliance with
Laws. Each Borrower shall comply with all Applicable Laws with
respect to the Collateral or any part thereof or to the operation of such
Borrower’s business the non-compliance with which could reasonably be expected
to have a Material Adverse Effect. Each Borrower may, however,
contest or dispute any Applicable Laws in any reasonable manner, provided that
any related Lien is inchoate or stayed and sufficient reserves are established
to the reasonable satisfaction of Agent to protect Agent’s Lien on or security
interest in the Collateral. The assets of Borrowers at all times
shall be maintained in accordance with the requirements of all insurance
carriers which provide insurance with respect to the assets of Borrowers so that
such insurance shall remain in full force and effect.
4.10. Inspection of
Premises. At all reasonable times Agent and each Lender shall
have full access to and the right to audit, check, inspect and make abstracts
and copies from each Borrower’s books, records, audits, correspondence and all
other papers relating to the Collateral and the operation of each Borrower’s
business. Upon reasonable prior notice (which prior notice will not be required
after the occurrence and during the continuance of an Event
of Default), Agent, any Lender and their agents may enter upon any
premises of any Borrower at any time during business hours and at any other
reasonable time, and from time to time, for the purpose of inspecting the
Collateral and any and all records pertaining thereto and the operation of such
Borrower’s business.
4.11. Insurance. The
assets and properties of each Borrower at all times shall be maintained in
accordance with the requirements of all insurance carriers which provide
insurance with respect to the assets and properties of such Borrower so that
such insurance shall remain in full force and effect. Each Borrower
shall bear the full risk of any loss of any nature whatsoever with respect to
the Collateral. At each Borrower’s own cost and expense in amounts
and with carriers acceptable to Agent, each Borrower shall (a) keep all its
insurable properties and properties in which such Borrower has an interest
insured against the hazards of fire, flood, sprinkler leakage, those hazards
covered by extended coverage insurance and such other hazards, and for such
amounts, as is customary in the case of companies engaged in businesses similar
to such Borrower’s including business interruption insurance; (b) maintain a
bond in such amounts as is customary in the case of companies engaged in
businesses similar to such Borrower insuring against larceny, embezzlement or
other criminal misappropriation of insured’s officers and employees who may
either singly or jointly with others at any time have access to the assets or
funds of such Borrower either directly or through authority to draw upon such
funds or to direct generally the disposition of such assets; (c) maintain public
and product liability insurance against claims for personal injury, death or
property damage suffered by others; (d) maintain all such worker’s compensation
or similar insurance as may be required under the laws of any state or
jurisdiction in which such Borrower is engaged in business; (e) furnish Agent
with (i) copies of all policies and evidence of the maintenance of such policies
by the renewal thereof at least thirty (30) days before any expiration date, and
(ii) appropriate loss payable endorsements in form and substance satisfactory to
Agent, naming Agent as a co-insured and loss payee as its interests may appear
with respect to all insurance coverage referred to in clauses (a), and (c)
above, and providing (A) that all proceeds thereunder shall be payable to Agent,
(B) no such insurance shall be affected by any act or neglect of the insured or
owner of the property
49
described
in such policy, and (C) that such policy and loss payable clauses may not be
cancelled, amended or terminated unless at least thirty (30) days’ prior written
notice is given to Agent. In the event of any loss thereunder, the
carriers named therein hereby are directed by Agent and the applicable Borrower
to make payment for such loss to Agent and not to such Borrower and Agent
jointly. If any insurance losses are paid by check, draft or other
instrument payable to any Borrower and Agent jointly, Agent may endorse such
Borrower’s name thereon and do such other things as Agent may deem advisable to
reduce the same to cash. Agent is hereby authorized to adjust and
compromise claims under insurance coverage referred to in clauses (a), and (b)
above. All loss recoveries received by Agent upon any such insurance
may be applied to the Obligations, in such order as Agent in its sole discretion
shall determine. Any surplus shall be paid by Agent to Borrowers or
applied as may be otherwise required by law. Any deficiency thereon
shall be paid by Borrowers to Agent, on demand. Anything hereinabove
to the contrary notwithstanding, and subject to the fulfillment of the
conditions set forth below, Agent shall remit to Borrowing Agent insurance
proceeds received by Agent during any calendar year under insurance policies
procured and maintained by Borrowers which insure Borrowers’ insurable
properties to the extent such insurance proceeds do not exceed $500,000 in the
aggregate during such calendar year or $250,000 per occurrence. In
the event the amount of insurance proceeds received by Agent for any occurrence
exceeds $250,000, then Agent shall not be obligated to remit the insurance
proceeds to Borrowing Agent unless Borrowing Agent shall provide Agent with
evidence reasonably satisfactory to Agent that the insurance proceeds will be
used by Borrowers to repair, replace or restore the insured property which was
the subject of the insurable loss. In the event Borrowing Agent have
previously received (or, after giving effect to any proposed remittance by Agent
to Borrowing Agent would receive) insurance proceeds which equal or exceed
$500,000 in the aggregate during any calendar year, then Agent may, in its sole
discretion, either remit the insurance proceeds to Borrowing Agent upon
Borrowing Agent providing Agent with evidence reasonably satisfactory to Agent
that the insurance proceeds will be used by Borrowers to repair, replace or
restore the insured property which was the subject of the insurable loss, or
apply the proceeds to the Obligations, as aforesaid. The agreement of
Agent to remit insurance proceeds in the manner above provided shall be subject
in each instance to satisfaction of each of the following conditions: (x) No
Event of Default or Default shall then have occurred, and (y) Borrowers shall
use such insurance proceeds to repair, replace or restore the insurable property
which was the subject of the insurable loss and for no other
purpose.
4.12. Failure to Pay
Insurance. If any Borrower fails to obtain insurance as
hereinabove provided, or to keep the same in force, Agent, if Agent so elects,
may obtain such insurance and pay the premium therefor on behalf of such
Borrower, and charge Borrowers’ Account therefor as a Revolving Advance of a
Domestic Rate Loan and such expenses so paid shall be part of the
Obligations.
4.13. Payment of
Taxes. Each Borrower will pay, when due, all taxes,
assessments and other Charges lawfully levied or assessed upon such Borrower or
any of the Collateral including real and personal property taxes, assessments
and charges and all franchise, income, employment, social security benefits,
withholding, and sales taxes. If any tax by any Governmental Body is
or may be imposed on or as a result of any transaction between any Borrower and
Agent or any Lender which Agent or any Lender may be required to withhold or pay
or if any taxes, assessments, or other Charges remain unpaid after the date
fixed for their payment, or if any claim shall be made which, in Agent’s or any
Lender’s opinion, may possibly
50
create a
valid Lien on the Collateral, Agent may without notice to Borrowers pay the
taxes, assessments or other Charges and each Borrower hereby indemnifies and
holds Agent and each Lender harmless in respect thereof. Agent will
not pay any taxes, assessments or Charges to the extent that any applicable
Borrower has contested or disputed those taxes, assessments or Charges in good
faith, by expeditious protest, administrative or judicial appeal or similar
proceeding provided that any related tax lien is stayed and sufficient reserves
are established to the reasonable satisfaction of Agent to protect Agent’s
security interest in or Lien on the Collateral. The amount of any
payment by Agent under this Section 4.13 shall be charged to Borrowers’ Account
as a Revolving Advance and added to the Obligations and, until Borrowers shall
furnish Agent with an indemnity therefor (or supply Agent with evidence
satisfactory to Agent that due provision for the payment thereof has been made),
Agent may hold without interest any balance standing to Borrowers’ credit and
Agent shall retain its security interest in and Lien on any and all Collateral
held by Agent.
4.14. Payment of Leasehold
Obligations. Each Borrower shall at all times pay, when and as
due, its rental obligations under all leases under which it is a tenant, and
shall otherwise comply, in all material respects, with all other terms of such
leases and keep them in full force and effect (unless such leases are being
terminated in the Ordinary Course of Business) and, at Agent’s request will
provide evidence of having done so.
4.15. Receivables.
(a) Nature of
Receivables. Each of the Receivables shall be a bona fide and
valid account representing a bona fide indebtedness incurred by the Customer
therein named, for a fixed sum as set forth in the invoice relating thereto
(provided immaterial or unintentional invoice errors shall not be deemed to be a
breach hereof) with respect to an absolute sale or lease and delivery of goods
upon stated terms of a Borrower, or work, labor or services theretofore rendered
by a Borrower as of the date each Receivable is created. Same shall
be due and owing in accordance with the applicable Borrower’s standard terms of
sale without dispute, setoff or counterclaim except as may be stated on the
accounts receivable schedules delivered by Borrowers to Agent.
(b) Solvency of
Customers. Each Customer, to the best of each Borrower’s
knowledge, as of the date each Receivable is created, is and will be solvent and
able to pay all Receivables on which the Customer is obligated in full when due
or with respect to such Customers of any Borrower who are not solvent such
Borrower has set up on its books and in its financial records bad debt reserves
adequate to cover such Receivables.
(c) Location of
Borrowers. Each Borrower’s chief executive office is located
at the location set forth on Schedule 4.5(c). Until written notice is
given to Agent by Borrowing Agent of any other office at which any Borrower
keeps its records pertaining to Receivables, all such records shall be kept at
such executive office.
(d) Collection of
Receivables. Until any Borrower’s authority to do so is
terminated by Agent (which notice Agent may give at any time following the
occurrence of an Event of Default or a Default or when Agent in its reasonable
credit judgment deems it to be in Lenders’ best interest to do so), each
Borrower will, at such Borrower’s sole cost and expense,
51
but on
Agent’s behalf and for Agent’s account, collect as Agent’s property and in trust
for Agent all amounts received on Receivables, and shall not commingle such
collections with any Borrower’s funds or use the same except to pay
Obligations. Each Borrower shall deposit in the Blocked Account or,
upon request by Agent, deliver to Agent, in original form and on the date of
receipt thereof, all checks, drafts, notes, money orders, acceptances, cash and
other evidences of Indebtedness.
(e) Notification of Assignment
of Receivables. At any time following the occurrence of an
Event of Default or a Default, Agent shall have the right to send notice of the
assignment of, and Agent’s security interest in and Lien on, the Receivables to
any and all Customers or any third party holding or otherwise concerned with any
of the Collateral. Thereafter, Agent shall have the sole right to
collect the Receivables, take possession of the Collateral, or
both. Agent’s actual collection expenses, including, but not limited
to, stationery and postage, telephone and telegraph, secretarial and clerical
expenses and the salaries of any collection personnel used for collection, may
be charged to Borrowers’ Account and added to the Obligations.
(f) Power of Agent to Act on
Borrowers’ Behalf. Agent shall have the right to receive,
endorse, assign and/or deliver in the name of Agent or any Borrower any and all
checks, drafts and other instruments for the payment of money relating to the
Receivables, and each Borrower hereby waives notice of presentment, protest and
non-payment of any instrument so endorsed. Each Borrower hereby
constitutes Agent or Agent’s designee as such Borrower’s attorney with power (i)
to endorse such Borrower’s name upon any notes, acceptances, checks, drafts,
money orders or other evidences of payment or Collateral; (ii) to sign such
Borrower’s name on any invoice or xxxx of lading relating to any of the
Receivables, drafts against Customers, assignments and verifications of
Receivables; (iii) to send verifications of Receivables to any Customer; (iv) to
sign such Borrower’s name on all financing statements or any other documents or
instruments deemed necessary or appropriate by Agent to preserve, protect, or
perfect Agent’s interest in the Collateral and to file same; (v) to demand
payment of the Receivables; (vi) to enforce payment of the Receivables by legal
proceedings or otherwise; (vii) to exercise all of such Borrower’s rights and
remedies with respect to the collection of the Receivables and any other
Collateral; (viii) to settle, adjust, compromise, extend or renew the
Receivables; (ix) to settle, adjust or compromise any legal proceedings brought
to collect Receivables; (x) to prepare, file and sign such Borrower’s name on a
proof of claim in bankruptcy or similar document against any Customer; (xi) to
prepare, file and sign such Borrower’s name on any notice of Lien, assignment or
satisfaction of Lien or similar document in connection with the Receivables; and
(xii) to do all other acts and things necessary to carry out this Agreement;
provided that Agent will not exercise the rights set forth in sub-clauses (i),
(ii), (v), (vi), (vii), (vii), (ix), (x), (xi) and (xii) until after the
occurrence and during the continuance of an Event of Default. All
acts of said attorney or designee are hereby ratified and approved, and said
attorney or designee shall not be liable for any acts of omission or commission
nor for any error of judgment or mistake of fact or of law, unless done
maliciously or with gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final non-appealable judgment); this power
being coupled with an interest is irrevocable while any of the Obligations
remain unpaid. Agent shall have the right at any time following the
occurrence and during the continuance of an Event of Default or Default, to
change the address for delivery
52
of mail
addressed to any Borrower to such address as Agent may designate and to receive,
open and dispose of all mail addressed to any Borrower.
(g) No
Liability. Neither Agent nor any Lender shall, under any
circumstances other that as result of their own willful misconduct or gross
negligence (as determined by a court of competent jurisdiction in a final
non-appealable judgment) or in any event whatsoever, have any liability for any
error or omission or delay of any kind occurring in the settlement, collection
or payment of any of the Receivables or any instrument received in payment
thereof, or for any damage resulting therefrom. Following the
occurrence and during the continuance of an Event of Default or Default, Agent
may, without notice or consent from any Borrower, xxx upon or otherwise collect,
extend the time of payment of, compromise or settle for cash, credit or upon any
terms any of the Receivables or any other securities, instruments or insurance
applicable thereto and/or release any obligor thereof. Agent is
authorized and empowered to accept, following the occurrence and during the
continuance of an Event of Default or Default, the return of the goods
represented by any of the Receivables, without notice to or consent by any
Borrower, all without discharging or in any way affecting any Borrower’s
liability hereunder.
(h) Establishment of a Lockbox
Account, Dominion Account. All proceeds of Collateral shall be
deposited by Borrowers into either (i) a lockbox account, dominion account or
such other “blocked account” (“Blocked Accounts”) established at a bank or banks
(each such bank, a “Blocked Account Bank”) pursuant to an arrangement with such
Blocked Account Bank as may be selected by Borrowing Agent and be acceptable to
Agent or (ii) depository accounts (“Depository Accounts”) established at the
Agent for the deposit of such proceeds. Each applicable Borrower,
Agent and each Blocked Account Bank shall enter into a deposit account control
agreement in form and substance satisfactory to Agent directing such Blocked
Account Bank to transfer such funds so deposited to Agent, either to any account
maintained by Agent at said Blocked Account Bank or by wire transfer to
appropriate account(s) of Agent. All funds deposited in such Blocked
Accounts shall immediately become the property of Agent and Borrowing Agent
shall obtain the agreement by such Blocked Account Bank to waive any offset
rights against the funds so deposited. Neither Agent nor any Lender
assumes any responsibility for such blocked account arrangement, including any
claim of accord and satisfaction or release with respect to deposits accepted by
any Blocked Account Bank thereunder. All deposit accounts and
investment accounts of each Borrower and its Subsidiaries are set forth on
Schedule 4.15(h).
(i) Adjustments. No
Borrower will, without Agent’s consent, compromise or adjust any Receivables (or
extend the time for payment thereof) or accept any returns of merchandise or
grant any additional discounts, allowances or credits thereon except for those
compromises, adjustments, returns, discounts, credits and allowances as have
been heretofore customary in the business of such Borrower.
4.16. Inventory. To
the extent Inventory held for sale or lease has been produced by any Borrower,
it has been and will be produced by such Borrower in accordance with the Federal
Fair Labor Standards Act of 1938, as amended, and all rules, regulations and
orders thereunder.
53
4.17. Maintenance of
Equipment. The Equipment (including all Rig Fleet Equipment)
shall be maintained in good operating condition and repair (reasonable wear and
tear and damege due to casualty excepted) and all necessary replacements of and
repairs thereto shall be made so that the value and operating efficiency of the
Equipment shall be maintained and preserved. No Borrower shall use or
operate the Equipment (including the Rig Fleet Equipment) in violation of any
law, statute, ordinance, code, rule or regulation. Each Borrower
shall have the right to sell Equipment (including Rig Fleet Equipment) to the
extent set forth in Section 4.3 hereof.
4.18. Exculpation of
Liability. Nothing herein contained shall be construed to
constitute Agent or any Lender as any Borrower’s agent for any purpose
whatsoever, nor shall Agent or any Lender be responsible or liable for any
shortage, discrepancy, damage, loss or destruction of any part of the Collateral
wherever the same may be located and regardless of the cause thereof other than
the gross negligence or willful misconduct of Agent or any Lender (as determined
by a court of competent jurisdiction in a final non-appealable
judgment). Neither Agent nor any Lender, whether by anything herein
or in any assignment or otherwise, assume any of any Borrower’s obligations
under any contract or agreement assigned to Agent or such Lender, and neither
Agent nor any Lender shall be responsible in any way for the performance by any
Borrower of any of the terms and conditions thereof.
4.19. Environmental
Matters.
(a) Borrowers
shall ensure that the Real Property and all operations and businesses conducted
thereon remains in compliance in all material respects with all Environmental
Laws and they shall not place or permit to be placed any Hazardous Substances on
any Real Property except as permitted by Applicable Law or appropriate
governmental authorities.
(b) Borrowers
shall establish and maintain a system to assure and monitor continued compliance
with all applicable Environmental Laws which system shall include periodic
reviews of such compliance.
(c) Borrowers
shall (i) employ in connection with the use of the Real Property appropriate
technology necessary to maintain compliance with any applicable Environmental
Laws and (ii) dispose of any and all Hazardous Waste generated at the Real
Property only at facilities and with carriers that maintain valid permits under
RCRA and any other applicable Environmental Laws. Borrowers shall use
their best efforts to obtain certificates of disposal, such as hazardous waste
manifest receipts, from all treatment, transport, storage or disposal facilities
or operators employed by Borrowers in connection with the transport or disposal
of any Hazardous Waste generated at the Real Property.
(d) In the
event any Borrower obtains, gives or receives notice of any Release or threat of
Release of a reportable quantity of any Hazardous Substances at the Real
Property (any such event being hereinafter referred to as a “Hazardous
Discharge”) or receives any notice of violation, request for information or
notification that it is potentially responsible for investigation or cleanup of
environmental conditions at the Real Property, demand letter or complaint,
order, citation, or other written notice with regard to any Hazardous Discharge
or violation of Environmental Laws affecting the Real Property or any Borrower’s
interest therein
54
(any of
the foregoing is referred to herein as an “Environmental Complaint”) from any
Person, including any state agency responsible in whole or in part for
environmental matters in the state in which the Real Property is located or the
United States Environmental Protection Agency (any such person or entity
hereinafter the “Authority”), then Borrowing Agent shall, within five (5)
Business Days, give written notice of same to Agent detailing facts and
circumstances of which any Borrower is aware giving rise to the Hazardous
Discharge or Environmental Complaint. Such information is to be
provided to allow Agent to protect its security interest in and Lien on the Real
Property and the Collateral and is not intended to create nor shall it create
any obligation upon Agent or any Lender with respect thereto.
