AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of May 26, 2000,
among
ISG RESOURCES, INC.
INDUSTRIAL SERVICES GROUP, INC.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
as Administrative Agent and Issuing Lender
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
as Arranger
v
TABLE OF CONTENTS
SECTION 1 DEFINITIONS..........................................................1
1.1 Definitions...........................................................1
1.2 Computation of Time Periods..........................................33
1.3 Accounting Terms.....................................................33
1.4 Terms Generally......................................................33
SECTION 2 CREDIT FACILITIES...................................................33
2.1 Continuation of Loans................................................33
2.2 Tranche A Revolving Loans............................................34
2.3 Letter of Credit Subfacility.........................................36
2.4 Tranche B Revolving Loans............................................42
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES......................45
3.1 Default Rate.........................................................45
3.2 Extension and Conversion.............................................45
3.3 Prepayments..........................................................46
3.4 Termination and Reduction of Commitments.............................48
3.5 Fees.................................................................50
3.6 Increased Cost and Reduced Return....................................52
3.7 Limitation on Types of Loans.........................................53
3.8 Illegality...........................................................53
3.9 Treatment of Affected Loans..........................................54
3.10 Taxes.............................................................54
3.11 Compensation......................................................56
3.12 Pro Rata Treatment................................................57
3.13 Sharing of Payments...............................................58
3.14 Payments, Computations, Etc.......................................58
3.15 Evidence of Debt..................................................60
3.16 Assignment of Commitments Under Certain Circumstances.............61
SECTION 4 CONDITIONS..........................................................62
4.1 Conditions Precedent to the Effective Date...........................62
4.2 Conditions to all Extensions of Credit...............................66
SECTION 5 REPRESENTATIONS AND WARRANTIES......................................67
5.1 Financial Condition..................................................67
5.2 Certain Payments.....................................................68
5.3 Organization and Good Standing.......................................69
5.4 Power; Authorization; Enforceable Obligations........................69
5.5 No Conflicts.........................................................69
5.6 No Default...........................................................70
5.7 Assets...............................................................70
5.8 Litigation...........................................................70
5.9 Taxes................................................................70
5.10 Compliance with Law...............................................70
5.11 ERISA.............................................................71
5.12 Subsidiaries......................................................72
5.13 Governmental Regulations, Etc.....................................73
5.14 Purpose of Loans and Letters of Credit............................73
5.15 Environmental Matters.............................................74
5.16 Intellectual Property.............................................75
5.17 Solvency..........................................................76
5.18 Investments.......................................................76
5.19 Location of Collateral............................................76
5.20 Disclosure........................................................77
5.21 No Burdensome Restrictions; Material Agreements...................77
5.22 Labor Matters.....................................................78
5.23 Nature of Business................................................78
5.24 Representations and Warranties from Other Agreements..............78
5.25 Security Documents................................................78
5.26 Transactions with Affiliates......................................79
5.27 Ownership.........................................................79
5.28 Insurance.........................................................80
5.29 Licenses..........................................................80
5.30 Year 2000 Compliance..............................................81
SECTION 6 AFFIRMATIVE COVENANTS...............................................81
6.1 Information Covenants................................................81
6.2 Preservation of Existence and Franchises.............................85
6.3 Books and Records....................................................85
6.4 Compliance with Law..................................................85
6.5 Payment of Taxes and Other Indebtedness..............................86
6.6 Insurance; Certain Proceeds..........................................86
6.7 Maintenance of Property..............................................88
6.8 Use of Proceeds......................................................88
6.9 Audits/Inspections...................................................88
6.10 Additional Credit Parties.........................................88
6.11 Pledged Assets....................................................89
6.12 Real Property Collateral..........................................90
6.13 Post-Closing Conditions...........................................91
SECTION 7 NEGATIVE COVENANTS..................................................91
7.1 Indebtedness.........................................................91
7.2 Liens................................................................92
7.3 Nature of Business...................................................92
7.4 Consolidation, Merger, Dissolution, etc..............................93
7.5 Asset Dispositions...................................................94
7.6 Investments; Acquisitions............................................94
7.7 Restricted Payments..................................................94
7.8 Prepayments of Indebtedness, etc.....................................95
7.9 Transactions with Affiliates.........................................96
7.10 Fiscal Year; Organizational Documents.............................96
7.11 Limitation on Restricted Actions..................................97
7.12 Ownership of Subsidiaries; Limitations on Parent
and Borrower......................................................97
7.13 Sale Leasebacks...................................................98
7.14 Capital Expenditures..............................................98
7.15 No Further Negative Pledges.......................................98
7.16 Operating Lease Obligations.......................................99
7.17 Impairment of Security Interests..................................99
7.18 Sales of Receivables..............................................99
7.19 Financial Covenants...............................................99
7.20 Xxxxx Cash Accounts..............................................100
7.21 Year 2000 Compliance.............................................100
SECTION 8 EVENTS OF DEFAULT..................................................100
8.1 Events of Default...................................................100
8.2 Acceleration; Remedies..............................................104
8.3 Agreements with respect to and Specific Remedies
relating to the Tranche B Revolving Loans..........................105
8.4 Equitable Remedies..................................................105
SECTION 9 AGENCY PROVISIONS..................................................106
9.1 Appointment, Powers and Immunities..................................106
9.2 Reliance by Agents..................................................106
9.3 Defaults............................................................107
9.4 Rights as Lender....................................................107
9.5 Indemnification.....................................................108
9.6 Non-Reliance on Agents and Other Lenders............................108
9.7 Resignation of Administrative Agent.................................108
SECTION 10 MISCELLANEOUS.....................................................109
10.1 Notices..........................................................109
10.2 Right of Set-Off.................................................110
10.3 Benefit of Agreement.............................................110
10.4 No Waiver; Remedies Cumulative...................................113
10.5 Expenses; Indemnification........................................113
10.6 Amendments, Waivers and Consents.................................114
10.7 Counterparts.....................................................116
10.8 Headings.........................................................116
10.9 Survival.........................................................116
10.10 Governing Law; Submission to Jurisdiction; Venue.................117
10.11 Severability.....................................................118
10.12 Entirety.........................................................118
10.13 Binding Effect; Termination......................................118
10.14 Confidentiality..................................................118
10.15 Source of Funds..................................................119
10.16 Conflict.........................................................119
SCHEDULES
Schedule 1.1A Investments
Schedule 1.1B Liens
Schedule 1.1C Lenders
Schedule 1.1D Pro Forma Adjustments for Post Closing Acquisitions
Schedule 5.1 Liabilities
Schedule 5.8 Litigation
Schedule 5.10 Compliance with Law
Schedule 5.11 ERISA
Schedule 5.12 Subsidiaries
Schedule 5.15 Environmental Matters
Schedule 5.16 Intellectual Property
Schedule 5.19 Properties
Schedule 5.21 Material Contracts
Schedule 5.22 Labor Matters
Schedule 5.25 Recordings
Schedule 5.26 Transactions with Affiliates
Schedule 5.27 Ownership
Schedule 5.28 Insurance
Schedule 5.29 Licenses
Schedule 7.1 Indebtedness
Schedule 7.9 Transactions with Affiliates
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Depository Bank Agreement
Exhibit C Form of Indemnity, Subrogation and Contribution Agreement
Exhibit D Form of Intercompany Note
Exhibit E Form of Joinder Agreement
Exhibit F Form of Notice of Borrowing
Exhibit G Form of Notice of Extension/Conversion
Exhibit H-1 Form of Parent Guarantee Agreement
Exhibit H-2 Form of Subsidiaries Guarantee Agreement
Exhibit H-3 Form of ISG Capital Guarantee Agreement
Exhibit I Form of Perfection Certificate
Exhibit J Form of Security Agreement
Exhibit K-1 Form of Tranche A Revolving Note
Exhibit K-2 Form of Tranche B Revolving Note
Exhibit L-1 Form of Legal Opinion (General External Counsel)
Exhibit L-2 Form of Legal Opinion (Local Corporate Counsel)
Exhibit L-3 Form of Legal Opinion (Local Collateral Counsel)
Exhibit L-4 Form of Legal Opinion (Sponsor's Counsel)
Exhibit M Form of Officer's Compliance Certificate
Exhibit N Form of Tranche B Put Agreement
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 26, 2000 (as
amended, modified, restated or supplemented from time to time, this "Amended
Agreement"), among ISG RESOURCES, INC., a Utah corporation (successor to JTM
INDUSTRIES, INC.) (the "Borrower"), INDUSTRIAL SERVICES GROUP, INC., a Delaware
corporation (the "Parent"), the Lenders (as defined herein), BANK OF AMERICA,
N.A., (formerly known as NationsBank, N.A.) as Administrative Agent for the
Lenders (in such capacity, the "Administrative Agent") and Issuing Lender, and
CANADIAN IMPERIAL BANK OF COMMERCE, as Documentation Agent ("CIBC" or the
"Documentation Agent").
The Parent (such term, and all other capitalized terms in this
paragraph, being used as defined below in this Amended Agreement) and the
Borrower requested the Lenders to extend, and the Lenders extended, credit to
the Borrower pursuant to the terms and conditions of the Original Credit
Agreement. The Borrower has requested that the Lenders (i) make Tranche B
Revolving Loans to the Borrower and (ii) make certain other amendments and
modifications to the Original Credit Agreement. The Lenders are willing to make
such amendments and modifications to the Original Credit Agreement upon the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree that, on the Effective Date, this Amended Agreement will become
effective and the Original Credit Agreement will be amended to read as follows:
SECTION 1
DEFINITIONS
Definitions. As used in this Amended Agreement, the following terms
shall have the meanings specified below unless the context otherwise requires:
"Acquisition" shall mean the transactions contemplated by the
Acquisition Agreement.
"Acquisition Agreement" shall mean, collectively, (i) the Purchase
Agreement dated as of February 27, 1998, by and among the Borrower, PRI and the
Sellers, (ii) the Kokan Escrow Agreement dated as of March 4, 1998 among the
Borrower, Kokan and The Chase Manhattan Bank, acting through its London Branch,
as Escrow Agent, (iii) the Tax Escrow Agreement dated as of March 4, 1998 among
the Borrower, the Sellers and The Chase Manhattan Bank, N.A., as Escrow Agent,
(iv) the Phase II Escrow Agreement dated as of March 4, 1998 among the Borrower,
the Sellers and The Chase Manhattan Bank, N.A., as Escrow Agent and (v)
Indemnification and Guarantee Agreement dated as of February 27, 1998 among the
Borrower, the Parent and Xxxxxxxxx Trust, a trust formed under the laws of Hong
Kong.
"Additional Subsidiary Guarantor" shall mean each Person that becomes a
Subsidiary Guarantor after the Effective Date by execution of a Joinder
Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable ABR
Margin in effect from time to time.
"Adjusted Eurodollar Rate" shall mean the Eurodollar Rate plus the
Applicable LIBOR Margin in effect from time to time.
"Administrative Agent" shall have the meaning assigned to such term in
the heading hereof, together with its successors.
"Affected Loans" shall have the meaning assigned to such term in
Section 3.9.
"Affected Type" shall have the meaning assigned to such term in Section
3.9.
"Affiliate" shall mean (a) with respect to any Person (including the
Consolidated Parties), any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person and
(b) with respect to any of the Consolidated Parties, any Person directly or
indirectly owning or holding five percent (5%) or more of the equity interest in
such Person. For purposes of this definition, "control" when used with respect
to any Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Services Address" shall mean Bank of America, N.A.,
NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Xxxxx Xxxxxxx, Agency Services, or such other address as may be identified by
written notice from the Administrative Agent to the Borrower.
"Agents" shall mean the Administrative Agent and the Documentation
Agent.
"Amended Agreement" shall mean this Amended and Restated Credit
Agreement, as amended, modified, extended, restated or supplemented from time to
time.
"Applicable ABR Margin" shall mean, with respect to any Revolving Loan
outstanding on any day:
(i) 0.50%, if such day falls within a Level I Pricing Period;
(ii) 0.75%, if such day falls within a Level II Pricing
Period; (iii) 1.00%, if such day falls within a Level III
Pricing Period; and (iv) 1.25%, if such day falls within a
Level IV Pricing Period.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such Type of Loan on Schedule 1.1C or such other office
of such Lender (or an Affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable LIBOR Margin" shall mean, with respect to any Revolving
Loan outstanding on any day:
(i) 1.75%, if such day falls within a Level I Pricing Period;
(ii) 2.00%, if such day falls within a Level II Pricing
Period; (iii) 2.25%, if such day falls within a Level III
Pricing Period; and (iv) 2.50%, if such day falls within a
Level IV Pricing Period.
"Approved Bank" shall have the meaning assigned to such term in the
definition of "Cash Equivalents" in this Section 1.1.
"Asset Disposition" shall mean the disposition of any or all of the
assets of any Consolidated Party (including the Capital Stock of a Subsidiary),
whether by sale, lease (including any Sale and Leaseback Transaction), transfer,
Casualty, Condemnation or otherwise; provided that the foregoing definition
shall not be deemed to imply that any such Asset Disposition is permitted under
this Amended Agreement. The term "Asset Disposition" shall not include any
Equity Issuance.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and its assignee in the form of Exhibit A or such other
similar form as shall be approved by the Administrative Agent.
"Bank of America" shall mean Bank of America, N.A. (formerly known as
NationsBank, N.A.) and its successors.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Bankruptcy Event" shall mean, with respect to any Person, the
occurrence of any of the following with respect to such Person: (a) a court or
governmental agency having jurisdiction in the premises shall enter a decree or
order for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or ordering the winding up or liquidation of its affairs; or (b)
there shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (c) such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or make any general assignment for the benefit of creditors; or (d)
such Person shall be unable to, or shall admit in writing its inability to, pay
its debts generally as they become due.
"BAS" shall mean Banc of America Securities LLC (formerly known as
NationsBanc Xxxxxxxxxx Securities LLC) , and its successors.
"Base Rate" shall mean, for any day, the rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus one-half of one percent
(0.5%) and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Federal Funds Rate or the Prime Rate shall be effective on the
effective date of such change in the Federal Funds Rate or the Prime Rate.
"Base Rate Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" shall mean the Person identified as such in the heading
hereof, together with its permitted successors and assigns.
"Business Day" shall mean a day (other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina or New York, New York
are authorized or required by law to close), except that, when used in
connection with a Eurodollar Loan, such day shall also be a day on which
dealings between banks are carried on in U.S. dollar deposits in London,
England.
"Businesses" shall have the meaning assigned to such term in Section
5.15(a).
"Capital Lease" shall mean, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of such Person.
"Capital Stock" shall mean (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests, (e) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and (f) all rights to purchase, warrants, options
and other securities exercisable for, exchangeable for or convertible into any
of the foregoing.
"Cash Equivalents" shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve (12) months from the date of acquisition, (b) U.S. dollar
denominated certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six (6) months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which the Borrower or any Subsidiary shall have a perfected
first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"Casualty" shall mean any casualty or other loss, damage or
destruction.
"CCT" shall mean CCT Partners IV, L.P., a New York limited partnership.
---
"Change of Control" shall mean the occurrence of any of the following
events: (a) the Parent shall beneficially own less than 100% of the Capital
Stock of the Borrower (on a fully diluted basis); (b) any Person or "group"
(within the meaning of Rule 13d-5 under the Exchange Act), together with its
Affiliates, other than the Sponsor Group, shall beneficially own, directly or
indirectly, Capital Stock of the Parent entitled to 35% or more of the Total
Voting Power of the Parent; (c) the Sponsor Group shall beneficially own,
directly or indirectly, outstanding shares of common stock of the Parent
entitled to less than (i) a majority of the Total Voting Power of the Parent
prior to an IPO by the Parent or (ii) 33% of the Total Voting Power of the
Parent after an IPO by the Parent; (d) the failure at any time of a majority of
the seats (excluding vacant seats) on the board of directors of the Borrower to
be occupied by persons who were nominated by or on behalf of the Sponsor Group;
or (e) the occurrence of a "Change of Control" under and as defined in the
Senior Note Agreement.
"CIBC" shall have the meaning assigned to such term in the heading
hereof, together with its successors.
"Class A Common Stock" shall mean the Parent's Class A Common Stock,
par value $.01 per share.
"Class B Common Stock" shall mean the Parent's Class B Common Stock,
par value $.01 per share.
"Closing Date" shall mean March 4, 1998.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor sections.
"Collateral" shall mean all the collateral which is identified in, and
at any time is purported to be covered by, the Collateral Documents.
"Collateral Documents" shall mean the Security Agreement, each
Perfection Certificate, the Depository Bank Agreements and such other documents
executed and delivered in connection with the attachment and perfection of the
Administrative Agent's security interests and liens arising thereunder,
including UCC financing statements, patent and trademark filings and, with
respect to property acquired after the Effective Date, such other additional
security documents as the Administrative Agent shall reasonably request.
"Commitment" shall mean (a) with respect to each Tranche A Lender, the
Tranche A Revolving Commitment of such Tranche A Lender, (b) with respect to
each Tranche B Lender, the Tranche B Revolving Commitment of such Tranche B
Lender, and (c) with respect to the Issuing Lender, the LOC Commitment.
"Company Properties" shall have the meaning assigned to such term in
Section 5.15(a).
"Condemnation" shall mean any taking of Property, or any part thereof
or interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other manner.
"Condemnation Award" shall mean all proceeds of any Condemnation or
transfer in lieu thereof.
"Consolidated Capital Expenditures" shall mean, for any period, the sum
of all amounts that would, in accordance with GAAP, be included as additions to
property, plant and equipment and other capital expenditures on a consolidated
statement of cash flows for the Borrower and its Consolidated Subsidiaries
during such period (including the amount of assets leased under any Capital
Lease). Notwithstanding the foregoing, the term "Consolidated Capital
Expenditures" shall not include (a) capital expenditures in respect of the
reinvestment of Insurance Proceeds and Condemnation Awards received by the
Borrower and its Subsidiaries to the extent that such reinvestment is permitted
under the Credit Documents and (b) for purposes of Section 7.14 only, capital
expenditures for Permitted Acquisitions.
"Consolidated Cash Interest Expense" shall mean, for any period, the
gross amount of interest expense of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP, during
such period, including (a) the portion of any payments or accruals with respect
to Capital Leases that are allocable to interest expense in accordance with
GAAP, (b) net costs under Interest Rate Protection Agreements during such period
and (c) all fees, charges, discounts and other costs paid in respect of
Indebtedness during such period; provided that (i) all non-cash interest expense
shall be excluded and (ii) any cash interest on Indebtedness of another Person
that is guaranteed by the Borrower or any of its Consolidated Subsidiaries or
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on, or payable out of the
proceeds of the sale of or production from, assets of the Borrower or any of its
Consolidated Subsidiaries (whether or not such guarantee or Lien is called upon)
shall be included.
"Consolidated EBITDA" shall mean, for any period, the sum of (a)
Consolidated Net Income for such period, plus (b) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(i) interest expense, (ii) total federal, state, local and foreign income, value
added and similar taxes and (iii) depreciation and amortization expense, minus
(c) an amount which, in the determination of Consolidated Net Income for such
period, has been added for (i) interest income and (ii) any non-cash income or
non-cash gains, all as determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, net income (or
loss) after taxes of the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP, for such period; provided that
there shall be excluded from such calculation of net income (or loss) (a) the
income of any Person in which any other Person (other than the Borrower or any
of its Subsidiaries) has any equity interest, except to the extent of the amount
of dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Subsidiaries or the
date such Person's assets are acquired by the Borrower or any of its
Subsidiaries, except as provided in the definition of Pro Forma Basis set forth
in this Section 1.1, and (c) the income of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, shareholders'
equity or net worth of the Borrower and its Consolidated Subsidiaries, as
determined on a consolidated basis in accordance with GAAP, excluding amounts
attributable to Disqualified Stock.
"Consolidated Parties" shall mean the Parent, the Borrower and their
respective Subsidiaries, and "Consolidated Party" shall mean any one of them.
"Consolidated Subsidiaries" of any Person shall mean all subsidiaries
of such Person that should be consolidated with such Person for financial
reporting purposes in accordance with GAAP.
"Consolidated Total Assets" shall mean, as of any date, all assets
which would, in accordance with GAAP, be included on a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of such date as
assets.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 3.2 of a Fixed Rate Loan of one Type as a Fixed
Rate Loan of the same Type from one Interest Period to the next Interest Period.
"Contribution and Assignment Agreement" shall mean the Contribution and
Assignment Agreement dated as of October 14, 1997 between the Parent, R. Xxxxxxx
Xxxxxxx and Xxxx X. Xxxxxxx, XX.
"Contribution and Subscription Agreement" among RACT, R. Xxxxxxx
Xxxxxxx, J. I. Everest, II and the Parent dated as of October 14, 1997.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 3.2 or Section 3.9 of one Type of Loan into another Type of
Loan.
"Credit Documents" shall mean a collective reference to this Amended
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the Collateral
Documents, the Parent Guarantee Agreement, the Subsidiaries Guarantee Agreement,
the ISG Capital Guarantee, the Indemnity, Subrogation and Contribution
Agreement, the Intercompany Notes, and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant hereto or
thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and "Credit
Document" shall mean any one of them.
"Credit Obligations" shall mean, without duplication, (a) all of the
obligations of the Credit Parties to the Lenders, the Issuing Lender or the
Administrative Agent, whenever arising, under this Amended Agreement, the Notes,
the Collateral Documents, the Parent Guarantee Agreement, the Subsidiaries
Guarantee Agreement, the ISG Capital Guarantee Agreement or any of the other
Credit Documents (including any interest accruing after the occurrence of a
Bankruptcy Event with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and (b) all liabilities
and obligations, whenever arising, owing from the Borrower or any of its
Subsidiaries under any Lender Hedging Agreement to any Person that is or was a
Lender (or an Affiliate of a Lender) at the time such agreement was entered
into).
"Credit Parties" shall mean the Parent, the Borrower, ISG Capital, and
the Subsidiary Guarantors, and "Credit Party" shall mean any one of them.
"CVC Co-Investors" shall mean, collectively, the Natasha Partnership,
Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and Xxxxxx Xxxxxxxxx.
"CVC Subscription Agreement" shall mean the CVC Subscription Agreement
among the Parent, the Sponsor, CCT and the CVC Co-Investors dated as of October
14, 1997.
"Debt Issuance" shall mean the issuance of any Indebtedness for
borrowed money by any Consolidated Party; provided that the foregoing definition
shall not be deemed to imply that any such Debt Issuance is permitted under this
Amended Agreement.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Deju Subscription Agreement" shall mean the Subscription Agreement
between the Parent and Xxxx Xxxx dated as of October 14, 1997.
"Depository Bank Agreement" shall mean each agreement between any
Credit Party and any bank or other depository institution in substantially the
form of Exhibit B.
"Disqualified Stock" of any Person shall mean (a) any Capital Stock of
such Person which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening
of any event or otherwise (i) matures or is mandatorily redeemable or subject to
any mandatory repurchase requirement, pursuant to a sinking fund obligation or
otherwise or (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock and (b) if such Person is a Subsidiary of the
Borrower, any Preferred Stock of such Person.
"Documentation Agent" shall mean the Person identified as such in the
heading hereof, together with its permitted successors and assigns.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Effective Date" shall have the meaning assigned to such term in
Section 4.1.
"Eligible Assignee" shall mean: (a) any Lender; (b) any Affiliate of a
Lender; (c) the Sponsor, with respect to the assignment of Tranche B Revolving
Loans pursuant to the Tranche B Put Agreement; and (d) any other commercial
bank, financial institution or "accredited investor" (as defined in Regulation D
under the Securities Act of 1933, as amended) approved by the Administrative
Agent and, unless an Event of Default has occurred and is continuing at the time
any assignment is effected in accordance with Section 10.3(b), the Borrower,
such approval not to be unreasonably withheld or delayed by the Borrower and
such approval to be deemed given by the Borrower if no objection from the
Borrower is received by the assigning Lender and the Administrative Agent within
two Business Days after notice of such proposed assignment has been provided by
the assigning Lender to the Borrower; provided, however, that neither the
Borrower nor any Affiliate of the Borrower (other than the Sponsor with respect
to the assignment of Tranche B Revolving Loans pursuant to the Tranche B Put
Agreement) shall qualify as an Eligible Assignee.
