Exhibit 10.22
LOAN AGREEMENT
Dated as of April 9, 2004
between
KINETIC SYSTEMS, INC.,
a California corporation,
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
(000) 000-0000 (fax)
as Borrower
and
KINETICS GROUP, INC.,
a Delaware corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
(000) 000-0000 (fax)
as Lender
COMMITMENT: UP TO TWENTY-TWO MILLION DOLLARS ($22,000,000)
The defined terms and information set forth on this cover page are a part of the
LOAN AGREEMENT, dated as of the date first written above (this "Agreement"),
entered into by and between KINETIC SYSTEMS, INC. ("Borrower") and KINETICS
GROUP, INC. ("Lender") set forth above. The terms and conditions of this
Agreement agreed to between Lender and Borrower are as follows:
1. Credit Facility.
(a) The Credit. Subject to the terms and conditions of
this Agreement and relying upon the representations and warranties herein set
forth as and when made or deemed to be made, Lender agrees to make advances to
Borrower up to the aggregate amount of Lender's Commitment until the Commitment
Termination Date. Borrower shall request each advance by delivering to Lender a
request therefor in writing specifying the amount of the advance and the
proposed Funding Date (which shall be a Business Day) not less than one Business
Day prior to such proposed Funding Date. So long as there shall not exist and be
continuing a Senior Indebtedness Default, amounts borrowed pursuant to this
Section 1(a) may be repaid and reborrowed at any time prior to the Commitment
Termination Date.
(b) Interest Rate. Borrower shall pay interest on the
unpaid principal amount of the Loan from the date of each advance until the Loan
is paid in full, at a per annum rate of interest equal to the Interest Rate. All
computations of interest on the Loan shall be based on a
year of 365 days and the number of days elapsed. If Borrower pays interest on
the Loan which is determined to be in excess of the then legal maximum rate,
then that portion of each interest payment representing an amount in excess of
the then legal maximum rate shall be deemed a payment of principal and applied
against the principal of the Loan.
(c) Payments of Interest. Subject to Section 5, Borrower
shall pay interest on the Loan monthly in arrears with interest payments due on
the first day of each calendar month.
(d) Optional Prepayment. Subject to Section 5, at any
time Borrower may, at its option, prepay all or a portion of the outstanding
principal of the Loan, plus interest accrued on the amount of principal prepaid
through and including the date of such prepayment, without penalty or premium.
(e) Mandatory Payment. Subject to Section 5, upon the
earliest to occur of (i) a Change of Control as defined in the TCP Purchase
Agreement, (ii) a KSI Change of Control, (iii) a Qualified Public Equity
Offering (as defined in the TCP Loan Agreement as in effect on the date hereof)
and (iv) September 25, 2006, Borrower shall, at the election of Lender, pay in
immediately available funds the outstanding principal amount of the Loan and all
accrued and unpaid interest hereon.
(f) Method of Payment. Payments of principal and interest
shall be made by wire transfer in immediately available funds to Lender's
account at a bank in the United States specified by Lender or, at the option of
Lender, by check. Borrower shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts.
(g) Termination of Commitment to Lend. Notwithstanding
anything to the contrary in this Agreement, Lender's obligations to advance the
Loan hereunder shall terminate on the Commitment Termination Date.
(h) Termination of this Agreement. This Agreement shall
terminate at the end of the Term; provided, however, that the termination of
this Agreement shall not affect any of the rights and remedies of Lender
hereunder, it being understood and agreed that all such rights and remedies
shall continue in full force and effect until payment of all amounts owed to
Lender under or in connection with this Agreement, whether on account of
principal, interest, fees or otherwise.