(e) Borrowing
Agent shall promptly forward to Agent copies of any request for information,
notification of potential liability, demand letter relating to potential
responsibility with respect to the investigation or cleanup of Hazardous
Substances at any other site owned, operated or used by any Borrower to dispose
of Hazardous Substances and shall continue to forward copies of correspondence
between any Borrower and the Authority regarding such claims to Agent until the
claim is settled. Borrowing Agent shall promptly forward to Agent
copies of all documents and reports concerning a Hazardous Discharge at the Real
Property that any Borrower is required to file under any Environmental
Laws. Such information is to be provided solely to allow Agent to
protect Agent’s security interest in and Lien on the Real Property and the
Collateral.
(f) Borrowers
shall respond promptly to any Hazardous Discharge or Environmental Complaint and
take all necessary action in order to safeguard the health of any Person and to
avoid subjecting the Collateral or Real Property to any Lien. If any
Borrower shall fail to respond promptly to any Hazardous Discharge or
Environmental Complaint or any Borrower shall fail to comply with any of the
requirements of any Environmental Laws, Agent on behalf of Lenders may, but
without the obligation to do so, for the sole purpose of protecting Agent’s
interest in the Collateral: (A) give such notices or (B) enter onto
the Real Property (or authorize third parties to enter onto the Real Property)
and take such actions as Agent (or such third parties as directed by Agent) deem
reasonably necessary or advisable, to clean up, remove, mitigate or otherwise
deal with any such Hazardous Discharge or Environmental
Complaint. All reasonable costs and expenses incurred by Agent and
Lenders (or such third parties) in the exercise of any such rights, including
any sums paid in connection with any judicial or administrative investigation or
proceedings, fines and penalties, together with interest thereon from the date
expended at the Default Rate for Domestic Rate Loans constituting Revolving
Advances shall be paid upon demand by Borrowers, and until paid shall be added
to and become a part of the Obligations secured by the Liens created by the
terms of this Agreement or any other agreement between Agent, any Lender and any
Borrower.
(g) Promptly
upon the written request of Agent from time to time, Borrowers shall provide
Agent, at Borrowers’ expense, with an environmental site assessment or
environmental audit report prepared by an environmental engineering firm
acceptable in the reasonable opinion of Agent, to assess with a reasonable
degree of certainty the existence of a Hazardous Discharge and the potential
costs in connection with abatement, cleanup and removal of any Hazardous
Substances found on, under, at or within the Real Property. Any
report or investigation of such Hazardous Discharge proposed and acceptable to
an appropriate Authority that is charged to oversee the clean-up of such
Hazardous Discharge shall be acceptable to
55
Agent. If
such estimates, individually or in the aggregate, exceed $100,000, Agent shall
have the right to require Borrowers to post a bond, letter of credit or other
security reasonably satisfactory to Agent to secure payment of these costs and
expenses.
(h) Borrowers
shall defend and indemnify Agent and Lenders and hold Agent, Lenders and their
respective employees, agents, directors and officers harmless from and against
all loss, liability, damage and expense, claims, costs, fines and penalties,
including attorney’s fees, suffered or incurred by Agent or Lenders under or on
account of any Environmental Laws, including the assertion of any Lien
thereunder, with respect to any Hazardous Discharge, the presence of any
Hazardous Substances affecting the Real Property, whether or not the same
originates or emerges from the Real Property or any contiguous real estate,
including any loss of value of the Real Property as a result of the foregoing
except to the extent such loss, liability, damage and expense is attributable to
any Hazardous Discharge resulting from actions on the part of Agent or any
Lender. Borrowers’ obligations under this Section 4.19 shall arise
upon the discovery of the presence of any Hazardous Substances at the Real
Property, whether or not any federal, state, or local environmental agency has
taken or threatened any action in connection with the presence of any Hazardous
Substances. Borrowers’ obligation and the indemnifications hereunder
shall survive the termination of this Agreement.
(i) For
purposes of Section 4.19 and 5.7, all references to Real Property shall be
deemed to include all of each Borrower’s right, title and interest in and to its
owned and leased premises.
4.20. Financing
Statements. Except as respects the financing statements filed
by Agent and the financing statements described on Schedule 1.2(b), no financing
statement covering any of the Collateral or any proceeds thereof is on file in
any public office.
4.21. Rig Fleet
Equipment. A complete record of all Rig Fleet Equipment owned
by BWS as of the Closing Date (including on a Rig-by-Rig basis (w)
identification of the rig number of each Rig, (x) identification of the location
of each Rig (by county, state and country), (y) a notation of whether or not the
Rig Fleet Equipment is operating under a drilling contract at a customer’s
working job site and (z) whether such Rig Fleet Equipment is a Mobile Rig and,
if so, annotation of whether such Mobile Rig is covered by a certificate of
title and the state of issuance thereof) is set forth in Schedule 4.21
hereto. The Agent and the Lenders shall at all reasonable times and
upon reasonable prior notice (which prior notice will not be required after the
occurrence and during the continuance of an Event of Default) have access, to
the extent any Borrower has the power to grant Agent and the Lenders such
access, to the Rig Fleet Equipment located on such property; and unless
otherwise agreed to by Agent, after the occurrence and during the continuance of
an Event of Default, the Agent shall have the right to enter on such property
and to remove such Rig Fleet Equipment therefrom without interference from, or
imposition of any Lien on such Rig Fleet Equipment by, any owner, landlord,
tenant or other Person with an interest in such property. Each of the
Rig Fleet Equipment (a) constitutes goods which are mobile, of a type normally
used in more than one jurisdiction and not designed to be permanently used in
any one location; and (b) is not a fixture under the laws of any jurisdiction in
which any of the Rig Fleet Equipment is located. Each self-propelled
Mobile Rig has been issued a permit license plate or machinery license plate in
accordance with Transportation Code of the State of Texas §§ 504.504, 623.144
and 623.149 or other Applicable Law and is exempted
56
from (i)
certification under Section 501 of the Transportation Code of the State of Texas
pursuant to Texas Department of Transportation Rules, Chapter 43, Section 17.3,
and (ii) registration under Section 502 of the Transportation Code of the State
of Texas.
V. REPRESENTATIONS
AND WARRANTIES.
Each
Borrower represents and warrants as follows:
5.1. Authority. Each
Borrower has full power, authority and legal right to enter into this Agreement
and the Other Documents and to perform all its respective Obligations hereunder
and thereunder. This Agreement and the Other Documents have been duly
executed and delivered by each Borrower, and this Agreement and the Other
Documents constitute the legal, valid and binding obligation of such Borrower
enforceable in accordance with their terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors’ rights generally. The execution, delivery and
performance of this Agreement and of the Other Documents (a) are within such
Borrower’s corporate powers, have been duly authorized by all necessary
corporate action, are not in contravention of law or the terms of such
Borrower’s by-laws, certificate of incorporation or other applicable
documents relating to such Borrower’s formation or to the conduct of such
Borrower’s business or of any material agreement or undertaking to which such
Borrower is a party or by which such Borrower is bound, including the Initial
Acquisition Documents, (b) will not conflict with or violate any law or
regulation, or any judgment, order or decree of any Governmental Body, (c) will
not require the Consent of any Governmental Body or any other Person, except
those Consents set forth on Schedule 5.1 hereto, all of which will have been
duly obtained, made or compiled prior to the Closing Date and which are in full
force and effect and (d) will not conflict with, nor result in any breach in any
of the provisions of or constitute a default under or result in the creation of
any Lien except Permitted Encumbrances upon any asset of such Borrower under the
provisions of any agreement, charter document, instrument, by-law or other
instrument to which such Borrower is a party or by which it or its property is a
party or by which it may be bound, including under the provisions of the Initial
Acquisition Documents.
5.2. Formation
and Qualification.
(a) Each
Borrower is duly incorporated and in good standing under the laws of the state
listed on Schedule 5.2(a) and is qualified to do business and is in good
standing in the states listed on Schedule 5.2(a) which constitute all
states in which qualification and good standing are necessary for such Borrower
to conduct its business and own its property and where the failure to so qualify
could reasonably be expected to have a Material Adverse Effect on such
Borrower. Each Borrower has delivered to Agent true and complete
copies of its certificate of incorporation and by-laws and will promptly notify
Agent of any amendment or changes thereto.
(b) The only
Subsidiaries of each Borrower are listed on Schedule 5.2(b).
5.3. Survival of Representations
and Warranties. All representations and warranties of such
Borrower contained in this Agreement and the Other Documents shall be true at
the time of such Borrower’s execution of this Agreement and the Other Documents,
and shall survive the
57
execution,
delivery and acceptance thereof by the parties thereto and the closing of the
transactions described therein or related thereto.
5.4. Tax
Returns. Each Borrower’s federal tax identification number is
set forth on Schedule 5.4. Each Borrower has filed all federal, state
and local tax returns and other reports each is required by law to file and has
paid all taxes, assessments, fees and other governmental charges that are due
and payable. Federal, state and local income tax returns of each
Borrower have been examined and reported upon by the appropriate taxing
authority or closed by applicable statute and satisfied for all fiscal years
prior to and including the fiscal year ending December 31, 2006. The
provision for taxes on the books of each Borrower is adequate for all years not
closed by applicable statutes, and for its current fiscal year, and no Borrower
has any knowledge of any deficiency or additional assessment in connection
therewith not provided for on its books.
5.5. Financial
Statements.
(a) The pro
forma balance sheet of Borrowers on a Consolidated Basis (the “Pro Forma Balance
Sheet”) furnished to Agent on the Closing Date reflects the consummation of the
transactions contemplated by the Acquisition Documents, and under this Agreement
(collectively, the “Transactions”) and is accurate, complete and correct and
fairly reflects the financial condition of Borrowers on a Consolidated Basis as
of the Closing Date after giving effect to the Transactions, and has been
prepared in accordance with GAAP, consistently applied. The Pro Forma
Balance Sheet has been certified as accurate, complete and correct in all
material respects by the President and Chief Financial Officer of Borrowing
Agent. All financial statements referred to in this subsection
5.5(a), including the related schedules and notes thereto, have been prepared,
in accordance with GAAP, except as may be disclosed in such financial
statements.
(b) The
twelve-month cash flow projections of Borrowers on a Consolidated Basis and
their projected balance sheets as of the Closing Date, copies of which are
annexed hereto as Exhibit 5.5(b) (the “Projections”) were prepared by the Chief
Financial Officer of Borrowing Agent, are based on underlying assumptions which
provide a reasonable basis for the projections contained therein and reflect
Borrowers’ judgment based on present circumstances of the most likely set of
conditions and course of action for the projected period. The cash
flow Projections together with the Pro Forma Balance Sheet, are referred to as
the “Pro Forma Financial Statements”.
(c) The
balance sheet of each Borrower and such other Persons described therein
(including the accounts of all Subsidiaries for the respective periods during
which a subsidiary relationship existed) as of December 31, 2005 and December
31, 2006, and the related statements of income, changes in stockholder’s equity,
and changes in cash flow for the period ended on such date, all accompanied by
reports thereon containing opinions without qualification by independent
certified public accountants, copies of which have been delivered to Agent, have
been prepared in accordance with GAAP, consistently applied (except for changes
in application in which such accountants concur and present fairly the financial
position of each Borrower and their Subsidiaries at such date and the results of
their operations for such period. Since December 31, 2006 there has
been no change in the condition, financial or otherwise, of any
58
Borrower
or their Subsidiaries as shown on the consolidated balance sheet as of such date
and no change in the aggregate value of machinery, equipment and Real Property
owned by each Borrower and their respective Subsidiaries, except changes in the
Ordinary Course of Business, none of which individually or in the aggregate has
been materially adverse.
5.6. Entity
Names. No Borrower has been known by any other corporate name
in the past five years and does not sell or lease Inventory or provide services
under any other name except as set forth on Schedule 5.6, nor has any Borrower
been the surviving corporation of a merger or consolidation or acquired all or
substantially all of the assets of any Person during the preceding five (5)
years.
5.7. O.S.H.A. and Environmental
Compliance.
(a) Each
Borrower has duly complied in all material respects with, and its facilities,
business, assets, property, leaseholds, Real Property and Equipment are in
compliance in all material respects with, the provisions of the Federal
Occupational Safety and Health Act, the Environmental Protection Act, RCRA and
all other Environmental Laws; there have been no outstanding citations, notices
or orders of non-compliance issued to any Borrower or relating to its business,
assets, property, leaseholds or Equipment under any such laws, rules or
regulations.
(b) Each
Borrower has been issued all material required federal, state and local
licenses, certificates or permits relating to all applicable Environmental
Laws.
(c) (i) There
are no visible signs of releases, spills, discharges, leaks or disposal
(collectively referred to as “Releases”) of Hazardous Substances at, upon, under
or within any Real Property or any premises leased by any Borrower; (ii) there
are no underground storage tanks or polychlorinated biphenyls on the Real
Property or any premises leased by any Borrower; (iii) neither the Real Property
nor any premises leased by any Borrower has ever been used as a treatment,
storage or disposal facility of Hazardous Waste; and (iv) no Hazardous
Substances are present on the Real Property or any premises leased by any
Borrower, excepting such quantities as are handled in accordance with all
applicable manufacturer’s instructions and governmental regulations and in
proper storage containers and as are necessary for the operation of the
commercial business of any Borrower or of its tenants.
5.8. Solvency; No Litigation,
Violation, Indebtedness or Default.
(a) After
giving effect to the Transactions, each Borrower will be solvent, able to pay
its debts as they mature, will have capital sufficient to carry on its business
and all businesses in which it is about to engage, and (i) as of the Closing
Date, the fair present saleable value of its assets, calculated on a going
concern basis, is in excess of the amount of its liabilities and (ii) subsequent
to the Closing Date, the fair saleable value of its assets (calculated on a
going concern basis) will be in excess of the amount of its
liabilities.
(b) Except as
disclosed in Schedule 5.8(b), no Borrower has (i) any pending or threatened
litigation, arbitration, actions or proceedings which involve the possibility of
having a Material Adverse Effect, and (ii) any liabilities or indebtedness for
borrowed money other than the Obligations.
59
(c) No
Borrower is in violation of any applicable statute, law, rule, regulation or
ordinance in any respect which could reasonably be expected to have a Material
Adverse Effect, nor is any Borrower in violation of any order of any court,
Governmental Body or arbitration board or tribunal.
(d) As of the
Closing Date, no Borrower nor any member of the Controlled Group maintains or
contributes to any Plan other than those listed on Schedule 5.8(d)
hereto. (i) No Plan has incurred any “accumulated funding
deficiency,” as defined in Section 302(a)(2) of ERISA and Section 412(a) of the
Code, whether or not waived, and each Borrower and each member of the Controlled
Group has met all applicable minimum funding requirements under Section 302 of
ERISA in respect of each Plan; (ii) each Plan which is intended to be a
qualified plan under Section 401(a) of the Code as currently in effect has been
determined by the Internal Revenue Service to be qualified under Section 401(a)
of the Code and the trust related thereto is exempt from federal income tax
under Section 501(a) of the Code; (iii) neither any Borrower nor any member of
the Controlled Group has incurred any liability to the PBGC other than for the
payment of premiums, and there are no premium payments which have become due
which are unpaid; (iv) no Plan has been terminated by the plan administrator
thereof nor by the PBGC, and there is no occurrence which would cause the PBGC
to institute proceedings under Title IV of ERISA to terminate any Plan; (v) at
this time, the current value of the assets of each Plan exceeds the present
value of the accrued benefits and other liabilities of such Plan and neither any
Borrower nor any member of the Controlled Group knows of any facts or
circumstances which would materially change the value of such assets and accrued
benefits and other liabilities; (vi) neither any Borrower nor any member of the
Controlled Group has breached any of the material responsibilities, obligations
or duties imposed on it by ERISA with respect to any Plan; (vii) neither any
Borrower nor any member of a Controlled Group has incurred any liability for any
excise tax arising under Section 4972 or 4980B of the Code, and no fact exists
which could give rise to any such liability; (viii) neither any Borrower nor any
member of the Controlled Group nor any fiduciary of, nor any trustee to, any
Plan, has engaged in a “prohibited transaction” described in Section 406 of the
ERISA or Section 4975 of the Code nor taken any action which would constitute or
result in a Termination Event with respect to any such Plan which is subject to
ERISA; (ix) each Borrower and each member of the Controlled Group has made all
contributions due and payable with respect to each Plan; (x) there exists no
event described in Section 4043(b) of ERISA, for which the thirty (30) day
notice period has not been waived; (xi) neither any Borrower nor any member of
the Controlled Group has any fiduciary responsibility for investments with
respect to any plan existing for the benefit of persons other than employees or
former employees of any Borrower and any member of the Controlled Group; (xii)
neither any Borrower nor any member of the Controlled Group maintains or
contributes to any Plan which provides health, accident or life insurance
benefits to former employees, their spouses or dependents, other than in
accordance with Section 4980B of the Code; (xiii) neither any Borrower nor any
member of the Controlled Group has withdrawn, completely or partially, from any
Multiemployer Plan so as to incur liability under the Multiemployer Pension Plan
Amendments Act of 1980 and there exists no fact which would reasonably be
expected to result in any such liability; and (xiv) no Plan fiduciary (as
defined in Section 3(21) of ERISA) has any liability in excess of $100,000 for
breach of fiduciary duty or for any failure in connection with the
administration or investment of the assets of a Plan.
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5.9. Patents, Trademarks,
Copyrights and Licenses. All patents, patent applications,
trademarks, trademark applications, service marks, service xxxx applications,
copyrights, copyright applications, design rights, tradenames, assumed names,
trade secrets and licenses owned or utilized by any Borrower as of the Closing
Date are set forth on Schedule 5.9, are valid and have been duly registered or
filed with all appropriate Governmental Bodies and constitute all of the
intellectual property rights which are necessary for the operation of its
business; there is no objection to or pending challenge to the validity of any
such patent, trademark, copyright, design rights, tradename, trade secret or
license and no Borrower is aware of any grounds for any challenge, except as set
forth in Schedule 5.9 hereto. Each patent, patent application, patent
license, trademark, trademark application, trademark license, service xxxx,
service xxxx application, service xxxx license, design rights, copyright,
copyright application and copyright license owned or held by any Borrower and
all trade secrets used by any Borrower consist of original material or property
developed by such Borrower or was lawfully acquired by such Borrower from the
proper and lawful owner thereof. Each of such items has been
maintained so as to preserve the value thereof from the date of creation or
acquisition thereof. With respect to all software used by any
Borrower (other than “off-the-shelf” or public software), such Borrower is in
possession of all source and object codes related to each piece of software or
is the beneficiary of a source code escrow agreement, each such source code
escrow agreement being listed on Schedule 5.9 hereto.
5.10. Licenses and
Permits. Except as set forth in Schedule 5.10, each Borrower
(a) is in compliance with and (b) has procured and is now in possession of, all
material licenses or permits required by any applicable federal, state,
provincial or local law, rule or regulation for the operation of its business in
each jurisdiction wherein it is now conducting or proposes to conduct business
and where the failure to procure such licenses or permits could have a Material
Adverse Effect.
5.11. Default of
Indebtedness. No Borrower is in default in the payment of the
principal of or interest on any Indebtedness having a principal amount in excess
of $100,000 or under any instrument or agreement under or subject to which any
such Indebtedness has been issued and no event has occurred under the provisions
of any such instrument or agreement which with or without the lapse of time or
the giving of notice, or both, constitutes or would constitute an event of
default thereunder.
5.12. No
Default. No Borrower is in default in the payment or
performance of any of its material contractual obligations and no Default has
occurred.