"Employment Agreements" shall mean, collectively, (i) the Employment
Agreement between the Parent and R. Xxxxxxx Xxxxxxx dated as of October 14,
1997, (ii) the Employment Agreement between the Parent and J. I. Everest, II
dated as of October 14, 1997 and (iii) the Employment Agreement between the
Parent and Xxxx Xxxx dated as of October 14, 1997.
"Environmental Laws" shall mean any and all applicable Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, approvals,
consents, authorizations, agreements or other governmental restrictions relating
to the environment or to emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes into the environment, including, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes.
"Equity Issuance" shall mean any issuance by any Consolidated Party of
any Capital Stock to any Person or the receipt by any such Person of a capital
contribution from any other Person, including the issuance of any of its Capital
Stock pursuant to the exercise of options or warrants and the conversion of any
Indebtedness to equity; provided that the foregoing definition shall not be
deemed to imply that any such issuance is permitted under this Amended
Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, including the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" shall mean an entity which is under common control
with any Consolidated Party within the meaning of Section 4001(a)(14) of ERISA,
or is a member of a group which includes any Consolidated Party and which is
treated as a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" shall mean (a) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (b) the withdrawal by any Consolidated
Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year in
which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (c) the
distribution of a notice of intent to terminate or the actual termination of a
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the institution of
proceedings to terminate or the actual termination of a Plan by the PBGC under
Section 4042 of ERISA; (e) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (f) the complete or partial withdrawal of any
Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (g) the
conditions for imposition of a lien under Section 302(f) of ERISA exist with
respect to any Plan; or (h) the adoption of an amendment to any Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the
quotient obtained by dividing (a) the Interbank Offered Rate for such Eurodollar
Loan for such Interest Period by (b) 1 minus the Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Section 8.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Asset Disposition" shall mean (a) any Asset Disposition by
any Consolidated Party to the Borrower or any of the Subsidiary Guarantors if
(i) the Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Administrative Agent may request so as to
cause the Credit Parties to be in compliance with the terms of Section 6.11
after giving effect to such Asset Disposition and (ii) after giving effect such
Asset Disposition, no Default or Event of Default exists, (b) the sale of
inventory in the ordinary course of business for fair value and on an arms'
length basis, (c) the liquidation or sale of Cash Equivalents for the account of
the Borrower and the Subsidiaries, (d) the sale, lease, transfer, assignment or
other disposition of assets (other than in connection with any Casualty or
Condemnation) of the Borrower or any of its Subsidiaries to any other Person to
the extent that the aggregate Net Cash Proceeds from such sale, lease, transfer,
assignment or other disposition do not exceed $50,000, so long as the fair
market value of all property disposed of as provided in this clause (d) does not
exceed $250,000 in the aggregate in any fiscal year of the Borrower, (e) the
disposition of machinery or equipment of the Borrower or any of its Subsidiaries
which will be replaced or upgraded with machinery or equipment put to a similar
use and owned by such Person, provided that (i) such replacement or upgraded
machinery and equipment is acquired within 90 days after such disposition, (ii)
the fair market value of all property disposed of as provided in this clause (e)
does not exceed $250,000 in the aggregate in any fiscal year of the Borrower and
(iii) upon their acquisition, such replacement assets become subject to the Lien
of the Administrative Agent in favor of the Lenders under the Collateral
Documents and (f) the disposition of damaged, worn out or obsolete tangible
asset in the ordinary course of business and in a commercially reasonable
manner.
"Excluded Debt Issuance" shall mean any issuance of Indebtedness
permitted by Section 7.1(a), (c), (d), (e) and (h).
"Excluded Equity Issuance" shall mean (a) any issuance by any
Subsidiary of the Borrower of its Capital Stock to the Borrower or any other
Subsidiary of the Borrower, (b) any receipt by any Subsidiary of the Borrower of
a capital contribution from the Borrower or any other Subsidiary of the
Borrower, (c) any issuance by the Parent of ISG Common Stock pursuant to the
exercise of the Warrants, (d) the issuance of common stock of the Parent, the
aggregate value of which does not exceed $10,000,000, such common stock being
issued in connection with the financing of a Permitted Acquisition and (e) any
issuance by the Parent of its common stock pursuant to the exercise of the Stock
Purchase Warrants.
"Excluded Taxes" shall mean (A) all present and future taxes, levies,
imposts, duties, deductions, fees, liabilities and similar charges imposed on or
measured by the overall net income of the Administrative Agent, any Lender or
its Applicable Lending Office, branch or subsidiary, and all franchise taxes,
taxes on doing business or taxes measured by capital or net worth imposed on the
Administrative Agent, any Lender or its Applicable Lending Office, branch or
subsidiary, in each case, imposed: (i) by the United States of America or any
political subdivision or taxing authority thereof or therein; (ii) by the
jurisdiction under the laws of which such Administrative Agent or such Lender is
organized, or in which its principal executive office may be located, or in
which it is doing business, or any nation within which such jurisdiction is
located or any political subdivision thereof; (iii) by the jurisdiction in which
the Administrative Agent or the Applicable Lending Office or other branch or
subsidiary of such Lender is located or doing business, or in which its
principal executive office may be located, or under the laws of which it is
organized, or by any nation within which any such jurisdiction is located or any
political subdivision thereof; or (iv) by reason of any connection between the
jurisdiction imposing such tax and the Administrative Agent or such Lender other
than a connection arising solely form this Amended Agreement or any transaction
contemplated hereby; and (B) all present and future taxes, levies, imposts,
duties, deductions, withholdings, fees, liabilities and similar charges imposed
by reason of the failure of the Administrative Agent or any Lender to comply
with its obligations under Section 3.10(d).
"Extend", "Extension", "Extending" and "Extended" shall refer to an
extension pursuant to Section 3.2 or Section 3.9 of existing Loans into a
subsequent permissible Interest Period.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Administrative Agent (in its individual capacity) on such day on such
transactions as determined by the Administrative Agent.
"Fees" shall mean all fees payable pursuant to Section 3.5.
"Fixed Rate Loans" shall mean Eurodollar Loans.
----------------
"Foreign Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such Person.
"Funded Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all Indebtedness of such Person other than Indebtedness of the
types referred to in clause (e), (f), (g), (i) and (k) of the definition of
"Indebtedness" set forth in this Section 1.1, (b) all Indebtedness of another
Person of the type referred to in clause (a) above secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (c) all Guaranty Obligations of
such Person with respect to Indebtedness of the type referred to in clause (a)
above of another Person and (d) Indebtedness of the type referred to in clause
(a) above of any partnership or unincorporated joint venture in which such
Person is general partner or for which such Person is otherwise legally
obligated or has a reasonable expectation of being liable with respect thereto.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis, subject to the terms of Section
1.3.
"Government Acts" shall have the meaning assigned to such term in
Section 2.3(i).
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, commission, board, bureau, authority,
instrumentality or judicial or regulatory body or entity.
"Guarantors" shall mean the Parent, ISG Capital, and each of the
Subsidiary Guarantors, together with their successors and permitted assigns, and
"Guarantor" shall mean any one of them.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing any Indebtedness of any other Person in any manner, whether direct
or indirect, and including any obligation, whether or not contingent, (a) to
purchase any such Indebtedness or any Property constituting security therefor,
(b) to advance or provide funds or other support for the payment or purchase of
any such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including keep well agreements,
maintenance agreements, comfort letters or similar agreements or arrangements)
for the benefit of any holder of Indebtedness of such other Person or (c) to
lease or purchase Property, securities or services primarily for the purpose of
assuring the holder of such Indebtedness against loss in respect thereof. For
purposes hereof, the amount of any Guaranty Obligation shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Indebtedness" of any Person shall mean (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person issued or assumed as the deferred purchase price
of Property or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six (6) months of the
incurrence thereof) which would appear as liabilities on a balance sheet of such
Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Guaranty
Obligations of such Person, (h) the principal portion of all obligations of such
Person under Capital Leases, (i) all net payment obligations of such Person
under Interest Rate Protection Agreements or foreign currency exchange
agreements, (j) the maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) all Disqualified Stock of such Person and (l) and the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer.
"Indemnified Party" shall have the meaning assigned to such term in
Section 10.5(b).
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Amended and Restated Indemnity, Subrogation and Contribution Agreement dated as
of the Effective Date in the form of Exhibit C to be executed by ISG Capital and
the Subsidiary Guarantors, as amended, modified, restated or supplemented from
time to time.
"Insurance Proceeds" shall mean all insurance proceeds (other than
business interruption insurance proceeds), damages, awards, claims and rights of
action with respect to any Casualty.
"Intellectual Property" shall have the meaning assigned to such term in
Section 5.16.
"Interbank Offered Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page)
as the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "Interbank Offered Rate" shall mean, for
any Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates (rounded upwards,
if necessary, to the nearest 1/100 of 1%).
"Intercompany Notes" shall mean the promissory notes issued as
contemplated by clause (h) of the definition of Permitted Investments set forth
in this Section 1.1, in the form of Exhibit D.
"Interest Coverage Ratio" shall mean, as of any day, the ratio of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Borrower ending on, or most recently preceding, such last day to, and (b)
Consolidated Cash Interest Expense for the period of four consecutive fiscal
quarters of the Borrower ending on, or most recently preceding, such last day.
"Interest Payment Date" shall mean (a) as to Base Rate Loans, the last
Business Day of each March, June, September and December, (b) as to Eurodollar
Loans, the last day of each applicable Interest Period for any such Loan and, in
addition, where the applicable Interest Period for any such Loan is greater than
three months, the date three months from the beginning of the Interest Period
and each three months thereafter and (c) as to all Loans, the Termination Date
of such Loans.
"Interest Period" shall mean as to Eurodollar Loans, a period of one,
two, three or six months' duration, as the Borrower may elect, commencing, in
each case, on the date of the borrowing (including conversions and extensions
thereof) ; provided, however, (i) if any Interest Period would end on a day
which is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (ii) no Interest Period for any Loan shall
extend beyond the Termination Date for such Loan, and (iii) in the case of
Eurodollar Loans, where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last Business Day of such
calendar month.
"Interest Rate Protection Agreement" shall mean any interest rate swap,
collar, cap or other arrangement requiring payments contingent upon interest
rates.
"Investment" in any Person shall mean (a) the acquisition (whether for
cash, Property, services, assumption of Indebtedness, securities or otherwise)
of assets, shares of Capital Stock, bonds, notes, debentures, partnership, joint
venture or other ownership interests or other securities of such other Person or
(b) any deposit with, or advance, loan or other extension of credit to, such
Person (other than deposits made in connection with the purchase of equipment or
other assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including any Guaranty Obligations
(including any support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person.
"Investor Group" shall mean, collectively, RACT, Xxxx Xxxx, Xxxx X.
Xxxxxxx, XX and R. Xxxxxxx Xxxxxxx.
"Investor Stockholders" shall mean, collectively, Xxxx Xxxx, Xxxx X.
Xxxxxxx, XX and R. Xxxxxxx Xxxxxxx.
"IPO" with respect to any Person shall mean an initial public offering
pursuant to an effective registration statement under the Securities Act of 1933
covering the offer and sale of common stock of such Person to the public,
underwritten by an investment banking firm of nationally recognized standing.
"ISG Capital" shall mean ISG Capital Corporation, a Utah corporation
and a wholly-owned subsidiary of the Parent.
"ISG Capital Guarantee Agreement" shall mean the Amended and Restated
Guarantee Agreement dated as of the Effective Date in the form of Exhibit H-3 to
be executed in favor of the Administrative Agent by ISG Capital, as amended,
modified, restated or supplemented from time to time.
"ISG Common Stock" shall mean, collectively, the Class A Common Stock
and the Class B Common Stock.
"Issuing Lender" shall mean Bank of America, in its capacity as the
issuer of Letters of Credit, and its successors in such capacity.
"Issuing Lender Fees" shall have the meaning assigned to such term in
Section 3.5(c)(iii).
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit E executed and delivered by an Additional Subsidiary Guarantor
in accordance with the provisions of Section 6.10.
"Junior Subordinated Note" shall mean, collectively, the Junior
Subordinated Promissory Note due 2005, dated October 14, 1997, issued by the
Parent in favor of Xxxxxxx in an original principal amount of $17,500,000, and
any Secondary Note (as defined in the Junior Subordinated Note) issued pursuant
to the terms and conditions of the Junior Subordinated Note.
"Kokan" shall mean Kokan Company Limited, a company organized and
existing under the laws of the British Virgin Islands.
"Xxxxxxx" shall mean Xxxxxxx Transportation, Inc., a Delaware
corporation.
"Lender" shall mean either a Tranche A Lender or a Tranche B Lender.
"Lender Hedging Agreement" shall mean any Interest Rate Protection
Agreement or foreign currency exchange agreement between the Borrower or any of
its Subsidiaries and any Person that is or was a Lender (or an Affiliate of a
Lender) at the time such Agreement was entered into.
"Lending Party" shall have the meaning assigned to such term in Section
10.14.
"Letter of Credit" shall mean any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with the terms of
Section 2.3.
"Level I Pricing Period" shall mean, subject to Section 2.2(d)(iii) and
Section 2.4(d)(iii), any period on or after the Effective Date during which the
Leverage Ratio is less than or equal to 3.50:1.00 and no Event of Default has
occurred and is continuing.
"Level II Pricing Period" shall mean, subject to Section 2.2(d)(iii)
and Section 2.4 (d)(iii), any period on or after the Effective Date during which
the Leverage Ratio is greater than 3.50:1.00 but less than or equal to 4.00:1.00
and no Event of Default has occurred and is continuing.
"Level III Pricing Period" shall mean, subject to Section 2.2(d)(iii)
and Section 2.4(d)(iii), any period on or after the Effective Date during which
the Leverage Ratio is greater than 4.00:1.00 but less than or equal to 4.50:1.00
and no Event of Default has occurred and is continuing.
"Level IV Pricing Period" shall mean any period on or after the
Effective Date which is not a Level I Pricing Period, Level II Pricing Period or
Level III Pricing Period.
"Leverage Ratio" shall mean, as of any day, the ratio of (a) Total Debt
as of such day to (b) Consolidated EBITDA for the period of four consecutive
fiscal quarters of the Borrower ending on, or most recently preceding, such day.
"Licenses" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental Authority.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
easement, assignment, deposit arrangement, restriction, restrictive covenant,
lease, sublease, option, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the Uniform
Commercial Code as adopted and in effect in the relevant jurisdiction or other
similar recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" shall mean the Revolving Loans and, by Type, the Base
Rate Loans and Eurodollar Loans. Loans may be designated by Type. As the context
requires, a "Loan" of a particular Type refers to a portion of the total
outstanding Loans of such Type as to which a single Interest Period is in
effect.
"LOC Commitment" shall mean the commitment of the Issuing Lender to
issue Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to the
LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such term in
Section 2.3.
"LOC Documents" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or at risk or (b) any collateral security for such
obligations.
"LOC Obligations" shall mean the Borrower's reimbursement obligations
hereunder (actual or contingent) arising from drawings under Letters of Credit.
The amount of the LOC Obligations outstanding at any time equals the sum of (a)
the maximum aggregate amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such Letters of
Credit, plus (b) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed by the Borrower.
The LOC Obligations of any Tranche A Lender at any time shall mean its Tranche A
Revolving Commitment Percentage of the aggregate LOC Obligations at such time.
"Management Group" shall mean, collectively, R. Xxxxxxx Xxxxxxx, Xxxx
Xxxx and X. X. Xxxxxxx, XX.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the financial condition, operations, business, assets, liabilities (actual or
contingent), historical cash flows or prospects of the Consolidated Parties
taken as a whole, (b) the ability of any Credit Party to perform any material
obligation under the Credit Documents to which it is a party or (c) the material
rights and remedies of the Lenders under the Credit Documents. In determining
whether any individual event or occurrence of the foregoing types would result
in a Material Adverse Effect, notwithstanding that a particular event or
occurrence does not itself have such effect, a Material Adverse Effect shall be
deemed to have occurred if the cumulative effect of such event or occurrence and
all other events or occurrences of the foregoing types which have occurred would
result in a Material Adverse Effect.
"Material Contracts" shall have the meaning assigned to such term in
Section 5.21.
"Material Intellectual Property" shall have the meaning assigned to
such term in Section 5.16.
"Material Licensed Intellectual Property" shall have the meaning
assigned to such term in Section 5.16.
"Material Owned Intellectual Property" shall have the meaning assigned
to such term in Section 5.16.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous, toxic, radioactive or explosive substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws, including
asbestos, polychlorinated biphenyls and ureaformaldehyde insulation and all
other substances or wastes of any nature regulated pursuant to any Environmental
Law.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor
to such company in the business of rating securities.
"Mortgage Instruments" shall have the meaning assigned such term in
Section 6.12(a).
"Mortgaged Properties" shall have the meaning assigned such term in
Section 6.12(a).
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" shall mean a Plan which any Consolidated Party
or any ERISA Affiliate and at least one employer other than any Consolidated
Party or any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" shall mean (a) with respect to any Asset
Disposition, (i) the gross amount of cash proceeds (including Insurance Proceeds
and Condemnation Awards in the case of any Casualty or Condemnation except to
the extent and for long as such Insurance Proceeds or Condemnation Awards are
Reinvestment Funds or unless such Insurance Proceeds or Condemnation Awards are
to be used for repair, restoration or replacement pursuant to plans approved by
the Required Lenders) actually paid to or actually received by any Consolidated
Party in respect of such Asset Disposition (including cash proceeds subsequently
received at any time in respect of such Asset Disposition from non-cash
consideration initially received or otherwise), less (ii) the sum of (A) the
amount, if any, of all taxes (other than income taxes) and the Borrower's
good-faith best estimate of all income taxes (to the extent that such amount
shall have been set aside for the purpose of paying such taxes when due), and
customary fees, brokerage fees, commissions, costs and other expenses (other
than those payable to any Consolidated Party or any Affiliate of any such
Person) that are incurred in connection with such Asset Disposition and are
payable by the seller or the transferor of the assets or Property to which such
Asset Disposition relates, but only to the extent not already deducted in
arriving at the amount referred to in clause (a)(i) above, (B) appropriate
amounts that must be set aside as a reserve in accordance with GAAP against any
liabilities associated with such Asset Disposition and (C) if applicable, the
amount of Indebtedness secured by a Permitted Lien that has been repaid or
refinanced as required in accordance with its terms with the proceeds of such
Asset Disposition; and (b) with respect to any Equity Issuance or Debt Issuance,
the gross amount of cash proceeds paid to or received by any Consolidated Party
in respect of such Equity Issuance or Debt Issuance, as the case may be
(including cash proceeds subsequently received at any time in respect of such
Equity Issuance or Debt Issuance from non-cash consideration initially received
or otherwise), net of underwriting discounts and commissions or placement fees,
investment banking fees, legal fees, consulting fees, accounting fees and other
customary fees and expenses directly incurred by any Consolidated Party in
connection therewith (other than those payable to any Consolidated Party or any
Affiliate of any such Person).
"Note" or "Notes" shall mean, the Tranche A Revolving Notes and the
Tranche B Revolving Notes, individually or collectively, as appropriate.
"Notice of Borrowing" shall mean a written notice of borrowing in
substantially the form of Exhibit F, as required by Section 2.2(b)(i) and
Section 2.4(b)(i).
"Notice of Extension/Conversion" shall mean the written notice of
extension or conversion in substantially the form of Exhibit G, as required by
Section 3.2.
"Operating Lease" shall mean, as applied to any Person, any lease
(including leases which may be terminated by the lessee at any time) of any
Property (whether real, personal or mixed) by such Person as lessee which is not
a Capital Lease.
"Operative Documents" shall mean the Credit Documents, the Acquisition
Agreement, the Stockholders Agreement, the Senior Note Agreement, the Junior
Subordinated Note, the CVC Subscription Agreement, the Contribution and
Assignment Agreement, the Contribution and Subscription Agreement, the Deju
Subscription Agreement, the Registration Rights Agreement, the Senior
Subordinated Credit Facility, the Subordination Agreement, the Warrants, the
Warrant Agreement, the Stock Purchase Warrants and the Tranche B Put Agreement.
"Original Credit Agreement" shall mean the Credit Agreement dated as of
March 4, 1998 (as amended through the date hereof) among the Borrower, the
Parent, the Lenders, Bank of America, N.A. (formerly known as NationsBank,
N.A.), as Administrative Agent and Issuing Lender, and Canadian Imperial Bank of
Commerce, as Documentation Agent.
"Other Taxes" shall have the meaning assigned to such term in Section
3.10(b).
"Parent" shall mean the Person identified as such in the heading
hereof, together with any permitted successors and assigns.
"Parent Common Stock" shall mean the Parent's Class B Common Stock, par
value $.01 per share.
"Parent Guarantee Agreement" shall mean the Amended and Restated
Guarantee Agreement dated as of the Effective Date in the form of Exhibit H-1 to
be executed in favor of the Administrative Agent by the Parent, as amended,
modified, restated or supplemented from time to time.
"Participation Interest" shall mean a purchase by a Tranche A Lender of
a participation in Letters of Credit or LOC Obligations as provided in Section
2.3 or a purchase by a Tranche A Lender or Tranche B Lender of a participation
in any Loans or other obligations as provided in Section 3.13.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Perfection Certificate" shall mean a certificate from the Credit
Parties substantially in the form of Exhibit I.
"Permitted Acquisition" shall mean, collectively (i) the Post Closing
Acquisitions as defined on Schedule 1.1D hereto and (ii) an acquisition by the
Borrower or any Subsidiary of the Borrower of the Capital Stock or all or any
substantial part (in either case for which audited financial statements or other
financial information satisfactory to the Administrative Agent is available) of
the Property of another Person (including by merger or consolidation or by
incorporation of a new Subsidiary) for up to the fair market value of the
Capital Stock or Property acquired as determined by the Board of Directors of
the Borrower based upon their reasonable business judgment; provided that (a)
the Capital Stock or Property acquired in such acquisition relates to a line of
business similar to the business of the Borrower or any of its Subsidiaries
engaged in on the Effective Date, (b) the representations and warranties made by
the Credit Parties in each Credit Document shall be true and correct in all
material respects at and as of the date of such acquisition (as if made on such
date after giving effect to such acquisition) except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects at and as of such earlier date), (c) the Agent shall have
received all items in respect of the Capital Stock or Property acquired in such
acquisition (and/or the seller thereof) required to be delivered by the terms of
Section 6.11, (d) in the case of an acquisition of the Capital Stock of another
Person, (i) except in the case of the incorporation of a new Subsidiary, the
board of directors (or other comparable governing body) of such other Person
shall have duly approved such acquisition and (ii) the Capital Stock acquired
shall constitute at least 85% of the Total Voting Power and ownership interest
of the issuer thereof, (e) no Default or Event of Default shall have occurred
and be continuing immediately before or immediately after giving effect to such
acquisition and the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
acquisition on a Pro Forma Basis, the Borrower shall be in compliance with all
of the financial covenants set forth in Section 7.19 as of the last day of the
most recent period of four consecutive fiscal quarters of the Borrower which
precedes or ends on the date of such acquisition and with respect to which the
Agent has received the Required Financial Information and (f) the liabilities
(determined in accordance with GAAP and in any event including contingent
obligations) acquired by the Borrower and its Subsidiaries on a consolidated
basis in such acquisition and the Indebtedness issued by the Borrower and its
Subsidiaries on a consolidated basis from such acquisition shall not in the
aggregate exceed 25% of the purchase price paid for the related Capital Stock or
assets.