2. Events of Default.
(a) Events of Default; Remedies. If, at any time any
amount under the Loan shall be outstanding, any of the following events (each,
an "Event of Default") shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary, involuntary,
by operation of law or otherwise):
(i) Borrower shall default in the due and
punctual payment of all or any part of the principal and accrued
interest under the Loan; or
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(ii) the appointment of a trustee, custodian or
receiver for Borrower or any of its respective assets, or the
commencement of bankruptcy, reorganization, insolvency or liquidation
proceedings with respect to Borrower, other than an involuntary
proceeding which is dismissed, terminated, bonded or stayed within
ninety (90) days after it is commenced;
then (x) the unpaid principal amount of the Loan, together with the interest
accrued thereon, shall automatically become immediately due and payable all
without presentment, demand, notice, protest or other requirements of any kind,
all of which are hereby expressly waived and (y) Lender's Commitment hereunder
shall be terminated.
(b) Suits for Enforcement. If any Event of Default shall
have occurred and be continuing, subject to the provisions of Section 5, Lender
may proceed to protect and enforce its rights, either by suit in equity or by
action at law or otherwise, or any combination of the foregoing, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the exercise of any power granted in this Agreement, or Lender may
proceed to enforce the payment of all sums due under the Loan or to enforce any
other legal, equitable or other right of Lender. Subject to the provisions of
Section 5, Borrower shall indemnify and hold Lender harmless from any and all
costs and expenses (including costs of collection and reasonable attorneys'
fees) incurred by Lender in connection with its enforcement of the payment of
all sums due under the Loan. Notwithstanding anything to the contrary in this
Section 2(b), Lender may only proceed to protect and enforce its rights
hereunder with the consent of the Required Senior Lenders.
(c) Remedies Cumulative. No remedy herein conferred upon
Lender is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
(d) Remedies Not Waived. No course of dealing between
Borrower and Lender and no delay or failure in exercising any rights under this
Agreement in respect thereof shall operate as a waiver of any rights of Lender.
3. Modification of this Agreement. The terms and provisions of
this Agreement may not be modified without the written consent of the Required
Senior Lenders and the written consent of each party hereto.
4. Miscellaneous. (a) This Agreement shall be deemed to be a
contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State. The parties hereto,
including all endorsers hereof, hereby waive presentment, demand, notice,
protest and all other demand and notices in connection with the delivery,
acceptance, performance and enforcement of this Agreement, except as
specifically provided herein, and assent to extensions of the time of payment,
or forbearance or other indulgence, as herein provided, without notice.
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(b) All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given or made (i) the second Business Day after the date of mailing, if
delivered by registered or certified mail, postage prepaid; (ii) upon delivery,
if sent by hand delivery; (iii) upon delivery, if sent by prepaid courier, with
a record of receipt; or (iv) the next day after the date of dispatch, if sent by
cable, telegram, facsimile or telecopy (with a copy simultaneously sent by
registered or certified mail, postage prepaid, return receipt requested), to the
parties at the following addresses:
if to Borrower, to:
Kinetic Systems, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
If to Lender to:
Kinetics Group, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Any party hereto may change the address to which notice to it, or
copies thereof, shall be addressed, by giving notice thereof to the other party
hereto in conformity with the foregoing.
5. Subordination. Payment of any amount owed by Borrower under
this Agreement is subordinated as follows:
(a) Borrower, for itself, its successors and assigns,
covenants and agrees, and Lender covenants and agrees, that the payment of the
principal of, interest on, and all other amounts owing under or in respect of,
this Agreement (collectively, the "Subordinated Indebtedness") is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
to the prior payment in full in cash of all Senior Indebtedness (whether or not
then due or owing). The provisions of this Section 5 shall constitute a
continuing offer to all Persons who, in reliance upon such provisions, become
holders of, or continue to hold, Senior Indebtedness, and such provisions are
made for the benefit of Senior Lenders, and such holders are hereby made
obligees hereunder the same as if their names were written herein as such, and
they and/or each of them may proceed to enforce such provisions.
(b) Upon the occurrence and during the continuance of a
Senior Indebtedness Default, all Senior Indebtedness (including interest thereon
or fees or any other amounts owing in respect thereof), whether at stated
maturity, by acceleration or otherwise, and all obligations owing in respect
thereof, in each case to the extent due and owing, shall first be indefeasibly
paid
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in full in cash, before any payment (whether in cash, property, securities or
otherwise) is made on account of the Subordinated Indebtedness.