5.13. No Burdensome
Restrictions. No Borrower is party to any contract or
agreement the performance of which could have a Material Adverse
Effect. Each Borrower has heretofore delivered to Agent true and
complete copies of all material contracts to which it is a party or to which it
or any of its properties is subject. No Borrower has agreed or
consented to cause or permit in the future (upon the happening of a contingency
or otherwise) any of its property, whether now owned or hereafter acquired, to
be subject to a Lien which is not a Permitted Encumbrance.
5.14. No Labor
Disputes. No Borrower is involved in any labor dispute; there
are no strikes or walkouts or union organization of any Borrower’s employees
threatened or in
61
existence
and no labor contract is scheduled to expire during the Term other than as set
forth on Schedule 5.14 hereto.
5.15. Margin
Regulations. No Borrower is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of “purchasing” or “carrying” any “margin stock” within
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. No part of the proceeds of any Advance will be
used for “purchasing” or “carrying” “margin stock” as defined in Regulation U of
such Board of Governors.
5.16. Investment Company
Act. No Borrower is an “investment company” registered or
required to be registered under the Investment Company Act of 1940, as amended,
nor is it controlled by such a company.
5.17. Disclosure. No
representation or warranty made by any Borrower in this Agreement or in any
Acquisition Document, or in any financial statement, report, certificate or any
other document furnished in connection herewith or therewith contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein or therein not misleading. There is no
fact known to any Borrower or which reasonably should be known to such Borrower
which such Borrower has not disclosed to Agent in writing with respect to the
transactions contemplated by the Acquisition Documents or this Agreement which
could reasonably be expected to have a Material Adverse Effect.
5.18. Delivery of Acquisition
Documents. Agent has received complete copies of the Initial
Acquisition Documents (including all exhibits, schedules and disclosure letters
referred to therein or delivered pursuant thereto, if any) and all amendments
thereto, waivers relating thereto and other side letters or agreements affecting
the terms thereof. None of such documents and agreements has been
amended or supplemented, nor have any of the provisions thereof been waived,
except pursuant to a written agreement or instrument which has heretofore been
delivered to Agent.
5.19. Swaps. No
Borrower is a party to, nor will it be a party to, any swap agreement whereby
such Borrower has agreed or will agree to swap interest rates or currencies
unless same provides that damages upon termination following an event of default
thereunder are payable on an unlimited “two-way basis” without regard to fault
on the part of either party.
5.20. Conflicting
Agreements. No provision of any mortgage, indenture, contract,
agreement, judgment, decree or order binding on any Borrower or affecting the
Collateral conflicts with, or requires any Consent which has not already been
obtained to, or would in any way prevent the execution, delivery or performance
of, the terms of this Agreement or the Other Documents.
5.21. Application of Certain Laws
and Regulations. Neither any Borrower nor any Affiliate of any
Borrower is subject to any law, statute, rule or regulation which regulates the
incurrence of any Indebtedness, including laws, statutes, rules or regulations
relative to common
62
or
interstate carriers or to the sale of electricity, gas, steam, water, telephone,
telegraph or other public utility services.
5.22. Business and Property of
Borrowers. Upon and after the Closing Date, Borrowers do not
propose to engage in any business other than oil field and mineral services,
including operating drilling, core and well service rigs and the rental of
ancillary equipment, such as pipe racks, mud pumps, blowout preventers, and the
sale and rental of ancillary products and services and activities necessary to
conduct the foregoing. On the Closing Date, each Borrower will own
all the property and possess all of the rights and Consents necessary for the
conduct of the business of such Borrower.
5.23. Section 20
Subsidiaries. Borrowers do not intend to use and shall not use
any portion of the proceeds of the Advances, directly or indirectly, to purchase
during the underwriting period, or for 30 days thereafter, Ineligible Securities
being underwritten by a Section 20 Subsidiary.
5.24. Anti-Terrorism
Laws.
(a) General. Neither
any Borrower nor any Affiliate of any Borrower is in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
(b) Executive Order No.
13224. Neither any Borrower nor any Affiliate of any Borrower
or their respective agents acting or benefiting in any capacity in connection
with the Advances or other transactions hereunder, is any of the following (each
a “Blocked Person”):
(i) a Person
that is listed in the annex to, or is otherwise subject to the provisions of,
the Executive Order No. 13224;
(ii) a Person
owned or controlled by, or acting for or on
behalf of, any Person that is listed
in the annex to, or is otherwise subject to the provisions of, the Executive
Order No. 13224;
(iii) a Person
or entity with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;
(iv) a Person
or entity that commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order No. 13224;
(v) a Person
or entity that is named as a “specially designated national” on the most current
list published by the U.S. Treasury Department Office of Foreign Asset Control
at its official website or any replacement website or other replacement official
publication of such list, or
(vi) a Person
or entity who is affiliated or associated with a Person or entity listed
above.
63
Neither
any Borrower nor to the knowledge of any Borrower, any of its agents acting in
any capacity in connection with the Advances or other transactions hereunder (i)
conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any Blocked Person, or (ii)
deals in, or otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to the Executive
Order No. 13224.
5.25. Trading with the
Enemy. No Borrower has engaged, nor does it intend to engage,
in any business or activity prohibited by the Trading with the Enemy
Act.
5.26. Federal Securities
Laws. Neither any Borrower nor any of its Subsidiaries (i) is
required to file periodic reports under the Exchange Act, (ii) has any
securities registered under the Exchange Act or (iii) has filed a registration
statement that has not yet become effective under the Securities
Act.
VI. AFFIRMATIVE
COVENANTS.
Each
Borrower shall, until payment in full of the Obligations and termination of this
Agreement:
6.1. Payment of
Fees. Pay to Agent on demand all usual and customary fees and
expenses which Agent incurs in connection with (a) the forwarding of Advance
proceeds and (b) the establishment and maintenance of any Blocked Accounts or
Depository Accounts as provided for in Section 4.15(h). Agent may,
without making demand, charge Borrowers’ Account for all such fees and
expenses.
6.2. Conduct of Business and
Maintenance of Existence and Assets. (a) Conduct continuously
and operate actively its business according to good business practices and
maintain all of its properties useful or necessary in its business in good
working order and condition (reasonable wear and tear and damage due to casualty
excepted and except as may be disposed of in accordance with the terms of this
Agreement), including all licenses, patents, copyrights, design rights,
tradenames, trade secrets and trademarks and take all actions necessary to
enforce and protect the validity of any intellectual property right or other
right included in the Collateral; (b) keep in full force and effect its
existence and comply in all material respects with the laws and regulations
governing the conduct of its business where the failure to do so could
reasonably be expected to have a Material Adverse Effect; and (c) make all such
reports and pay all such franchise and other taxes and license fees and do all
such other acts and things as may be lawfully required to maintain its rights,
licenses, leases, powers and franchises under the laws of the United States or
any political subdivision thereof where the failure to do so could reasonably be
expected to have a Material Adverse Effect.
6.3. Violations. Promptly
notify Agent in writing of any violation of any law, statute, regulation or
ordinance of any Governmental Body, or of any agency thereof, applicable to any
Borrower which could reasonably be expected to have a Material Adverse
Effect.
6.4. Government
Receivables. Take all steps necessary to protect Agent’s
interest in the Collateral under the Federal Assignment of Claims Act, the
Uniform Commercial Code and all other applicable state or local statutes or
ordinances and deliver to Agent appropriately
64
endorsed,
any instrument or chattel paper connected with any Receivable arising out of
contracts between any Borrower and the United States, any state or any
department, agency or instrumentality of any of them.
6.5. Financial
Covenants.
(a) Fixed Charge Coverage
Ratio. Cause to be maintained as of the end of each fiscal
quarter, for the twelve month period ending on the last day of such fiscal
quarter, a Fixed Charge Coverage Ratio of not less than 1.10 of 1.0; provided
that (w) for the fiscal quarter of the Borrowers ending on or about March 31,
2008, the Fixed Charge Coverage Ratio shall be calculated for the period
commencing on the Closing Date and ending on the last day of such fiscal
quarter, (x) for the fiscal quarter of the Borrowers ending on or about June 30,
2008, the Fixed Charge Coverage Ratio shall be calculated for the three month
period ending on the last day of such fiscal quarter, (y) for the fiscal quarter
of the Borrowers ending on or about September 30, 2008, the Fixed Charge
Coverage Ratio shall be calculated for the six month period ending on the last
day of such fiscal quarter, and (z) for the fiscal quarter of the Borrowers
ending on or about December 31, 2008, the Fixed Charge Coverage Ratio shall be
calculated for the nine month period ending on the last day of such fiscal
quarter .
(b) Leverage
Ratio. Maintain as of the end of each fiscal quarter, for the
twelve month period ending on the last day of such fiscal quarter, a ratio of
Funded Debt to EBITDA of not greater than the amount set forth in the table
below for such period:
Fiscal
Quarter Ending:
|
Leverage
Ratio:
|
March
31, 2008
|
3.5
to 1.0
|
June
30, 2008
|
3.5
to 1.0
|
September
30, 2008
|
3.5
to 1.0
|
December
31, 2008
|
3.5
to 1.0
|
March
31, 2009
|
3.0
to 1.0
|
June
30, 2009
|
3.0
to 1.0
|
September
30, 2009
|
3.0
to 1.0
|
December
31, 2009
|
3.0
to 1.0
|
March
30, 2010 and each fiscal quarter ending thereafter
|
2.50
to 1.0
|
;
provided that, notwithstanding the foregoing, (w) for the fiscal quarter of the
Borrowers ending on or about March 31, 2008, EBITDA shall be calculated by
taking the actual EBITDA for the period commencing on the Closing Date and
ending on the last day of such fiscal quarter and (i)
65
dividing
such amount by the number of days in such period and then (ii) multiplying such
amount by 360, (x) for the fiscal quarter of the Borrowers ending on or about
June 30, 2008, EBITDA shall be calculated by taking the actual EBITDA for the
three month period ending on the last day of such fiscal quarter and multiplying
such amount by 4, (y) for the fiscal quarter of the Borrowers ending on or about
September 30, 2008, EBITDA shall be calculated by taking the actual EBITDA for
the six month period ending on the last day of such fiscal quarter and
multiplying such amount by 2, and (z) for the fiscal quarter of the Borrowers
ending on or about December 31, 2008, EBITDA shall be calculated by taking the
actual EBITDA for the nine month period ending on the last day of such fiscal
quarter and (i) dividing each such amount by 3 and then (ii) multiplying such
amount by 4.
6.6. Execution of Supplemental
Instruments. Execute and deliver to Agent from time to time,
upon demand, such supplemental agreements, statements, assignments and
transfers, or instructions or documents relating to the Collateral, and such
other instruments as Agent may request, in order that the full intent of this
Agreement may be carried into effect.
6.7. Payment of
Indebtedness. Pay, discharge or otherwise satisfy at or before
maturity (subject, where applicable, to specified grace periods and, in the case
of the trade payables, to normal payment practices) all its obligations and
liabilities of whatever nature, except when the failure to do so could not
reasonably be expected to have a Material Adverse Effect or when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and each Borrower shall have provided for such reserves as Agent may
reasonably deem proper and necessary, subject at all times to any applicable
subordination arrangement in favor of Lenders.
6.8. Standards of Financial
Statements. Cause all financial statements referred to in
Sections 9.7, 9.8, 9.9, 9.10, 9.11, 9.12, 9.13 and 9.14 as to which GAAP is
applicable to be complete and correct in all material respects (subject, in the
case of interim financial statements, to normal year-end audit adjustments) and
to be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as concurred in by
such reporting accountants or officer, as the case may be, and disclosed
therein).
6.9. Federal Securities
Laws. Best will provide Agent copies of (i) all periodic
reports it is required to file under the Exchange Act and (ii) all registration
statements it files under the Securities Act.
6.10. Exercise of
Rights. Enforce all of its rights under the Acquisition
Documents including, but not limited to, all indemnification rights and pursue
all remedies available to it with diligence and in good faith in connection with
the enforcement of any such rights.
6.11. Identification of Rig Fleet
Equipment. Each Borrower will cause each Rig to be numbered
with identifying numbers as set forth on Schedule 4.21 hereto
and will cause each Rig to be conspicuously and permanently marked as property
of such Borrower and subject to the Lien of Agent. No Borrower will
change the identifying number of any Rig without prior written notice to
Agent.
VII. NEGATIVE
COVENANTS.
66
No
Borrower shall, until satisfaction in full of the Obligations and termination of
this Agreement:
7.1. Merger, Consolidation,
Acquisition and Sale of Assets.
(a) Enter
into any merger, consolidation or other reorganization with or into any other
Person or acquire all or a substantial portion of the assets or Equity Interests
of any Person or permit any other Person to consolidate with or merge with it;
provided that (x) the Acquisitions shall be permitted and (y) BBD and BWS shall
be permitted to merge or consolidate into each other or into Best (with Best
being the survivor of any such merger).
(b) Sell,
lease, transfer or otherwise dispose of any of its properties or assets, except
(i) dispositions of Inventory and Equipment to the extent expressly permitted by
Section 4.3 and (ii) any other sales or dispositions expressly permitted by this
Agreement.
7.2. Creation of
Liens. Create or suffer to exist any Lien or transfer upon or
against any of its property or assets now owned or hereafter acquired, except
Permitted Encumbrances.
7.3. Guarantees. Become
liable upon the obligations or liabilities of any Person by assumption,
endorsement or guaranty thereof or otherwise (other than to Lenders) except (a)
as disclosed on Schedule 7.3, (b) guarantees made in the Ordinary Course of
Business up to an aggregate amount of $100,000 and (c) the endorsement of checks
in the Ordinary Course of Business.
7.4. Investments. Purchase
or acquire obligations or Equity Interests of, or any other interest in, any
Person, except (a) obligations issued or guaranteed by the United States of
America or any agency thereof, (b) commercial paper with maturities of not more
than 180 days and a published rating of not less than A-1 or P-1 (or the
equivalent rating), (c) certificates of time deposit and bankers’ acceptances
having maturities of not more than 180 days and repurchase agreements backed by
United States government securities of a commercial bank if (i) such bank has a
combined capital and surplus of at least $500,000,000, or (ii) its debt
obligations, or those of a holding company of which it is a Subsidiary, are
rated not less than A (or the equivalent rating) by a nationally recognized
investment rating agency, (d) U.S. money market funds that invest solely in
obligations issued or guaranteed by the United States of America or an agency
thereof, (e) the Acquisitions or (f) Investments by a Borrower in any other
Borrower (other than Best).
7.5. Loans. Make
advances, loans or extensions of credit to (a) any Person, including any Parent,
Subsidiary or Affiliate except with respect to loans to its employees or
independent sales persons in the Ordinary Course of Business not to exceed the
aggregate amount of $100,000 at any time outstanding, (b) any other Borrower, or
(c) to the extent permitted by applicable law, officers, directors or employees
of any Borrower with respect to Equity Interests purchased by such officers,
directors or employees pursuant to a stock ownership, purchase or compensation
plan of any Borrower not to exceed the aggregate amount of $100,000 at any time
outstanding.
67
7.6. Capital
Expenditures. Contract for, purchase or make any expenditure
or commitments for Capital Expenditures in any fiscal year in an aggregate
amount for all Borrowers in excess of $2,000,000.
7.7. Dividends. Declare,
pay or make any dividend or distribution on any shares of the common stock or
preferred stock of any Borrower (other than dividends or distributions payable
in its stock, or split-ups or reclassifications of its stock) or apply any of
its funds, property or assets to the purchase, redemption or other retirement of
any common or preferred stock, or of any options to purchase or acquire any such
shares of common or preferred stock of any Borrower; provided that
Borrower shall be permitted to make payments (i) utilizing up to 25% of net
income of the Borrowers on a consolidated basis in any fiscal year to the
holders of Best’s Series A Convertible Preferred Stock in accordance with the
provisions of the Certificate of Designation therefor as in effect on the
Closing Date, so long as after giving effect to such payment (x) Borrowers have
at least $1,500,000 of Undrawn Availability and (y) Borrowers demonstrate to
Agent’s reasonable satisfaction pro forma compliance with financial covenants
set forth in Section 6.5 of this Agreement, and (ii) to Best, to pay
professional fees, franchise taxes and other Ordinary Course of Business
operating expenses (excluding salaries and other employee compensation) incurred
by Best solely in its capacity as parent corporation of Borrowers; provided,
however, that after giving effect to the payment of such dividends there shall
not exist any Event of Default or Default.
7.8. Indebtedness. Create,
incur, assume or suffer to exist any Indebtedness (exclusive of trade debt)
except in respect of (i) Indebtedness to Lenders; (ii) Indebtedness incurred for
Capital Expenditures permitted under Section 7.6 hereof; (iii) Indebtedness
under the Demand Notes, (iv) Indebtedness assumed under the Acquisition
Documents, (v) Indebtedness of any Borrower to another Borrower, (vi) unsecured
Indebtedness in aggregate principal amount not to exceed $500,000 at any time
outstanding, and (vii) Indebtedness set forth on Schedule 7.8 and any
refinancing, refunding or extension thereof, so long as the aggregate principal
amount of such Indebtedness is not increased as a result thereof.
7.9. Nature of
Business. Substantially change the nature of the business in
which it is presently engaged, nor except as specifically permitted hereby
purchase or invest, directly or indirectly, in any assets or property other than
in the Ordinary Course of Business for assets or property which are useful in,
necessary for and are to be used in its business as presently
conducted.
7.10. Transactions with
Affiliates. Directly or indirectly, purchase, acquire or lease
any property from, or sell, transfer or lease any property to, or otherwise
enter into any transaction or deal with, any Affiliate other than another
Borrower, except (x) the Second Acquisitions and (y) transactions disclosed to
the Agent, which are in the Ordinary Course of Business, on an arm’s-length
basis on terms and conditions no less favorable than terms and conditions which
would have been obtainable from a Person other than an Affiliate.
7.11. Leases. Enter
as lessee into any lease arrangement for real or personal property (unless
capitalized and permitted under Section 7.6 hereof) if after giving effect
thereto,
68
aggregate
annual rental payments for all leased property would exceed $200,000 in any one
fiscal year in the aggregate for all Borrowers.
7.12. Subsidiaries.
(a) Form any
Subsidiary unless (i) such Subsidiary expressly joins in this Agreement as a
borrower and becomes jointly and severally liable for the obligations of
Borrowers hereunder, under the Notes, and under any other agreement between any
Borrower and Lenders and (ii) Agent shall have received all documents, including
legal opinions, it may reasonably require to establish compliance with each of
the foregoing conditions.
(b) Enter
into any partnership, joint venture or similar arrangement.
7.13. Fiscal Year and Accounting
Changes. Change its fiscal year from December 31 or make any
material change (i) in accounting treatment and reporting practices except
as required by GAAP or (ii) in tax reporting treatment except as required
by law.
7.14. Pledge of
Credit. Now or hereafter pledge Agent’s or any Lender’s credit
on any purchases or for any purpose whatsoever or use any portion of any Advance
in or for any business other than such Borrower’s business as conducted on the
date of this Agreement.
7.15. Amendment of Articles of
Incorporation, By-Laws. Amend, modify or waive any term or
material provision of its Articles of Incorporation, By-Laws or Certificate of
Designation unless required by law.