"Permitted Investments" shall mean Investments which consist of (a)
cash held in a deposit account with the Administrative Agent or any other
reputable bank or other depository institution which has executed and delivered
a Depository Bank Agreement with the Administrative Agent; (b) Cash Equivalents
subject to a perfected first priority security interest of the Administrative
Agent in favor of the Secured Parties; (c) accounts receivable created, acquired
or made by the Borrower and its Subsidiaries in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; (d)
Investments consisting of Capital Stock, obligations, securities or other
Property received by the Borrower and its Subsidiaries in settlement of accounts
receivable (created in the ordinary course of business) from bankrupt obligors;
(e) Investments existing as of the Effective Date and set forth in Schedule
1.1A; (f) Guaranty Obligations permitted by Section 7.1; (g) advances to
employees for moving and travel expenses in the ordinary course of business
consistent with past practices; (h) Investments in the Borrower or any
Subsidiary of the Borrower, so long as (i) all such Investments in the Borrower
shall be made by the Parent or any Subsidiary of the Borrower, shall be made in
cash and shall consist of common stock (or additional capital contributions in
respect of outstanding common stock) pledged to the Administrative Agent for the
benefit of the Lenders, (ii) all such Investments in Subsidiaries of the
Borrower shall be made by the Borrower or any other Subsidiary of the Borrower
and (iii) all such Investments in Subsidiaries of the Borrower shall (A) in the
case of the initial capitalization of any such Subsidiary, consist of common
stock which is issued for consideration equal to the par value (or the
equivalent, in the case of any Foreign Subsidiary) of such shares and which is
pledged to the Administrative Agent for the benefit of the Secured Parties or
(B) in all other cases, be evidenced by Intercompany Notes pledged to the
Administrative Agent for the benefit of the Secured Parties and (i) Permitted
Acquisitions.
"Permitted Liens" shall mean (a) Liens in favor of the Administrative
Agent on behalf of the Secured Parties; (b) Liens (other than Liens created or
imposed under ERISA) for taxes or other governmental charges, assessments or
levies which are not yet due or being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof); (c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant
to customary reservations or retentions of title arising in the ordinary course
of business, provided that such Liens secure only amounts which are not yet due
and payable (or, if due and payable, are unfiled and no other action has been
taken to enforce the same) or are being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof); (d) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by the Borrower or any of its Subsidiaries in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of Indebtedness); (e) Liens in connection with
attachments or judgments (including judgment or appeal bonds), provided that the
judgments secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal (and shall have been
discharged within 30 days after the expiration of any such stay); (f) easements,
rights-of-way, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered Property for its intended
purposes; (g) Liens on Property securing purchase money Indebtedness (including
Capital Leases) to the extent permitted under Section 7.1(c), provided that (i)
any such Indebtedness is incurred and such Lien attaches to such Property
concurrently with or within 90 days after the acquisition thereof and (ii) such
Indebtedness is not secured by a Lien on any other assets; (h) leases or
subleases granted to others not interfering in any material respect with the
business of the Borrower and its Subsidiaries; (i) any interest of title of a
lessor under, and Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) relating to,
leases (excluding Capital Leases) permitted by this Amended Agreement; (j)
normal and customary rights of setoff upon deposits of cash in favor of the
Administrative Agent or any other bank or other depository institution which has
executed and delivered a Depository Bank Agreement with the Administrative
Agent; and (k) Liens existing as of the Effective Date and set forth on Schedule
1.1B; provided that (i) no such Lien shall at any time be extended to or cover
any Property other than the Property subject thereto on the Effective Date and
(ii) the principal amount of the Indebtedness or other obligations secured by
such Liens shall not be extended, renewed, refunded or refinanced.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority or any other entity.
"Personnel" shall have the meaning assigned to such term in Section
5.16.
"Xxxxx Cash Accounts" shall mean, collectively, bank accounts opened
from time to time for xxxxx cash, with cash balances in the aggregate of no more
than $50,000 at any time, including (i) the deposit account maintained by the
Borrower with Zions Bank in Salt Lake City, Utah, Account Number 000000000 and
(i) the deposit account maintained by the Borrower with Sun Trust Bank in
Kennesaw, Georgia, Account Number 000000000.
"Plan" shall mean any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by Title IV of ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an "employer"
within the meaning of Section 3(5) of ERISA.
"Post Closing Acquisitions" shall have the meaning assigned to such
term in the definition of "Permitted Acquisition" in this Section 1.1.
"Preferred Stock", as applied to the Capital Stock of any person, shall
mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over the Capital Stock of any other class of
such person.
"Prepayment Account" shall have the meaning assigned to such term in
Section 3.3(b)(vii).
"PRI" shall mean Pozzolanic Resources, Inc., a Washington corporation.
---
"Prime Rate" shall mean the per annum rate of interest established from
time to time by Bank of America as its prime rate, which rate may not be the
lowest rate of interest charged by Bank of America to its customers.
"Pro Forma Basis" shall mean that, for purposes of calculating
compliance in respect of any transaction with each of the financial covenants
set forth in Section 7.19, such transaction (and any other transaction which
occurred during the relevant four-fiscal-quarter period) shall be deemed to have
occurred as of the first day of the most recent period of four consecutive
fiscal quarters of the Borrower which precedes or ends on the date of such
transaction with respect to which the Administrative Agent has received the
Required Financial Information. As used in this definition, "transaction" shall
mean (a) any incurrence or assumption of Indebtedness (and the concurrent
retirement of any other Indebtedness) as referred to in Section 7.1(i), (b) any
merger or consolidation as referred to in Section 7.4(d), (c) any Asset
Disposition of a business or business unit as referred to in Section 7.5(a), or
(d) any "Permitted Acquisition" set forth in this Section 1.1. In connection
with any calculation of the financial covenants set forth in Section 7.19 upon
giving effect to a transaction (and any other transaction which occurred during
the relevant four-fiscal-quarter period) on a Pro Forma Basis for purposes of
Section 7.1(i), Section 7.4, Section 7.5 or clause (e) of the definition of
"Permitted Acquisition" set forth in this Section 1.1, as applicable:
(i) for purposes of any such calculation in respect of any incurrence
or assumption of Indebtedness as referred to in Section 7.1(i), (A) if such
Indebtedness has a floating or formula rate, the rate of interest for such
Indebtedness for the applicable period for purposes of the calculations
contemplated by this definition shall be determined by utilizing the rate which
is or would be in effect with respect to such Indebtedness as the relevant date
of such calculations and (B) any other Indebtedness which is retired
concurrently with such incurrence or assumption shall be excluded and deemed to
have been retired as of the first day of the relevant four fiscal-quarter
period;
(ii) for purposes of any such calculation in respect of any Asset
Disposition of a business or business unit as referred to in Section 7.5, (1)
income statement items (whether positive or negative) attributable to the
Property disposed of in such Asset Disposition shall be excluded to the extent
relating to any period prior to the date of such transaction and (2) any
Indebtedness which is retired in connection with such Asset Disposition shall be
excluded and deemed to have been retired as of the first day of the relevant
four fiscal-quarter period; and
(iii) for purposes of any such calculation in respect of any merger or
consolidation as referred to in Section 7.4(d) and the definition of "Permitted
Acquisition" set forth in this Section 1.1, (A) any Indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with such transaction shall be
deemed to have been incurred as of the first day of the relevant four
fiscal-quarter period, (B) if such Indebtedness has a floating or formula rate,
then the rate of interest for such Indebtedness for the applicable period for
purposes of the calculations contemplated by this definition shall be determined
by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of such calculations and (C) income
statement items (whether positive or negative) including, but not limited to,
the income statement items listed in Schedule 1.1D hereto with respect to the
Acquisition and the Post Closing Acquisitions attributable to the Property
acquired in any such transaction or to the Investment comprising such
transaction, as applicable, shall be included as if such transaction had
occurred as of the first day of the relevant four fiscal-quarter period;
provided, however, that extraordinary and non-recurring revenues and expenses
attributable to such Property or Investment, as the case may be, shall be
excluded from the income statement calculation for such four fiscal-quarter
period.
"Pro Forma Compliance Certificate" shall mean a certificate of the
chief financial officer of the Borrower delivered to the Administrative Agent in
connection with (i) any incurrence or assumption of Indebtedness (and the
concurrent retirement of any other Indebtedness) as referred to in Section
7.1(i), (ii) any merger or consolidation as referred to in Section 7.4(d), (iii)
any Asset Disposition as referred to in Section 7.5(a) or (iv) the definition of
"Permitted Acquisition" set forth in this Section 1.1, as applicable, and
containing reasonably detailed calculations, upon giving effect to the
applicable transaction on a Pro Forma Basis, of the Interest Coverage Ratio, and
the Leverage Ratio as of the last day of the most recent period of four
consecutive fiscal quarters of the Borrower which precede or end on the date of
the applicable transaction and with respect to which the Administrative Agent
shall have received the Required Financial Information.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"RACT" shall mean RACT, Inc., a Utah corporation.
----
"Register" shall have the meaning assigned to such term in Section
10.3(c).
"Registration Rights Agreement" shall mean the Registration Rights
Agreement among the Parent, the Sponsor, the CVC Co-Investors and the Investor
Group dated as of October 14, 1997, as amended.
"Regulation T, U or X" shall mean Regulation T, U or X, respectively,
of the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof..
"Reinvestment Funds" shall mean, with respect to any Insurance Proceeds
from a Casualty or any Condemnation Award from a Condemnation, that portion of
such funds as shall, according to a certificate of a Responsible Officer of the
Borrower delivered to the Administrative Agent within 30 days after the
occurrence of such Casualty or Condemnation (and in any case prior to the
receipt thereof by any Consolidated Party), be reinvested, within 365 days of
the receipt of such funds in the repair, restoration or replacement of the
Properties that were the subject of such Casualty or Condemnation; provided that
(a) the aggregate amount of such proceeds with respect to any such event or
series of related events shall not exceed $500,000 without the prior written
consent of the Required Lenders, (b) such certificate shall be accompanied by
evidence reasonably satisfactory to the Administrative Agent that any Property
subject to such Casualty or Condemnation has been or will be repaired, restored
or replaced to its condition immediately prior to such Casualty or Condemnation,
(c) pending such reinvestment, the entire amount of such proceeds shall be
deposited in an account with the Administrative Agent for the benefit of the
Secured Parties, over which the Administrative Agent shall have sole control and
exclusive right of withdrawal, (d) from and after the date of delivery of such
certificate, the Borrower shall diligently proceed, in a commercially reasonable
manner, to complete the repair, restoration or replacement of the Properties
that were the subject of such Casualty or Condemnation as described in such
certificate and (e) no Default or Event of Default shall have occurred and be
continuing; and provided further that, if any of the foregoing conditions shall
cease to be satisfied at any time, such funds shall no longer be deemed
Reinvestment Funds and such funds shall immediately be applied to prepayment of
the Credit Obligations in accordance with Section 3.3(b).
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment (including the abandonment or discarding of barrels, containers
and other closed receptacles containing any Materials of Environmental Concern).
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
"Required Financial Information" shall mean, with respect to any
period, the financial statements of the Borrower with respect to such period
required under Section 6.1(a) and (b).
"Required Lenders" shall mean, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Administrative
Agent) whose Credit Exposure (as hereinafter defined) constitutes more than 66%
of the Credit Exposure of all Lenders at such time. For the purposes of the
preceding sentence, the term "Credit Exposure" as applied (i) to each Tranche A
Lender shall mean (A) at any time prior to the termination of the Tranche A
Revolving Commitments, the Tranche A Revolving Commitment Percentage of such
Tranche A Lender multiplied by the Tranche A Revolving Committed Amount, and (B)
at any time after the termination of the Tranche A Revolving Commitments, the
sum of (x) the principal balance of the outstanding Tranche A Revolving Loans of
such Tranche A Lender plus (y) such Tranche A Lender's Participation Interests
in all LOC Obligations, and (ii) to each Tranche B Lender shall mean (A) at any
time prior to the termination of the Tranche B Revolving Commitments, the
Tranche B Revolving Commitment Percentage of such Tranche B Lender multiplied by
the Tranche B Revolving Committed Amounts and (B) at any time after the
termination of the Tranche B Revolving Commitments, the principal balance of the
outstanding Tranche B Revolving Loans of such Tranche B Lender. For purposes of
the foregoing, (A) the interest of any Lender holding a Loan in which any other
Lender has a Participation Interest pursuant to Section 3.13 shall be calculated
net of all such Participation Interests of other Lenders and (B) the
Participation Interest of any Lender pursuant to Section 3.13 in a Loan held by
any other Lender shall be counted as if such Lender holding such Participation
Interest held a proportionate part of the related Loan directly.
"Requirement of Law" shall mean, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule, regulation, order, writ, judgment,
injunction, decree, permit or determination of an arbitrator or a court or other
Governmental Authority or other restriction imposed by any Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its Property is subject.
"Reserve Requirement" shall mean, at any time, the maximum rate at
which reserves (including any marginal, special, supplemental or emergency
reserves) are required to be maintained under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any successor)
by member banks of the Federal Reserve System against "Eurocurrency liabilities"
(as such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves required to
be maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the Eurodollar Rate is
to be determined or (ii) any category of extensions of credit or other assets
which include Eurodollar Loans. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
"Responsible Officer" shall mean, as to any Person, the president,
chief executive officer, chief operating officer, any financial officer, any
vice president or the general counsel of such Person (or, in the case of a
partnership, of the managing general partner of such Person).
"Restricted Payment" shall mean (i) any dividend or other distribution,
direct or indirect, on account of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any
class of Capital Stock of any Consolidated Party, now or hereafter outstanding,
(iv) any payment or prepayment of principal of, premium, if any, or interest on,
redemption, purchase, retirement, defeasance, sinking fund or similar payment
with respect to the Senior Note, (v) any payment or repayment of principal of,
premium, if any, or interest on (other than payment in kind interest),
redemption, purchase, retirement, defeasance, sinking fund or similar payment
with respect to the Junior Subordinated Note, (vi) any loan, advance, tax
sharing payment or indemnification payment to, or other investment in, the
Parent or any of its Affiliates (other than the Borrower and its Subsidiaries)
and (vii) any payment or prepayment of principal of, premium, if any, or
interest on (other than payment in kind interest), redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to the
Senior Subordinated Credit Facility.
"Revolving Credit Facility Obligations" shall mean, collectively,
Revolving Loans and LOC Obligations.
"Revolving Loan" shall mean a Tranche A Revolving Loan or a Tranche B
Revolving Loan, and "Revolving Loans" shall mean, collectively, any two or more
of them.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Sale and Leaseback Transaction" shall mean any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to any Consolidated Party of any Property, whether owned by any
Consolidated Party as of the Effective Date or later acquired, which has been or
is to be sold or transferred by any Consolidated Party to such Person or to any
other Person from whom funds have been, or are to be, advanced by such Person on
the security of such Property.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative
Agent, in its capacity as such under each Credit Document, (c) each Lender or
Affiliate thereof with which the Borrower or any of its Subsidiaries enters into
a Lender Hedging Agreement as permitted hereunder, in its capacity as a party to
such Lender Hedging Agreement, (d) the beneficiaries of each indemnification
obligation undertaken by any Consolidated Party under any Credit Document and
(e) the successors and assigns of the foregoing.
"Security Agreement" shall mean the Amended and Restated Pledge and
Security Agreement dated as of the Effective Date in the form of Exhibit J to be
executed in favor of the Administrative Agent by each of the Credit Parties, as
amended, modified, restated or supplemented from time to time. The Security
Agreement amends and restates that certain pledge and security agreement dated
as of March 4, 1998 executed in favor of the Administrative Agent by each of the
Credit Parties and that certain amended and restated pledge and security
agreement dated as of January 1, 1999, executed in favor of the Administrative
Agent by each of the Credit Parties.
"Sellers" shall mean, collectively, Xxxxxx X. Xxxxxxx, Xx., Xxxxxxxx X.
Xxxxxxx and Kokan.
"Senior Note" shall mean the 10% Senior Subordinated Notes due April
15, 2008 issued by the Borrower pursuant to the Senior Note Agreement (and shall
include any substantially identical senior subordinated notes of the Borrower in
the same aggregate principal amount issued after April 22, 1998 in exchange
therefor pursuant to a registered exchange offer or shelf registration statement
in accordance with the Senior Note Agreement).
"Senior Note Agreement" shall mean the Indenture, dated as of April 22,
1998 pursuant to which the Senior Notes are issued, by and among the Borrower,
the Domestic Subsidiaries party thereto as guarantors, and U.S. Bank, N.A., as
trustee, as the same may be amended, modified, restated or supplemented in
accordance with the terms of this Amended Agreement as in effect from time to
time.
"Senior Noteholder" shall mean any one of the holders from time to time
of the Senior Notes.
"Senior Subordinated Credit Facility" shall mean the U.S. $10,000,000
Senior Subordinated Credit Agreement dated April 17, 2000 by and between the
Parent and Citicorp Mezzanine Partners, L.P. and the notes issued pursuant
thereto, as amended, modified, restated or supplemented from time to time.
"Solvent" or "Solvency" shall mean, with respect to any Person as of a
particular date, that on such date (i) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and liabilities as
they mature in their ordinary course, taking into account the timing of and
amounts of cash to be received by such Person and the timing of and amounts of
cash to be payable on or in respect of debts and liabilities of such Person,
(iii) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's Property
would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged or is to
engage, (iv) the fair value of the Property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person
and (v) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts and liabilities as they become absolute and matured. In
computing the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Sponsor" shall mean Citicorp Venture Capital, Ltd., a New York
corporation.
"Sponsor Group" shall mean the Sponsor, any of the Sponsor's Affiliates
and the Management Group, provided that each such Affiliate is reasonably
acceptable to the Administrative Agent.
"Sponsor Revolving Loan" shall mean the Senior Secured Revolving Credit
Agreement dated as of October 14, 1997, between Borrower and Citicorp Venture
Capital, Ltd.
"Standby Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(c)(i).
"Stock Purchase Warrants" shall mean, collectively, the stock purchase
warrant to purchase the Parent Common Stock in an amount equal to up to 10% of
all the outstanding Parent Common Stock on a fully diluted basis pursuant to the
Warrant Agreement.
"Stockholders Agreement" shall mean the Stockholders Agreement dated as
of October 14, 1997 among the Parent, the Sponsor, CCT, the CVC Co-Investors and
the Investor Stockholders, as amended.
"Subordination Agreement" shall mean the Subordination Agreement dated
as of April 17, 2000 by and among the Parent, the Administrative Agent, the
Lenders, and Citicorp Mezzanine Partners, L.P., as amended, modified, restated
or supplemented from time to time.
"Subsidiaries Guarantee Agreement" shall mean the Amended and Restated
Guarantee Agreement dated as of the Effective Date in the form of Exhibit H-2 to
be executed in favor of the Administrative Agent by the Subsidiary Guarantors,
as amended, modified, restated or supplemented from time to time.
"Subsidiary" shall mean, as to any Person, (a) any corporation more
than 50% of whose Capital Stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association, joint
venture, limited liability company or other business entity in which such Person
directly or indirectly through Subsidiaries has more than 50% of the equity
interests at any time.
"Subsidiary Guarantors" shall mean each of the Domestic Subsidiaries of
the Borrower on the Effective Date which has executed the Subsidiaries Guarantee
Agreement and each Additional Subsidiary Guarantor which may thereafter execute
a Joinder Agreement, together with their successors and permitted assigns, and
"Subsidiary Guarantor" shall mean any one of them.
"Taxes" shall have the meaning assigned to such term in Section 3.10.
"Termination Date" shall mean September 4, 2003.
"Total Debt" shall mean, as of any day, the total amount of Funded
Indebtedness of the Borrower and its Consolidated Subsidiaries on a consolidated
basis as of such day.
"Total Voting Power" with respect to any Person on any date shall mean
the total number of votes which may be cast in the election of directors of such
Person at any meeting of stockholders of such Person if all securities entitled
to vote in the election of directors of such Person (on a fully diluted basis,
assuming the exercise, conversion or exchange of all rights, warrants, options
and securities outstanding on such date which are or may thereafter become
exercisable for, exchangeable for or convertible into, such voting securities)
were present and voted at such meeting (other than votes that may be cast only
upon the happening of a contingency).
"Trade Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(b)(ii).
"Tranche A Commitment Fee" shall have the meaning assigned to such term
in Section 3.5(a).
"Tranche A Commitment Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5(a).
"Tranche A Lenders" shall mean any of the Persons identified as a
"Tranche A Lender" on the signature pages hereto, and any Person which may
become a Tranche A Lender by way of assignment in accordance with the terms
hereof, together with their successors and permitted assigns. Unless the context
clearly indicates otherwise, the term "Tranche A Lenders" shall include the
Issuing Lender.
"Tranche A Revolving Committed Amount" shall have the meaning assigned
to such term in Section 2.2(a).
"Tranche A Revolving Commitment" shall mean, with respect to any
Tranche A Lender, the commitment of such Tranche A Lender, in an aggregate
principal amount at any time outstanding of up to such Tranche A Lender's
Tranche A Revolving Commitment Percentage of the Tranche A Revolving Committed
Amount, (i) to make Tranche A Revolving Loans in accordance with the provisions
of Section 2.2(a) and (ii) to purchase Participation Interests in Letters of
Credit in accordance with the provisions of Section 2.3(c).
"Tranche A Revolving Commitment Percentage" shall mean, for any Tranche
A Lender, the percentage, if any, identified as its Tranche A Revolving
Commitment Percentage on Schedule 1.1C (or in the Assignment and Acceptance
pursuant to which such Tranche A Lender assumed its Tranche A Revolving
Commitment), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of this Amended Agreement.
"Tranche A Revolving Loans" shall have the meaning assigned to such
term in Section 2.2(a).
"Tranche A Revolving Note" or "Tranche A Revolving Notes" shall mean
the promissory notes of the Borrower in favor of each of the applicable Tranche
A Lenders evidencing the Tranche A Revolving Loans provided pursuant to Section
2.2(e), individually or collectively, as appropriate, as such promissory notes
may be amended, modified, restated, supplemented, extended, renewed or replaced
from time to time.
"Tranche B Commitment Fee" shall have the meaning assigned to such term
in Section 3.5(b).
"Tranche B Commitment Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5(b).
"Tranche B Lenders" shall mean any of the Persons identified as a
"Tranche B Lender" on the signature pages hereto, and any Person which may
become a Tranche B Lender by way of assignment in accordance with the terms
hereof, together with their successors and permitted assigns.
"Tranche B Put Agreement" shall mean that certain Tranche B Put
Agreement dated as of the Effective Date among the Sponsor, the Tranche B
Lenders, the Borrower and the Administrative Agent, substantially in the form of
Exhibit N attached hereto, as may be amended, modified, restated or supplemented
from time to time.
"Tranche B Revolving Committed Amount" shall have the meaning assigned
to such term in Section 2.4 (a).
"Tranche B Revolving Commitment" shall mean, with respect to any
Tranche B Lender, the commitment of such Tranche B Lender, in an aggregate
principal amount at any time outstanding of up to such Tranche B Lender's
Tranche B Revolving Commitment Percentage of the Tranche B Revolving Committed
Amount, to make Tranche B Revolving Loans in accordance with the provisions of
Section 2.4(a).
"Tranche B Revolving Commitment Percentage" shall mean, for any Tranche
B Lender, the percentage, if any, identified as its Tranche B Revolving
Commitment Percentage on Schedule 1.1C (or in the Assignment and Acceptance
pursuant to which such Tranche B Lender assumed its Tranche B Revolving
Commitment), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of this Amended Agreement.
"Tranche B Revolving Loans" shall have the meaning assigned to such
term in Section 2.4(a).
"Tranche B Revolving Note" or "Tranche B Revolving Notes" shall mean
the promissory notes of the Borrower in favor of each of the applicable Tranche
B Lenders evidencing the Tranche B Revolving Loans provided pursuant to Section
2.4(e), individually or collectively, as appropriate, as such promissory notes
may be amended, modified, restated, supplemented, extended, renewed or replaced
from time to time.
"Type", with respect to a Loan, refers to whether such Loan is a
Eurodollar Loan or Base Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UCP" shall have the meaning assigned to such term in Section 2.3(h).