(c) Upon the occurrence and during the continuance of a
Senior Indebtedness Default, until all Senior Indebtedness has been indefeasibly
paid in full in cash and all commitments in respect of such Senior Indebtedness
have been terminated, the sum of all payments made in respect of the
Subordinated Indebtedness (including principal and interest) shall not exceed at
any time that amount permitted by the terms of the respective issue of Senior
Indebtedness. For the avoidance of doubt and notwithstanding anything to the
contrary in this Agreement (including without limitation, in this Section 5),
upon the occurrence and during to the continuance of a Senior Indebtedness
Default, payments hereunder are subject to the payment in full in cash of the
following amounts according to the following priority in time and right of
payment: (i) First, to the indefeasible payment of all obligations under the
Senior Credit Obligations, and (ii) Second, to the payment of all other Senior
Indebtedness.
(d) Upon the occurrence and during the continuance of a
Senior Indebtedness Default, until all Senior Indebtedness has been indefeasibly
paid in full in cash (whether or not then due or owing), neither Borrower nor
any of its Subsidiaries may, directly or indirectly, make, and Lender shall not
accept from Borrower or any of its Subsidiaries, any payment of any Subordinated
Indebtedness and may not acquire any Subordinated Indebtedness for cash or
property. Lender hereby agrees that, upon the occurrence and during the
continuance of a Senior Indebtedness Default, until all Senior Indebtedness has
been indefeasibly paid in full in cash, it will not xxx for, or otherwise take
any action to enforce Borrower's obligations to pay, amounts owing in respect of
the Subordinated Indebtedness, other than (x) any action to file a proof of
claim or (y) to vote its interests, in each case, in any bankruptcy or other
liquidation proceeding of Borrower; provided, that Lender shall vote its
interests in accordance with a plan proposed by the Required Senior Lenders (in
which case Lender shall have no right to assert any objection). Lender
understands and agrees that to the extent that Section 5(a) or 5(b) or this
Section 5(d) prohibit or reduce the payment of interest and/or principal which
would otherwise be payable under this Agreement, such unpaid amount shall not
constitute a payment default under this Agreement and Lender may not xxx for, or
otherwise take action to enforce Borrower's obligation to pay such amount,
provided that, notwithstanding the other provisions of this sentence, such
unpaid principal or interest shall remain an obligation of Borrower to Lender
pursuant to the terms of this Agreement and shall bear interest until paid.
(e) In the event that, notwithstanding the provisions of
Sections 5(a), 5(b), 5(c) and 5(d), Borrower or any of its Subsidiaries shall
make any payment on account of the Subordinated Indebtedness in violation of
such sections prior to the indefeasible payment in full in cash of the Senior
Indebtedness, such payment shall be held by Lender, in trust and for the benefit
of Senior Lenders and shall be paid forthwith over and delivered to the
administrative agent in respect of the Senior Credit Obligations, or in the
event such obligations shall have been paid in full, to the other holders of the
Senior Indebtedness or their representative or the trustee under the indenture
or other agreement pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued for application pro rata to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in accordance with the terms of such Senior Indebtedness, after
giving effect to any concurrent
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payment or distribution to or for any Senior Lenders. Borrower shall give Lender
prompt written notice of any event which would prevent payments under Section
5(a), 5(b), 5(c) or 5(d); provided that failure to give such notice (promptly or
otherwise) shall in no way modify the provisions of this Section 5 or affect the
subordination effected hereby.