7.16. Compliance with
ERISA. (i) (x) Maintain, or permit any member of the
Controlled Group to maintain, or (y) become obligated to contribute, or permit
any member of the Controlled Group to become obligated to contribute, to any
Plan, other than those Plans disclosed on Schedule 5.8(d) or such Plans as may
be disclosed in writing to Agent from time to time, (ii) engage, or permit any
member of the Controlled Group to engage, in any non-exempt “prohibited
transaction”, as that term is defined in section 406 of ERISA and Section 4975
of the Code, (iii) incur, or permit any member of the Controlled Group to incur,
any “accumulated funding deficiency”, as that term is defined in Section 302 of
ERISA or Section 412 of the Code, (iv) terminate, or permit any member of the
Controlled Group to terminate, any Plan where such event could result in any
liability of any Borrower or any member of the Controlled Group or the
imposition of a lien on the property of any Borrower or any member of the
Controlled Group pursuant to Section 4068 of ERISA, (v) assume, or permit any
member of the Controlled Group to assume, any obligation to contribute to any
Multiemployer Plan not disclosed on Schedule 5.8(d), (vi) incur, or permit any
member of the Controlled Group to incur, any withdrawal liability to any
Multiemployer Plan; (vii) fail promptly to notify Agent of the occurrence of any
Termination Event, (viii) fail to comply, or permit a member of the Controlled
Group to fail to comply, with the requirements of ERISA or the Code or other
Applicable Laws in respect of any Plan, (ix) fail to meet, or permit any member
of the Controlled Group to fail to meet, all minimum funding requirements under
ERISA or the Code or postpone or delay or allow any member of the Controlled
Group to postpone or delay any funding requirement with respect of any
Plan.
69
7.17. Prepayment of
Indebtedness. At any time, directly or indirectly, prepay any
Indebtedness (other than to Lenders), or repurchase, redeem, retire or otherwise
acquire any Indebtedness of any Borrower (other than the repayment of the Demand
Notes with the proceeds of the initial Advances on the Closing
Date).
7.18. Anti-Terrorism
Laws. No Borrower shall, until satisfaction in full of the
Obligations and termination of this Agreement, nor shall it permit any Affiliate
or agent to:
(a) Conduct
any business or engage in any transaction or dealing with any Blocked Person,
including the making or receiving any contribution of funds, goods or services
to or for the benefit of any Blocked Person.
(b) Deal in,
or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224.
(c) Engage in
or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in the Executive Order No. 13224, the USA PATRIOT Act or any other
Anti-Terrorism Law. Borrower shall deliver to Lenders any
certification or other evidence requested from time to time by any Lender in its
sole discretion, confirming Borrower’s compliance with this
Section.
7.19. Membership/Partnership
Interests. Elect to treat or permit any of its Subsidiaries to
(x) treat its limited liability company membership interests or partnership
interests, as the case may be, as securities as contemplated by the definition
of “security” in Section 8-102(15) and by Section 8-103 of Article 8 of Uniform
Commercial Code or (y) certificate its limited liability company membership
interests or partnership interests, as the case may be.
7.20. Trading with the Enemy
Act. Engage in any business or activity in violation of the
Trading with the Enemy Act.
7.21. Other
Agreements. Enter into any material amendment, waiver or
modification of any Acquisition Document or any related agreements.
7.22. HRE
Exploration. HRE Exploration Ltd., a British Columbia
corporation, shall remain a dormant subsidiary and shall not own any assets or
have any liabilities, and not withstanding anything in this Agreement, Best
shall be permitted to liquidate or dissolve HRE Exploration Ltd.
7.23. Fee Deferral
Agreements. Best shall not pay any amounts to ECH Consulting
or Xxxxxx Xxxxxxx Inc. (or any of their respective Affiliates) other than in
accordance with the Fee Deferral Agreements and shall not amend, supplement or
modify the Fee Deferral Agreements without the prior written consent of
Agent.
VIII. CONDITIONS
PRECEDENT.
8.1. Conditions to Initial
Advances. The agreement of Lenders to make the initial
Advances requested to be made on the Closing Date is subject to the
satisfaction, or waiver by
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Agent,
immediately prior to or concurrently with the making of such Advances, of the
following conditions precedent:
(a) Note. Agent
shall have received the Notes duly executed and delivered by an authorized
officer of each Borrower;
(b) Filings, Registrations and
Recordings. Each document (including any Uniform Commercial
Code financing statement) required by this Agreement, any related agreement or
under law or reasonably requested by the Agent to be filed, registered or
recorded in order to create, in favor of Agent, a perfected security interest in
or lien upon the Collateral shall have been properly filed, registered or
recorded in each jurisdiction in which the filing, registration or recordation
thereof is so required or requested, and Agent shall have received an
acknowledgment copy, or other evidence satisfactory to it, of each such filing,
registration or recordation and satisfactory evidence of the payment of any
necessary fee, tax or expense relating thereto;
(c) Corporate Proceedings of
Borrowers. Agent shall have received a copy of the resolutions
in form and substance reasonably satisfactory to Agent, of the Board of
Directors of each Borrower authorizing (i) the execution, delivery and
performance of this Agreement, the Notes, any related agreements, and the
Initial Acquisition Documents (collectively the “Documents”) and (ii) the
granting by each Borrower of the security interests in and liens upon the
Collateral in each case certified by the Secretary or an Assistant Secretary of
each Borrower as of the Closing Date; and, such certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate;
(d) Incumbency Certificates of
Borrowers. Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each Borrower, dated the Closing Date, as
to the incumbency and signature of the officers of each Borrower executing this
Agreement, the Other Documents, any certificate or other documents to be
delivered by it pursuant hereto, together with evidence of the incumbency of
such Secretary or Assistant Secretary;
(e) Certificates. Agent
shall have received a copy of the Articles or Certificate of Incorporation of
each Borrower, and all amendments thereto, certified by the Secretary of State
or other appropriate official of its jurisdiction of incorporation together with
copies of the By-Laws of each Borrower and all agreements of each Borrower’s
shareholders certified as accurate and complete by the Secretary of each
Borrower;
(f) Good Standing
Certificates. Agent shall have received good standing
certificates for each Borrower dated not more than 30 days prior to the Closing
Date, issued by the Secretary of State or other appropriate official of each
Borrower’s jurisdiction of incorporation and each jurisdiction where the conduct
of each Borrower’s business activities or the ownership of its properties
necessitates qualification;
(g) Legal Opinion. Agent shall
have received the executed legal opinion of Xxxxxxx Xxxxxx L.L.P.opinions in
form and substance satisfactory to Agent which shall cover such matters incident
to the transactions contemplated by this Agreement, the Notes, the Other
Documents and related agreements as Agent may reasonably require and each
Borrower hereby authorizes and directs suchits counsel to deliver such opinions
to Agent and Lenders;
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(h) No
Litigation. (i) No litigation, investigation or proceeding
before or by any arbitrator or Governmental Body shall be continuing or
threatened against any Borrower or against the officers or directors of any
Borrower (A) in connection with this Agreement, the Other Documents or any of
the transactions contemplated thereby and which, in the reasonable opinion of
Agent, is deemed material or (B) which could, in the reasonable opinion of
Agent, have a Material Adverse Effect; and (ii) no injunction, writ, restraining
order or other order of any nature materially adverse to any Borrower or the
conduct of its business or inconsistent with the due consummation of the
Transactions shall have been issued by any Governmental Body;
(i) Financial Condition
Certificates. Agent shall have received an executed Financial
Condition Certificate in the form of Exhibit 8.1(k).
(j) Collateral
Examination. Agent shall have completed Collateral
examinations and received appraisals, the results of which shall be satisfactory
in form and substance to Lenders, of the Receivables, Inventory, General
Intangibles and Equipment of each Borrower and all books and records in
connection therewith;
(k) Fees. Agent
shall have received all fees payable to Agent and Lenders on or prior to the
Closing Date hereunder, including pursuant to Article III hereof;
(l) Pro Forma Financial
Statements. Agent shall have received a copy of the Pro Forma
Financial Statements which shall be satisfactory in all respects to
Lenders;
(m) Acquisition
Documents. (i) Agent shall have received final executed copies
of the Initial Acquisition Documents and all related agreements, documents and
instruments as in effect on the Closing Date all of which shall be satisfactory
in form and substance satisfactory to Agent and the transactions contemplated by
such documentation shall be consummated prior to or simultaneously with the
making of the initial Advance and (ii) Agent shall have received substantially
final versions of the Second Acquisition Documents and all related agreements,
documents and instruments as in existence on the Closing Date all of which shall
be satisfactory in form and substance satisfactory to Agent;
(n) Equity
Issuance. Agent shall have received final executed copies of
the documents governing the issuance of common stock and Series A Convertible
Preferred Stock by Best on the Closing Date and all related agreements,
documents and instruments as in effect on the Closing Date all of which shall be
satisfactory in form and substance to Agent and the transactions contemplated by
such documentation shall be consummated prior to or simultaneously with the
making of the initial Advance including, without limitation, the receipt by Best
of gross cash proceeds from the issuance of its common stock and Series A
Convertible Preferred Stock in the sum of $9,500,000;
(o) Insurance. Agent
shall have received in form and substance satisfactory to Agent, certified
copies of Borrowers’ casualty insurance policies, together with loss payable
endorsements on Agent’s standard form of loss payee endorsement naming Agent as
loss payee,
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and
certified copies of Borrowers’ liability insurance policies, together with
endorsements naming Agent as a co-insured;
(p) Payment
Instructions. Agent shall have received written instructions
from Borrowing Agent directing the application of proceeds of the initial
Advances made pursuant to this Agreement;
(q) Blocked
Accounts. Agent shall have received duly executed agreements
establishing the Blocked Accounts or Depository Accounts with financial
institutions acceptable to Agent for the collection or servicing of the
Receivables and proceeds of the Collateral;
(r) Consents. Agent
shall have received any and all Consents necessary to permit the effectuation of
the transactions contemplated by this Agreement and the Other Documents; and,
Agent shall have received such Consents and waivers of such third parties as
might assert claims with respect to the Collateral, as Agent and its counsel
shall deem necessary;
(s) No Adverse Material
Change. (i) since December 31, 2006, there shall not have
occurred any event, condition or state of facts which could reasonably be
expected to have a Material Adverse Effect and (ii) no representations made or
information supplied to Agent or Lenders shall have been proven to be inaccurate
or misleading in any material respect;
(t) Leasehold
Agreements. Agent shall have received landlord, mortgagee or
warehouseman agreements satisfactory to Agent with respect to all premises
leased by Borrowers at which Inventory and books and records are
located;
(u) Contract
Review. Agent shall have reviewed all material contracts of
Borrowers including leases, union contracts, labor contracts, vendor supply
contracts, license agreements and distributorship agreements and such contracts
and agreements shall be satisfactory in all respects to Agent;
(v) Closing
Certificate. Agent shall have received a closing certificate
signed by the Chief Financial Officer of each Borrower dated as of the date
hereof, stating that (i) all representations and warranties set forth in this
Agreement and the Other Documents are true and correct on and as of such date,
(ii) Borrowers are on such date in compliance with all the terms and provisions
set forth in this Agreement and the Other Documents and (iii) on such date no
Default or Event of Default has occurred or is continuing;
(w) Borrowing
Base. Agent shall have received evidence from Borrowers that
the aggregate amount of Eligible Receivables, Eligible Rig Fleet Equipment and
Eligible Equipment is sufficient in value and amount to support Advances in the
amount requested by Borrowers on the Closing Date;
(x) Undrawn
Availability. After giving effect to the initial Advances
hereunder, Borrowers shall have Undrawn Availability of at least
$2,500,000;
(y) Compliance with
Laws. Agent shall be reasonably satisfied that each Borrower
is in compliance with all pertinent federal, state, local or territorial
regulations,
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including
those with respect to the Federal Occupational Safety and Health Act, the
Environmental Protection Act, ERISA and the Trading with the Enemy
Act;
(z) Cash
Collateral. Agent shall have received the Cash Collateral
Deposit and shall have entered into a cash collateral deposit letter with Xxxxxx
Xxx in form and substance reasonably satisfactory to Agent; and
(aa) Other. All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the Transactions shall be satisfactory in form and
substance to Agent and its counsel.
8.2. Conditions to Each
Advance. The agreement of Lenders to make any Advance
requested to be made on any date (including the initial Advance and any Advance
utilized to consummate the Second Acquisitions), is subject to the satisfaction
of the following conditions precedent as of the date such Advance is
made:
(a) Representations and
Warranties. Each of the representations and warranties made by
any Borrower in or pursuant to this Agreement, the Other Documents and any
related agreements to which it is a party, and each of the representations and
warranties contained in any certificate, document or financial or other written
statement furnished at any time under or in connection with this Agreement, the
Other Documents or any related agreement shall be true and correct in all
material respects on and as of such date as if made on and as of such
date;
(b) No
Default. No Event of Default or Default shall have occurred
and be continuing on such date, or would exist after giving effect to the
Advances requested to be made, on such date and, in the case of (x) the initial
Advance, after giving effect to the consummation of the transactions
contemplated by the Initial Acquisition Documents and (y) the Advances to be
utilized to consummate the Second Acquisitions, after giving effect to the
consummation of the transactions contemplated by the Second Acquisition
Documents; provided, however that Agent,
in its sole discretion, may continue to make Advances notwithstanding the
existence of an Event of Default or Default and that any Advances so made shall
not be deemed a waiver of any such Event of Default or Default; and
(c) Maximum
Advances. In the case of any type of Advance requested to be
made, after giving effect thereto, the aggregate amount of such type of Advance
shall not exceed the maximum amount of such type of Advance permitted under this
Agreement.
Each
request for an Advance by any Borrower hereunder shall constitute a
representation and warranty by each Borrower as of the date of such Advance that
the conditions contained in this subsection shall have been
satisfied.
8.3. Conditions Precedent
Applicable to Second Acquisitions. The agreement of Lenders to
make the Advances requested to be made in connection with the consummation of
the Second Acquisitions is subject to the satisfaction, or waiver by Agent,
immediately prior to or concurrently with the making of such Advances, of the
following conditions precedent:
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(a) Second Acquisition
Documents. Agent shall have received final executed copies of
the Second Acquisition Documents and all related agreements, documents and
instruments, and any modifications to such documents from the versions delivered
to Agent on the Closing Date shall be satisfactory to Agent in its sole and
absolute discretion;
(b) Second Acquisitions
Consideration. Agent shall have received an officer’s
certificate from the chief executive officer or chief financial officer of Best
certifying to Agent and Lenders that (x) the aggregate cash consideration for
the Second Acquisitions does not exceed $3,000,000 and (y) the only
consideration being paid by Best to ARH in connection with the ARH Acquisition
are shares of the common stock of Best;
(c) Undrawn
Availability. After giving effect to the Advances utilized to
effect the Second Acquisitions and to pay all fee and expenses related to such
transactions, Borrowers shall have Undrawn Availability of at least
$2,500,000;
(d) Updated Disclosure
Schedules. Agent shall have received updated versions of the
Schedules to this Agreement and each of the Other Documents (if applicable), and
such Schedules shall be in form and substance reasonably satisfactory to Agent;
and
(e) Other. All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the Second Acquisitions shall be satisfactory in form
and substance to Agent and its counsel.
IX. INFORMATION
AS TO BORROWERS.
Each
Borrower shall, or (except with respect to Section 9.11) shall cause Borrowing
Agent on its behalf to, until satisfaction in full of the Obligations and the
termination of this Agreement:
9.1. Disclosure of Material
Matters. Immediately upon learning thereof, report to Agent
all matters materially affecting the value, enforceability or collectibility of
any portion of the Collateral, including any Borrower’s reclamation or
repossession of, or the return to any Borrower of, a material amount of goods or
claims or disputes asserted by any Customer or other obligor.
9.2. Schedules. Deliver
to Agent on or before Wednesday of each week, a Borrowing Base Certificate in
form and substance satisfactory to Agent (which shall be calculated as of the
last day of the prior week and which shall not be binding upon Agent or
restrictive of Agent’s rights under this Agreement). Deliver to Agent
on or before the fifteenth (15th) day of each month as and for the prior month
(a) accounts receivable ageings inclusive of reconciliations to the general
ledger, (b) accounts payable schedules inclusive of reconciliations to the
general ledger, (c) Inventory reports and (d) a Rig Fleet Equipment status
report, containing such information regarding the status of each piece of Rig
Fleet Equipment as Agent shall reasonably request. In addition, each
Borrower will deliver to Agent at such intervals as Agent may
require: (i) confirmatory assignment schedules, (ii) copies
of Customer’s invoices, (iii) evidence of shipment or delivery, and
(iv) such further schedules, documents and/or information regarding the
Collateral as Agent may require including trial balances and test
verifications. Agent shall have the right to confirm and verify all
Receivables by any manner and through any medium it
75
considers
advisable and do whatever it may deem reasonably necessary to protect its
interests hereunder. The items to be provided under this Section are
to be in form satisfactory to Agent and executed by each Borrower and delivered
to Agent from time to time solely for Agent’s convenience in maintaining
records of the Collateral, and any Borrower’s failure to deliver any of such
items to Agent shall not affect, terminate, modify or otherwise limit Agent’s
Lien with respect to the Collateral.
9.3. Environmental
Reports. Furnish Agent, concurrently with the delivery of the
financial statements referred to in Sections 9.7 and 9.8, with a certificate
signed by the President of Borrowing Agent stating, to the best of his
knowledge, that each Borrower is in compliance in all material respects with all
federal, state and local Environmental Laws. To the extent any
Borrower is not in compliance with the foregoing laws, the certificate shall set
forth with specificity all areas of non-compliance and the proposed action such
Borrower will implement in order to achieve full compliance.
9.4. Litigation. Promptly
notify Agent in writing of any claim, litigation, suit or administrative
proceeding affecting any Borrower or any Guarantor, whether or not the claim is
covered by insurance, and of any litigation, suit or administrative proceeding,
which in any such case affects the Collateral or which could reasonably be
expected to have a Material Adverse Effect.
9.5. Material
Occurrences. Promptly notify Agent in writing upon the
occurrence of (a) any Event of Default or Default; (b) any event, development or
circumstance whereby any financial statements or other reports furnished to
Agent fail in any material respect to present fairly, in accordance with GAAP
consistently applied, the financial condition or operating results of any
Borrower as of the date of such statements; (c) any accumulated retirement plan
funding deficiency which, if such deficiency continued for two plan years and
was not corrected as provided in Section 4971 of the Code, could subject any
Borrower to a tax imposed by Section 4971 of the Code; (d) each and every
default by any Borrower which might result in the acceleration of the maturity
of any Indebtedness having a principal amount in excess of $100,000, including
the names and addresses of the holders of such Indebtedness with respect to
which there is a default existing or with respect to which the maturity has been
or could be accelerated, and the amount of such Indebtedness; and (e) any other
development in the business or affairs of any Borrower or any Guarantor, which
could reasonably be expected to have a Material Adverse Effect; in each case
describing the nature thereof and the action Borrowers propose to take with
respect thereto.
9.6. Government
Receivables. Notify Agent immediately if any of its
Receivables arise out of contracts between any Borrower and the United States,
any state, or any department, agency or instrumentality of any of
them.