"Unused Tranche A Revolving Committed Amount" shall mean, for any
period, the amount by which (a) the then applicable Tranche A Revolving
Committed Amount exceeds (b) the daily average sum for such period of (i) the
aggregate principal amount of all outstanding Tranche A Revolving Loans plus
(ii) the aggregate principal amount of all outstanding LOC Obligations.
"Unused Tranche B Revolving Committed Amount" shall mean for any
period, the amount by which (a) the then applicable Tranche B Revolving
Committed Amount exceeds (b) the daily average sum for such period of the
aggregate principal amount of all outstanding Tranche B Revolving Loans.
"Warrant Agreement" shall mean the Warrant Agreement by and between the
Parent and Citicorp Mezzanine Partners, L.P. dated April 17, 2000 to purchase
the Stock Purchase Warrants.
"Warrants" shall mean, collectively, the Series A Stock Purchase
Warrants to purchase an aggregate of 5,000 shares of ISG Common Stock issued
pursuant to the CVC Subscription Agreement.
"Wholly Owned Subsidiary" of any Person shall mean any Subsidiary 100%
of whose Capital Stock (on a fully diluted basis) is at the time owned by such
Person directly or indirectly through other Wholly Owned Subsidiaries.
"Year 2000 Compliant" shall have the meaning assign thereto in Section
5.30.
"Year 2000 Problem" shall have the meaning assigned thereto in Section
5.30.
Computation of Time Periods. For purposes of computation of periods of
time hereunder, the word "from" shall mean "from and including" and the words
"to" and "until" each shall mean "to but excluding."
Accounting Terms. Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Amended Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 6.1 (or, prior to the delivery of the first financial statements
pursuant to Section 6.1, consistent with the financial statements as at December
31, 1999; provided, however, that if (i) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto after the Effective Date or (ii) the Administrative Agent or the
Required Lenders shall so object in writing within 90 days after delivery of
such financial statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Borrower
to the Lenders as to which no such objection shall have been made.
Terms Generally. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Sections, Exhibits and Schedules shall be deemed references to Sections of, and
Exhibits and Schedules to, this Amended Agreement unless the context shall
otherwise require. Unless otherwise expressly provided herein, the word "day"
means a calendar day.
SECTION 2
CREDIT FACILITIES
Continuation of Loans. Pursuant to the Original Credit Agreement, the
Tranche A Lenders made available to the Borrower an aggregate principal of up to
$50,000,000 in the form of revolving credit loans referred to herein as the
Tranche A Revolving Loans. The Tranche A Lenders shall continue to make
available such Tranche A Revolving Loans pursuant to this Agreement in
accordance with this Section 2.
Tranche A Revolving Loans. (a) Tranche A Revolving Commitment. Subject
to the terms and conditions hereof and in reliance upon the representations and
warranties set forth herein, each Tranche A Lender severally agrees to continue
to make available to the Borrower such Tranche A Lender's Tranche A Revolving
Commitment Percentage of revolving credit loans requested by the Borrower in
Dollars ("Tranche A Revolving Loans") which has been available from time to time
from the Closing Date and will be available until the Termination Date, or such
earlier date as the Tranche A Revolving Commitments shall have been terminated
as provided herein for the purposes hereinafter set forth; provided, however,
that the sum of the aggregate principal amount of outstanding Tranche A
Revolving Loans plus the aggregate amount of outstanding LOC Obligations shall
not at any time exceed FIFTY MILLION DOLLARS ($50,000,000) (as such aggregate
maximum amount may be reduced from time to time as provided in Section 3.4, the
"Tranche A Revolving Committed Amount"); provided, further, with regard to each
Tranche A Lender individually, that such Tranche A Lender's outstanding Tranche
A Revolving Loans plus Participation Interests in outstanding LOC Obligations
shall not at any time exceed such Tranche A Lender's Tranche A Revolving
Commitment Percentage of the Tranche A Revolving Committed Amount. Tranche A
Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, however, that the
Tranche A Revolving Loans outstanding at any time shall consist of no more than
six (6) separate Eurodollar Loans. For purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar Loans,
even if they begin on the same date, although borrowings of Eurodollar Loans
may, in accordance with the provisions hereof, be combined through extensions or
conversions at the end of existing Interest Periods to constitute a single new
Eurodollar Loan with the same Interest Period. Tranche A Revolving Loans
hereunder may be repaid and reborrowed in accordance with the provisions hereof.
(b) Tranche A Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Tranche
A Revolving Loan borrowing by written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day prior to the date of the
requested borrowing in the case of Base Rate Loans, and on the third Business
Day prior to the date of the requested borrowing in the case of Eurodollar
Loans. Each such request for borrowing shall be irrevocable and shall specify
(A) the date of the requested borrowing (which shall be a Business Day), (B) the
aggregate principal amount to be borrowed and (C) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a combination thereof, and if
Eurodollar Loans are requested, the Interest Period(s) therefor. If the Borrower
shall fail to specify in any such Notice of Borrowing (I) an applicable Interest
Period in the case of a Eurodollar Loan, then such notice shall be deemed to be
a request for an Interest Period of one month or (II) the Type of Tranche A
Revolving Loan requested, then such notice shall be deemed to be a request for a
Base Rate Loan hereunder. Promptly upon receipt of each Notice of Borrowing
pursuant to this Section 2.2(b)(i), the Administrative Agent shall notify each
affected Tranche A Lender of the contents thereof and each such Tranche A
Lender's share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that comprises part of the Tranche A Revolving Loans shall be in a minimum
aggregate principal amount (for the applicable Tranche A Lenders, collectively)
of $1,000,000 and integral multiples of $500,000 in excess thereof (or the then
remaining amount of the Tranche A Revolving Committed Amount, if less).
(iii) Advances. Each Tranche A Lender will make its Tranche A
Revolving Commitment Percentage of each Tranche A Revolving Loan borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Schedule 1.1C, or in such other
manner as the Administrative Agent may designate in writing, by 1:00 P.M.
(Charlotte, North Carolina time) on the date specified in the applicable Notice
of Borrowing in Dollars and in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the books of
such office with the aggregate of the amounts made available to the
Administrative Agent by the Tranche A Lenders and in like funds as received by
the Administrative Agent.
Repayment. The principal amount of all Tranche A Revolving Loans shall
be due and payable in full on the Termination Date, unless accelerated sooner
pursuant to Section 8.2.
Interest. Subject to the provisions of Section 3.1:
--------
(i) Base Rate Loans. During such periods as Tranche A
Revolving Loans shall be comprised in whole or in part of Base Rate Loans, such
Base Rate Loans shall bear interest at a per annum rate equal to the Adjusted
Base Rate.
(ii) Eurodollar Loans. During such periods as Tranche A
Revolving Loans shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the Adjusted
Eurodollar Rate.
(iii) Pricing Periods. Each Level I Pricing Period, Level II
Pricing Period, Level III Pricing Period or Level IV Pricing Period (each a
"Pricing Period") shall commence on (and include) the date that is the first day
of the third month following the end of each fiscal quarter of the Borrower and
shall terminate on the day before the beginning of the next Pricing Period.
Notwithstanding the foregoing, in the event the Borrower has failed to deliver
any Required Financial Information when due in accordance with Section 6.1, a
Level IV Pricing Period shall be deemed to be in effect beginning as of the
first day of the third month following the end of the fiscal quarter for which
any Required Financial Information was not timely delivered and such Level IV
Pricing Period shall remain effective until a fiscal quarter in which Borrower
has delivered the Required Financial Information when due in accordance with
Section 6.1, and then the applicable Pricing Period as determined pursuant
hereto with reference to the Required Financial Information shall become
effective on the date determined in accordance with the first sentence of this
clause (iii) above.
Interest on Tranche A Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (and at such other times as may be specified
herein).
Tranche A Revolving Notes. The Tranche A Revolving Loans made by each
Tranche A Lender shall be evidenced by a duly executed promissory note of the
Borrower to such Tranche A Lender in substantially the form of Exhibit K-1 and
in a principal amount equal to such Lender's Tranche A Revolving Commitment
Percentage of the Tranche A Revolving Committed Amount.
Letter of Credit Subfacility. (a) Issuance. Subject to the terms and
conditions hereof and of the LOC Documents, if any, and any other terms and
conditions which the Issuing Lender may reasonably require and in reliance upon
the representations and warranties set forth herein, the Issuing Lender agrees
to issue, and each Tranche A Lender severally agrees to participate on the terms
set forth in this Section 2.3 in the issuance by the Issuing Lender of, standby
and trade Letters of Credit in Dollars from time to time from the Effective Date
until the Termination Date as the Borrower may request, in a form acceptable to
the Issuing Lender; provided, however, that (i) the LOC Obligations outstanding
shall not at any time exceed TEN MILLION DOLLARS ($10,000,000) (the "LOC
Committed Amount") and (ii) the sum of the aggregate principal amount of
outstanding Tranche A Revolving Loans, plus the aggregate amount of outstanding
LOC Obligations shall not at any time exceed the Tranche A Revolving Committed
Amount. No Letter of Credit shall (x) have an original expiry date more than one
year from the date of issuance or (y) as originally issued or as extended, have
an expiry date extending beyond the Termination Date. Each Letter of Credit
shall comply with the related LOC Documents. The issuance and expiry dates of
each Letter of Credit shall each be a Business Day.
Notice and Reports. The request for the issuance of a Letter of Credit
shall be submitted by the Borrower to the Issuing Lender at least three (3)
Business Days prior to the requested date of issuance. The Issuing Lender will,
at least quarterly and more frequently upon request, disseminate to each of the
affected Tranche A Lenders a detailed report specifying the Letters of Credit
which are then issued and outstanding and any activity with respect thereto
which may have occurred since the date of the most recent prior report, and
including therein, among other things, the beneficiary, the face amount and the
expiry date, as well as any payments or expirations which may have occurred.
Participation. Each Tranche A Lender, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse from the Issuing
Lender a Participation Interest in such Letter of Credit and the obligations
arising thereunder and any collateral relating thereto, in each case in an
amount equal to its Tranche A Revolving Commitment Percentage of the obligations
under such Letter of Credit and shall absolutely, unconditionally and
irrevocably assume and be obligated to pay to the Issuing Lender and discharge
when due its Tranche A Revolving Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the scope and nature of
each Tranche A Lender's Participation Interest in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required hereunder or
under any such Letter of Credit, each such Tranche A Lender shall pay to the
Issuing Lender its Tranche A Revolving Commitment Percentage of such
unreimbursed drawing pursuant to subsection (d) below. The obligation of each
Tranche A Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event
of Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as hereinafter
provided.
Reimbursement. In the event of any drawing under any Letter of Credit,
the Issuing Lender will promptly notify the Borrower. The Borrower promises to
reimburse the Issuing Lender on the day of drawing under any Letter of Credit
(either with the proceeds of a Tranche A Revolving Loan obtained as provided in
subsection (e) below or with funds from other sources) in same day funds. Unless
the Borrower shall immediately notify the Issuing Lender that the Borrower
intends to reimburse the Issuing Lender for such drawing from other sources of
funds, the Borrower shall be deemed to have requested that the Tranche A Lenders
make a Tranche A Revolving Loan as provided in subsection (e) below in the
amount of the drawing on the related Letter of Credit and the proceeds of such
Loan will be used to reimburse the Issuing Lender for such drawing. If the
Borrower shall fail to reimburse the Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum rate
equal to the Adjusted Base Rate plus 2%. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Tranche A Lenders, the beneficiary of the Letter of
Credit drawn upon or any other Person, including any defense based on any
failure of the Borrower or any other Credit Party to receive consideration or
the legality, validity, regularity or unenforceability of the Letter of Credit.
The Issuing Lender will promptly notify the other affected Tranche A Lenders of
the amount of any unreimbursed drawing and each Tranche A Lender shall promptly
pay to the Administrative Agent for the account of the Issuing Lender, in
Dollars and in immediately available funds, the amount of such Tranche A
Lender's Tranche A Revolving Commitment Percentage of such unreimbursed drawing.
Such payment shall be made on the day such notice is received by such Tranche A
Lender from the Issuing Lender if such notice is received at or before 2:00 P.M.
(Charlotte, North Carolina time) and otherwise such payment shall be made at or
before 12:00 Noon (Charlotte, North Carolina time) on the Business Day next
succeeding the day such notice is received. If such Tranche A Lender does not
pay such amount to the Issuing Lender in full upon such request, such Tranche A
Lender shall, on demand, pay to the Administrative Agent for the account of the
Issuing Lender interest on the unpaid amount during the period from the date of
such drawing until such Tranche A Lender pays such amount to the Issuing Lender
in full at a rate per annum equal to, if paid within two (2) Business Days of
the date that such Tranche A Lender is required to make payment of such amount
pursuant to the preceding sentence, the Federal Funds Rate and, if paid
thereafter, the Base Rate. Each Tranche A Lender's obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever, shall be satisfied without regard to the termination of
this Amended Agreement or the Tranche A Revolving Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Tranche A Lender to the Issuing Lender, such Tranche A
Lender shall, automatically and without any further action on the part of the
Issuing Lender or such Tranche A Lender, acquire a Participation Interest in an
amount equal to such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the unreimbursed drawn portion of the
related Letter of Credit, in the interest on the LOC Obligations in respect
thereof and the related LOC Documents, and shall have a claim against the
Borrower with respect thereto.
Repayment with Tranche A Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a Tranche A
Revolving Loan advance to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the affected Tranche A Lenders that a
Tranche A Revolving Loan has been requested or deemed requested by the Borrower
to be made in connection with a drawing under a Letter of Credit, in which case
a Tranche A Revolving Loan advance comprised of Base Rate Loans (or Eurodollar
Loans to the extent the Borrower has complied with the procedures of Section
2.2(b)(i) with respect thereto) shall be immediately made to the Borrower by all
Tranche A Lenders (notwithstanding any termination of the Tranche A Revolving
Commitment or the LOC Commitments pursuant to Section 8.2) pro rata based on the
respective Tranche A Revolving Commitment Percentages of the Tranche A Lenders
(determined before giving effect to any termination of the Tranche A Revolving
Commitment or the LOC Commitments pursuant to Section 8.2) and the proceeds
thereof shall be paid directly to the Issuing Lender for application to the
related LOC Obligations. Each such Tranche A Lender hereby irrevocably agrees to
make its Tranche A Revolving Commitment Percentage of each such Tranche A
Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Tranche A Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 4.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure of any such
request or deemed request for a Tranche A Revolving Loan to be made by the time
otherwise required hereunder, (v) whether the date of such borrowing is a date
on which Tranche A Revolving Loans are otherwise permitted to be made hereunder
or (vi) any termination of the Tranche A Revolving Commitment or the LOC
Commitments relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Tranche A Revolving Loan cannot for any reason
be made on the date otherwise required above (including as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other Credit Party), then each such Tranche A Lender hereby
agrees that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Issuing
Lender such Participation Interests in the outstanding LOC Obligations as shall
be necessary to cause each such Tranche A Lender to share in such LOC
Obligations ratably based upon the respective Tranche A Revolving Commitment
Percentages of the Tranche A Lenders (determined before giving effect to any
termination of the Tranche A Revolving Commitment or the LOC Commitments
pursuant to Section 8.2), provided that at the time any purchase of
Participation Interests pursuant to this sentence is actually made, the
purchasing Tranche A Lender shall be required to pay to the Issuing Lender, to
the extent not paid to the Issuing Lender by the Borrower in accordance with the
terms of subsection (d) above, interest on the principal amount of Participation
Interests purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of payment for
such Participation Interests, at the rate equal to, if paid within two (2)
Business Days of the date as which the Tranche A Revolving Loan advance was
required, the Federal Funds Rate, and, if paid thereafter, the Base Rate.
Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Amended Agreement, including Section
2.3(a), a Letter of Credit issued hereunder may contain a statement to the
effect that such Letter of Credit is issued for the account of a Subsidiary of
the Borrower, provided that notwithstanding such statement, the Borrower shall
be the actual account party for all purposes of this Amended Agreement for such
Letter of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of Credit.
Renewal, Extension. The renewal or extension of any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
Uniform Customs and Practices. The Issuing Lender may have the Letters
of Credit be subject to The Uniform Customs and Practices for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
---------------------------------------------------
(i) In addition to its other obligations under this Section
2.3, the Borrower hereby agrees to pay, and protect, indemnify and save each
Tranche A Lender harmless from and against, any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that such Tranche A Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of Credit or
(B) the failure of such Tranche A Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or governmental authority (all
such acts or omissions, herein called "Government Acts").
(ii) As between the Borrower and the Tranche A Lenders
(including the Issuing Lender), the Borrower shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary thereof. No
Tranche A Lender (including the Issuing Lender) shall be responsible: (A) for
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) for errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be written; (D) for any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds thereof; and (E) for
any consequences arising from causes beyond the control of such Tranche A
Lender, including any Government Acts. None of the above shall affect, impair,
or prevent the vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Tranche A
Lender (including the Issuing Lender) under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith, shall not
put such Tranche A Lender under any resulting liability to the Borrower or any
other Credit Party. It is the intention of the parties that this Amended
Agreement shall be construed and applied to protect and indemnify each Tranche A
Lender (including the Issuing Lender) against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are hereby assumed by the
Borrower (on behalf of itself and each of the other Credit Parties), including
any and all Government Acts. No Tranche A Lender (including the Issuing Lender)
shall, in any way, be liable for any failure by such Tranche A Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of such Tranche A Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d) above. No
act or omission of any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Tranche A Lenders (including the
Issuing Lender) to enforce any right, power or benefit under this Amended
Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify any Tranche A
Lender (including the Issuing Lender) in respect of any liability incurred by
such Tranche A Lender (A) arising solely out of the gross negligence or willful
misconduct of such Tranche A Lender, as determined by a court of competent
jurisdiction, or (B) caused by such Tranche A Lender's failure to pay under any
Letter of Credit after presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit, as determined by a court of
competent jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree or such failure to pay is a result of any
Government Act.
Responsibility of Issuing Lender. It is expressly understood and agreed
that the obligations of the Issuing Lender hereunder to the Tranche A Lenders
are only those expressly set forth in this Amended Agreement and that the
Issuing Lender shall be entitled to assume that the conditions precedent set
forth in Section 4.2 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied; provided,
however, that nothing set forth in this Section 2.3 shall be deemed to prejudice
the right of any Tranche A Lender to recover from the Issuing Lender any amounts
made available by such Tranche A Lender to the Issuing Lender pursuant to this
Section 2.3 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit constituted
gross negligence or willful misconduct on the part of the Issuing Lender.
Conflict with LOC Documents. In the event of any conflict between this
Amended Agreement and any LOC Document (including any letter of credit
application), this Amended Agreement shall control.
Cash Collateral. In the event that the Borrower is required pursuant to
the terms of this Amended Agreement or any other Credit Document to cash
collateralize any LOC Obligations, the Borrower shall deposit in an account with
the Administrative Agent an amount in cash equal to 100% of such LOC
Obligations. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the LOC Obligations. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. The Administrative Agent will,
at the request of the Borrower, invest amounts deposited in such account in Cash
Equivalents; provided, however, that (i) amounts deposited in such account in
connection with any prepayment of Eurodollar Loans shall be invested in Cash
Equivalents that mature prior to the last day of the applicable Interest Periods
of the Eurodollar Loans to be prepaid, (ii) the Administrative Agent shall not
be required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation, (iii) such Cash Equivalents shall be
subjected to a first priority perfected security interest in favor of the
Administrative Agent and (iv) if an Event of Default shall have occurred and be
continuing, the selection of such Cash Equivalents shall be in the sole
discretion of the Administrative Agent. The Borrower shall indemnify the
Administrative Agent for any losses relating to such investments in Cash
Equivalents. Other than any interest or profits earned on such investments, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Lender immediately
for drawings under Letters of Credit and, if the maturity of the Loans has been
accelerated, to satisfy the LOC Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived. If the Borrower is required to provide an amount of cash
collateral hereunder pursuant to Section 3.3(b)(i), such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower upon demand;
provided that, after giving effect to such return, (i) the sum of the aggregate
amount of outstanding LOC Obligations, plus the aggregate principal amount of
outstanding Tranche A Revolving Loans would not exceed the aggregate Tranche A
Revolving Committed Amount and (ii) no Default or Event of Default shall have
occurred and be continuing. If the Borrower is required to deposit an amount of
cash collateral hereunder pursuant to Section 3.3(b)(iii), (iv) or (v), interest
or profits thereon (to the extent not applied as aforesaid) shall be returned to
the Borrower after the full amount of such deposit has been applied by the
Administrative Agent to reimburse the Issuing Lender for drawings under Letters
of Credit. The Borrower hereby pledges and assigns to the Administrative Agent,
for its benefit and the benefit of the Tranche A Lenders, the cash collateral
account established hereunder (and all monies and investments held therein) to
secure the Credit Obligations.
2.4 Tranche B Revolving Loans.
Tranche B Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth herein,
each Tranche B Lender severally agrees to make available to the Borrower such
Tranche B Lender's Tranche B Revolving Commitment Percentage of revolving credit
loans requested by the Borrower in Dollars ("Tranche B Revolving Loans") from
time to time from the Effective Date until the Termination Date, or such earlier
date as the Tranche B Revolving Commitments shall have been terminated as
provided herein for the purposes hereinafter set forth; provided, however, that
the sum of the aggregate principal amount of outstanding Tranche B Revolving
Loans shall not at any time exceed FIFTEEN MILLION DOLLARS ($15,000,000) (as
such aggregate maximum amount may be reduced from time to time as provided in
Section 3.4, the "Tranche B Revolving Committed Amount") provided, however, the
Tranche B Lenders' Tranche B Revolving Committed Amount shall not be available
for borrowing unless all amounts under the Tranche A Revolving Loans have been
borrowed in full and are outstanding; provided, further, with regard to each
Tranche B Lender individually, that such Tranche B Lender's outstanding Tranche
B Revolving Loans shall not at any time exceed such Tranche B Lender's Tranche B
Revolving Commitment Percentage of the Tranche B Revolving Committed Amount.
Tranche B Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or
a combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, however, that the
Tranche B Revolving Loans outstanding at any time shall consist of no more than
four (4) separate Eurodollar Loans. For purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar Loans,
even if they begin on the same date, although borrowings of Eurodollar Loans
may, in accordance with the provisions hereof, be combined through extensions or
conversions at the end of existing Interest Periods to constitute a single new
Eurodollar Loan with the same Interest Period. Tranche B Revolving Loans
hereunder may be repaid and reborrowed in accordance with the provisions hereof.
(b) Tranche B Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Tranche
B Revolving Loan borrowing by written notice (or telephone notice promptly
confirmed in writing) to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day prior to the date of the
requested borrowing in the case of Eurodollar Loans. Each such request for
borrowing shall be irrevocable and shall specify (A) the date of the requested
borrowing (which shall be a Business Day), (B) that all amounts under the
Tranche A Revolving Loans have been borrowed in full and no amounts are
available for the borrowing thereunder, (C) the aggregate principal amount to be
borrowed and (D) whether the borrowing shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period in the
case of a Eurodollar Loan, then such notice shall be deemed to be a request for
an Interest Period of one more or (II) the Type of Tranche B Revolving Loan
requested, then such notice shall be deemed to be a request for a Base Rate Loan
hereunder. Promptly upon receipt of each Notice of Borrowing pursuant to this
Section 2.4(b)(i), the Administrative Agent shall notify each affected Tranche B
Lender of the contents thereof and each such Tranche B Lender's share of any
borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that comprises part of the Tranche B Revolving Loans shall be in a minimum
aggregate principal amount (for the applicable Tranche B Lenders, collectively)
of $1,000,000 and integral multiples of $500,000 in excess thereof (or the then
remaining amount of the Tranche B Revolving Committed Amount, if less).
(iii) Advances. Each Tranche B Lender will make its Tranche B
Revolving Commitment Percentage of each Tranche B Revolving Loan borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Schedule 1.1C, or in such other
manner as the Administrative Agent may designate in writing, by 1:00 P.M.