(f) Upon any distribution of assets of Borrower or any of
its Subsidiaries upon dissolution, winding up, liquidation or reorganization of
Borrower (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or otherwise):
(i) the Senior Lenders shall first be entitled
to receive indefeasible payment in full in cash of all Senior
Indebtedness (including, without limitation, post-petition interest at
the rate provided in the documentation with respect to the respective
Senior Indebtedness, whether or not such post-petition interest is an
allowed claim against the debtor in any bankruptcy or similar
proceeding) before Lender is entitled to receive any payment of any
kind or character on account of the Subordinated Indebtedness;
(ii) any payment or distributions of assets of
Borrower or any of its Subsidiaries of any kind or character, whether
in cash, property or securities to which Lender would be entitled
except for the provisions of this Section 5, shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or other trustee or agent, directly to Senior
Lenders or their representative or representatives, or to the trustee
or trustees under any indenture under which any instruments evidencing
any such Senior Indebtedness may have been issued, to the extent
necessary to make payment in full in cash of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to lenders of such Senior Indebtedness; and
(iii) in the event that, notwithstanding the
foregoing provisions of this Section 5(f), any payment or distribution
of assets of Borrower or any of its Subsidiaries of any kind or
character, whether in cash, property or securities, shall be received
by Lender on account of Subordinated Indebtedness before all Senior
Indebtedness is indefeasibly paid in full in cash, such payment or
distribution shall be received and held in trust for and shall be paid
over to Senior Lenders remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, for application to the payment of
such Senior Indebtedness until all such Senior Indebtedness shall have
been indefeasibly paid in full in cash, after giving effect to any
concurrent payment or distribution to lenders of such Senior
Indebtedness.
Borrower shall give written notice to Lender of any
dissolution, winding up, liquidation or reorganization of Borrower (whether in
bankruptcy, insolvency or receivership proceedings or upon assignment for the
benefit of creditors or otherwise); provided that failure to give such notice
(promptly or otherwise) shall in no way modify the provisions of this Section 5
or affect the subordination effected hereby.
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(g) Subject to the prior indefeasible payment in full in
cash of all Senior Indebtedness (whether or not due or owing), Lender shall be
subrogated (to the extent that payment or distribution that otherwise would be
made to Lender were made to Senior Lenders as a result of this Section 5) to the
rights of Senior Lenders to receive payments or distributions of assets of
Borrower or any of its Subsidiaries applicable to the Senior Indebtedness until
all amounts owing under this Agreement shall be indefeasibly paid in full in
cash, and for the purpose of such subrogation no payments or distributions to
Senior Lenders by or on behalf of Borrower or any of its Subsidiaries or by or
on behalf of Lender by virtue of this Section 5 which otherwise would have been
made to Lender shall, as between Borrower, its creditors other than Senior
Lenders, and Lender, be deemed to be payment by Borrower to or on account of the
Senior Indebtedness, it being understood that the provisions of this Section 5
are and are intended solely for the purpose of defining the relative rights of
Lender, on the one hand, and Senior Lenders, on the other hand.
(h) Nothing contained in this Section 5 or in this
Agreement is intended to or shall impair, as between Borrower and Lender, the
obligation of Borrower, which is absolute and unconditional, to pay to Lender
the principal of, and interest on, the Loan as set forth herein, as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of Lender and creditors of Borrower other
than Senior Lenders, nor shall anything herein or therein prevent Lender from
exercising all remedies otherwise permitted by Applicable Law upon an Event of
Default under this Agreement, subject to the provisions of this Section 5 and
the rights, if any, under this Section 5 of the Senior Lenders in respect of
cash, property, or securities of Borrower received upon the exercise of any such
remedy. Only to the extent an order, decree or certificate gives effect to the
subordination of the amounts owed under this Agreement to the Senior
Indebtedness (and the order, decree or certificate states such), upon any
distribution of assets of Borrower or any of its Subsidiaries referred to in
this Section 5, Lender shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to Lender,
for the purpose of ascertaining the Persons entitled to participate in such
distribution, Senior Lenders and other indebtedness of Borrower (including the
Subordinated Indebtedness), the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Section 5.