9.7. Annual Financial
Statements. Furnish Agent within ninety (90) days after the
end of each fiscal year of Borrowers, financial statements of Borrowers on a
consolidating and consolidated basis including, but not limited to, statements
of income and stockholders’ equity and cash flow from the beginning of the
current fiscal year to the end of such fiscal year and the balance sheet as at
the end of such fiscal year, all prepared in accordance with GAAP applied on a
basis consistent with prior practices, and in reasonable detail and reported
upon without
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qualification
by an independent certified public accounting firm selected by Borrowers and
satisfactory to Agent (the “Accountants”). The report of the
Accountants shall be accompanied by a statement of the Accountants certifying
that (i) they have caused this Agreement to be reviewed, (ii) in making the
examination upon which such report was based either no information came to their
attention which to their knowledge constituted an Event of Default or a Default
under this Agreement or any related agreement or, if such information came to
their attention, specifying any such Default or Event of Default, its nature,
when it occurred and whether it is continuing, and such report shall contain or
have appended thereto calculations which set forth Borrowers’ compliance with
the requirements or restrictions imposed by Sections 6.5, 7.5, 7.6, 7.7, 7.8 and
7.11 hereof. In addition, the reports shall be accompanied by a
Compliance Certificate.
9.8. Quarterly Financial
Statements. Furnish Agent within forty-five (45) days after
the end of each fiscal quarter, an unaudited balance sheet of Borrowers on a
consolidated and consolidating basis and unaudited statements of income and
stockholders’ equity and cash flow of Borrowers on a consolidated and
consolidating basis reflecting results of operations from the beginning of the
fiscal year to the end of such quarter and for such quarter, prepared on a basis
consistent with prior practices and complete and correct in all material
respects, subject to normal and recurring year end adjustments that individually
and in the aggregate are not material to Borrowers’ business. The
reports shall be accompanied by a Compliance Certificate.
9.9. Monthly Financial
Statements. Furnish Agent within thirty (30) days after the
end of each month, an unaudited balance sheet of Borrowers on a consolidated and
consolidating basis and unaudited statements of income and stockholders’ equity
and cash flow of Borrowers on a consolidated and consolidating basis reflecting
results of operations from the beginning of the fiscal year to the end of such
month and for such month, prepared on a basis consistent with prior practices
and complete and correct in all material respects, subject to normal and
recurring year end adjustments that individually and in the aggregate are not
material to Borrowers’ business.
9.10. Other
Reports. Furnish Agent as soon as available, but in any event
within ten (10) days after the issuance thereof, (i) with copies of such
financial statements, reports and returns as each Borrower shall send to its
stockholders.
9.11. Additional
Information. Furnish Agent with such additional information as
Agent shall reasonably request in order to enable Agent to determine whether the
terms, covenants, provisions and conditions of this Agreement and the Notes have
been complied with by Borrowers including, without the necessity of any request
by Agent, (a) copies of all environmental audits and reviews, (b) at least
thirty (30) days prior thereto, notice of any Borrower’s opening of any new
office or place of business or any Borrower’s closing of any existing office or
place of business, and (c) promptly upon any Borrower’s learning thereof, notice
of any labor dispute to which any Borrower may become a party, any strikes or
walkouts relating to any of its plants or other facilities, and the expiration
of any labor contract to which any Borrower is a party or by which any Borrower
is bound.
9.12. Projected Operating
Budget. Furnish Agent, no later than thirty (30) days prior to
the beginning of each Borrower’s fiscal years commencing with fiscal year 2009,
a month by
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month
projected operating budget and cash flow of Borrowers on a consolidated and
consolidating basis for such fiscal year (including an income statement for each
month and a balance sheet as at the end of the last month in each fiscal
quarter), such projections to be accompanied by a certificate signed by the
President or Chief Financial Officer of each Borrower to the effect that such
projections have been prepared on the basis of sound financial planning practice
consistent with past budgets and financial statements and that such officer has
no reason to question the reasonableness of any material assumptions on which
such projections were prepared.
9.13. Variances From Operating
Budget. Furnish Agent, concurrently with the delivery of the
financial statements referred to in Section 9.7 and each quarterly report, a
written report summarizing all material variances from budgets submitted by
Borrowers pursuant to Section 9.12 and a discussion and analysis by management
with respect to such variances.
9.14. Notice of Suits, Adverse
Events. Furnish Agent with prompt written notice of (i) any
lapse or other termination of any Consent issued to any Borrower by any
Governmental Body or any other Person that is material to the operation of any
Borrower’s business, (ii) any refusal by any Governmental Body or any other
Person to renew or extend any such Consent; and (iii) copies of any periodic or
special reports filed by any Borrower or any Guarantor with any Governmental
Body or Person, if such reports indicate any material change in the business,
operations, affairs or condition of any Borrower or any Guarantor, or if copies
thereof are requested by Lender, and (iv) copies of any material notices and
other communications from any Governmental Body or Person which specifically
relate to any Borrower or any Guarantor.
9.15. ERISA Notices and
Requests. Furnish Agent with immediate written notice in the
event that (i) any Borrower or any member of the Controlled Group knows or has
reason to know that a Termination Event has occurred, together with a written
statement describing such Termination Event and the action, if any, which such
Borrower or any member of the Controlled Group has taken, is taking, or proposes
to take with respect thereto and, when known, any action taken or threatened by
the Internal Revenue Service, Department of Labor or PBGC with respect thereto,
(ii) any Borrower or any member of the Controlled Group knows or has
reason to know that a prohibited transaction (as defined in Sections 406 of
ERISA and 4975 of the Code) has occurred together with a written statement
describing such transaction and the action which such Borrower or any member of
the Controlled Group has taken, is taking or proposes to take with respect
thereto, (iii) a funding waiver request has been filed with respect to any Plan
together with all communications received by any Borrower or any member of the
Controlled Group with respect to such request, (iv) any increase in the benefits
of any existing Plan or the establishment of any new Plan or the commencement of
contributions to any Plan to which any Borrower or any member of the Controlled
Group was not previously contributing shall occur, (v) any Borrower or any
member of the Controlled Group shall receive from the PBGC a notice of intention
to terminate a Plan or to have a trustee appointed to administer a Plan,
together with copies of each such notice, (vi) any Borrower or any member of the
Controlled Group shall receive any favorable or unfavorable determination letter
from the Internal Revenue Service regarding the qualification of a Plan under
Section 401(a) of the Code, together with copies of each such letter; (vii) any
Borrower or any member of the Controlled Group shall receive a notice regarding
the imposition of withdrawal liability, together with copies of each such
notice; (viii) any Borrower or any member of the Controlled Group shall fail to
make a required
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installment
or any other required payment under Section 412 of the Code on or before the due
date for such installment or payment; or (ix) any Borrower or any member of the
Controlled Group knows that (a) a Multiemployer Plan has been terminated, (b)
the administrator or plan sponsor of a Multiemployer Plan intends to terminate a
Multiemployer Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan.
9.16. Appraisals. Borrowers
shall provide to Agent, at Borrowers’ expense, a full appraisal of the orderly
liquidation value of all of Borrower’s Rig Fleet Equipment and other Equipment
by Superior Asset Appraisals, or another firm acceptable to Agent in its sole
discretion (each an “OLV Appraisal”), the form, scope and results of which shall
be satisfactory to Agent in its sole discretion, (a) annually, (b) if Agent, in
its sole discretion deems appropriate and so directs, semi-annually, when the
Minimum Rig Utilization, is less than 85% for BWS, measured as of the last day
of the fiscal quarter most recently ended for such quarter, or (c) at any time
and frequency during an Event of Default. Agent shall have the right
to conduct additional appraisals at its own expense from time to time, with
access to the Collateral provided by and other cooperation from
Borrowers. The initial OLV Appraisal is attached as Exhibit
9.16
9.17. Additional
Documents. Execute and deliver to Agent, upon request, such
documents and agreements as Agent may, from time to time, reasonably request to
carry out the purposes, terms or conditions of this Agreement.
X. EVENTS OF
DEFAULT.
The
occurrence of any one or more of the following events shall constitute an “Event
of Default”:
10.1. Nonpayment. Failure
by any Borrower to pay any principal or interest on the Obligations when due,
whether at maturity or by reason of acceleration pursuant to the terms of this
Agreement or by notice of intention to prepay, or by required prepayment or
failure to pay any other liabilities or make any other payment, fee or charge
provided for herein when due or in any Other Document;
10.2. Breach of
Representation. Any representation or warranty made or deemed
made by any Borrower or any Guarantor in this Agreement, any Other Document or
any related agreement or in any certificate, document or financial or other
statement furnished at any time in connection herewith or therewith shall prove
to have been misleading in any material respect on the date when made or deemed
to have been made;
10.3. Financial
Information. Failure by any Borrower to (i) furnish financial
information when due or when requested which is unremedied for a period of
fifteen (15) days, or (ii) permit the inspection of its books or records as
required by this Agreement;
10.4. Judicial
Actions. Issuance of a notice of Lien, levy, assessment,
injunction or attachment against any Borrower’s Inventory or Receivables or
against a material portion of any Borrower’s other property which is not stayed
or lifted within forty-five (45) days;
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10.5. Noncompliance. Except
as otherwise provided for in Sections 10.1, 10.3 and 10.5(ii), (i) failure or
neglect of any Borrower or any Guarantor to perform, keep or observe any term,
provision, condition, covenant herein contained, or contained in any Other
Document or any other agreement or arrangement, now or hereafter entered into
between any Borrower or any Guarantor, and Agent or any Lender, or (ii) failure
or neglect of any Borrower to perform, keep or observe any term, provision,
condition or covenant, contained in Sections 4.6, 4.7, 4.9, 6.1, 6.3, 6.4, 9.4
or 9.6 hereof which is not cured within thirty (30) days from the occurrence of
such failure or neglect;
10.6. Judgments. Any
judgment or judgments are rendered against any Borrower or any Guarantor for an
aggregate amount in excess of $250,000 or against all Borrowers or Guarantors
for an aggregate amount in excess of $250,000 and (i) enforcement proceedings
shall have been commenced by a creditor upon such judgment, (ii) there shall be
any period of forty-five (45) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, shall
not be in effect, or (iii) any such judgment results in the creation of a Lien
upon any of the Collateral (other than a Permitted Encumbrance);
10.7. Bankruptcy. Any
Borrower or any Guarantor shall (i) apply for, consent to or suffer the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or similar fiduciary of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of creditors, (iii)
commence a voluntary case under any state or federal bankruptcy laws (as now or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a
petition seeking to take advantage of any other law providing for the relief of
debtors, (vi) acquiesce to, or fail to have dismissed, within thirty (30) days,
any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) take any action for the purpose of effecting any of
the foregoing;
10.8. Inability to
Pay. Any Borrower or any Guarantor shall admit in writing its
inability, or be generally unable, to pay its debts as they become due or cease
operations of its present business;
10.9. Affiliate
Bankruptcy. Any Affiliate or any Subsidiary of any Borrower,
or any Guarantor, shall (i) apply for, consent to or suffer the appointment of,
or the taking of possession by, a receiver, custodian, trustee, liquidator or
similar fiduciary of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as
they become due or cease operations of its present business, (iii) make a
general assignment for the benefit of creditors, (iv) commence a voluntary case
under any state or federal bankruptcy laws (as now or hereafter in effect), (v)
be adjudicated a bankrupt or insolvent, (vi) file a petition seeking to take
advantage of any other law providing for the relief of debtors, (vii) acquiesce
to, or fail to have dismissed, within thirty (30) days, any petition filed
against it in any involuntary case under such bankruptcy laws, or (viii) take
any action for the purpose of effecting any of the foregoing;
10.10. Material Adverse
Effect. Any change in any Borrower’s or any Guarantor’s
results of operations or condition (financial or otherwise) which in Agent’s
opinion has a Material Adverse Effect;
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10.11. Lien
Priority. Any Lien created hereunder or provided for hereby or
under any related agreement for any reason ceases to be or is not a valid and
perfected Lien having a first priority interest;
10.12. [Intentionally
Omitted.]
10.13. Cross
Default. A default of the obligations of any Borrower under
any other agreement to which it is a party requiring payments in an aggregate
amount in excess of $100,000 (to or by a Borrower) shall occur which adversely
affects its condition, affairs or prospects (financial or otherwise) which
default is not cured within any applicable grace period;
10.14. Breach of
Guaranty. Termination or breach of any Guaranty or Guaranty
Security Agreement or similar agreement executed and delivered to Agent in
connection with the Obligations of any Borrower, or if any Guarantor attempts to
terminate, challenges the validity of, or its liability under, any such Guaranty
or Guaranty Security Agreement or similar agreement;
10.15. Change of
Control. Any Change of Control shall occur;
10.16. Invalidity. Any
material provision of this Agreement or any Other Document shall, for any
reason, cease to be valid and binding on Borrower or any Guarantor, or any
Borrower or any Guarantor shall so claim in writing to Agent or any
Lender;
10.17. Licenses. (i)
Any Governmental Body shall (A) revoke, terminate, suspend or adversely modify
any license, permit, patent trademark or tradename of any Borrower or any
Guarantor, the continuation of which is material to the continuation of any
Borrower’s or Guarantor’s business, or (B) commence proceedings to suspend,
revoke, terminate or adversely modify any such license, permit, trademark,
tradename or patent and such proceedings shall not be dismissed or discharged
within sixty (60) days, or (c) schedule or conduct a hearing on the renewal of
any license, permit, trademark, tradename or patent necessary for the
continuation of any Borrower’s or any Guarantor’s business and the staff of such
Governmental Body issues a report recommending the termination, revocation,
suspension or material, adverse modification of such license, permit, trademark,
tradename or patent; (ii) any agreement which is necessary or material to the
operation of any Borrower’s or any Guarantor’s business shall be revoked or
terminated and not replaced by a substitute acceptable to Agent within thirty
(30) days after the date of such revocation or termination, and such revocation
or termination and non-replacement would reasonably be expected to have a
Material Adverse Effect;
10.18. Seizures. Any
portion of the Collateral shall be seized or taken by a Governmental Body, or
any Borrower or any Guarantor or the title and rights of any Borrower, any
Guarantor or any Original Owner which is the owner of any material portion of
the Collateral shall have become the subject matter of claim, litigation, suit
or other proceeding which might, in the opinion of Agent, upon final
determination, result in impairment or loss of the security provided by this
Agreement or the Other Documents;
10.19. Management. Xxxxx
Xxxxxxxx ceases to be employed as the chief executive officer of Best, unlesss
he is replaced with a chief exectuive officer satisfactory to
Agent;
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10.20. Second
Acquisitions. The
Second Acquisitions are not consummated on or prior to the tenth day following
the Closing Date; provided that if the tenth day following the Closing Date is
not a Business Day, such period shall be extended until the first Business Day
after the tenth day following the Closing Date; or
10.21. Pension
Plans. An event or condition specified in Sections 7.16 or
9.15 hereof shall occur or exist with respect to any Plan and, as a result of
such event or condition, together with all other such events or conditions, any
Borrower or any member of the Controlled Group shall incur, or in the opinion of
Agent be reasonably likely to incur, a liability to a Plan or the PBGC (or both)
which, in the reasonable judgment of Agent, would have a Material Adverse
Effect.
XI. LENDERS’
RIGHTS AND REMEDIES AFTER DEFAULT.
11.1. Rights and
Remedies.
(a) Upon the
occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations
shall be immediately due and payable and this Agreement and the obligation of
Lenders to make Advances shall be deemed terminated; and, (ii) any of the other
Events of Default and at any time thereafter (such default not having previously
been cured), at the option of Required Lenders all Obligations shall be
immediately due and payable and Lenders shall have the right to terminate this
Agreement and to terminate the obligation of Lenders to make Advances and (iii)
a filing of a petition against any Borrower in any involuntary case under any
state or federal bankruptcy laws, all Obligations shall be immediately due and
payable and the obligation of Lenders to make Advances hereunder shall be
terminated other than as may be required by an appropriate order of the
bankruptcy court having jurisdiction over such Borrower. Upon the
occurrence of any Event of Default, Agent shall have the right to exercise any
and all rights and remedies provided for herein, under the Other Documents,
under the Uniform Commercial Code and at law or equity generally, including the
right to foreclose the security interests granted herein and to realize upon any
Collateral by any available judicial procedure and/or to take possession of and
sell any or all of the Collateral with or without judicial
process. Agent may enter any of any Borrower’s premises or other
premises without legal process and without incurring liability to any Borrower
therefor, and Agent may thereupon, or at any time thereafter, in its discretion
without notice or demand, take the Collateral and remove the same to such place
as Agent may deem advisable and Agent may require Borrowers to make the
Collateral available to Agent at a convenient place, including, without
limitation requiring Borrowers to disassemble and re-assemble Collateral in
order to remove such Collateral to such place as Agent may deem advisable and
convenient and removing Rig Fleet Equipment from customer
locations. With or without having the Collateral at the time or place
of sale, Agent may sell the Collateral, or any part thereof, at public or
private sale, at any time or place, in one or more sales, at such price or
prices, and upon such terms, either for cash, credit or future delivery, as
Agent may elect. Except as to that part of the Collateral which is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Agent shall give Borrowers reasonable notification
of such sale or sales, it being agreed that in all events written notice mailed
to Borrowing Agent at least ten (10) days prior to such sale or sales is
reasonable notification. At any public sale Agent or any Lender may
bid for and become the purchaser, and Agent, any Lender or any other purchaser
at any such sale thereafter shall hold the Collateral sold absolutely free from
any claim or right of whatsoever kind, including any equity of redemption and
all such claims, rights and equities are hereby expressly waived and
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released
by each Borrower. In connection with the exercise of the foregoing
remedies, including the sale of Inventory, Agent is granted a perpetual
nonrevocable, royalty free, nonexclusive license and Agent is granted permission
to use all of each Borrower’s (a) trademarks, trade styles, trade names,
patents, patent applications, copyrights, service marks, licenses, franchises
and other proprietary rights which are used or useful in connection with
Inventory for the purpose of marketing, advertising for sale and selling or
otherwise disposing of such Inventory and (b) Equipment for the purpose of
completing the manufacture of unfinished goods. The cash proceeds
realized from the sale of any Collateral shall be applied to the Obligations in
the order set forth in Section 11.5 hereof. Noncash proceeds will
only be applied to the Obligations as they are converted into
cash. If any deficiency shall arise, Borrowers shall remain liable to
Agent and Lenders therefor.
(b) To the
extent that Applicable Law imposes duties on the Agent to exercise remedies in a
commercially reasonable manner, each Borrower acknowledges and agrees that it is
not commercially unreasonable for the Agent (i) to fail to incur expenses
reasonably deemed significant by the Agent to prepare Collateral for disposition
or otherwise to complete raw material or work in process into finished goods or
other finished products for disposition, (ii) to fail to obtain third party
consents for access to Collateral to be disposed of, or to obtain or, if not
required by other law, to fail to obtain governmental or third party consents
for the collection or disposition of Collateral to be collected or disposed of,
(iii) to fail to exercise collection remedies against Customers or other Persons
obligated on Collateral or to remove Liens on or any adverse claims against
Collateral, (iv) to exercise collection remedies against Customers and other
Persons obligated on Collateral directly or through the use of collection
agencies and other collection specialists, (v) to advertise dispositions of
Collateral through publications or media of general circulation, whether or not
the Collateral is of a specialized nature, (vi) to contact other Persons,
whether or not in the same business as any Borrower, for expressions of interest
in acquiring all or any portion of such Collateral, (vii) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the Collateral is of a specialized nature, (viii) to dispose of Collateral
by utilizing internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capacity of doing so, or
that match buyers and sellers of assets, (ix) to dispose of assets in wholesale
rather than retail markets, (x) to disclaim disposition warranties, such as
title, possession or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure the Agent against risks of loss, collection or
disposition of Collateral or to provide to the Agent a guaranteed return from
the collection or disposition of Collateral, or (xii) to the extent deemed
appropriate by the Agent, to obtain the services of other brokers, investment
bankers, consultants and other professionals to assist the Agent in the
collection or disposition of any of the Collateral. Each Borrower
acknowledges that the purpose of this Section 11.1(b) is to provide
non-exhaustive indications of what actions or omissions by the Agent would not
be commercially unreasonable in the Agent’s exercise of remedies against the
Collateral and that other actions or omissions by the Agent shall not be deemed
commercially unreasonable solely on account of not being indicated in this
Section 11.1(b). Without limitation upon the foregoing, nothing
contained in this Section11.1(b) shall be construed to grant any rights to any
Borrower or to impose any duties on Agent that would not have been granted or
imposed by this Agreement or by Applicable Law in the absence of this Section
11.1(b).