(Charlotte, North Carolina time) on the date specified in the applicable Notice
of Borrowing in Dollars and in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the books of
such office with the aggregate of the amounts made available to the
Administrative Agent by the Tranche B Lenders and in like funds as received by
the Administrative Agent.
Repayment. The principal amount of all Tranche B Revolving Loans shall
be due and payable in full on the Termination Date, unless accelerated sooner
pursuant to Section 8.2.
Interest. Subject to the provisions of Section 3.1:
--------
(i) Base Rate Loans. During such periods as Tranche B
Revolving Loans shall be comprised in whole or in part of Base Rate Loans, such
Base Rate Loans shall bear interest at a per annum rate equal to the Adjusted
Base Rate.
(ii) Eurodollar Loans. During such periods as Tranche B
Revolving Loan shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the Adjusted
Eurodollar Rate.
(iii) Pricing Periods. Each Level I Pricing Period, Level II
Pricing Period, Level III Pricing Period or Level IV Pricing Period (each a
"Pricing Period") shall commence on (and include) the date that is the first day
of the third month following the end of each fiscal quarter of the Borrower and
shall terminate on the day before the beginning of the next Pricing Period.
Notwithstanding the foregoing, in the event the Borrower has failed to deliver
any Required Financial Information when due in accordance with Section 6.1, a
Level IV Pricing Period shall be deemed to be in effect beginning as of the
first day of the third month following the end of the fiscal quarter for which
any Required Financial Information was not timely delivered and such Level IV
Pricing Period shall remain effective until a fiscal quarter in which Borrower
has delivered the Required Financial Information when due in accordance with
Section 6.1, and then the applicable Pricing Period as determined pursuant
hereto with reference to the Required Financial Information shall become
effective on the date determined in accordance with the first sentence of this
clause (iii) above.
Interest on Tranche B Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (and at such other times as may be specified
herein).
Tranche B Revolving Notes. The Tranche B Revolving Loans made by each
Tranche B Lender shall be evidenced by a duly executed promissory note of the
Borrower to such Tranche B Lender in substantially the form of Exhibit K-2 nd in
a principal amount equal to such Tranche B Lender's Tranche B Revolving
Commitment Percentage of the Tranche B Revolving Committed Amount.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
Default Rate. Upon the occurrence, and during the continuance, of an
Event of Default, the principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate equal to
(a) in the case of principal of any Loan, the rate applicable to such Loan
during such period pursuant to Section 2, plus 2.00%, (b) in the case of
interest on any Loan, the Adjusted Base Rate during such period, plus 2.00% and
(c) in the case of any other amount, the Adjusted Base Rate for Revolving Loans
during such period, plus 2.00%.
Extension and Conversion. Subject to the terms of Section 4.2, the
Borrower shall have the option, on any Business Day, to extend existing Loans
into a subsequent permissible Interest Period or to convert, subject to the
restrictions with respect to Tranche B Loans contained in Section 2, Loans into
Loans of another type; provided, however, that (i) except pursuant to Section
3.8, Eurodollar Loans may be converted into Base Rate Loans only on the last day
of the Interest Period applicable thereto, (ii) Eurodollar Loans may be
extended, and Base Rate Loans may be converted into Eurodollar Loans, only if no
Default or Event of Default is in existence on the date of extension or
conversion, (iii) Loans extended as, or converted into, Eurodollar Loans shall
be subject to the terms of the definition of "Interest Period" set forth in
Section 1.1 and shall be in such minimum amounts as provided in Section
2.2(b)(ii) or section 2.4(b)(ii), as the case may be, (iv) the total number of
Eurodollar Loans outstanding at any time shall be no greater than the maximum
number provided in Section 2.2(a) and Section 2.4(a), as the case may be (it
being understood that, for purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings may, in accordance with the
provisions hereof, be combined through extensions or conversions at the end of
existing Interest Periods to constitute a single new Eurodollar Loan with the
same Interest Period) and (v) any request for extension or conversion of a
Eurodollar Loan which shall fail to specify an Interest Period shall be deemed
to be a request for an Interest Period of one month. Each such extension or
conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephonic notice promptly confirmed in writing) to the
office of the Administrative Agent specified in Schedule 1.1C, or at such other
office as the Administrative Agent may designate in writing, prior to 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Base Rate Loan, and on the third Business
Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in subsections (b), (c), (d), (e) and (f) of
Section 4.2. In the event the Borrower fails to request an extension or
conversion of any Eurodollar Loan in accordance with this Section 3.2 or any
such requested conversion or extension is not permitted by this Amended
Agreement, then such Eurodollar Loan shall be automatically converted into a
Base Rate Loan at the end of the Interest Period applicable thereto. The
Administrative Agent shall give each affected Lender notice as promptly as
practicable of any such proposed extension or conversion of any Loan. Each
extension or conversion shall be effected by each Lender and the Administrative
Agent by recording for the account of such Lender the new Loan of such Lender
resulting from such extension or conversion and reducing the Loan (or portion
thereof) of such Lender being extended or converted by an equivalent principal
amount. Accrued interest on a Loan (or portion thereof) being extended or
converted shall be paid by the Borrower (A) with respect to any Base Rate Loan
being converted to a Eurodollar Loan, on the last day of the first fiscal
quarter of the Borrower ending on or after the date of conversion and (B)
otherwise, on the date of extension or conversion.
3.3 Prepayments.
Voluntary Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time, subject to Section 3.11 but
otherwise without premium or penalty; provided, however, that (i) each partial
prepayment of Loans shall be in a minimum principal amount of $1,000,000 and
integral multiples of $500,000 in excess thereof and (ii) the Borrower shall
have given prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent, in the
case of any Revolving Loan which is a Base Rate Loan, by 11:00 A.M. (Charlotte,
North Carolina time), on the date of prepayment and, in the case of any other
Loan, by 10:00 A.M. (Charlotte, North Carolina time), at least three (3)
Business Days prior to the date of prepayment. Each notice of prepayment shall
specify the prepayment date, the principal amount to be prepaid, whether the
Loan to be prepaid is a Eurodollar Loan or Base Rate Loan and, in the case of a
Eurodollar Loan, the Interest Period of such Loan. Each notice of prepayment
shall be irrevocable and shall commit the Borrower to prepay such Loan by the
amount stated therein on the date stated therein. All prepayments under this
Section 3.3(a) shall be subject to Section 3.11. All prepayments under this
Section 3.3(a) shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment.
(b) Mandatory Prepayments.
(i) Tranche A Revolving Committed Amount. If at any time, the
sum of the aggregate principal amount of outstanding Tranche A Revolving Loans,
plus the aggregate amount of the outstanding LOC Obligations shall exceed the
Tranche A Revolving Committed Amount at such time, the Borrower immediately
shall prepay the Tranche A Revolving Loans and/or cash collateralize or pay the
LOC Obligations, in an aggregate amount sufficient to eliminate such excess.
(ii) Tranche B Revolving Committed Amount. If at any time, the
sum of the aggregate principal amount of outstanding Tranche B Revolving Loans
shall exceed the Tranche B Revolving Committed Amount at such time, the Borrower
immediately shall prepay the Tranche B Revolving Loans, in an aggregate amount
sufficient to eliminate such excess.
(iii) Asset Dispositions. Immediately upon receipt by any
Consolidated Party of proceeds from any Asset Disposition (other than any
Excluded Asset Disposition) the Borrower shall prepay the Loans and/or cash
collateralize or pay the LOC Obligations in an aggregate amount equal to 100% of
the Net Cash Proceeds of such Asset Disposition or 100% of the proceeds of such
reduction, as applicable.
(iv) Debt Issuances. Immediately upon receipt by any
Consolidated Party of proceeds from any Debt Issuance (other than any Excluded
Debt Issuance), the Borrower shall prepay the Loans and/or cash collateralize
the LOC Obligations in an aggregate amount equal to 100% of the Net Cash
Proceeds of such Debt Issuance.
(v) Issuances of Equity. Immediately upon receipt by any
Consolidated Party of proceeds from any Equity Issuance (other than any Excluded
Equity Issuance), the Borrower shall prepay the Loans and/or cash collateralize
the LOC Obligations pursuant to Section 2.3(l) in an aggregate amount equal to
100% of the Net Cash Proceeds of such Equity Issuance.
(vi) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 3.3(b) shall be applied as follows
(A) with respect to all amounts paid pursuant to
Section 3.3(b)(i), first to Tranche A Revolving Loans and second to cash
collateralize LOC Obligations;
(B) with respect to all amounts paid pursuant to
Section 3.3(b)(ii), to Tranche B Revolving Loans; and
(C) with respect to all amounts paid pursuant to
Section 3.3(b)(iii), (iv) or (v), (1)first pro rata to the Tranche A Revolving
Loans (with a corresponding reduction in the Tranche A Revolving Committed
Amount) and the Tranche B Revolving Loans (with a corresponding reduction in the
Tranche B Revolving Committed Amount), and (2) second to cash collateralize LOC
Obligations.
(vii) Prepayment Accounts. Amounts to be applied as provided
in subsection (v) above to the prepayment of Loans shall be applied first to
reduce outstanding Base Rate Loans. Any amounts remaining after each such
application shall, at the option of the Borrower, be applied to prepay
Eurodollar Loans immediately and/or shall be deposited in a separate Prepayment
Account (as defined below). The Administrative Agent shall apply any cash
deposited in the Prepayment Account for any Eurodollar Loans to prepay such
Loans on the last day of their respective Interest Periods (or, at the direction
of the Borrower, on any earlier date) until all outstanding Eurodollar Loans
have been prepaid or until all the allocable cash on deposit in the Prepayment
Account for such Loans has been exhausted. For purposes of this Amended
Agreement, the term "Prepayment Account" for any Eurodollar Loans shall mean an
account established by the Borrower with the Administrative Agent and over which
the Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal for application in accordance with this
subsection. The Administrative Agent will, at the request of the Borrower,
invest amounts on deposit in the Prepayment Account for any Eurodollar Loans in
Cash Equivalents that mature prior to the last day of the applicable Interest
Periods of Eurodollar Loans to be prepaid; provided, however, that (i) the
Administrative Agent shall not be required to make any investment that, in its
sole judgment, would require or cause the Administrative Agent to be in, or
would result in any, violation of any law, statute, rule or regulation, (ii)
such Cash Equivalents shall be subjected to a first priority perfected security
interest in favor of the Administrative Agent and (iii) if an Event of Default
shall have occurred and be continuing, the selection of such Cash Equivalents
shall be in the sole discretion of the Administrative Agent. The Borrower shall
indemnify the Administrative Agent for any losses relating to such investments
in Cash Equivalents so that the amount available to prepay Eurodollar Loans on
the last day of the applicable Interest Periods is not less than the amount that
would have been available had no investments been made pursuant thereto. Other
than any interest or profits earned on such investments, the Prepayment Accounts
shall not bear interest. Interest or profits, if any, on the investments in any
Prepayment Account shall accumulate in such Prepayment Account. If the maturity
of the Loans has been accelerated pursuant to Section 8.2, the Administrative
Agent may, in its sole discretion, apply all amounts on deposit in the
Prepayment Account for any Eurodollar Loans to satisfy any of the Credit
Obligations related to such Loans. The Borrower hereby pledges and assigns to
the Administrative Agent, for its benefit and the benefit of the Lenders, each
Prepayment Account established hereunder to secure the Credit Obligations.
(viii) Notice. The Borrower shall give to the Administrative
Agent and the Lenders at least five (5) Business Days' prior written or telecopy
notice of each and every event or occurrence requiring a prepayment under
Section 3.3(b)(ii), (iii) or (iv), including the amount of Net Cash Proceeds
expected to be received therefrom and the expected schedule for receiving such
proceeds; provided, however, that in the case of any prepayment event consisting
of a Casualty or Condemnation, the Borrower shall give such notice within five
(5) Business Days after the occurrence of such event.
3.4 Termination and Reduction of Commitments.
Tranche A Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Tranche A Revolving Committed Amount in
whole or in part (in minimum aggregate amounts of $1,000,000 or in integral
multiples of $500,000 in excess thereof (or, if less, the full remaining amount
of the then applicable Tranche A Revolving Committed Amount)) upon five (5)
Business Days' prior written or telecopy notice to the Administrative Agent;
provided, however, no such termination or reduction shall be made which would
cause the sum at any time of (i) the aggregate principal amount of outstanding
Tranche A Revolving Loans, plus (ii) the aggregate amount of outstanding LOC
Obligations to exceed the Tranche A Revolving Committed Amount as so terminated
or reduced, unless, concurrently with such termination or reduction, the Tranche
A Revolving Loans are repaid (and, after the Tranche A Revolving Loans have been
paid in full, the LOC Obligations are cash collateralized) to the extent
necessary to eliminate such excess. The Administrative Agent shall promptly
notify each affected Tranche A Lender of the receipt by the Administrative Agent
of any notice from the Borrower pursuant to this Section 3.4(a).
Tranche B Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Tranche B Revolving Committed Amount in
whole or in part (in minimum aggregate amounts of $1,000,000 or in integral
multiples of $500,000 in excess thereof (or, if less, the full remaining amount
of the then applicable Tranche B Revolving Committed Amount)) upon five (5)
Business Days' prior written or telecopy notice to the Administrative Agent;
provided, however, no such termination or reduction shall be made which would
cause the aggregate principal amount of outstanding Tranche B Revolving Loans to
exceed the Tranche B Revolving Committed Amount as so terminated or reduced,
unless, concurrently with such termination or reduction, the Tranche B Revolving
Loans are repaid to the extent necessary to eliminate such excess. The
Administrative Agent shall promptly notify each affected Tranche B Lender of the
receipt by the Administrative Agent of any notice from the Borrower pursuant to
this Section 3.4(b).
(c) Mandatory Reductions.
(i) On any date that any Tranche A Revolving Loans are
required to be prepaid and/or LOC Obligations are required to be cash
collateralized pursuant to the terms of Section 3.3(b)(iii), (iv) or (v) (or
would be so required if any Tranche A Revolving Loans, or LOC Obligations were
outstanding), the Tranche A Revolving Committed Amount shall be automatically
and permanently reduced by the total amount of such required prepayments and
cash collateral (and, in the event that the amount of any payment referred to in
Section 3.3(b)(iii), (iv) or (v) which is allocable to the Revolving Credit
Facility Obligations exceeds the amount of all outstanding Revolving Credit
Facility Obligations, the Tranche A Revolving Committed Amount shall be further
reduced by 100% of such excess).
(ii) On any date that any Tranche B Revolving Loans are
required to be prepaid pursuant to the terms of Section 3.3(b)(iii), (iv) or (v)
(or would be so required if any Tranche B Revolving Loans were outstanding), the
Tranche B Revolving Committed Amount shall be automatically and permanently
reduced by the total amount of such required prepayments (and, in the event that
the amount of any payment referred to in Section 3.3(b)(iii), (iv) or (v) which
is allocable to the Revolving Credit Facility Obligations exceeds the amount of
all outstanding Revolving Credit Facility Obligations, the Tranche B Revolving
Committed Amount shall be further reduced by 100% of such excess).
Termination. The Tranche A Revolving Commitments of the Tranche A
Lenders, the Tranche B Revolving Commitments of the Tranche B Lenders and the
LOC Commitment of the Issuing Lender shall automatically terminate on the
Termination Date.
(e) General.
(i) The Borrower shall pay to the Administrative Agent for the
account of the Tranche A Lenders in accordance with the terms of Section 3.5(a),
on the date of each termination or reduction of the Tranche A Revolving
Committed Amount, the Tranche A Commitment Fee accrued through the date of such
termination or reduction on the amount of the Tranche A Revolving Committed
Amount so terminated or reduced.
(ii) The Borrower shall pay to the Administrative Agent for
the account of the Tranche B Lenders in accordance with the terms of Section
3.5(b), on the date of each termination or reduction of the Tranche B Revolving
Committed Amount, the Tranche B Commitment Fee accrued through the date of such
termination or reduction on the amount of the Tranche B Revolving Committed
Amount so terminated or reduced.
3.5 Fees.
Tranche A Commitment Fee. In consideration of the Tranche A Revolving
Commitments of the Tranche A Lenders hereunder, the Borrower agrees to pay to
the Administrative Agent for the account of each Tranche A Lender a fee (the
"Tranche A Commitment Fee") on such Tranche A Lender's Tranche A Revolving
Commitment Percentage of the Unused Tranche A Revolving Committed Amount,
computed at a per annum rate for each day during the applicable Tranche A
Commitment Fee Calculation Period at a rate equal to 0.50%. The Tranche A
Commitment Fee shall commence to accrue on the Effective Date and shall be due
and payable in arrears on the last business day of each March, June, September
and December (and any date that the Tranche A Revolving Committed Amount is
reduced as provided in Section 3.4(a) or (c)(i) and the Termination Date) for
the immediately preceding quarter or portion thereof (each such quarter or
portion thereof being herein referred to as a "Tranche A Commitment Fee
Calculation Period"), beginning with the first of such dates to occur after the
Effective Date.
Tranche B Commitment Fee. In consideration of the Tranche B Revolving
Commitments of the Tranche B Lenders hereunder, the Borrower agrees to pay to
the Administrative Agent for the account of each Tranche B Lender a fee (the
"Tranche B Commitment Fee") on such Tranche B Lender's Tranche B Revolving
Commitment Percentage of the Unused Tranche B Revolving Committed Amount,
computed at a per annum rate for each day during the applicable Tranche B
Commitment Fee Calculation Period at a rate equal to 0.50%. The Tranche B
Commitment Fee shall commence to accrue on the Effective Date and shall be due
and payable in arrears on the last business day of each March, June, September
and December (and any date that the Tranche B Revolving Committed Amount is
reduced as provided in Section 3.4(b) or (c)(ii) and the Termination Date) for
the immediately preceding quarter or portion thereof (each such quarter or
portion thereof being herein referred to as a "Tranche B Commitment Fee
Calculation Period"), beginning with the first of such dates to occur after the
Effective Date.
(c) Letter of Credit Fees.
(i) Standby Letter of Credit Issuance Fee. In consideration of
the issuance of standby Letters of Credit hereunder, the Borrower promises to
pay to the Administrative Agent for the account of each Tranche A Lender a fee
(the "Standby Letter of Credit Fee") on such Tranche A Lender's Tranche A
Revolving Commitment Percentage of the average daily maximum amount available to
be drawn under each such standby Letter of Credit computed at a per annum rate
for each day from the date of issuance to the date of expiration equal to 2.00%.
The Standby Letter of Credit Fee will be payable quarterly in arrears on the
last Business Day of each March, June, September and December for the
immediately preceding quarter (or portion thereof), beginning with the first of
such dates to occur after the Effective Date.
(ii) Trade Letter of Credit Drawing Fee. In consideration of
the issuance of trade Letters of Credit hereunder, the Borrower promises to pay
to the Administrative Agent for the account of each Tranche A Lender a fee (the
"Trade Letter of Credit Fee") equal to 0.125% on such Tranche A Lender's Tranche
A Revolving Commitment Percentage of the amount of each drawing under any such
trade Letter of Credit. The Trade Letter of Credit Fee will be payable on each
date of drawing under a trade Letter of Credit.
(iii) Issuing Lender Fees. In addition to the Standby Letter
of Credit Fee payable pursuant to clause (i) above and the Trade Letter of
Credit Fee payable pursuant to clause (ii) above, the Borrower promises to pay
to the Issuing Lender for its own account without sharing by the other Lenders
the letter of credit fronting and negotiation fees agreed to by the Borrower and
the Issuing Lender from time to time and the customary charges from time to time
of the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters
of Credit (collectively, the "Issuing Lender Fees").
Agent's Fees. The Borrower agrees to pay to the Administrative Agent
any other fees payable to such party as agreed to by the Borrower and the
Administrative Agent from time to time as evidenced in writing.
(e) Amendment Fee. In consideration of the Tranche A Revolving
Committed Amount of the Tranche A Lenders and the Tranche B Revolving Committed
Amount of the Tranche B Lenders, the Borrower agrees to pay to the
Administrative Agent for the account of each Tranche A Lender and Tranche B
Lender, as applicable, a fee (the "Amendment Fee") equal to (i) 0.12% of the
Tranche A Revolving Committed Amount of the Tranche A Lenders and (ii) 0.50% of
the Tranche B Revolving Committed Amount of the Tranche B Lenders, payable on
the Effective Date.
Increased Cost and Reduced Return. (a) If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty or other charge with respect to any Fixed Rate Loans,
any of its Notes or its obligation to make Fixed Rate Loans, or change the basis
of taxation of any amounts payable to such Lender (or its Applicable Lending
Office) under this Amended Agreement or any of its Notes in respect of any Fixed
Rate Loans (other than Excluded Taxes);
(ii) shall impose, modify or deem applicable any reserve,
special deposit, assessment, compulsory loan or similar requirement (other than
the Reserve Requirement utilized in the determination of the Adjusted Eurodollar
Rate) relating to any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender (or its Applicable
Lending Office), including any of the Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the London interbank market any other condition affecting this
Amended Agreement or any of its Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Extending, or
maintaining any Fixed Rate Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Amended Agreement or
any of its Notes with respect to any Fixed Rate Loans, then the Borrower shall
pay to such Lender on demand such amount or amounts as will compensate such
Lender for such increased cost or reduction. If any Lender requests compensation
by the Borrower under this Section 3.6, the Borrower may, by notice to such
Lender (with a copy to the Administrative Agent), suspend the obligation of such
Lender to make or Extend Loans of the Type with respect to which such
compensation is requested, or to Convert Loans of any other Type into Loans of
such Type, until the event or condition giving rise to such request ceases to be
in effect (in which case the provisions of Section 3.9 shall be applicable);
provided that such suspension shall not affect the right of such Lender to
receive the compensation so requested.
(a) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(b) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 3.6 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
it. Any Lender claiming compensation under this Section 3.6 shall furnish to the
Borrower and the Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
Limitation on Types of Loans. If on or prior to the first day of any
Interest Period for any Eurodollar Loan:
(a) the Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the Adjusted Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lenders shall be under no obligation to make additional
Eurodollar Loans, Extend Eurodollar Loans or to Convert Base Rate Loans into
Eurodollar Loans and the Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Eurodollar Loans, either prepay such
Loans or Convert such Loans into Base Rate Loans in accordance with the terms of
this Amended Agreement.
Illegality. Notwithstanding any other provision of this Amended
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans hereunder,
then such Lender shall promptly notify the Borrower thereof and such Lender's
obligation to make or Extend Eurodollar Loans and to Convert Base Rate Loans
into Eurodollar Loans shall be suspended until such time as such Lender may
again make, maintain and fund Eurodollar Loans (in which case the provisions of
Section 3.9 shall be applicable).
Treatment of Affected Loans. If the obligation of any Lender to make
Eurodollar Loans or to Extend, or to Convert Base Rate Loans into, Eurodollar
Loans shall be suspended pursuant to Section 3.6 or 3.8 hereof (Loans of such
Type being herein called "Affected Loans" and such Type being herein called the
"Affected Type"), such Lender's Affected Loans shall be automatically Converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s)
for Affected Loans (or, in the case of a Conversion required by Section 3.8
hereof, on such earlier date as such Lender may specify to the Borrower with a
copy to the Administrative Agent) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 3.6 or 3.8 hereof
that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its Base
Rate Loans; and
(b) all Loans that would otherwise be made or Extended by such Lender
as Loans of the Affected Type shall be made or Extended instead as Base Rate
Loans, and all Loans of such Lender that would otherwise be Converted into Loans
of the Affected Type shall be Converted instead into (or shall remain as) Base
Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.6 or 3.8 hereof that gave
rise to the Conversion of such Lender's Affected Loans pursuant to this Section
3.9 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Commitments.
Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Administrative Agent hereunder or under any other Credit
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, Excluded Taxes imposed on such
Lender (or its Applicable Lending Office) or the Administrative Agent (as the
case may be) (all such non-Excluded Taxes being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable under this Amended Agreement or any other Credit
Document to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.10) such
Lender or the Administrative Agent receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law
and (iv) the Borrower shall furnish to the Administrative Agent, at the office
of the Administrative Agent specified in Schedule 1.1C, the original or a
certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies (including mortgage recording taxes and similar taxes)
which arise from any payment made under this Amended Agreement or any other
Credit Document or from the execution or delivery of, or otherwise with respect
to, this Amended Agreement or any other Credit Document (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
Section 3.10) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Amended Agreement in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrower or the Administrative Agent, on or before the date, if any, such
Lender changes its Applicable Lending Office by designating a different
Applicable Lending Office (a "New Lending Office") and promptly upon the
obsolescence or inability of any form delivered pursuant to this Section 3.10(d)
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) two accurate and complete
original signed copies of Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Amended Agreement is effectively connected with the conduct of a trade or
business in the United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue Service
and (iii) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from or a reduced rate of tax on payments pursuant to this Amended Agreement or
any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Administrative Agent with the appropriate form pursuant to
Section 3.10(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to indemnification
under Section 3.10(a), 3.10(b) or 3.10(c) with respect to Taxes imposed by the
United States; provided, however, that should a Lender, which is otherwise
exempt from or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.10, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) The Borrower shall not be required to indemnify any Lender or to
pay any additional amounts to any Lender, in respect of United States federal
withholding tax pursuant to Section 3.10(a), (b) or (c) above to the extent that
the obligation to withhold amounts with respect to United States federal
withholding tax existed on the date such Lender became a party to this Amended
Agreement or, with respect to payments to a New Lending Office, the date such
Lender designated such New Lending Office with respect to a Loan; provided that
this Section 3.10(g) shall not apply (i) to any Lender as a result of an
assignment of a new Lender or designation of a New Lending Office made at the
request of the Borrower and (ii) to the extent the indemnity payment or
additional amounts any Lender would be entitled to receive (without regard to
this paragraph (g)) do not exceed the indemnity payment or additional amounts
that the Lender making the assignment to a new Lender or designation of New
Lending Office would have been entitled to receive in the absence of such
assignment or designation.
(h) If the Borrower pays any additional amount or indemnification under
this Section 3.10 to a Lender or the Administrative Agent, such Lender or the
Administrative Agent shall take reasonable steps within its power to obtain any
refund, reduction or credit which may be available with respect to the Taxes
giving rise to such additional amount or indemnification, and if such Lender or
the Administrative Agent determines that it has received or realized in
connection therewith any refund or any reduction of, or credit against, its tax
liabilities such Lender or the Administrative Agent shall pay to the Borrower an
amount that is equal to the net benefit, after tax, which was obtained by the
Lender or the Administrative Agent as a consequence of such refund, reduction or
credit.
Compensation. Upon the request of any Lender, the Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Extension of a Fixed Rate Loan for any
reason (including the acceleration of the Loans pursuant to Section 8.2) on a
date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including the failure
of any condition precedent specified in Section 4 to be satisfied) to borrow,
Convert, Extend or prepay a Fixed Rate Loan on the date for such borrowing,
Conversion, Extension or prepayment specified in the relevant notice of
borrowing, prepayment, Extension or Conversion under this Amended Agreement.
Pro Rata Treatment. Except to the extent otherwise provided herein:
------------------
(i) Loans. Each Loan, each payment or prepayment of principal
of any Loan or reimbursement obligations arising from drawings under Letters of
Credit, each payment of interest on the Loans or reimbursement obligations
arising from drawings under Letters of Credit, each payment of Tranche A
Commitment Fees, each payment of Tranche B Commitment Fees, each payment of the
Standby Letter of Credit Fee, each payment of the Trade Letter of Credit Fee,
each reduction of the Tranche A Revolving Committed Amount, each reduction of
the Tranche B Revolving Committed Amount and each Conversion or Extension of any
Loan, shall be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans and Participation
Interests.
(ii) Advances. No Lender shall be responsible for the failure
or delay by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been notified
by any Lender prior to the date of any requested borrowing that such Lender does
not intend to make available to the Administrative Agent its ratable share of
such borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on the
date of such borrowing, and the Administrative Agent in reliance upon such
assumption, may (in its sole discretion but without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such corresponding amount from
such Lender. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent shall
also be entitled to recover from the Lender or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a per annum rate equal to (i) from the Borrower, the
applicable rate for the applicable borrowing pursuant to the Notice of Borrowing
and (ii) from a Lender, if paid within two (2) Business Days of the date such
corresponding amount was made available by the Administrative Agent to the
Borrower, the Federal Funds Rate and, if paid thereafter, the Base Rate.
Sharing of Payments. The Lenders agree among themselves that, in the
event that any Lender shall obtain payment in respect of any Loan, LOC
Obligation or any other obligation owing to such Lender under this Amended
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means (whether
voluntarily or involuntarily by set-off or otherwise), in excess of its pro rata
share of such payment as provided for in this Amended Agreement, such Lender
shall promptly purchase from the other Lenders a Participation Interest in such
Loan, LOC Obligation or other obligation in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Amended Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
pursuant to this Section 3.13 may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such Participation Interest as fully as if such Lender were a
holder of such Loan, LOC Obligations or other obligation in the amount of such
Participation Interest. Except as otherwise expressly provided in this Amended
Agreement, if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Amended Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Administrative Agent or
such other Lender at a rate per annum equal to the Federal Funds Rate. If under
any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.13 to share in the benefits of any recovery on such secured claim.
Payments, Computations, Etc. (a) Except as otherwise specifically
provided herein, all payments hereunder shall be made to the Administrative
Agent in Dollars in immediately available funds, without offset, deduction,
counterclaim or withholding of any kind, at the Administrative Agent's office
specified in Schedule 1.1C not later than 2:00 P.M. (Charlotte, North Carolina
time) on the date when due. Payments received after such time shall be deemed to
have been received on the next succeeding Business Day. The Administrative Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrower
maintained with the Administrative Agent (with notice to the Borrower). The
Borrower shall, at the time it makes any payment under this Amended Agreement,
specify to the Administrative Agent the Loans, LOC Obligations, Fees, interest
or other amounts payable by the Borrower hereunder to which such payment is to
be applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Administrative Agent shall
distribute such payment to the Lenders in such manner as the Administrative
Agent may determine to be appropriate in respect of obligations owing by the
Borrower hereunder, subject to the terms of Section 3.12(a)). The Administrative
Agent will distribute such payments to such Lenders, if any such payment is
received prior to 12:00 Noon (Charlotte, North Carolina time) on a Business Day
in like funds as received prior to the end of such Business Day and otherwise
the Administrative Agent will distribute such payment to such Lenders on the
next succeeding Business Day. Whenever any payment hereunder shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest and
Fees for the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next preceding
Business Day. Except, in the case of Base Rate Loans, in which case interest
shall be computed on the basis of a 365 or 366 day year, all computations of
interest and Fees shall be made on the basis of actual number of days elapsed
over a year of 360 days. Interest shall accrue from and include the date of
borrowing, but shall exclude the date of payment.
Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Amended Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any other Lender on account of the
Credit Obligations or any other amounts outstanding under any of the Credit
Documents or in respect of the Collateral shall 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
Administrative Agent in connection with enforcing the rights of the
Secured Parties under the Credit Documents and any protective advances
made by the Administrative Agent with respect to the Collateral under
or pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including reasonable attorneys' fees) of each of the
Lenders in connection with enforcing its rights under the Credit
Documents or otherwise with respect to the Credit Obligations owing to
such Lender;
FOURTH, to the payment of all of the Credit Obligations
consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of
the Credit Obligations (including the payment or cash collateralization
of the outstanding LOC Obligations);
SIXTH, to all other Credit Obligations and other obligations
which shall have become due and payable under the Credit 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.
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 an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
Participation Interest in LOC Obligations held by such Lender bears to the
aggregate amount of the then outstanding Loans and Participation Interest in LOC
Obligations) of amounts available to be applied pursuant to clauses "THIRD",
"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 Administrative Agent in a cash collateral account pursuant
to Section 2.3(l) and applied (A) first, to reimburse the Issuing Lender 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 3.14(b). Notwithstanding the foregoing provisions of this
Section 3.14(b), (I) amounts on deposit in a Prepayment Account for any Loans
upon the occurrence of any such Event of Default shall be applied, first, to pay
such Loans and, second, after all such Loans have been paid in full, to the
other Credit Obligations in the manner provided in this Section 3.14(b) and (II)
amounts on deposit in a cash collateral account pursuant to Section 2.3(l) upon
the occurrence of any such Event of Default shall be applied, first, to
reimburse the Issuing Lender from time to time for any drawings under any
Letters of Credit and, second, following the expiration of all Letters of
Credit, to the other Credit Obligations in the manner provided in this Section
3.14(b).
Evidence of Debt. (a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Amended Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 10.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such Lender in
accordance with the terms hereof.
Assignment of Commitments Under Certain Circumstances. In the event (a)
any Lender requests compensation pursuant to Section 3.6, (b) any Lender
delivers a notice described in Section 3.8 or (c) the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority on account
of any Lender pursuant to Section 3.10, the Borrower may, at its sole expense
and effort (including with respect to the processing and recordation fee
referred to in Section 10.3(b)), upon notice to such Lender and the
Administrative Agent, require such Lender to transfer and assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.3(b)), all of its interests, rights and obligations under this
Amended Agreement to an Eligible Assignee that shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (A) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (B) no Event of Default shall have occurred and be continuing and
(C) the Borrower or such assignee shall have paid to the affected Lender in
immediately available funds an amount equal to the sum of 100% of the principal
of and interest accrued to the date of such payment on the outstanding Loans of
such Lender, respectively, plus all Fees and other amounts accrued for the
account of such Lender hereunder (including any amounts under Section 3.6, 3.10
and Section 3.11); provided further that if prior to any such assignment the
circumstances or event that resulted in such Lender's request or notice under
Section 3.6 or 3.8 or demand for additional amounts under Section 3.10, as the
case may be, shall cease to exist or become inapplicable for any reason or if
such Lender shall waive its rights in respect of such circumstances or event
under Section 3.6, 3.8 or 3.10, as the case may be, then such Lender shall not
thereafter be required to make such assignment hereunder.
SECTION 4
CONDITIONS
Conditions Precedent to the Effective Date. This Amended Agreement
shall become effective on the first date (the "Effective Date") when all of the
following conditions set forth in this Section 4.1, and the additional
conditions precedent set forth in Section 4.2, have been satisfied:
Executed Credit Documents. The Administrative Agent shall have received
duly executed copies of (i) this Amended Agreement, (ii) the Notes, (iii) the
Collateral Documents, and (iv) all other Credit Documents, each in form and
substance acceptable to the Lenders in their sole discretion. On the Effective
Date, (i) the Lenders under the Original Credit Agreement will return the Notes
dated as of the Closing Date to the Borrower for cancellation, and such Notes
will be replaced, as applicable, by the Notes dated the Effective Date and
issued to the Lenders under Section 2.2(e) and 2.4(e) and (ii) the
Administrative Agent shall return the Intercompany Notes under the Original
Credit Agreement to the Borrower for cancellation, and such Intercompany Notes
will be replaced by the Intercompany Notes dated the Effective Date.
Security Interest. The Administrative Agent on behalf of the Secured
Parties shall have a security interest in the Collateral of the type and
priority described in the Collateral Documents, perfected to the extent
contemplated by Section 5.25 and the Administrative Agent shall have received:
(i) confirmation by the Borrower that the Administrative Agent
for the benefit of the Secured Parties has previously received stock
certificates evidencing the Capital Stock pledged to the Administrative Agent
pursuant to the Security Agreement, together with duly executed in blank undated
stock powers attached thereto (unless, with respect the pledged Capital Stock of
any Foreign Subsidiary, such stock powers were deemed unnecessary by the
Administrative Agent in its reasonable discretion under the law of the
jurisdiction of incorporation of such Person accompanied by stock powers
endorsed in blank);
(ii) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit Party and each
jurisdiction where any Collateral is located and where a filing was made in
connection with the Original Credit Agreement and the Collateral Documents,
confirming the perfected security interest in the Collateral in favor of the
Administrative Agent for the benefit of the Secured Parties, copies of the
financing statements on file in such jurisdictions and evidence that no Liens
exist other than Permitted Liens.
(iii) duly executed financing statements (Form UCC-1) for each
appropriate jurisdiction as is necessary, in the Administrative Agent's sole
discretion, to perfect the Administrative Agent's security interest in the
Collateral;
(iv) appropriate duly executed termination statements (Form
UCC-3) signed by all Persons disclosed as secured parties in the jurisdictions
referred to in clause (ii) above in form for filing under the Uniform Commercial
Code of such jurisdictions, except that no termination statements shall be
required as to any Permitted Liens;
(v) confirmation by the Borrower that no additional filing,
registration or recordation of any document (including any Uniform Commercial
Code financing statement) is required to be filed, registered or recorded in
order to create in favor of the Administrative Agent for the benefit of the
Secured Parties a valid, legal and perfected security interest in or Lien on the
Collateral; and
Opinions of Counsel. The Administrative Agent shall have received, in
each case dated as of the Effective Date:
(i) legal opinion of Xxxxxxxx & Xxxxx, special New York
counsel for the Credit Parties, in - substantially the form of Exhibit L-1;
(ii) legal opinion of special local counsel for each Credit
Party not incorporated in the State of New York, in substantially the form of
Exhibit L-2;
(iii) a legal opinion of special local counsel for ISG Capital
for each State in which any Collateral is located, in substantially the form of
Exhibit L-3; and
(iv) a legal opinion of Xxxxxxxx & Xxxxx, special New York
Counsel for the Sponsor, in substantially the form of Exhibit L-4;
Corporate Documents. The Administrative Agents shall have received:
-------------------
(i) Charter Documents. A certificate of the Secretary or
Assistant Secretary of each Credit Party dated the Effective Date and certifying
(A) that the by-laws or comparable governing instruments of such Credit Party
delivered pursuant to the execution of the Original Credit Agreement, have not
been modified or amended in any respect and remain in full force and effect in
accordance with their terms; (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors or comparable
governing body of such party (or, in the case of any partnership, of the general
partner of such party) authorizing the execution, delivery and performance of
this Amended Agreement, and, in the case of the Borrower, the extensions of
credit hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate of
incorporation or other charter documents of such party, including any amendment
thereto, delivered pursuant to the execution of the Original Credit Agreement
have not been modified or amended in any respect and remain in full force and
effect in accordance with their terms, and (D) as to the incumbency and specimen
signature of each officer executing any Credit Document or any other document
delivered in connection herewith on behalf of such Credit Party; and
(ii) Good Standing. Copies of certificates of good standing,
existence or the equivalent of each such party as of a recent date, from such
Secretary of State (or other domestic or foreign authority (where available));
(iii) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the security interest of the
Secured Parties in the Collateral.
Fees. The Borrower shall have paid all Fees and other amounts due and
payable to the Agents, or any Lender on or prior to the Effective Date,
including, without limitation, all fees and other amounts accrued to the
Effective Date to the Administrative Agent for the account of each Lender
pursuant to Section 3.5 of the Original Credit Agreement.
Consents and Approvals. The Sponsor Group, the Borrower, the Parent,
the other Credit Parties shall have obtained all governmental, shareholder and
third party consents and approvals necessary or, in the opinion of the
Administrative Agent, desirable in connection with the execution, delivery and
performance of this Amended Agreement and the other Credit Documents (including
the exercise of remedies under the Collateral Documents) the other related
financings and transactions contemplated hereby and the continuing operations of
the Borrower and its Subsidiaries following the Effective Date, and all
applicable waiting periods (including any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976) shall have expired, in
each case, without any action being taken by any Governmental Authority that
could restrain, prevent or impose any material adverse condition on the
Consolidated Parties taken as a whole or such transactions or that could seek or
threaten any of the foregoing, and no law or regulation shall be applicable
which in the judgment of the Administrative Agent could have such effect.
Material Adverse Effect. (i) From December 31, 1999 to the Effective
Date, nothing shall have occurred (and neither the Lenders nor the
Administrative Agent shall have become aware of any facts or circumstances not
previously known) which has, or could reasonably be expected to have, a Material
Adverse Effect.
(ii) From March 31, 2000 to the Effective Date, nothing shall
have occurred (and neither the Lenders nor the Administrative Agent shall have
become aware of any facts or circumstances not previously known) which has or
could reasonably be expected to have a material adverse effect on the financial
condition, operations, business assets, liabilities (actual or contingent)
historical cash flows or prospects of the Sponsor.
Litigation. There shall not exist any order, decree, judgment, ruling
or injunction or any pending or threatened action, suit, investigation or
proceeding that purports to affect the transactions contemplated by the Credit
Facilities or the other related financings or that could reasonably be expected
to have a Material Adverse Effect.
Change in Market. There shall not exist any material disruption of, or
a material adverse change in, the market for syndicated bank credit facilities
or financial, banking or capital market conditions.
Officer's Certificates. The Administrative Agent shall have received a
certificate or certificates executed by an executive officer of the Borrower,
dated as of the Effective Date, certifying that (i) each Consolidated Party is
in compliance with all existing financial obligations, (ii) the conditions set
forth in subsections 4.1(b), (f), (g), (h) and (i), shall have been satisfied,
and (iii) immediately after giving effect to the execution and delivery of this
Amended Agreement and, the other Credit Documents and the consummation of all
the transactions contemplated therein to occur on the Effective Date, (A) each
of the Credit Parties is Solvent, (B) no Default or Event of Default exists, (C)
all representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects and (D) the Credit
Parties are in compliance on a Pro Forma Basis with each of the financial
covenants set forth in Section 7.19 as of the last day of the most recent fiscal
quarter of the Borrower (as if the opening levels applicable to such covenants
were in effect on such day).
Tranche B Put Agreement. The Administrative Agent shall have received:
-----------------------
(i) Financial Statements. Interim unaudited quarterly
financial statement of the Sponsor for the most recently completed calendar
quarter prior to the Effective Date, certified by a responsible officer of the
Sponsor as true and correct;
(ii) Corporate Documents of the Sponsor. (A) Charter
Documents. Copies of the articles or certificates of incorporation or other
charter documents of the Sponsor certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary or assistant
secretary of the Sponsor to be true and correct as of the Effective Date.
(A) Bylaws. A copy of the bylaws of the Sponsor
certified by a Secretary or Assistant Secretary of the Sponsor to be true and
correct as of the Effective Date.
(B) Good Standing. Copies of (x) certificates of good
standing, existence or the equivalent with respect to the Sponsor certified as
of a recent date by the appropriate Governmental Authority of its state or other
jurisdiction of incorporation and each other jurisdiction in which the failure
to be qualified to do business and in good standing could reasonably be expected
to have a material adverse effect and (y) to the extent available, a certificate
indicating payment of all corporate franchise taxes certified as of a recent
date by the appropriate governmental taxing authority of its state or other
jurisdiction of incorporation and each other jurisdiction referred to in clause
(x) above.
(C) Incumbency. A certificate of the Sponsor as to
the incumbancy and specimen signature of each officer executing the Tranche B
Put Agreement or any other document delivered in connection therewith certified
by a Secretary or Assistant Secretary of the Sponsor to be true and correct as
of the Effective Date.
Other. The Lenders shall have received such other documents,
instruments, agreements or information as reasonably requested by any Lender,
including information regarding litigation, investigations and other
proceedings, compliance with applicable laws, regulations and consent orders,
tax matters, accounting matters, labor agreements, pension liabilities (actual
or contingent) and other employee benefits, and other employee-related matters,
insurance coverage, real estate leases, material contracts and relationships,
debt agreements, transactions with Affiliates and former Affiliates, property
ownership, Capital Leases, trademarks, other proprietary rights and related
licenses, capital stock, options and warrants, and contingent liabilities of the
Consolidated Parties. The Administrative Agent shall have reviewed and be
satisfied with the results of any reports or other information from third
parties performing due diligence on behalf of the Sponsor Group.
Conditions to all Extensions of Credit. The obligations of each Lender
to make any Loan, Convert any existing Loan into a Loan of another Type or
Extend any existing Loan into a subsequent Interest Period and of the Issuing
Lender to issue or extend any Letter of Credit are subject to satisfaction on
the date such Loan is made, Converted or Extended or the date such Letter of
Credit is issued or extended, as applicable, to satisfaction of each of the
following conditions, except that clause (f) below shall apply only with respect
to the Tranche B Lenders' obligations as to the Tranche B Revolving Loans:
(a) The Borrower shall have delivered (i) in the case of any Revolving
Loan, an appropriate Notice of Borrowing or Notice of Extension/Conversion or
(ii) in the case of any Letter of Credit, the Issuing Lender shall have received
an appropriate request for issuance or extension in accordance with the
provisions of Section 2.3(b);
(b) The representations and warranties set forth in Section 5 and in
each of the other Credit Documents shall be true and correct in all material
respects as of such date (except for those which expressly relate to an earlier
date, in which case such representations and warranties shall be true and
correct in all material respects on and as of such earlier date);
(c) There shall not have been commenced against any Credit Party an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or for the winding up or liquidation of its affairs, which
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be continuing either
prior to the making, Conversion or Extension of such Loan or the issuance or
extension of such Letter of Credit or after giving effect thereto;
(e) No material adverse change shall have occurred or become known
since December 31, 1999 in the condition (financial or otherwise), business,
assets, liabilities (actual or contingent), historical or projected revenues or
cash flows, operations, material relationships, management or prospects of the
Consolidated Parties taken as a whole;
(f) No material adverse change shall have occurred or become known
since March 31, 2000 in the condition (financial or otherwise), business,
assets, liabilities (actual or contingent), historical or projected revenues or
cash flows, operations, material relationships, management or prospects of the
Sponsor;
(g) Immediately after giving effect to the making, Conversion or
Extension of such Loan (and the application of the proceeds thereof) or to the
issuance or extension of such Letter of Credit, as applicable, the aggregate
principal amount of outstanding Tranche A Revolving Loans, Tranche B Revolving
Loans and the aggregate amount of outstanding LOC Obligations shall not exceed
any of the limitations applicable thereto set forth in Section 2; and
(h) The delivery of each Notice of Borrowing, each Notice of
Extension/Conversion and each request for the issuance or extension of a Letter
of Credit pursuant to Section 2.3(b) shall constitute a representation and
warranty by the Borrower of the correctness of the matters specified in
subsections (b), (c), (d), (e), (f) and (g) above.
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Parent and the Borrower hereby represent, jointly and severally, to
the Administrative Agent and each Lender that:
5.1 Financial Condition.
(a) The audited consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of December 31, 1999, and the audited
consolidated and consolidating statements of earnings and statements of cash
flows of the Borrower and its Subsidiaries for the years ended December 31,
1999, have heretofore been furnished to each Lender. Such financial statements
(including the notes thereto) (i) have been audited by Ernst & Young, (ii) have
been prepared in accordance with GAAP consistently applied throughout the
periods covered thereby and (iii) present fairly (on the basis disclosed in the
footnotes to such financial statements) the consolidated and consolidating
financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries as of such dates and for such periods. The unaudited interim
balance sheets of the Borrower and its Subsidiaries as at the end of, and the
related unaudited interim statements of earnings and of cash flows for, each
fiscal month and quarterly period ended after December 31, 1999 and prior to the
Effective Date for which financial information is available have heretofore been
furnished to each Lender. Such interim financial statements for each such period
(i) have been prepared in accordance with GAAP consistently applied throughout
the periods covered thereby, except for the absence of footnotes, and (ii)
present fairly the consolidated and consolidating financial condition, results
of operations and cash flows of the Borrower and its Subsidiaries as of such
dates and for such periods, except for recurring annual audit adjustments.
During the period from December 31, 1999 to and including the Effective Date,
there has been no sale, transfer or other disposition by any Consolidated Party
of any material part of the business or property of the Consolidated Parties,
taken as a whole, and no purchase or other acquisition by any of them of any
business or property (including any capital stock of any other Person) material
in relation to the consolidated financial condition of the Consolidated Parties,
taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto. Except as disclosed in Schedule
5.1, the balance sheets and the notes thereto included in the foregoing
financial statements disclose all material liabilities, actual or contingent, of
the Borrower and its Subsidiaries as of the dates thereof.