(i) No right of any present or future holders of any
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of Borrower or by any act or failure to act in good faith by any such
holder, or by any noncompliance by Borrower with the terms and provisions of
this Agreement, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. Senior Lenders may, without in any way
affecting the obligations of Lender with respect hereto, at any time or from
time to time and in their absolute discretion, change the manner, place or terms
of payment of, change or extend the time of payment of, or renew or alter, any
Senior Indebtedness or amend, modify or supplement any agreement or instrument
governing or evidencing such Senior Indebtedness or any other document referred
to therein, or exercise or refrain from exercising any other of their rights
under the Senior
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Indebtedness including, without limitation, the waiver of default thereunder and
the release of any collateral securing such Senior Indebtedness all without
notice to or assent from Lender.
(j) Lender acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the date of this Agreement
or the lending of any amount hereunder, and Senior Lender shall be deemed to
have relied upon such subordination provision in acquiring and continuing to
hold (or agreeing to amend) such Senior Indebtedness.
(k) Notwithstanding anything to the contrary in this
Section 5, Borrower may make any payment of any Subordinated Indebtedness with
the consent of the Required Senior Lenders.
6. Representations and Warranties. Borrower represents and
warrants to Lender as follows:
(a) It has been duly incorporated, is validly existing
and is in good standing under the laws of its jurisdiction of incorporation,
with all requisite corporate power and authority to own its properties and
conduct its business as now conducted.
(b) It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by it and
constitutes a valid and legally binding agreement of it enforceable against
Borrower in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, indemnity, contribution or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a proceeding
in equity or at law).
7. Definitions. For the purposes of this Agreement, the following
terms shall have the following meanings:
"Applicable Law" shall mean all provisions of laws, including
the Securities Act or any applicable state securities law, statutes, ordinances,
rules, regulations, permits or certificates of any Governmental Authority
applicable to such Person or any of its assets or property, and all judgments,
injunctions, orders and decrees of all courts, arbitrators or Governmental
Authorities in proceedings or actions in which such Person is a party or by
which any of its assets or properties are bound.
"Borrower" shall have the meaning assigned to such term in
preamble to this Agreement.
"Business Day" shall mean any day except a Saturday, a Sunday
or a legal holiday in the City of New York.
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"Commitment" means the amount set forth following such term on
the cover page of this Agreement.
"Commitment Termination Date" shall mean the earliest of: (x)
September 25, 2006, (y) the day on which the Commitment is terminated pursuant
to Section 2(a), and (z) the date of required mandatory payment pursuant to
Section 1(e).
"Eurodollar Rate" shall have the meaning assigned to such term
in respect of the Senior Credit Obligations; provided, for purposes hereof, the
applicable Eurodollar Rate shall be the relevant rate in effect on the
applicable Funding Date based on an interest period of three months.
"Event of Default" shall have the meaning assigned to such
term in Section 2(a) hereof.
"Funding Date" shall mean a date on which an advance is made
to or on account of Borrower under this Agreement.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States of
America, any state thereof or any foreign country.
"Lender" shall have the meaning assigned to such term in
preamble to this Agreement.
"Interest Rate" means a fixed rate of interest equal to the
Eurodollar Rate plus a margin of five (5) percentage points.
"KSI Change of Control" shall mean, at any time, the sale of
any shares (other than shares issued pursuant to employer stock plans) of stock
of Borrower by KH LLC, a Delaware limited liability company, or the sale of all
or substantially all of the assets of Borrower.
"Loan" means the aggregate of the advances made by Lender to
Borrower under this Agreement according to the Commitment of Lender.
"Person" shall mean any individual, general or limited
partnership, limited liability company, joint venture, firm, corporation,
association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.