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11.2. Agent’s
Discretion. Agent shall have the right in its sole discretion
to determine which rights, Liens, security interests or remedies Agent may at
any time pursue, relinquish, subordinate, or modify or to take any other action
with respect thereto and such determination will not in any way modify or affect
any of Agent’s or Lenders’ rights hereunder.
11.3. Setoff. Subject
to Section 14.12, in addition to any other rights which Agent or any Lender may
have under Applicable Law, upon the occurrence of an Event of Default hereunder,
Agent and such Lender shall have a right, immediately and without notice of any
kind, to apply any Borrower’s property held by Agent and such Lender to reduce
the Obligations.
11.4. Rights and Remedies not
Exclusive. The enumeration of the foregoing rights and
remedies is not intended to be exhaustive and the exercise of any rights or
remedy shall not preclude the exercise of any other right or remedies provided
for herein or otherwise provided by law, all of which shall be cumulative and
not alternative.
11.5. Allocation of Payments After
Event of Default. Notwithstanding any other provisions of this
Agreement to the contrary, after the occurrence and during the continuance of an
Event of Default, all amounts collected or received by the Agent on account of
the Obligations or any other amounts outstanding under any of the Other
Documents or in respect of the Collateral may, at Agent’s discretion, be paid
over or delivered as follows:
FIRST, to
the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of the Agent in connection with enforcing its rights
and the rights of the Lenders under this Agreement and the Other Documents and
any protective advances made by the Agent with respect to the Collateral under
or pursuant to the terms of this Agreement;
SECOND,
to payment of any fees owed to the Agent;
THIRD, to
the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of each of the Lenders to the extent owing to such
Lender pursuant to the terms of this Agreement;
FOURTH,
to the payment of all of the Obligations consisting of accrued fees and
interest;
FIFTH, to
the payment of the outstanding principal amount of the Obligations (including
the payment or cash collateralization of any outstanding Letters of
Credit);
SIXTH, to
all other Obligations and other obligations which shall have become due and
payable under the Other Documents or otherwise and not repaid pursuant to
clauses “FIRST” through “FIFTH” above; and
SEVENTH,
to the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.
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In
carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive (so long as it is
not a Defaulting Lender) an amount equal to its pro rata share (based on the
proportion that the then outstanding Advances held by such Lender bears to the
aggregate then outstanding Advances) of amounts available to be applied pursuant
to clauses “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent that any
amounts available for distribution pursuant to clause “FIFTH” above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Agent in a cash collateral account and applied
(A) first, to reimburse the Issuer from time to time for any drawings under such
Letters of Credit and (B) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clauses “FIFTH” and
“SIXTH” above in the manner provided in this Section 11.5.
XII. WAIVERS
AND JUDICIAL PROCEEDINGS.
12.1. Waiver of
Notice. Each Borrower hereby waives notice of non-payment of
any of the Receivables, demand, presentment, protest and notice thereof with
respect to any and all instruments, notice of acceptance hereof, notice of loans
or advances made, credit extended, Collateral received or delivered, or any
other action taken in reliance hereon, and all other demands and notices of any
description, except such as are expressly provided for herein.
12.2. Delay. No
delay or omission on Agent’s or any Lender’s part in exercising any right,
remedy or option shall operate as a waiver of such or any other right, remedy or
option or of any Default or Event of Default.
12.3. Jury
Waiver. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
XIII. EFFECTIVE
DATE AND TERMINATION.
13.1. Term. This
Agreement, which shall inure to the benefit of and shall be binding upon the
respective successors and permitted assigns of each Borrower, Agent and each
Lender, shall become effective on the date hereof and shall continue in full
force and effect until
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February
12, 2012 (the “Term”) unless sooner terminated as herein
provided. Borrowers may terminate this Agreement at any time upon
forty-five (45) days’ prior written notice upon payment in full of the
Obligations. In the event the Obligations are prepaid in full prior
to the last day of the Term (the date of such prepayment hereinafter referred to
as the “Early Termination Date”), Borrowers shall pay to Agent for the benefit
of Lenders an early termination fee in an amount equal to (x) $500,000 if the
Early Termination Date occurs on or after the Closing Date to and including the
date immediately preceding the first anniversary of the Closing Date, (y)
$250,000 if the Early Termination Date occurs on or after the first anniversary
of the Closing Date to and including the date immediately preceding the second
anniversary of the Closing Date, and (z) $125,000 if the Early Termination Date
occurs on or after the second anniversary of the Closing Date to and including
the date immediately preceding the third anniversary of the Closing
Date.
13.2. Termination. The
termination of the Agreement shall not affect any Borrower’s, Agent’s or any
Lender’s rights, or any of the Obligations having their inception prior to the
effective date of such termination, and the provisions hereof shall continue to
be fully operative until all transactions entered into, rights or interests
created or Obligations have been fully and indefeasibly paid, disposed of,
concluded or liquidated. The security interests, Liens and rights
granted to Agent and Lenders hereunder and the financing statements filed
hereunder shall continue in full force and effect, notwithstanding the
termination of this Agreement or the fact that Borrowers’ Account may from time
to time be temporarily in a zero or credit position, until all of the
Obligations of each Borrower have been indefeasibly paid and performed in full
after the termination of this Agreement or each Borrower has furnished Agent and
Lenders with an indemnification satisfactory to Agent and Lenders with respect
thereto. Accordingly, each Borrower waives any rights which it may
have under the Uniform Commercial Code to demand the filing of termination
statements with respect to the Collateral, and Agent shall not be required to
send such termination statements to each Borrower, or to file them with any
filing office, unless and until this Agreement shall have been terminated in
accordance with its terms and all Obligations have been indefeasibly paid in
full in immediately available funds. All representations, warranties,
covenants, waivers and agreements contained herein shall survive termination
hereof until all Obligations are indefeasibly paid and performed in
full.
XIV. REGARDING
AGENT.
14.1. Appointment. Each
Lender hereby designates PNC to act as Agent for such Lender under this
Agreement and the Other Documents. Each Lender hereby irrevocably
authorizes Agent to take such action on its behalf under the provisions of this
Agreement and the Other Documents and to exercise such powers and to perform
such duties hereunder and thereunder as are specifically delegated to or
required of Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto and Agent shall hold all Collateral, payments of
principal and interest, fees (except the fees set forth in Sections 3.3(a) and
3.4), charges and collections (without giving effect to any collection days)
received pursuant to this Agreement, for the ratable benefit of
Lenders. Agent may perform any of its duties hereunder by or through
its agents or employees. As to any matters not expressly provided for
by this Agreement (including collection of the Note) Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required
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Lenders,
and such instructions shall be binding; provided, however, that Agent shall not
be required to take any action which exposes Agent to liability or which is
contrary to this Agreement or the Other Documents or Applicable Law unless Agent
is furnished with an indemnification reasonably satisfactory to Agent with
respect thereto.
14.2. Nature of
Duties. Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Other
Documents. Neither Agent nor any of its officers, directors,
employees or agents shall be (i) liable for any action taken or omitted by them
as such hereunder or in connection herewith, unless caused by their gross (not
mere) negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final non-appealable judgment), or (ii) responsible in any
manner for any recitals, statements, representations or warranties made by any
Borrower or any officer thereof contained in this Agreement, or in any of the
Other Documents 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 of the Other Documents or for the value, validity,
effectiveness, genuineness, due execution, enforceability or sufficiency of this
Agreement, or any of the Other Documents or for any failure of any Borrower to
perform its obligations hereunder. Agent shall not 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 of the Other Documents, or to inspect the properties, books or
records of any Borrower. The duties of Agent as respects the Advances
to Borrowers shall be mechanical and administrative in nature; Agent shall not
have by reason of this Agreement a fiduciary relationship in respect of any
Lender; and nothing in this Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon Agent any obligations in respect of this
Agreement except as expressly set forth herein.
14.3. Lack of Reliance on Agent
and Resignation. Independently and without reliance upon Agent
or any other Lender, each Lender has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of each
Borrower and each Guarantor in connection with the making and the continuance of
the Advances hereunder and the taking or not taking of any action in connection
herewith, and (ii) its own appraisal of the creditworthiness of each Borrower
and each Guarantor. Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before making of the Advances or at any time or times thereafter except as shall
be provided by any Borrower pursuant to the terms hereof. Agent shall
not be responsible to any Lender for any recitals, statements, information,
representations or warranties herein or in any agreement, document, certificate
or a statement delivered in connection with or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any Other Document, or of the financial condition of any Borrower
or any Guarantor, or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement, the Note, the Other Documents or the financial condition of any
Borrower, or the existence of any Event of Default or any Default.
Agent may
resign on sixty (60) days’ written notice to each of Lenders and Borrowing Agent
and upon such resignation, the Required Lenders will promptly designate a
successor Agent reasonably satisfactory to Borrowers.
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Any such
successor Agent shall succeed to the rights, powers and duties of Agent, and the
term “Agent” shall mean such successor agent effective upon its appointment, and
the former Agent’s rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former
Agent. After any Agent’s resignation as Agent, the provisions of this
Article XIV shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
14.4. Certain Rights of
Agent. If Agent shall request instructions from Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any Other Document, Agent shall be entitled to refrain from such
act or taking such action unless and until Agent shall have received
instructions from the Required Lenders; and Agent shall not incur liability to
any Person by reason of so refraining. Without limiting the
foregoing, Lenders shall not have any right of action whatsoever against Agent
as a result of its acting or refraining from acting hereunder in accordance with
the instructions of the Required Lenders.
14.5. Reliance. Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, order or other document or telephone message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper person or entity, and, with respect to all legal matters
pertaining to this Agreement and the Other Documents and its duties hereunder,
upon advice of counsel selected by it. Agent may employ agents and
attorneys-in-fact and shall not be liable for the default or misconduct of any
such agents or attorneys-in-fact selected by Agent with reasonable
care.
14.6. Notice of
Default. Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder or under the
Other Documents, unless Agent has received notice from a Lender or Borrowing
Agent referring to this Agreement or the Other Documents, describing such
Default or Event of Default and stating that such notice is a “notice of
default”. In the event that Agent receives such a notice, Agent shall
give notice thereof to Lenders. Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided, that, unless and until Agent shall have received
such directions, 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 in the best interests of
Lenders.
14.7. Indemnification. To
the extent Agent is not reimbursed and indemnified by Borrowers, each Lender
will reimburse and indemnify Agent in proportion to its respective portion of
the Advances (or, if no Advances are outstanding, according to its Commitment
Percentage), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Agent in performing its duties hereunder, or in any way
relating to or arising out of this Agreement or any Other Document; provided
that, Lenders shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from Agent’s gross (not mere) negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final non-appealable judgment).
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14.8. Agent in its Individual
Capacity. With respect to the obligation of Agent to lend
under this Agreement, the Advances made by it shall have the same rights and
powers hereunder as any other Lender and as if it were not performing the duties
as Agent specified herein; and the term “Lender” or any similar term shall,
unless the context clearly otherwise indicates, include Agent in its individual
capacity as a Lender. Agent may engage in business with any Borrower
as if it were not performing the duties specified herein, and may accept fees
and other consideration from any Borrower for services in connection with this
Agreement or otherwise without having to account for the same to
Lenders.
14.9. Delivery of
Documents. To the extent Agent receives financial statements
required under Sections 9.7, 9.8, 9.9, 9.12 and 9.13 or Borrowing Base
Certificates from any Borrower pursuant to the terms of this Agreement which any
Borrower is not obligated to deliver to each Lender, Agent will promptly furnish
such documents and information to Lenders.
14.10. Borrowers’ Undertaking to
Agent. Without prejudice to their respective obligations to
Lenders under the other provisions of this Agreement, each Borrower hereby
undertakes with Agent to pay to Agent from time to time on demand all amounts
from time to time due and payable by it for the account of Agent or Lenders or
any of them pursuant to this Agreement to the extent not already
paid. Any payment made pursuant to any such demand shall pro tanto
satisfy the relevant Borrower’s obligations to make payments for the account of
Lenders or the relevant one or more of them pursuant to this
Agreement.
14.11. No Reliance on Agent’s
Customer Identification Program. Each Lender acknowledges and
agrees that neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on the Agent to carry out such Lender’s, Affiliate’s,
participant’s or assignee’s customer identification program, or other
obligations required or imposed under or pursuant to the USA PATRIOT Act or the
regulations thereunder, including the regulations contained in 31 CFR 103.121
(as hereafter amended or replaced, the “CIP Regulations”), or any other
Anti-Terrorism Law, including any programs involving any of the following items
relating to or in connection with any Borrower, its Affiliates or its agents,
this Agreement, the Other Documents or the transactions hereunder or
contemplated hereby: (1) any identity verification procedures, (2) any
record-keeping, (3) comparisons with government lists, (4) customer notices or
(5) other procedures required under the CIP Regulations or such other
laws.
14.12. Other
Agreements. 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 any Borrower or any deposit
accounts of any Borrower now or hereafter maintained with such
Lender. Anything in this Agreement to the contrary notwithstanding,
each of the Lenders further agrees that it shall not, unless specifically
requested to do so by Agent, take any action to protect or enforce its rights
arising out of this Agreement or the Other Documents, it being the intent of
Lenders that any such action to protect or enforce rights under this Agreement
and the Other Documents shall be taken in concert and at the direction or with
the consent of Agent or Required Lenders.
XV. BORROWING
AGENCY.
89
15.1. Borrowing Agency
Provisions.
(a) Each
Borrower hereby irrevocably designates Borrowing Agent to be its attorney and
agent and in such capacity to borrow, sign and endorse notes, and execute and
deliver all instruments, documents, writings and further assurances now or
hereafter required hereunder, on behalf of such Borrower or Borrowers, and
hereby authorizes Agent to pay over or credit all loan proceeds hereunder in
accordance with the request of Borrowing Agent.
(b) The
handling of this credit facility as a co-borrowing facility with a borrowing
agent in the manner set forth in this Agreement is solely as an accommodation to
Borrowers and at their request. Neither Agent nor any Lender shall
incur liability to Borrowers as a result thereof. To induce Agent and
Lenders to do so and in consideration thereof, each Borrower hereby indemnifies
Agent and each Lender and holds Agent and each Lender harmless from and against
any and all liabilities, expenses, losses, damages and claims of damage or
injury asserted against Agent or any Lender by any Person arising from or
incurred by reason of the handling of the financing arrangements of Borrowers as
provided herein, reliance by Agent or any Lender on any request or instruction
from Borrowing Agent or any other action taken by Agent or any Lender with
respect to this Section 15.1 except due to willful misconduct or gross (not
mere) negligence by the indemnified party (as determined by a court of competent
jurisdiction in a final and non-appealable judgment).
(c) All
Obligations shall be joint and several, and each Borrower shall make payment
upon the maturity of the Obligations by acceleration or otherwise, and such
obligation and liability on the part of each Borrower shall in no way be
affected by any extensions, renewals and forbearance granted to Agent or any
Lender to any Borrower, failure of Agent or any Lender to give any Borrower
notice of borrowing or any other notice, any failure of Agent or any Lender to
pursue or preserve its rights against any Borrower, the release by Agent or any
Lender of any Collateral now or thereafter acquired from any Borrower, and such
agreement by each Borrower to pay upon any notice issued pursuant thereto is
unconditional and unaffected by prior recourse by Agent or any Lender to the
other Borrowers or any Collateral for such Borrower’s Obligations or the lack
thereof. Each Borrower waives all suretyship defenses.
15.2. Waiver of
Subrogation. Each Borrower expressly waives any and all rights
of subrogation, reimbursement, indemnity, exoneration, contribution of any other
claim which such Borrower may now or hereafter have against the other Borrowers
or other Person directly or contingently liable for the Obligations hereunder,
or against or with respect to the other Borrowers’ property (including, without
limitation, any property which is Collateral for the Obligations), arising from
the existence or performance of this Agreement, until termination of this
Agreement and repayment in full of the Obligations.
XVI. MISCELLANEOUS.
16.1. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applied to contracts to be
performed wholly within the State of New York. Any judicial
proceeding brought by or against any Borrower with respect to any of the
Obligations, this Agreement, the Other Documents or any related agreement may be
brought in any court of competent jurisdiction in the State of New York, United
States of
90
America,
and, by execution and delivery of this Agreement, each Borrower accepts for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this
Agreement. Each Borrower hereby waives personal service of any and
all process upon it and consents that all such service of process may be made by
registered mail (return receipt requested) directed to Borrowing Agent at its
address set forth in Section 16.6 and service so made shall be deemed completed
five (5) days after the same shall have been so deposited in the mails of the
United States of America, or, at the Agent’s option, by service upon Borrowing
Agent which each Borrower irrevocably appoints as such Borrower’s Agent for the
purpose of accepting service within the State of New York. Nothing
herein shall affect the right to serve process in any manner permitted by law or
shall limit the right of Agent or any Lender to bring proceedings against any
Borrower in the courts of any other jurisdiction. Each Borrower
waives any objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of jurisdiction or
venue or based upon forum non conveniens. Each Borrower waives the
right to remove any judicial proceeding brought against such Borrower in any
state court to any federal court. Any judicial proceeding by any
Borrower against Agent or any Lender involving, directly or indirectly, any
matter or claim in any way arising out of, related to or connected with this
Agreement or any related agreement, shall be brought only in a federal or state
court located in the County of New York, State of New York.
16.2. Entire
Understanding.
(a) This
Agreement and the documents executed concurrently herewith contain the entire
understanding between each Borrower, Agent and each Lender and supersedes all
prior agreements and understandings, if any, relating to the subject matter
hereof. Any promises, representations, warranties or guarantees not
herein contained and hereinafter made shall have no force and effect unless in
writing, signed by each Borrower’s, Agent’s and each Lender’s respective
officers. Neither this Agreement nor any portion or provisions hereof
may be changed, modified, amended, waived, supplemented, discharged, cancelled
or terminated orally or by any course of dealing, or in any manner other than by
an agreement in writing, signed by the party to be charged. Each
Borrower acknowledges that it has been advised by counsel in connection with the
execution of this Agreement and Other Documents and is not relying upon oral
representations or statements inconsistent with the terms and provisions of this
Agreement.