(b) As of the Effective Date, the Consolidated Parties do not have any
material liabilities, actual or contingent, or Preferred Stock except (i) as
disclosed in the most recent interim balance sheet referred to in subsection (a)
above, (ii) for items disclosed in Schedule 5.1, (iii) for accounts payable
incurred in the ordinary course of business consistent with past practice since
the date of the most recent interim balance sheet referred to in subsection (a)
above, (iv) Indebtedness under the Credit Documents and (v) Indebtedness set
forth on Schedule 7.1.
(c) The financial statements delivered to the Lenders pursuant to
Section 6.1(a) and (b), if any, (i) have been prepared in accordance with GAAP
(except as may otherwise be permitted under Section 6.1(a) and (b)) and (ii)
present fairly (on the basis disclosed in the footnotes to such financial
statements, if any) the consolidated and consolidating financial condition,
results of operations and cash flows of the Borrower and its Consolidated
Subsidiaries as of the respective dates thereof and for the respective periods
covered thereby.
Certain Payments. Except for dividends paid after the Effective Date as
permitted under this Amended Agreement, no dividends or other distributions have
been declared, paid or made upon the Capital Stock of any Consolidated Party nor
has any of the Capital Stock of any Consolidated Party been redeemed, retired,
purchased or otherwise acquired for value.
Organization and Good Standing. Each of the Consolidated Parties (a) is
duly organized, validly existing and is in good standing under the laws of the
jurisdiction of its incorporation or organization, (b) has the corporate or
other necessary power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not reasonably be expected to have
a Material Adverse Effect.
Power; Authorization; Enforceable Obligations. Each of the Credit
Parties has the corporate or other necessary power and authority, and the legal
right, to execute, deliver and perform the Operative Documents to which it is a
party and, in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Amended Agreement and to authorize the execution, delivery and performance of
the Operative Documents to which it is a party. No consent or authorization of,
filing with, notice to or other similar act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Credit Party in connection with the borrowings or other
extensions of credit hereunder or with the execution, delivery, performance,
validity or enforceability of the Operative Documents to which such Credit Party
is a party, except for filings to perfect the Liens created by the Collateral
Documents. This Amended Agreement has been, and each other Operative Document to
which any Credit Party is a party will be, duly executed and delivered on behalf
of such Credit Party. This Amended Agreement constitutes, and each other
Operative Document to which any Credit Party is a party when executed and
delivered will constitute, a legal, valid and binding obligation of such Credit
Party, enforceable against such Person in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
No Conflicts. Neither the execution and delivery by any Credit Party of
the Operative Documents to which it is a party, nor the consummation of the
transactions contemplated therein, nor performance of and compliance with the
terms and provisions thereof by such Credit Party, nor the exercise of remedies
by the Secured Parties under the Credit Documents, will (a) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws or
other organizational or governing documents of such Person, (b) violate,
contravene or conflict with any Requirement of Law (including Regulation U or
Regulation X) applicable to it or its Properties, (c) violate, contravene or
conflict with contractual provisions of, cause an event of default under, or
give rise to material increased, additional, accelerated or guaranteed rights of
any Person under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound, or (d) result in or require the creation of any Lien (other than
the Lien of the Collateral Documents) upon or with respect to its Properties.
No Default. As of the Effective Date, no Consolidated Party is in
default in any respect under (a) any loan agreement, indenture, mortgage,
security agreement or other agreement relating to Indebtedness or any other
contract, lease, agreement or obligation to which it is a party or by which any
of its Properties is bound which default could reasonably be expected to have a
Material Adverse Effect or (b) the Junior Subordinated Note or the Senior
Subordinated Credit Facility. As of the Effective Date, no Default or Event of
Default has occurred or exists.
Assets. As of the Effective Date, each Consolidated Party is the owner
of, and has good and marketable title to, all of its respective assets and none
of such assets is subject to any Lien, other than Permitted Liens, which could
reasonably be expected to have a Material Adverse Effect.
Litigation. Except as disclosed in Schedule 5.8, there are no actions,
suits, investigations or legal, equitable, arbitration or administrative
proceedings pending for which service of process or other written notice has
been received or, to the knowledge of any Credit Party, threatened against or
affecting any Consolidated Party which could reasonably be expected to have a
Material Adverse Effect or which are pending or, to the knowledge of any Credit
Party, threatened as of the Effective Date.
Taxes. Each Consolidated Party has filed, or caused to be filed, all
tax returns (including federal, state, local and foreign tax returns) required
to be filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent, (ii) that are being contested in good faith and by proper
proceedings diligently pursued, and against which adequate reserves are being
maintained in accordance with GAAP or (iii) the failure of which to pay would
not be reasonably expected to have a Material Adverse Effect. No Credit Party
knows as of the Effective Date of any pending investigation of such party by any
taxing authority or proposed tax assessments against it or any other
Consolidated Party.
Compliance with Law. Each Consolidated Party is in compliance with all
Requirements of Law (including Environmental Laws) applicable to it or to its
Properties, except for any such failure to comply which could not reasonably be
expected to have a Material Adverse Effect. No Requirement of Law could
reasonably be expected to cause a Material Adverse Effect. To the knowledge of
the Credit Parties, as of the Effective Date, none of the Consolidated Parties
or any of their respective material Properties or assets is subject to or in
default with respect to any judgment, writ, injunction, decree or order of any
court or other Governmental Authority. Except as disclosed in Schedule 5.10,
none of the Consolidated Parties has received any written communication prior to
the Effective Date from any Governmental Authority that alleges that any of the
Consolidated Parties is not in compliance in any material respect with any
Requirement of Law, except for allegations that have been satisfactorily
resolved and are no longer outstanding.
ERISA. Except as disclosed in Schedule 5.11 and except, with respect to
any Plan or Multiemployer Plan sponsored or contributed to by any ERISA
Affiliate of the Sponsor, other than any Consolidated Party, to the extent any
of the following would not, either individually or in the aggregate, result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Plan
and, to the knowledge of the Credit Parties, each Multiemployer Plan has been
maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Plan, as of the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case, in accordance
with Financial Accounting Standards Board Statement 87, utilizing the actuarial
assumptions used in such Plan's most recent actuarial valuation report), did not
exceed as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither any Consolidated Party nor any ERISA Affiliate has
incurred, or, to the knowledge of the Credit Parties, could be reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. Neither any Consolidated Party nor any ERISA
Affiliate would become subject to any withdrawal liability under ERISA if any
Consolidated Party or any ERISA Affiliate were to withdraw completely from all
Multiemployer Plans and Multiple Employer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed made.
Neither any Consolidated Party nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within the
meaning of Section 4241 of ERISA), is insolvent (within the meaning of Section
4245 of ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the knowledge of the Credit Parties,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any
Consolidated Party or any ERISA Affiliate to any liability under Section 406,
409, 502(i) or 502(1) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any Consolidated Party or any
ERISA Affiliate has agreed or is required to indemnify any Person against any
such liability.
(e) Neither any Consolidated Party nor any ERISA Affiliate has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601 through 609 of ERISA and Section 4980B of the Code
apply has been administered in compliance in all material respects of such
sections.
(f) Neither the execution and delivery of this Amended Agreement nor
the consummation of the financing transactions contemplated hereunder will
involve any transaction which is subject to the prohibitions of Sections 404,
406 or 407 of ERISA or in connection with which a tax could be imposed pursuant
to Section 4975 of the Code. The representation by the Credit Parties in the
preceding sentence is made in reliance upon and subject to the accuracy of the
Lenders' representation in Section 10.15 with respect to their source of funds
and is subject, in the event that the source of the funds used by the Lenders in
connection with this transaction is an insurance company's general asset
account, to the application of Prohibited Transaction Class Exemption 95-60, 60
Fed. Reg. 35,925 (1995), compliance with the regulations issued under Section
401(c)(1)(A) of ERISA, or the issuance of any other prohibited transaction
exemption or similar relief, to the effect that assets in an insurance company's
general asset account do not constitute assets of an "employee benefit plan"
within the meaning of Section 3(3) of ERISA of a "plan" within the meaning of
Section 4975(e)(1) of the Code.
Subsidiaries. Schedule 5.12 sets forth a complete and accurate list as
of the Effective Date of all Subsidiaries of the Borrower. Schedule 5.12 sets
forth as of the Effective Date the jurisdiction of incorporation of each such
Subsidiary, the number of authorized shares of each class of Capital Stock of
each such Subsidiary, the number of outstanding shares of each class of Capital
Stock, the number and percentage of outstanding shares of each class of Capital
Stock of each such Subsidiary owned (directly or indirectly) by any Person; and
the number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect to
Capital Stock of each such Subsidiary. All the outstanding Capital Stock of each
Subsidiary of the Borrower is validly issued, fully paid and non-assessable and,
as of the Effective Date, is owned by the Borrower, directly or indirectly, free
and clear of all Liens (other than those arising under the Collateral
Documents). Other than as set forth in Schedule 5.12, as of the Effective Date,
no such Subsidiary has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its Capital Stock.
The Parent has no Subsidiaries, other than the Borrower and its Subsidiaries.
Governmental Regulations, Etc. (a) No part of the Letters of Credit or
proceeds of the Loans will be used, directly or indirectly, for the purpose of
purchasing or carrying any "margin stock" within the meaning of Regulation U, or
for the purpose of purchasing or carrying or trading in any securities. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in Regulation U.
No indebtedness being reduced or retired out of the proceeds of the Loans was or
will be incurred for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or any "margin security" within the meaning
of Regulation T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Consolidated Parties. None of the transactions contemplated by this Amended
Agreement (including the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of the Securities Act of 1933, as amended,
the Exchange Act or regulations issued pursuant thereto, or Regulation T, U or
X.
(b) No Consolidated Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended. In addition, no Consolidated Party is (i)
an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, (ii) controlled by such a company,
or (iii) a "holding company", a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(c) No director, executive officer or principal holder of Capital Stock
of any Consolidated Party is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O issued by
the Board of Governors of the Federal Reserve System.
(d) Each Consolidated Party has obtained and holds in full force and
effect all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the ownership of its respective
Property and to the conduct of its respective businesses as presently conducted.
(e) Each Consolidated Party is current with all material reports and
documents, if any, required to be filed with any state or federal securities
commission or similar agency and is in full compliance in all material respects
with all applicable rules and regulations of such commissions.
Purpose of Loans and Letters of Credit. The proceeds of the Tranche A
Revolving Loans and the Tranche B Revolving Loans made on and after the
Effective Date will be used solely to provide for the working capital
requirements of the Borrower and its Subsidiaries and for the general corporate
purposes of the Borrower and its Subsidiaries, including Permitted Acquisitions.
The Letters of Credit shall be used only for or in connection with appeal bonds,
reimbursement obligations arising in connection with surety and reclamation
bonds, reinsurance, domestic or international trade transactions and other
obligations relating to transactions entered into by the Borrower and its
Subsidiaries in the ordinary course of business.
Environmental Matters. Except as disclosed in Schedule 5.15:
--------------------- -------------
(a) Each of the facilities and properties currently or previously
owned, leased or operated by the Consolidated Parties (the "Company Properties")
and all operations at the Company Properties are in material compliance with all
applicable Environmental Laws, and there is no material violation of any
Environmental Law with respect to the Company Properties or the businesses
operated by the Consolidated Parties (the "Businesses"), and there are no
conditions or circumstances relating to the Businesses or Company Properties or
any former facilities, properties or businesses of the Consolidated Parties that
is reasonably likely to give rise to liability of any Consolidated Party under
any applicable Environmental Laws or under any agreement or other instrument
pursuant to which any Consolidated Party has agreed or is required to indemnify
any Person against any such liability.
(b) None of the Company Properties contains, or, to the knowledge of
the Borrower, has previously contained, any Materials of Environmental Concern
at, on or under the Company Properties in amounts or concentrations that
constitute or constituted a violation of, or is reasonably likely to give rise
to liability of any Consolidated Party under, Environmental Laws or under any
agreement or other instrument pursuant to which any Consolidated Party has
agreed or is required to indemnify any Person against any such liability.
(c) No Consolidated Party has received prior to the Effective Date any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Company Properties or the
Businesses, nor does any Consolidated Party have knowledge or reason to believe
as of the Effective Date that any such notice will be received or is being
threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Company Properties, or generated, treated, stored or
disposed of at, on or under any of the Company Properties or any other location,
in each case by or on behalf of any Consolidated Party in violation of, or in a
manner that is reasonably likely to give rise to liability of any Consolidated
Party under, any applicable Environmental Law or under any agreement or other
instrument pursuant to which any Consolidated Party has agreed or is required to
indemnify any Person against any such liability.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of any Credit Party, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees, consent orders, administrative orders,
other decrees or orders or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Consolidated
Parties, the Company Properties or the Businesses.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Company Properties, or arising from or
related to the operations (including disposal) of any Consolidated Party in
connection with the Company Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that is reasonably
likely to give rise to liability under Environmental Laws or under any agreement
or other instrument pursuant to which any Consolidated Party has agreed or is
required to indemnify any Person against any such liability.
Intellectual Property. Except as disclosed in Schedule 5.16:
--------------------- -------------
(a) Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, service marks, proprietary techniques,
patents, patent applications, trade secrets, technology, know-how and processes
(the "Intellectual Property") necessary for each of them to conduct its business
as currently conducted except for those the failure to own or have such legal
right to use could not reasonably be expected to have a Material Adverse Effect.
All material Intellectual Property owned by any Consolidated Party (is referred
to herein as the "Material Owned Intellectual Property") and all material
Intellectual Property that any Consolidated Party has the right to use, but not
ownership of "Material Licensed Intellectual Property." The Material Owned
Intellectual Property and the Material Licensed Intellectual Property is
referred to collectively as the "Material Intellectual Property". Schedule 5.16
sets forth a complete and accurate list as of the Effective Date of each of the
Material Owned Intellectual Property and the Material Licensed Intellectual
Property. None of the Consolidated Parties has granted any options, licenses or
agreements of any kind relating to Material Intellectual Property.
(b) No claim has been asserted and is pending by any Person challenging
or questioning the use, ownership or enforceability of any Material Intellectual
Property or the validity or effectiveness of any Material Intellectual Property,
nor does any Credit Party know of any such claim, and to the Credit Parties'
knowledge the use of the Material Intellectual Property by any Consolidated
Party does not infringe on the rights of any Person. None of the Consolidated
Parties is in breach of any material provision of any license, sublicense or
other agreement which relates to any of the Material Licensed Intellectual
Property, and none of the Consolidated Parties have taken any action which would
impair or otherwise adversely affect its rights in any of the Material
Intellectual Property. All the Material Owned Intellectual Property is valid and
enforceable, except that, with respect to the applications to register any
unregistered Intellectual Property (but not with respect to the underlying
Intellectual Property rights that are the subject of such applications), the
Credit Parties only represent and warrant that such applications are pending and
in good standing all without challenge of any kind.
(c) The Material Owned Intellectual Property has been maintained in
confidence in accordance with protection procedures customarily used to protect
rights of like importance. To the knowledge of the Credit Parties, all former
and current members of management and key personnel of each Consolidated Party,
including all former and current employees, agents, consultants and independent
contractors who have contributed to or participated in the conception and
development of any of the Material Owned Intellectual Property (collectively,
"Personnel"), have executed and delivered to such Consolidated Party a
proprietary information agreement restricting such Person's right to disclose
proprietary information of the Consolidated Parties and their respective
clients. All former and current Personnel, either (A) have been party to a
"work-for-hire" arrangement or agreement with the Consolidated Parties, in
accordance with applicable Federal and state law, that has accorded the
Consolidated Parties full, effective, exclusive and original ownership of all
tangible and intangible property thereby arising or (B) have executed
appropriate instruments of assignment in favor of the Consolidated Parties as
assignee that have conveyed to the Consolidated Parties full, effective and
exclusive ownership of all tangible and intangible property thereby arising. No
former or current Personnel have any claim against the Consolidated Parties in
connection with such Person's involvement in the conception and development of
any Intellectual Property and no such claim has been asserted or is threatened.
None of the current officers and employees of any of the Consolidated Parties
have any patents issued or applications pending for any device, process, design
or invention of any kind now used or needed by any of the Consolidated Parties
in the furtherance of its business operations, which patents or applications
have not been assigned to the Consolidated Parties, with such assignment duly
recorded in the United States Patent Office.
Solvency. Each Credit Party is and, after consummation of the
transactions contemplated by this Amended Agreement, will be Solvent. The total
amount of any distributions paid by the Borrower in connection with the
transactions contemplated by the Acquisition Agreement will not exceed the
aggregate amount of funds of the Borrower legally available therefor at the time
of consummation of the Acquisition.
Investments. All Investments of any Consolidated Party are Permitted
Investments.
Location of Collateral. Schedule 5.19(a) sets forth a complete and
accurate list as of the Effective Date of (i) each real property owned by the
Consolidated Parties and (ii) each real property leased by the Consolidated
Parties for which annual rental payments exceed $50,000, in each case with
street address, county, state and country where located. Set forth on Schedule
5.19(b) is a complete and accurate list as of the Effective Date of all real
property asset in which any Credit Party has a fee interest and/or leasehold
interest with street address, county, state and country where located. Set forth
on Schedule 5.19(c) is a complete and accurate list as of the Effective Date of
all locations where any tangible personal property of a Credit Party is located,
including county and state where located. Set forth on Schedule 5.19(d) is the
chief executive office and principal place of business of each Consolidated
Party as of the Effective Date.
Disclosure. Neither this Amended Agreement nor any financial statements
delivered to the Lenders pursuant hereto nor any other document or certificate
furnished to the Lenders in writing by or on behalf of any Consolidated Party in
connection with the transactions contemplated hereby (other than final
projections) contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements contained therein or
herein not misleading. All financial projections that have been made available
to the Administrative Agent or the Lenders by any Consolidated Party or any
representatives thereof in connection with the transactions contemplated hereby
have been prepared in good faith based upon assumptions believed by the
Consolidated Parties to be reasonable.
No Burdensome Restrictions; Material Agreements. (a) No Consolidated
Party is a party to any agreement or instrument or subject to any other
obligation or any charter or corporate restriction or any provision of any
applicable law, rule or regulation which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. Schedule 5.21
sets forth a complete and accurate list as of the Effective Date of each
agreement, contract, lease, license, commitment or other instrument to which any
Consolidated Party is a party or by which it or any of its Properties are or may
be bound, after giving effect to the transactions contemplated by the
Acquisition Agreement, the loss of which could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect
(collectively, the "Material Contracts").
(b) Except as set forth in Schedule 5.21, as of the Effective Date,
each Material Contract will be in all material respects valid, binding and in
full force and effect and will be enforceable by the Borrower or the Subsidiary
of the Borrower which is a party thereto in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
equitable principles (whether in equity or at law). Except as set forth in
Schedule 5.21, as of the Effective Date, each of the Borrower and the
Subsidiaries will have performed in all material respects all obligations
required to be performed by it to date under the Material Contracts and it will
not be (with or without the lapse of time or the giving of notice, or both) in
breach or default in any material respect thereunder and, to the knowledge of
the Credit Parties, no other party to any of the Material Contracts will be
(with or without the lapse of time or the giving of notice, or both) in breach
or default in any material respect thereunder. As of the Effective Date, neither
the Borrower nor any of the Subsidiaries, nor, to the knowledge of the Borrower,
any other party to any Material Contract, will have given notice of termination
of, or taken any action inconsistent with the continuation of, any Material
Contract. As of the Effective Date, none of such other parties will have any
presently exercisable right to terminate any Material Contract for any reason,
including as a result of the execution, delivery or performance of the Operative
Documents, the collateral assignment of such Material Contract to the
Administrative Agent on behalf of the Lenders or the consummation of the
transactions contemplated by the Acquisition Agreement, except as set forth on
Schedule 5.21.
(c) As of the Effective Date, none of the Consolidated Parties has any
knowledge of any actual or threatened materially adverse change in the
relationship between any Consolidated Party and any material customer, supplier
distributor or other party with whom such Consolidated Party does business.
Labor Matters. Except as disclosed in Schedule 5.22, there are no
collective bargaining agreements or Multiemployer Plans covering the employees
of a Consolidated Party as of the Effective Date and none of the Consolidated
Parties has suffered any strike, walkout, work stoppage, unfair labor practice
complaint or other material labor difficulty within the five years prior to the
Effective Date. To the knowledge of the Credit Parties, as of the Effective
Date, no union representation question exists with respect to the employees of
the Consolidated Parties and no union organizing activities are taking place.
The hours worked by and payments made to employees of the Consolidated Parties
have not been in violation in any material respect of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with
such matters. All payments due from any Consolidated Party, or for which any
claim may be made against any Consolidated Party, on account of wages, employee
health and welfare insurance or other benefits, have been paid or accrued as a
liability on the books of the Consolidated Parties.
Nature of Business. As of the Effective Date, the Consolidated Parties
are engaged in the business of managing and marketing coal combustion
by-products and other by-products and the business of the manufacture and sale
of construction materials.
Representations and Warranties from Other Agreements. As of the
Effective Date, each of the representations and warranties made by any
Consolidated Party and the Sponsor in any of the Operative Documents is true and
correct in all material respects.
Security Documents. (a) The Security Agreement is effective to create
in favor of the Administrative Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable first priority security interest in the
Collateral (as defined in the Security Agreement), other than Real Estate (as
defined in the Security Agreement) and, the Security Agreement constitutes a
fully perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in such of the Collateral in which a security
interest can be perfected under Article 8 or 9 of the Uniform Commercial Code,
in each case prior and superior in right to any other Person, other than with
respect to Permitted Liens.
(b) The Security Agreement constitutes a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors thereunder
in the Intellectual Property covered in the Security Agreement, in each case
prior and superior in right to any other Person (it being understood that
subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the grantors after
the Effective Date).
(c) The Administrative Agent, for the ratable benefit of the Secured
Parties, will at all times have the Liens provided for in the Collateral
Documents and, subject to the filing by the Administrative Agent of continuation
statements to the extent required by the Uniform Commercial Code, the Collateral
Documents will at all times constitute a valid and continuing lien of record and
first priority perfected security interest in all the Collateral referred to
therein, except as priority may be affected by Permitted Liens. No filings or
recordings are required in order to perfect the security interests created under
the Collateral Documents, except for filings or recordings listed on Schedule
5.25(c).
Transactions with Affiliates. Except as set forth in Schedule 5.26 and
except for agreements and arrangements among the Borrower and its Wholly Owned
Subsidiaries or among Wholly Owned Subsidiaries of the Borrower, neither the
Borrower nor any of its Subsidiaries will be, a party to or engaged in any
transaction with, and none of the properties and assets of the Borrower or any
of its Subsidiaries will be subject to or bound by any agreement or arrangement
with, (a) any Affiliate of any Consolidated Party, (b) the Sponsor or any of its
Affiliates.
Ownership. (a) The authorized Capital Stock of the Parent consists of
(i) 500,000 shares of the common stock, $0.01 par value, of which 495,000 shares
are issued and outstanding on the Effective Date and (ii) 35,000 shares of
Series A Preferred Stock and 35,050 shares of Series B Preferred Stock, all of
which are outstanding. All of the outstanding shares of the common stock of the
Parent and the Borrower have been duly and validly authorized and issued, are
fully paid and nonassessable, and were not issued in violation of the preemptive
rights of any stockholder. The Parent owns good, valid and marketable title to
all the outstanding common stock of the Borrower, free and clear of all Liens of
every kind, whether absolute, matured, contingent or otherwise, other than those
arising under the Collateral Documents. Other than as set forth on Schedule 5.27
and except for the Warrants and the Stock Purchase Warrants, as of the Effective
Date, the Borrower has no outstanding securities convertible into or
exchangeable for its Capital Stock, no outstanding rights to subscribe for or
purchase its Capital Stock, no outstanding options for the purchase of its
Capital Stock, no agreements providing for the issuance (contingent or
otherwise) of its Capital Stock, no incentive units, phantom stock or similar
arrangements and no calls, commitments or claims of any character relating to
its Capital Stock. Except as set forth on Schedule 5.27 and except for the
Stockholders Agreement, there are no shareholders agreements or other agreements
pertaining to the Parent's beneficial ownership of the common stock of the
Borrower, including any agreement that would restrict the Parent's right to
dispose of such common stock and/or its right to vote such common stock.