"Required Senior Lenders" means, collectively, the Agent and
the Lenders (each under and as defined in respect of the Senior Credit
Obligations) having or holding a majority in interest of the outstanding
principal amount of the Senior Credit Obligations, (2) the Holders (under and as
defined in the TCP Loan Agreement) having or holding a majority in interest of
the outstanding principal amount of the notes underlying the TCP Obligations and
(3) the Purchasers (each under and as defined in respect of the Senior
Subordinated Obligations) having or holding
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a majority in interest of the outstanding principal amount of the notes
underlying the Senior Subordinated Obligations.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Senior Credit Obligations" shall mean (i) the obligations of
Borrower as guarantor of that Amended and Restated Credit Agreement, dated as of
December 10, 2002, among Lender, the other guarantors party thereto, the various
financial institutions, and The Bank of Nova Scotia, as administrative agent,
collateral agent and documentation agent and (ii) that Purchase Option Agreement
among the same parties, in each case as the same may be amended, modified,
extended, renewed, replaced, restated or supplemented from time to time,
including any agreement providing for the refinancing or restructuring of all or
any portion thereof (including, but not limited to, the inclusion of additional
borrowers thereunder that are Subsidiaries of Lender, any increase in the amount
borrowed or any extension of the maturity thereof).
"Senior Indebtedness Default" shall mean an Event of Default
as defined in any of the documents comprising the Senior Indebtedness.
"Senior Indebtedness" shall mean all obligations of Borrower
and its Subsidiaries under (i) the Senior Credit Obligations, (ii) the Senior
Subordinated Obligations, (iii) the TCP Obligations, and (iv) any other
indebtedness of Borrower for borrowed money designated in writing by the
Borrower as "Senior Indebtedness", but in no event including those certain 12.5%
Junior Subordinated Instruments of even date herewith in favor of certain
existing holders of the equity interests of Holdings in the aggregate initial
principal amount of $15,750,000 as the same may be amended, restated or
otherwise modified from time to time.
"Senior Lenders" shall mean holders of Senior Indebtedness,
and their successors and assigns.
"Senior Subordinated Obligations" shall mean (i) the
obligations Borrower as guarantor under that Amended & Restated Securities
Purchase Agreement, dated as of the date hereof, by and among Lender, X.X.
Xxxxxxx Mezzanine Fund, L.P. and the other lenders party thereto, and the notes
issued thereunder and (ii) the obligations of Borrower under that Purchase
Option Agreement dated as of the date hereof among the same parties, in each
case as the same may be amended, modified, extended, renewed, replaced, restated
or supplemented from time to time, including any agreement providing for the
refinancing or restructuring all or any portion thereof (including, but not
limited to, the inclusion of additional borrowers thereunder that are
Subsidiaries of Borrower, and any other increase in the amount borrowed or any
extension of the maturity thereof).
"Subordinated Indebtedness" shall have the meaning assigned to
such term in Section 5(a) hereof.
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"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company, joint venture or other
entity of which such Person owns, directly or indirectly, more than 50% of the
outstanding voting securities or voting equity interests.
"TCP Loan Agreement" shall mean that Amended and Restated
Purchase Agreement, dated as of the date hereof, by and among Lender, Xxxxxxxxxx
Capital Partners, LLC and the other lenders party thereto as the same may be
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time, including any agreement providing for the refinancing or
restructuring all or any portion thereof (including, but not limited to, the
inclusion of additional borrowers thereunder that are Subsidiaries of Lender,
and any other increase in the amount borrowed or any extension of the maturity
thereof).
"TCP Obligations" shall mean (i) the obligations of Borrower
as guarantor under that TCP Loan Agreement and (ii) the obligations of Borrower
under that Purchase Option Agreement dated as of the date hereof among the same
parties, as the same may be amended, modified, extended, renewed, replaced,
restated or supplemented from time to time, including any agreement providing
for the refinancing or restructuring all or any portion thereof (including, but
not limited to, the inclusion of additional borrowers thereunder that are
Subsidiaries of Borrower, and any other increase in the amount borrowed or any
extension of the maturity thereof).
"Term" shall mean the period from and after the date hereof
until the payment or satisfaction in full of all of Borrower's obligations under
this Agreement.
* * *
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IN WITNESS WHEREOF, Borrower has caused this instrument to be duly
executed and delivered as of the date of issuance set forth above.
KINETIC SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx
________________________________________
Name:
Title:
KINETICS GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
________________________________________
Name:
Title:
SIGNATURE PAGE TO KSI-KGI $22 MILLION LOAN AGREEMENT