(b) The
Required Lenders, Agent with the consent in writing of the Required Lenders, and
Borrowers may, subject to the provisions of this Section 16.2 (b), from time to
time enter into written supplemental agreements to this Agreement or the Other
Documents executed by Borrowers, for the purpose of adding or deleting any
provisions or otherwise changing, varying or waiving in any manner the rights of
Lenders, Agent or Borrowers thereunder or the conditions, provisions or terms
thereof or waiving any Event of Default thereunder, but only to the extent
specified in such written agreements; provided, however, that no such
supplemental agreement shall, without the consent of all Lenders:
(i) increase
the Commitment Percentage, the maximum dollar commitment of any Lender or the
Maximum Revolving Advance Amount.
91
(ii) extend
the maturity of any Note or the due date for any amount payable hereunder, or
decrease the rate of interest or reduce any fee payable by Borrowers to Lenders
pursuant to this Agreement.
(iii) alter the
definition of the term Required Lenders or alter, amend or modify this Section
16.2(b).
(iv) release
any Collateral during any calendar year (other than in accordance with the
provisions of this Agreement) having an aggregate value in excess of
$500,000.
(v) change
the rights and duties of Agent.
(vi) permit
any Revolving Advance to be made if after giving effect thereto the total of
Revolving Advances outstanding hereunder would exceed the Formula Amount for
more than sixty (30) consecutive Business Days or exceed one hundred and five
percent (105%) of the Formula Amount.
(vii) increase
the Advance Rates above the Advance Rates in effect on the Closing
Date.
(viii) release
any Guarantor.
Any such
supplemental agreement shall apply equally to each Lender and shall be binding
upon Borrowers, Lenders and Agent and all future holders of the
Obligations. In the case of any waiver, Borrowers, Agent and Lenders
shall be restored to their former positions and rights, and any Event of Default
waived shall be deemed to be cured and not continuing, but no waiver of a
specific Event of Default shall extend to any subsequent Event of Default
(whether or not the subsequent Event of Default is the same as the Event of
Default which was waived), or impair any right consequent thereon.
In the
event that Agent requests the consent of a Lender pursuant to this Section 16.2
and such consent is denied, then PNC may, at its option, require such Lender to
assign its interest in the Advances to PNC or to another Lender or to any other
Person designated by the Agent (the “Designated Lender”), for a price equal to
(i) the then outstanding principal amount thereof plus (ii) accrued and unpaid
interest and fees due such Lender, which interest and fees shall be paid when
collected from Borrowers. In the event PNC elects to require any
Lender to assign its interest to PNC or to the Designated Lender, PNC will so
notify such Lender in writing within forty five (45) days following such
Lender’s denial, and such Lender will assign its interest to PNC or the
Designated Lender no later than five (5) days following receipt of such notice
pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the
Designated Lender, as appropriate, and Agent.
Notwithstanding
(a) the existence of a Default or an Event of Default, (b) that any of the other
applicable conditions precedent set forth in Section 8.2 hereof have not been
satisfied or (c) any other provision of this Agreement, Agent may at its
discretion and without the consent of the Required Lenders, voluntarily permit
the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at
any time to exceed the Formula Amount
92
hereof at
such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent
(10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the
“Out-of-Formula Loans”); provided, that, such
outstanding Advances do not exceed the Maximum Revolving Advance
Amount. If Agent is willing in its sole and absolute discretion to
make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on
demand and shall bear interest at the Default Rate for Revolving Advances
consisting of Domestic Rate Loans; provided that, if Lenders do make
Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have
changed the limits of Section 2.1(a). For purposes of this paragraph,
the discretion granted to Agent hereunder shall not preclude involuntary
overadvances that may result from time to time due to the fact that the Formula
Amount was unintentionally exceeded for any reason, including, but not limited
to, Collateral previously deemed to be either “Eligible Receivables” or
“Eligible Inventory”, as applicable, becomes ineligible, collections of
Receivables applied to reduce outstanding Revolving Advances are thereafter
returned for insufficient funds or overadvances are made to protect or preserve
the Collateral. In the event Agent involuntarily permits the
outstanding Revolving Advances to exceed the Formula Amount or Overadvance
Threshold Amount by more than ten percent (10%), Agent shall use its efforts to
have Borrowers decrease such excess in as expeditious a manner as is practicable
under the circumstances and not inconsistent with the reason for such
excess. Revolving Advances made after Agent has determined the
existence of involuntary overadvances shall be deemed to be involuntary
overadvances and shall be decreased in accordance with the preceding
sentence.
In
addition to (and not in substitution of) the discretionary Revolving Advances
permitted above in this Section 16.2, the Agent is hereby authorized by
Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A)
after the occurrence and during the continuation of a Default or an Event of
Default, or (B) at any time that any of the other applicable conditions
precedent set forth in Section 8.2 hereof have not been satisfied, to make
Revolving Advances to Borrowers on behalf of the Lenders which the Agent, in its
reasonable business judgment, deems necessary or desirable (a) to preserve or
protect the Collateral, or any portion thereof, (b) to enhance the likelihood
of, or maximize the amount of, repayment of the Advances and other Obligations,
or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of
this Agreement; provided, that at any time after giving effect to any such
Revolving Advances the outstanding Revolving Advances do not exceed one hundred
and ten percent (110%) of the Formula Amount.
(a) This
Agreement shall be binding upon and inure to the benefit of Borrowers, Agent,
each Lender, all future holders of the Obligations and their respective
successors and assigns, except that no Borrower may assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of Agent and each Lender.
(b) Each
Borrower acknowledges that in the regular course of commercial banking business
one or more Lenders may at any time and from time to time sell participating
interests in the Advances to other financial institutions (each such transferee
or purchaser of a participating interest, a “Participant”). Each
Participant may exercise all rights of payment (including rights of set-off)
with respect to the portion of such Advances held by it or other Obligations
payable hereunder as fully as if such Participant were the direct holder thereof
93
provided
that Borrowers shall not be required to pay to any Participant more than the
amount which it would have been required to pay to Lender which granted an
interest in its Advances or other Obligations payable hereunder to such
Participant had such Lender retained such interest in the Advances hereunder or
other Obligations payable hereunder and in no event shall Borrowers be required
to pay any such amount arising from the same circumstances and with respect to
the same Advances or other Obligations payable hereunder to both such Lender and
such Participant. Each Borrower hereby grants to any Participant a
continuing security interest in any deposits, moneys or other property actually
or constructively held by such Participant as security for the Participant’s
interest in the Advances.
(c) Any
Lender, with the consent of Agent which shall not be unreasonably withheld or
delayed, may sell, assign or transfer all or any part of its rights and
obligations under or relating to Revolving Advances and/or Term Loans under this
Agreement and the Other Documents to one or more additional banks or financial
institutions and one or more additional banks or financial institutions may
commit to make Advances hereunder (each a “Purchasing Lender”), in minimum
amounts of not less than $5,000,000, pursuant to a Commitment Transfer
Supplement, executed by a Purchasing Lender, the transferor Lender, and Agent
and delivered to Agent for recording. Upon such execution, delivery,
acceptance and recording, from and after the transfer effective date determined
pursuant to such Commitment Transfer Supplement, (i) Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Lender
thereunder with a Commitment Percentage as set forth therein, and (ii) the
transferor Lender thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under this Agreement, the
Commitment Transfer Supplement creating a novation for that
purpose. Such Commitment Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Other Documents. Each Borrower hereby consents
to the addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Other Documents. Borrowers shall execute and
deliver such further documents and do such further acts and things in order to
effectuate the foregoing.
(d) Any
Lender, with the consent of Agent which shall not be unreasonably withheld or
delayed, may directly or indirectly sell, assign or transfer all or any portion
of its rights and obligations under or relating to Revolving Advances and/or
Term Loans under this Agreement and the Other Documents to an entity, whether a
corporation, partnership, trust, limited liability company or other entity that
(i) is engaged in making, purchasing, holding or otherwise investing in bank
loans and similar extensions of credit in the ordinary course of its business
and (ii) is administered, serviced or managed by the assigning Lender or an
Affiliate of such Lender (a “Purchasing CLO” and together with each Participant
and Purchasing Lender, each a “Transferee” and collectively the “Transferees”),
pursuant to a Commitment Transfer Supplement modified as appropriate to reflect
the interest being assigned (“Modified Commitment Transfer Supplement”),
executed by any intermediate purchaser, the Purchasing CLO, the transferor
Lender, and Agent as appropriate and delivered to Agent for
recording.
94
Upon such
execution and delivery, from and after the transfer effective date determined
pursuant to such Modified Commitment Transfer Supplement, (i) Purchasing CLO
thereunder shall be a party hereto and, to the extent provided in such Modified
Commitment Transfer Supplement, have the rights and obligations of a Lender
thereunder and (ii) the transferor Lender thereunder shall, to the extent
provided in such Modified Commitment Transfer Supplement, be released from its
obligations under this Agreement, the Modified Commitment Transfer Supplement
creating a novation for that purpose. Such Modified Commitment
Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Purchasing
CLO. Each Borrower hereby consents to the addition of such Purchasing
CLO. Borrowers shall execute and deliver such further documents and
do such further acts and things in order to effectuate the
foregoing.
(e) Agent
shall maintain at its address a copy of each Commitment Transfer Supplement and
Modified Commitment Transfer Supplement delivered to it and a register (the
“Register”) for the recordation of the names and addresses of each Lender and
the outstanding principal, accrued and unpaid interest and other fees due
hereunder. The entries in the Register shall be conclusive, in the
absence of manifest error, and each Borrower, Agent and Lenders may treat each
Person whose name is recorded in the Register as the owner of the Advance
recorded therein for the purposes of this Agreement. The Register
shall be available for inspection by any Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior
notice. Agent shall receive a fee in the amount of $3,500 payable by
the applicable Purchasing Lender and/or Purchasing CLO upon the effective date
of each transfer or assignment (other than to an intermediate purchaser) to such
Purchasing Lender and/or Purchasing CLO.
(f) Each
Borrower authorizes each Lender to disclose to any Transferee and any
prospective Transferee any and all financial information in such Lender’s
possession concerning such Borrower which has been delivered to such Lender by
or on behalf of such Borrower pursuant to this Agreement or in connection with
such Lender’s credit evaluation of such Borrower.
16.4. Application of
Payments. Agent shall have the continuing and exclusive right
to apply or reverse and re-apply any payment and any and all proceeds of
Collateral to any portion of the Obligations. To the extent that any
Borrower makes a payment or Agent or any Lender receives any payment or proceeds
of the Collateral for any Borrower’s benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, debtor in possession, receiver, custodian or any other
party under any bankruptcy law, common law or equitable cause, then, to such
extent, the Obligations or part thereof intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by
Agent or such Lender.
16.5. Indemnity. Each
Borrower shall indemnify Agent, each Lender and each of their respective
officers, directors, Affiliates, attorneys, employees and agents from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind or
nature whatsoever (including fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against Agent or any Lender in any claim,
litigation, proceeding or investigation instituted or conducted by any
Governmental Body or instrumentality or any other Person with respect to any
aspect of, or any transaction
95
contemplated
by, or referred to in, or any matter related to, this Agreement or the Other
Documents, whether or not Agent or any Lender is a party thereto, except to the
extent that any of the foregoing arises out of the gross negligence or willful
misconduct of the party being indemnified (as determined by a court of competent
jurisdiction in a final and non-appealable judgment). Without
limiting the generality of the foregoing, this indemnity shall extend to any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever (including
fees and disbursements of counsel) asserted against or incurred by any of the
indemnitees described above in this Section 16.5 by any Person under any
Environmental Laws or similar laws by reason of any Borrower’s or any other
Person’s failure to comply with laws applicable to solid or hazardous waste
materials, including Hazardous Substances and Hazardous Waste, or other Toxic
Substances. Additionally, if any taxes (excluding taxes imposed upon
or measured solely by the net income of Agent and Lenders, but including any
intangibles taxes, stamp tax, recording tax or franchise tax) shall be payable
by Agent, Lenders or Borrowers on account of the execution or delivery of this
Agreement, or the execution, delivery, issuance or recording of any of the Other
Documents, or the creation or repayment of any of the Obligations hereunder, by
reason of any Applicable Law now or hereafter in effect, Borrowers will pay (or
will promptly reimburse Agent and Lenders for payment of) all such taxes,
including interest and penalties thereon, and will indemnify and hold the
indemnitees described above in this Section 16.5 harmless from and against all
liability in connection therewith.
16.6. Notice. Any
notice or request hereunder may be given to Borrowing Agent or any Borrower or
to Agent or any Lender at their respective addresses set forth below or at such
other address as may hereafter be specified in a notice designated as a notice
of change of address under this Section. Any notice, request, demand,
direction or other communication (for purposes of this Section 16.6 only, a
“Notice”) to be given to or made upon any party hereto under any provision of
this Loan Agreement shall be given or made by telephone or in writing (which
includes by means of electronic transmission (i.e., “e-mail”) or facsimile
transmission or by setting forth such Notice on a site on the World Wide Web (a
“Website Posting”) if Notice of such Website Posting (including the information
necessary to access such site) has previously been delivered to the applicable
parties hereto by another means set forth in this Section 16.6) in accordance
with this Section 16.6. Any such Notice must be delivered to the
applicable parties hereto at the addresses and numbers set forth under their
respective names on Section 16.6 hereof or in accordance with any subsequent
unrevoked Notice from any such party that is given in accordance with this
Section 16.6. Any Notice shall be effective:
(a) In the
case of hand-delivery, when delivered;
(b) If given
by mail, four days after such Notice is deposited with the United States Postal
Service, with first-class postage prepaid, return receipt
requested;
(c) In the
case of a telephonic Notice, when a party is contacted by telephone, if delivery
of such telephonic Notice is confirmed no later than the next Business Day by
hand delivery, a facsimile or electronic transmission, a Website Posting or an
overnight courier delivery of a confirmatory Notice (received at or before noon
on such next Business Day);
96
(d) In the
case of a facsimile transmission, when sent to the applicable party’s facsimile
machine’s telephone number, if the party sending such Notice receives
confirmation of the delivery thereof from its own facsimile
machine;
(e) In the
case of electronic transmission, when actually received;
(f) In the
case of a Website Posting, upon delivery of a Notice of such posting (including
the information necessary to access such site) by another means set forth in
this Section 16.6; and
(g) If given
by any other means (including by overnight courier), when actually
received.
Any
Lender giving a Notice to Borrowing Agent or any Borrower shall concurrently
send a copy thereof to the Agent, and the Agent shall promptly notify the other
Lenders of its receipt of such Notice.
|
(A)
|
If
to Agent or PNC at:
|
|
PNC
Bank, National Association
|
00
Xxxx 00xx Xxxxxx
|
|||
Xxx Xxxx, XX 00000 | |||
Attention: A. Xxxxx Xxxxx | |||
Telephone: 000-000-0000 | |||
Facsimile: 212-303-0060 | |||
|
|
|
with
a copy to:
|
|
PNC
Bank, National Association
|
|
PNC
Agency Services
|
|
PNC
Firstside Center
|
|
000
Xxxxx Xxxxxx, 0xx Xxxxx
|
|
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
|
Attention:
Xxxx Xxxxxx
|
Telephone:
000-000-0000
|
Facsimile:
000-000-0000
|
|
with
an additional copy to:
|
|
Xxxx
& Hessen LLP
|
|
000
Xxxxxxx Xxxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
Attention:
|
Xxxxxx
X. Xxxx, Esq.
|
Telephone:
|
000-000-0000
|
Facsimile:
|
212-478-7400
|
|
(B)
|
If
to a Lender other than Agent, as specified on the signature pages
hereof.
|
97
|
(C)
|
If
to Borrowing Agent or any Borrower:
|
|
Best
Energy Services, Inc.
|
|
0000
Xxxxx Xxxxxx, Xxxxx 0000
|
|
Xxxxxxx,
Xxxxx 00000
|
|
Attention:
Xxxxx
Xxxxxxxx
|
Telephone:
000-000-0000
|
Facsimile:
000-000-0000
|
with a
copy to:
Xxxxxxx
Xxxxxx L.L.P.
|
|
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
|
|
Xxxxxx, Xxxxx 00000 | |
Attention: Xxxxxxxx X.Xxxx, Esq. | |
Telephone: 000-000-0000 | |
Facsimile: 000-000-0000 |
16.7. Survival. The
indemnification obligations of Borrowers under Sections 2.2(f), 3.7, 3.8, 3.9,
4.19(h), and 16.5 and the obligations of Lenders under Section 14.7, shall
survive termination of this Agreement and the Other Documents and payment in
full of the Obligations.
16.8. Severability. If
any part of this Agreement is contrary to, prohibited by, or deemed invalid
under Applicable Laws, such provision shall be inapplicable and deemed omitted
to the extent so contrary, prohibited or invalid, but the remainder hereof shall
not be invalidated thereby and shall be given effect so far as
possible.
16.9. Expenses. All
costs and expenses including reasonable attorneys’ fees (including the allocated
costs of in house counsel) and disbursements incurred by Agent on its behalf or
on behalf of Lenders (a) in all efforts made to enforce payment of any
Obligation or effect collection of any Collateral, or (b) in connection with the
entering into, modification, amendment, administration and enforcement of this
Agreement or any consents or waivers hereunder and all related agreements,
documents and instruments, or (c) in instituting, maintaining, preserving,
enforcing and foreclosing on Agent’s security interest in or Lien on any of the
Collateral, or maintaining, preserving or enforcing any of Agent’s or any
Lender’s rights hereunder and under all related agreements, documents and
instruments, whether through judicial proceedings or otherwise, or (d) in
defending or prosecuting any actions or proceedings arising out of or relating
to Agent’s or any Lender’s transactions with any Borrower or any Guarantor or
(e) in connection with any advice given to Agent or any Lender with respect to
its rights and obligations under this Agreement and all related agreements,
documents and instruments, may be charged to Borrowers’ Account and shall be
part of the Obligations.
16.10. Injunctive
Relief. Each Borrower recognizes that, in the event any
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, or threatens to fail to perform, observe or
discharge such obligations or liabilities, any remedy at law may prove to be
inadequate relief to Lenders; therefore, Agent, if Agent so requests, shall be
98
entitled
to temporary and permanent injunctive relief in any such case without the
necessity of proving that actual damages are not an adequate
remedy.
16.11. Consequential
Damages. Neither Agent nor any Lender, nor any agent or
attorney for any of them, shall be liable to any Borrower or any Guarantor (or
any Affiliate of any such Person) for indirect, punitive, exemplary or
consequential damages arising from any breach of contract, tort or other wrong
relating to the establishment, administration or collection of the Obligations
or as a result of any transaction contemplated under this Agreement or any Other
Document.
16.12. Captions. The
captions at various places in this Agreement are intended for convenience only
and do not constitute and shall not be interpreted as part of this
Agreement.
16.13. Counterparts; Facsimile
Signatures. This Agreement may be executed in any number of
and by different parties hereto on separate counterparts, all of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same agreement. Any signature delivered by a
party by facsimile transmission shall be deemed to be an original signature
hereto.
16.14. Construction. The
parties acknowledge that each party and its counsel have reviewed this Agreement
and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments, schedules or exhibits
thereto.
16.15. Confidentiality; Sharing
Information. Agent, each Lender and each Transferee shall hold
all non-public information obtained by Agent, such Lender or such Transferee
pursuant to the requirements of this Agreement in accordance with Agent’s, such
Lender’s and such Transferee’s customary procedures for handling confidential
information of this nature; provided, however, Agent, each Lender and each
Transferee may disclose such confidential information (a) to its examiners,
Affiliates, outside auditors, counsel and other professional advisors, (b) to
Agent, any Lender or to any prospective Transferees, and (c) as required or
requested by any Governmental Body or representative thereof or pursuant to
legal process; provided, further that (i) unless specifically prohibited by
Applicable Law, Agent, each Lender and each Transferee shall use its reasonable
best efforts prior to disclosure thereof, to notify the applicable Borrower of
the applicable request for disclosure of such non-public information (A) by a
Governmental Body or representative thereof (other than any such request in
connection with an examination of the financial condition of a Lender or a
Transferee by such Governmental Body) or (B) pursuant to legal process and (ii)
in no event shall Agent, any Lender or any Transferee be obligated to return any
materials furnished by any Borrower other than those documents and instruments
in possession of Agent or any Lender in order to perfect its Lien on the
Collateral once the Obligations have been paid in full and this Agreement has
been terminated. Each Borrower acknowledges that from time to time
financial advisory, investment banking and other services may be offered or
provided to such Borrower or one or more of its Affiliates (in connection with
this Agreement or otherwise) by any Lender or by one or more Subsidiaries or
Affiliates of such Lender and each Borrower hereby authorizes each Lender to
share any information delivered to such Lender by such Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this
99
Agreement,
to any such Subsidiary or Affiliate of such Lender, it being understood that any
such Subsidiary or Affiliate of any Lender receiving such information shall be
bound by the provisions of this Section 16.15 as if it were a Lender
hereunder. Such authorization shall survive the repayment of the
other Obligations and the termination of this Agreement.
16.16. Publicity. Each
Borrower and each Lender hereby authorizes Agent to make appropriate
announcements of the financial arrangement entered into among Borrowers, Agent
and Lenders, including announcements which are commonly known as tombstones, in
such publications and to such selected parties as Agent shall in its sole and
absolute discretion deem appropriate.
16.17. Certifications From Banks
and Participants; US PATRIOT Act. Each Lender or assignee or
participant of a Lender that is not incorporated under the Laws of the United
States of America or a state thereof (and is not excepted from the certification
requirement contained in Section 313 of the USA PATRIOT Act and the applicable
regulations because it is both (i) an affiliate of a depository
institution or foreign bank that maintains a physical presence in the
United States or foreign country, and (ii) subject to supervision by a banking
authority regulating such affiliated depository institution or foreign bank)
shall deliver to the Agent the certification, or, if applicable,
recertification, certifying that such Lender is not a “shell” and certifying to
other matters as required by Section 313 of the USA PATRIOT Act and the
applicable regulations: (1) within 10 days after the Closing Date, and (2) as
such other times as are required under the USA PATRIOT Act.
100
Each of
the parties has signed this Agreement as of the day and year first above
written.
ATTEST: | HYBROOK RESOURCES CORP. |
(to be renamed Best Energy Services, Inc.) | |
Xxx Xxxx | By: /s/ Xxxxx Xxxxxxxx |
Name: Xxxxx Xxxxxxxx | |
Title: CEO |
ATTEST: | XXX XXXXXX DRILLING COMPANY |
Xxx Xxxx | By: /s/ Xxxxx Xxxxxxxx |
Name: Xxxxx Xxxxxxxx | |
Title: President |
ATTEST: | BEST WELL SERVICE, INC. |
Xxx Xxxx | By: /s/ Xxxxx Xxxxxxxx |
Name: Xxxxx Xxxxxxxx | |
Title: President |
PNC BANK NATIONAL ASSOCIATION | |
As Lender and Agent | |
By: /s/ Xxxxxxx X. Xxxxxx | |
Name: Xxxxxxx X. Xxxxxx | |
Title: VP | |
Commitment
Percentage: 100%
|
STATE OF TEXAS | ) |
) ss. | |
COUNTY OF XXXXXXXXXX | ) |
On this
15TH day of FEBRUARY, 2008, before me personally came XXXXX XXXXXXXX, to me
known, who, being by me duly sworn, did depose and say that s/he is the CEO of
HYBROOK RESOURCES CORP., the corporation described in and which executed the
foregoing instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
/s/
Xxxx Xxxxx
Notary
Public
STATE OF TEXAS | ) |
) ss. | |
COUNTY OF XXXXXXXXXX | ) |
On this
15TH day of FEBRUARY, 2008, before me personally came XXXXX XXXXXXXX, to me
known, who, being by me duly sworn, did depose and say that s/he is the
PRESIDENT of XXX XXXXXX DRILLING COMPANY, the corporation described in and which
executed the foregoing instrument; and that s/he signed her/his name thereto by
order of the board of directors of said corporation.
/s/
Xxxx Xxxxx
Notary
Public
STATE OF TEXAS | ) |
) ss. | |
COUNTY OF XXXXXXXXXX | ) |
On this
15TH day of FEBRUARY, 2008, before me personally came XXXXX XXXXXXXX, to me
known, who, being by me duly sworn, did depose and say that s/he is the
PRESIDENT of BEST WELL SERVICE, INC., the corporation described in and which
executed the foregoing instrument; and that s/he signed her/his name thereto by
order of the board of directors of said corporation.
/s/
Xxxx Xxxxx
Notary
Public
STATE OF NEW JERSEY | ) |
) ss. | |
COUNTY OF MIDDLESEX | ) |
On this
11TH day of FEBRUARY 2008, before me personally came XXXXXXX XXXXXX to me known,
who, being by me duly sworn, did depose and say that s/he is the VICE PRESIDENT
of PNC BANK, NATIONAL ASSOCIATION, and that s/he was authorized to sign her/his
name thereto.
/S/
XXXXXXXXX X. XXXXXXX
Notary
Public
Schedule 1.2(a) -
Original Owners
|
Xxxxxxx
Xxxxxxx
|
Xxxxx
Xxxxxxxx
|
Schedule 1.2(b) -
Permitted Encumbrances
|
|||
Best Well Services, Inc. -
the vehicles listed below have purchase money security interests
against them in favor of either GMAC or Ford Motor
Credit.
None
of these vehicles is cross-collaterlized.
|
|||
Vehicle
|
Year
and Model
|
VIN
|
Account
#
|
Xxxxx
|
2007
Chev. Tahoe
|
0XXXX00000X000000
|
000-0000-00000
|
Xxxx
|
0000
Xxxxx Xxxxx
|
0XXXX00X00X000000
|
000-0000-00000
|
Xxxxxx
|
2006
Chevy Silverado 1500 Crewcab
|
#0XXXX00X000000000
|
000-0000-00000
|
Xxxxx
|
2007
Chevrolet 1500
|
0XXXX00XX0X000000
|
000-0000-00000
|
Rig
1
|
2007
Chevrolet
|
0XXXX00XX0X000000
|
000-0000-00000
|
Rig
2
|
2006
Chevy Silverado
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
3
|
2005
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
4
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
6
|
2005
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
7
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
8
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
11
|
2006
Chevy Silverado
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
12
|
2006
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
14
|
2007
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
15
|
2005
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
16
|
2006
Chevy Silverado
|
#0XXXX00XX0X000000
|
000-0000-00000
|
Rig
17
|
2007
Chevy
|
0XXXX00XX0X000000
|
000-0000-00000
|
Rig
18
|
2006
Chevy 3/4 Extended Cab
|
1GCHC29U96E57844
|
000-0000-00000
|
Rig
19
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
22
|
2006
Chevy 3/4 Crew Cab - 4x4
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
23
|
2006
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
24
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
25
|
2007
Chevy
|
0XXXX00XX0X000000
|
000-0000-00000
|
Spare-25
|
2005
Chevy C25
|
#0XXXX00X00X000000
|
000-0000-00000
|
Xxxx
X.
|
2006
Ford F 150
|
#0XXXX00000XX00000
|
40663002
|
Xxxxx
|
2006
Ford F150
|
0XXXX00X00XX00000
|
41506066
|
Xxxx
V
|
2006
Ford F150
|
#0XXXX00000XX00000
|
40521257
|
Xxxxxx
|
2007
Toyota
|
0XXXX00000X000000
|
005-6197153
|
Xxx
Xxxxxx Drilling Company
None
|
|||
Schedule 4.5 -
Equipment and Inventory Locations
|
|
Best
Well Service, Inc.
|
|
Type
of Equipment
|
Location(s)
|
Inventory
and Equipment
|
Main
Office: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX,
00000
|
Term: 3
years, $3500 a month
|
|
Landlord: Xxxx
Xxxxx
|
|
Address: 0000
Xxxx X, Xxxxxxx, XX, 00000
|
|
Use:
Main Location (Inventory and Equipment Storage)
|
|
Stock
Supplies
|
Satellite
Yard: 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, XX,
00000
|
Term: Month
to Month, $400 a month
|
|
Landlord: DNK
Enterprises
|
|
Address: X.X.
Xxx 0000, Xxxxxxx, XX, 00000
|
|
Xxx
Xxxxxx Drilling Company
|
|
Type
of Equipment
|
Location(s)
|
Inventory
and Equipment
|
Main
Office: 0000 X. Xxx 000, Xxxx, XX, 00000
|
Landlord: Xxxxxx
Xxxxxx
|
|
Address:
000 Xxxxxxxxxx Xxxx Xxxx Xxxx 00000
|
|
Satellite
Yard: 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx, XX,
00000
|
|
Landlord: Xxxxxx
Xxxxxx
|
|
Address:
000 Xxxxxxxxxx Xxxx Xxxx Xxxx 00000
|
|
None
|
Schedule 4.5(c) -
Chief Executive Offices
|
0000
Xxxxx Xxxxxx, Xxxxx 0000
|
Xxxxxxx,
XX 00000
|
Schedule 4.15(h) -
Deposit and Investment Accounts
|
Best
Well Service, Inc.
|
Checking
Account: Community Bank, Account # 007420
|
Xxx
Xxxxxx Drilling Company
|
Checking
Account: Xxxxx Fargo, Account # 045-0000000
|
Sweep
Account link to Checking: Xxxxx Fargo Account #
045-0000000
|
Checking
Account: Bank of Montreal, Account #
4268-673
|
Schedule 4.19 - Real
Property
|
Best
Well Service, Inc.
|
Main Office: 0000
Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, 00000
|
Type
of Real Property Interest: Lease
|
Term:
3 years, $3500 a month
|
Landlord: Xxxx
Xxxxx
|
Address: 0000
Xxxx X, Xxxxxxx, XX, 00000
|
Use:
Main Location (Inventory and Equipment Storage)
|
Satellite
Yard: 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, XX,
00000
|
Term: Month
to Month, $400 a month
|
Landlord: DNK
Enterprises
|
Address: X.X.
Xxx 0000, Xxxxxxx, XX, 00000
|
Xxx
Xxxxxx Drilling Company
|
Main
Office: 0000 X. Xxx 000, Xxxx, XX,
00000
|
Type
of Real Property Interest: Lease
|
Landlord: Xxxxxx
Xxxxxx
|
Address:
000 Xxxxxxxxxx Xxxx Xxxx Xxxx 00000
|
Satellite
Yard: 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx, XX,
00000
|
Type
of Real Property Interest: Lease
|
Landlord: Xxxxxx
Xxxxxx
|
Address:
000 Xxxxxxxxxx Xxxx Xxxx Xxxx 00000
|
Main Office: 0000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000
|
Type
of Real Property Interest : Lease (please note that this space is
currently being leased by Pan American Production Company, Inc., an
affiliate of American Rig Housing, but will be subleased to Best Energy
Service post-closing)
|
Landlord:
YPI 1010 Xxxxx, LLC
|
Address:
Dept. 2113, XX Xxx 000000, Xxxxxx, XX
00000-0000
|
Schedule
4.21 - Owned Rig Fleet Equipment
|
||||||
Best
Well Service, Inc.
|
||||||
Rig Number
|
County of Location
|
State
|
Mobile Rig
|
Certificate of Title
|
State of Title
|
Long Term Contract
|
1
|
Texas
|
OK
|
Yes
|
Yes
|
OK
|
No
|
2
|
Xxxx
|
KS
|
Yes
|
Yes
|
XX
|
Xx
|
0
|
Xxxxxx
|
XX
|
Yes
|
Yes
|
OK
|
No
|
4
|
Grant
|
KS
|
Yes
|
Yes
|
OK
|
No
|
5
|
Phinniey
|
KS
|
Yes
|
Yes
|
OK
|
No
|
6
|
Xxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
7
|
Xxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
8
|
Xxxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
9
|
Xxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
10
|
Phinniey
|
KS
|
Yes
|
Yes
|
OK
|
No
|
11
|
Beaver
|
OK
|
Yes
|
Yes
|
OK
|
No
|
12
|
Beaver
|
OK
|
Yes
|
Yes
|
OK
|
No
|
14
|
Xxxxxx
|
KS
|
Yes
|
Yes
|
XX
|
Xx
|
00
|
Xxxxxx
|
XX
|
Yes
|
Yes
|
OK
|
No
|
16
|
Xxxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
17
|
Texas
|
OK
|
Yes
|
Yes
|
OK
|
No
|
18
|
Beaver
|
OK
|
Yes
|
Yes
|
OK
|
No
|
19
|
Phinniey
|
KS
|
Yes
|
Yes
|
OK
|
No
|
20
|
Grant
|
KS
|
Yes
|
Yes
|
OK
|
No
|
21
|
Xxxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
22
|
Xxxxxx
|
KS
|
Yes
|
Yes
|
XX
|
Xx
|
00
|
Xxxxxx
|
XX
|
Yes
|
Yes
|
OK
|
No
|
24
|
Beaver
|
OK
|
Yes
|
Yes
|
OK
|
No
|
25
|
Xxxxxx
|
KS
|
Yes
|
Yes
|
OK
|
No
|
26
(under construction)
|
Xxxxxx
|
KS
|
Yes
|
Pending
|
OK
|
No
|
Xxx
Xxxxxx Drilling Company
|
||||||
Rig Number
|
County of Location
|
State
|
Mobile Rig
|
Certificate of Title
|
State of Title
|
Long Term Contract
|
20
|
San
Xxxx
|
UT
|
Yes
|
Yes
|
UT
|
No
|
28
|
San
Xxxx
|
UT
|
Yes
|
Yes
|
UT
|
No
|
30
|
Carbon
|
UT
|
Yes
|
Yes
|
UT
|
No
|
33
|
La
Plata
|
CO
|
Yes
|
Yes
|
UT
|
No
|
34
|
La
Plata
|
CO
|
Yes
|
Yes
|
UT
|
No
|
None
|
Schedule 5.1 -
Consents
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
None
|
Schedule 5.2(a) -
States of Qualification and Good Standing
|
Best
Well Service, Inc.
|
KS
(state of incorporation)
|
Best
Well Service, Inc. will not be qualified in TX or OK, but will file a
fictitious name certificate in those states shortly after
closing.
|
Xxx
Xxxxxx Drilling Company
|
UT
(state of incorporation)
|
AZ
|
Hybrook
Resources Corp.
|
NV
(state of incorporation)
|
Schedule 5.2(b) -
Subsidiaries
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
HRE
Exploration Ltd., a British Columbia corporation, is a wholly-owned
subsidiary
|
Also,
note that Best Well Service, Inc. and Xxx Xxxxxx Drilling Company will be
wholly owned subsidiaries of Hybrook/Best Energy Service
post-closing
|
Schedule 5.4 - Federal
Tax Identification Number
|
Best
Well Service, Inc.
|
Federal
Tax ID#: 00-0000000
|
Xxx
Xxxxxx Drilling Company
|
Federal
Tax ID#: 00-0000000
|
Hybrook
Resources Corp.
|
Federal
Tax ID# 00-0000000
|
Schedule 5.6 - Prior
Names
|
Best
Well Service, Inc.
|
None
|
Note,
however, that prior to 1992 Xxxx Xxxxx was doing business as Best Well
Service, and then incorporated under the name Best Well Service,
Inc.
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
None
|
Schedule 5.8(b) -
Litigation
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
None
|
Schedule 5.8(d) -
Plans
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
None
|
Schedule 5.9 -
Intellectual Property, Source Code Escrow
Agreements
|
Best
Well Service, Inc.
|
The
Company has always operated under its registered corporate
name
|
The
Company has no additional tradenames or intellectual
property
|
Xxx
Xxxxxx Drilling Company
|
The
Company has always operated under its registered corporate
name
|
The
Company has no additional tradenames or intellectual
property
|
Hybrook
Resources Corp.
|
The
Company has always operated under its registered corporate
name
|
The
Company has no additional tradenames or intellectual
property
|
Schedule 5.10 -
Licenses and Permits
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
None
|
Schedule 5.14 - Labor
Disputes
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
None
|
Schedule 7.3 -
Guarantees
|
Best
Well Service, Inc.
|
None
|
Xxx
Xxxxxx Drilling Company
|
None
|
Hybrook
Resources Corp.
|
None
|
Schedule 7.8 -
Existing Indebtedness
|
|||
Best
Well Services, Inc.
|
|||
(1) The company has
loans covering the following vehicles in favor of either GMAC or Ford
Motor Credit in the aggregate amount of approximately
$340,000:
|
|||
Vehicle
|
Year
and Model
|
VIN
|
Account
#
|
Xxxxx
|
2007
Chev. Tahoe
|
0XXXX00000X000000
|
000-0000-00000
|
Xxxx
|
0000
Xxxxx Xxxxx
|
0XXXX00X00X000000
|
000-0000-00000
|
Xxxxxx
|
2006
Chevy Silverado 1500 Crewcab
|
#0XXXX00X000000000
|
000-0000-00000
|
Xxxxx
|
2007
Chevrolet 1500
|
0XXXX00XX0X000000
|
000-0000-00000
|
Rig
1
|
2007
Chevrolet
|
0XXXX00XX0X000000
|
000-0000-00000
|
Rig
2
|
2006
Chevy Silverado
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
3
|
2005
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
4
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
6
|
2005
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
7
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
8
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
11
|
2006
Chevy Silverado
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
12
|
2006
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
14
|
2007
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
15
|
2005
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
16
|
2006
Chevy Silverado
|
#0XXXX00XX0X000000
|
000-0000-00000
|
Rig
17
|
2007
Chevy
|
0XXXX00XX0X000000
|
000-0000-00000
|
Rig
18
|
2006
Chevy 3/4 Extended Cab
|
1GCHC29U96E57844
|
000-0000-00000
|
Rig
19
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
22
|
2006
Chevy 3/4 Crew Cab - 4x4
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
23
|
2006
Chevy
|
#0XXXX00X00X000000
|
000-0000-00000
|
Rig
24
|
2007
Chevy
|
0XXXX00X00X000000
|
000-0000-00000
|
Rig
25
|
2007
Chevy
|
0XXXX00XX0X000000
|
000-0000-00000
|
Spare-25
|
2005
Chevy C25
|
#0XXXX00X00X000000
|
000-0000-00000
|
Xxxx
X.
|
2006
Ford F 150
|
#0XXXX00000XX00000
|
40663002
|
Xxxxx
|
2006
Ford F150
|
0XXXX00X00XX00000
|
41506066
|
Xxxx
V
|
2006
Ford F150
|
#0XXXX00000XX00000
|
40521257
|
Xxxxxx
|
2007
Toyota
|
0XXXX00000X000000
|
005-6197153
|
(2) Additionally, the
Company has a $115,821 payable due upon delivery of Rig 26 (which is
currently under construction) on 2/20/2008
|
|||
Xxx
Xxxxxx Drilling Company
None
|
|||
Hybrook
Resources Corp.
None
|