(b) Schedule 5.27 sets forth a true and accurate list as of the
Effective Date of each holder of Capital Stock of the Parent or the Borrower,
indicating the name of each such holder and the Capital Stock held by each such
Person. Except as set forth on Schedule 5.27 and except for the Stockholders
Agreement, there are no shareholders agreements or other agreements pertaining
to the Sponsor Group's beneficial ownership of the common stock of the Parent,
including any agreement that would restrict the Sponsor Group's right to dispose
of such common stock and/or its right to vote such common stock.
Insurance. The Consolidated Parties maintain policies of fire and
casualty, liability, business interruption and other forms of insurance in such
amounts, with such deductibles and against such risks and losses as are in
accordance with normal industry practice for the business and assets of the
Consolidated Parties. All such policies are in full force and effect, all
premiums due and payable thereon have been paid (other than retroactive or
retrospective premium adjustments that are not yet, but may be, required to be
paid with respect to any prior period under comprehensive general liability and
workmen's compensation insurance policies), and no notice of cancellation or
termination has been received with respect to any such policy which has not been
replaced on substantially similar terms prior to the date of such cancellation.
The activities and operations of the Consolidated Parties have been conducted in
a manner so as to conform in all material respects to all applicable provisions
of such insurance policies. Schedule 5.28 sets forth the insurance coverage of
the Consolidated Parties by carrier, policy number, expiration date, type and
amount as of the Effective Date.
Licenses. Schedule 5.29 contains a true and complete list of all
Licenses (including, without limitation, any issued by the Federal Highway
Administration or by the Department of Transportation) used in and material to
the business or operations of the Consolidated Parties, setting forth the owner,
the function and the expiration and renewal date of each. Except as disclosed on
Schedule 5.29:
(a) the Consolidated Parties own or validly hold all Licenses that are
material to their respective business or operations;
(b) each License listed on Schedule 5.29 is valid, binding and in full
force and effect; and -------------
(c) no Consolidated Party is, or has received any notice that it is, in
default (or with the giving of notice or lapse of time or both, would be in
default) under any such License.
Year 2000 Compliance. The Borrower has (a) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower or any of its Subsidiaries (or its suppliers
and vendors) may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to, including and any date after
December 31, 1999), (b) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis, and (c) to date, implemented that plan
substantially in accordance with that timetable. The Borrower reasonably
believes that all computer applications (including those of its suppliers and
vendors) that are material to its or any of its Subsidiaries' business and
operations will on a timely basis be able to perform properly date-sensitive
functions for all dates before, including and after January 1, 2000 (that is, be
"Year 2000 Compliant"), except to the extent that a failure to do so could not
reasonably be expected to have Material Adverse Effect.
SECTION 6
AFFIRMATIVE COVENANTS
The Parent and the Borrower hereby covenant and agree, jointly and
severally, that so long as this Amended Agreement is in effect or any amounts
payable hereunder or under any other Credit Document shall remain outstanding
and until all of the Commitments hereunder shall have terminated and all Letters
of Credit shall have expired or been cancelled:
Information Covenants. The Borrower will furnish, or cause to be
furnished, to the Administrative Agent and each of the Lenders:
Annual Financial Statements. As soon as available, and in any event
within 90 days after the end of each fiscal year of the Parent, a consolidated
and consolidating balance sheet and income statement of the Parent and its
Consolidated Subsidiaries, as of the end of such fiscal year, together with
related consolidated and consolidating statements of operations and retained
earnings and of cash flows for such fiscal year, setting forth in comparative
form consolidated and consolidating figures for the preceding fiscal year, all
such financial statements to be in reasonable form and detail and audited by
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and accompanied by an opinion
of such accountants (which shall not be qualified or limited in any material
respect) to the effect that such financial statements have been prepared in
accordance with GAAP and fairly present the consolidated financial position and
consolidated results of operations and cash flows of the Parent and its
Consolidated Subsidiaries in accordance with GAAP consistently applied (except
for changes with which such accountants concur).
Monthly Financial Statements. As soon as available, and in any event
within 45 days after the end of each month in each fiscal year of the Parent, a
consolidated and consolidating balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of such month, together with related consolidated and
consolidating statements of operations and retained earnings and of cash flows
for such month and the then elapsed portion of such fiscal year, setting forth
in comparative form consolidated and consolidating figures for the corresponding
period of the preceding fiscal year, all such financial statements to be in
reasonable form and detail and reasonably acceptable to the Administrative
Agent, and accompanied by a certificate of the chief financial officer of the
Parent to the effect that such monthly financial statements have been prepared
in accordance with GAAP and fairly present in all material respects the
consolidated financial position and consolidated results of operations and cash
flows of the Parent and its Consolidated Subsidiaries in accordance with GAAP
consistently applied, subject to changes resulting from normal year-end audit
adjustments.
Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 6.1(a) and 6.1(b) above, a certificate of
the chief financial officer of the Borrower substantially in the form of Exhibit
M (i) demonstrating compliance with the financial covenants contained in Section
7.19 by calculation thereof as of the end of each such fiscal period, (ii)
stating that no Default or Event of Default exists, or if any Default or Event
of Default does exist, specifying the nature and extent thereof and what action
the Borrower proposes to take with respect thereto and (iii) stating whether,
since the date of the most recent financial statements delivered hereunder,
there has been any material change in the generally accepted accounting
principles applied in the preparation of the financial statements of the Parent
and its Consolidated Subsidiaries, and, if so, describing such change.
Annual Business Plan and Budgets. At least 30 days prior to the end of
each fiscal year of the Borrower, beginning with the fiscal year ending December
31, 2000, an annual business plan and budget of the Borrower and its
Consolidated Subsidiaries containing, among other things, projected financial
statements for the next fiscal year.
Compliance With Certain Provisions of this Amended Agreement. Within 90
days after the end of each fiscal year of the Borrower, a certificate containing
information regarding the amount of Net Cash Proceeds from Asset Dispositions
(other than Excluded Asset Dispositions), Debt Issuances (other than Excluded
Debt Issuances) and Equity Issuances (other than Excluded Equity Issuances) that
were made during the prior fiscal year.
Accountant's Certificate. Within the period for delivery of the annual
financial statements provided for in Section 6.1(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Amended Agreement and stating further whether, in the course of their audit,
they have become aware of any Default or Event of Default and, if any such
Default or Event of Default exists, specifying the nature and extent thereof as
it relates to accounting matters.
Auditor's Reports. Promptly upon receipt thereof, a copy of any other
report or "management letter" submitted by independent accountants to any
Consolidated Party in connection with any annual, interim or special audit of
the books of such Consolidated Party.
Reports. Promptly upon transmission or receipt thereof, (i) copies of
all filings and registrations with, and reports to or from, the Securities and
Exchange Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as any Consolidated Party
shall send to its shareholders or to a holder of any Indebtedness owed by any
Consolidated Party in its capacity as such a holder and (ii) upon the request of
the Administrative Agent or the Required Lenders, all reports and written
information to and from the United States Environmental Protection Agency, or
any state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters.
Notices. Upon obtaining knowledge thereof, the Borrower will give
written notice to the Administrative Agent immediately of (i) the occurrence of
any event or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Borrower proposes to take
with respect thereto, and (ii) the occurrence of any of the following with
respect to any Consolidated Party: (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such Person which if
adversely determined could reasonably be expected to have a Material Adverse
Effect; or (B) the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential liability or
responsibility (direct or indirect) for violation, or alleged violation of any
federal, state or local law, rule or regulation, including Environmental Laws,
the violation of which could reasonably be expected to have a Material Adverse
Effect.
ERISA. The Borrower will give written notice to the Administrative
Agent promptly (and in any event within five (5) Business Days) after any
officer of any Consolidated Party obtains knowledge thereof of: (i) any event or
condition, including any Reportable Event, that constitutes, or is reasonably
likely to lead to, an ERISA Event; (ii) with respect to any Multiemployer Plan,
the receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Borrower or any of its ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all amounts
which any Consolidated Party or any ERISA Affiliate is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect thereto; or (iv) any
change in the funding status of any Plan that could have a Material Adverse
Effect, together with a description of any such event or condition or a copy of
any such notice and a statement by the chief financial officer of the Borrower
briefly setting forth the details regarding such event, condition or notice and
the action, if any, which has been or is being taken or is proposed to be taken
by the Borrower with respect thereto. Promptly upon request, the Consolidated
Parties shall furnish the Administrative Agent and the Lenders with such
additional information concerning any Plan as may be reasonably requested,
including copies of each annual report/return (Form 5500 series), as well as all
schedules and attachments thereto required to be filed with the Department of
Labor and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39) of
ERISA) as to any Plan maintained by them.
(k) Environmental.
(i) Upon the written request of the Administrative Agent, if
the Administrative Agent has determined (in the exercise of its reasonable good
faith discretion) that Materials of Environmental Concern may exist on any
Company Properties in amounts or concentrations that are reasonably likely to
give rise to liability of any Consolidated Party under Environmental Laws or
that a material violation of Environmental Laws at Company Properties may exist,
then the Consolidated Parties will furnish or cause to be furnished to the
Administrative Agent, at the expense of the Borrower, a report of an
environmental assessment of reasonable scope, form and depth (including, where
appropriate, invasive soil or groundwater sampling) by a consultant acceptable
to the Administrative Agent as to the nature and extent of the presence of any
Materials of Environmental Concern on any Company Properties and as to the
compliance by any Consolidated Party with Environmental Laws at the Company
Properties. If any Consolidated Party fails to deliver such an environmental
report within seventy-five (75) days after receipt of such written request, then
the Administrative Agent may arrange for the same, and the Parent and the
Borrower hereby grant, and agree to cause the other Consolidated Parties to
grant, to the Administrative Agent and their representatives access to the
Company Properties to reasonably undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling). The reasonable cost of any
assessment arranged by the Administrative Agent pursuant to this provision shall
be payable by the Borrower on demand and shall be added to the obligations
secured by the Collateral Documents.
(ii) The Consolidated Parties will conduct and complete all
investigations, studies, sampling, and testing and all remedial, removal and
other actions necessary to address all Materials of Environmental Concern on,
from or affecting any of the Company Properties to the extent necessary to be in
compliance with all Environmental Laws and with the validly issued orders and
directives of all Governmental Authorities with jurisdiction over the Company
Properties to the extent any failure to take the foregoing actions could
reasonably be expected to have a Material Adverse Effect. The Borrower
acknowledges and agrees that if any Consolidated Party fails to perform any of
the actions required under this Section 6.1(k)(ii), the Administrative Agent
shall have the right (but not the obligation) to do so for such Consolidated
Party. The Borrower further acknowledges and agrees that if any Consolidated
Party fails to cooperate (e.g., by allowing access to any premises or permitting
the drilling of core samples, etc.), the Administrative Agent and the Lenders
will not have an adequate remedy at law.
Additional Patents and Trademarks. At the time of delivery of the
financial statements and reports provided for in Section 6.1(a), a report signed
by the chief financial officer of the Borrower setting forth (i) a list of
registration numbers for all patents, trademarks, service marks, tradenames and
copyrights awarded to any Consolidated Party since the last day of the
immediately preceding fiscal year of the Borrower and (ii) a list of all patent
applications, trademark applications, service xxxx applications, trade name
applications and copyright applications submitted by any Consolidated Party
since the last day of the immediately preceding fiscal year and the status of
each such application, all in such form as shall be reasonably satisfactory to
the Administrative Agent.
Other Information. With reasonable promptness upon request therefor,
such other information regarding the business, properties or financial condition
of any Consolidated Party as the Administrative Agent or the Required Lenders
may reasonably request.
Preservation of Existence and Franchises. Except as a result of or in
connection with a dissolution, merger or disposition of a Subsidiary permitted
under Section 7.4 or Section 7.5, each of the Consolidated Parties will do all
things necessary to preserve and keep in full force and effect its existence,
rights, franchises and authority except, solely with respect to the franchises
and authority of each of the Consolidated Parties, as could reasonably be
expected not to have a Material Adverse Effect.
Books and Records. Each of the Consolidated Parties will keep complete
and accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
Compliance with Law. Each of the Consolidated Parties will comply with
all Requirements of Law applicable to it and its Properties to the extent that
noncompliance with any such Requirement of Law could reasonably be expected to
have a Material Adverse Effect.
Payment of Taxes and Other Indebtedness. Each of the Consolidated
Parties will pay and discharge (a) all taxes, assessments and other governmental
charges or levies imposed upon it, or upon its income or profits, or upon any of
its Properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its Properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that no Consolidated Party shall be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings diligently pursued and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) could reasonably be expected
to have a Material Adverse Effect.
Insurance; Certain Proceeds. (a) Each of the Consolidated Parties will
at all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice (or as are otherwise required by the Collateral
Documents). The Administrative Agent shall be named as loss payee or mortgagee,
as its interest may appear, with respect to all such property and casualty
policy and additional insured with respect to all such other policies (other
than workers' compensation and employee health policies), and each provider of
any such insurance shall agree, by endorsement upon the policy or policies
issued by it or by independent instruments furnished to the Administrative
Agent, that if the insurance carrier shall have received written notice from the
Administrative Agent of the occurrence of an Event of Default, the insurance
carrier shall pay all proceeds otherwise payable to the Consolidated Parties
under such policies directly to the Administrative Agent (which agreement shall
be evidenced by a "standard" or "New York" lender's loss payable endorsement in
the name of the Administrative Agent on Accord Form 27) and that it will give
the Administrative Agent thirty (30) days' prior written notice before any such
policy or policies shall be altered or canceled, and that no act or default of
any Consolidated Party or any other Person shall affect the rights of the
Administrative Agent or the Lenders under such policy or policies.
(b) In case of any Casualty or Condemnation with respect to any
Property of any Consolidated Party or any part thereof, the Borrower shall
promptly give written notice thereof to the Administrative Agent generally
describing the nature and extent of such damage, destruction or taking. In such
case, the Borrower shall, or shall cause such Consolidated Party to, promptly
repair, restore or replace the Property of such Consolidated Party (or part
thereof) which was subject to such Casualty or Condemnation, at such
Consolidated Party's cost and expense, whether or not the Insurance Proceeds or
Condemnation Award, if any, received on account of such event shall be
sufficient for that purpose; provided, however, that such Property need not be
repaired, restored or replaced to the extent the failure to make such repair,
restoration or replacement (i)(A) is desirable to the proper conduct of the
business of such Consolidated Party in the ordinary course and otherwise in the
best interest of such Consolidated Party and (B) would not materially impair the
rights and benefits of the Administrative Agent or the Secured Parties under the
Collateral Documents or any other Credit Document or (ii) the failure to repair,
restore or replace the Property is attributable to the application of the
Insurance Proceeds from such Casualty or the Condemnation Award from such
Condemnation to payment of the Credit Obligations in accordance with the
following provisions of this Section 6.6(b). In the event a Consolidated Party
shall receive any Insurance Proceeds from a Casualty or Condemnation Award from
a Condemnation, such Consolidated Party will immediately pay over such proceeds
to the Administrative Agent, for payment of the Credit Obligations in accordance
with Section 3.3(b) or, if such funds constitute Reinvestment Funds, to be held
by the Administrative Agent. The Administrative Agent agrees to release such
Insurance Proceeds or Condemnation Awards to the Borrower upon its request and
as needed from time to time to pay for the repair, restoration or replacement of
the portion of the Property subject to such Casualty or Condemnation if, but
only if, the conditions set forth in the definition of "Reinvestment Funds" are
satisfied at the time of such request.
(c) In connection with the covenants set forth in this Section 6.6, it
is understood and agreed that:
(i) none of the Administrative Agent, the Lenders or their
respective agents or employees shall be liable for any loss or damage insured by
the insurance policies required to be maintained under this Section 6.6, it
being understood that (A) the Consolidated Parties shall look solely to their
insurance companies or any other parties other than the aforesaid parties for
the recovery of such loss or damage and (B) such insurance companies shall have
no rights of subrogation against the Administrative Agent, the Lenders or their
agents or employees. If, however, the insurance policies do not provide waiver
of subrogation rights against such parties, as required above, then each of the
Parent and the Borrower hereby agrees to, and to cause each of the Consolidated
Parties to, waive its right of recovery, if any, against the Administrative
Agent, the Lenders and their agents and employees, to the extent permitted by
law;
(ii) the Consolidated Parties will permit an insurance
consultant retained by the Administrative Agent, at the expense of the Borrower,
to review from time to time the insurance policies maintained by the
Consolidated Parties annually or upon the occurrence of an Event of Default; and
(iii) the Required Lenders shall have the right from time to
time to require the Consolidated Parties to keep other insurance in such form
and amount as the Administrative Agent or the Required Lenders may reasonably
request; provided that such insurance shall be obtainable on commercially
reasonable terms; and provided further that the designation of any form, type or
amount of insurance coverage by the Administrative Agent or the Required Lenders
under this Section 6.6 shall in no event be deemed a representation, warranty or
advice by the Administrative Agent or the Lenders that such insurance is
adequate for the purposes of the business of the Consolidated Parties or the
protection of their properties.
Maintenance of Property. Each of the Consolidated Parties will maintain
and preserve its properties and equipment material to the conduct of its
business in good repair, working order and condition, normal wear and tear and
Casualty and Condemnation excepted, and will make, or cause to be made, as to
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
Use of Proceeds. The Borrower will use the proceeds of the Loans and
will use the Letters of Credit solely for the purposes set forth in Section
5.14.
Audits/Inspections. Upon reasonable notice and during normal business
hours, each of the Consolidated Parties will permit representatives appointed by
the Administrative Agent or the Required Lenders, including independent
accountants, agents, employees, attorneys and appraisers, to visit and inspect
its Property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representatives obtain and shall permit the Administrative Agent or such
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees,
independent accountants, attorneys and representatives of the Consolidated
Parties. Each of the Parent and the Borrower agrees that the Administrative
Agent, and its representatives, may conduct an audit of the Collateral, at the
expense of the Borrower, annually or upon the occurrence of an Event of Default.
Each of the Parent and the Borrower hereby irrevocably authorizes and directs
all accountants and auditors employed by it at any time during the term of this
Amended Agreement to exhibit and deliver to the Administrative Agent and the
Lenders copies of any of the financial statements, trial balances or other
accounting records of any sort of the Consolidated Parties in the accountant's
or auditor's possession, and to disclose to the Administrative Agent and the
Lenders any information they may have concerning the financial status and
business operation of the Consolidated Parties. Each of the Parent and the
Borrower hereby irrevocably authorizes all federal, state and municipal
authorities to furnish to the Lenders copies of reports or examinations relating
to the Consolidated Parties, whether made by any Consolidated Party or
otherwise.
Additional Credit Parties. As soon as practicable and in any event
within thirty (30) days after any Person becomes a direct or indirect Subsidiary
of any Credit Party, the Borrower shall provide the Administrative Agent with
written notice thereof setting forth information in reasonable detail describing
all of the assets of such Person and shall (a) if such Person is a Domestic
Subsidiary of a Credit Party, cause such Person to execute a Joinder Agreement,
(b) if such Person is a Subsidiary of a Credit Party (except if such Person is a
Foreign Subsidiary which is not a direct Foreign Subsidiary of any Credit
Party), cause 100% (or 65% if such Person is a direct Foreign Subsidiary of a
Credit Party for so long as the pledge of any greater percentage would have
adverse tax consequences to the Credit Parties) of the Capital Stock of such
Person to be delivered to the Administrative Agent, together with undated stock
powers signed in blank (unless, with respect to a direct Foreign Subsidiary,
such stock powers are deemed unnecessary by the Administrative Agent in its
reasonable discretion under the law of the jurisdiction of incorporation of such
Person), and to be subject at all times to a first priority, perfected Lien in
favor of the Administrative Agent pursuant to the Collateral Documents, subject
only to Permitted Liens, (c) if such Person owns or leases any real property
located in the United States of America or, to the extent deemed to be material
by the Administrative Agent or the Required Lenders in its or their sole
reasonable discretion, located elsewhere, cause such Person to deliver to the
Administrative Agent with respect to such real property (as required pursuant to
Section 6.12) (other than immaterial leased properties) documents, instruments
and other items of the types required to be delivered pursuant to Section 6.12,
all in form, content and scope satisfactory to the Administrative Agent, and (d)
cause such Person to deliver such other documentation as the Administrative
Agent may reasonably request in connection with the foregoing, including
appropriate UCC-1 financing statements, environmental reports, landlord's
waivers, certified resolutions and other organizational and authorizing
documents of such Person and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the
Administrative Agent's liens thereunder), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
Pledged Assets. (a) Each of the Consolidated Parties will cause,
subject to the requirements of Section 6.12, (i) all of its owned real
properties and personal property located in the United States, (ii) to the
extent deemed to be material by the Administrative Agent or the Required Lenders
in its or their sole reasonable discretion, all of its other owned real
properties and personal property and (iii) all of its leased real properties
located in the United States (other than immaterial lease properties) to be
subject at all times to first priority, perfected and, in the case of real
property (whether leased or owned), title insured Liens in favor of the
Administrative Agent pursuant to the Collateral Documents, subject in each case
only to Permitted Liens. With respect to any real property (whether leased or
owned) located in the United States of America acquired or leased by any
Consolidated Party subsequent to the Effective Date, such Person will cause to
be delivered to the Administrative Agent with respect to such real property (as
required pursuant to Section 6.14) (other than immaterial leased properties)
documents, instruments and other items of the types required to be delivered
pursuant to Section 6.14, all in form, content and scope satisfactory to the
Administrative Agent. In furtherance of the foregoing terms of this Section
6.11, the Borrower agrees to promptly provide the Administrative Agent with
written notice of the acquisition by any Consolidated Party of any real property
located in the United States of America having a market value greater than
$50,000 or the entering into a lease by any Consolidated Party of any real
property located in the United States of America for annual rent of $5,000 or
more, setting forth in reasonable detail the location and a description of the
asset(s) so acquired or leased. Without limiting the generality of the
foregoing, the Credit Parties will cause 100% of the Capital Stock of each of
their direct and indirect Subsidiaries (or 65% of such Capital Stock if such
subsidiary is a direct Foreign Subsidiary for so long as the pledge of any
greater percentage could have adverse tax consequences to the Credit Parties),
excluding the Capital Stock of any Foreign Subsidiary which is not a direct
Foreign Subsidiary of any Credit Party, to be subject at all times to a first
priority, perfected Lien in favor of the Administrative Agent pursuant to the
terms and conditions of the Collateral Documents.
(b) If, subsequent to the Effective Date, a Credit Party shall acquire
any Intellectual Property, securities, instruments, chattel paper or other
personal property required to be delivered to the Administrative Agent as
Collateral hereunder or under any of the Collateral Documents, the Borrower
shall promptly (and in any event within three (3) Business Days after any
officer of any Credit Party acquires knowledge of the same) notify the
Administrative Agent of the same. Each of the Credit Parties shall adhere to the
covenants regarding the location of personal property as set forth in the
Security Agreement.
Real Property Collateral. The Borrower will within sixty (60) days
after the Administrative Agent's request, which request the Administrative Agent
may make at any time in its sole discretion, upon the occurrence of a Default,
to the extent not cured or waived, deliver to the Administrative Agent, in form
and substance reasonably satisfactory to the Administrative Agent:
(a) for each fee interest or leasehold interest of any Consolidated
Party in a real property asset, or in the case of subclause (y) above, each fee
interest of any Consolidated Party in a real property asset with an appraised
value in excess of $250,000, it being understood that the Borrower shall
deliver, at the Borrowers expense, a appraisal of any such real property
reasonably requested by the Administrative Agent, a fully executed and notarized
mortgage, deed of trust or deed to secure debt in substantially the form agreed
by the Borrower and the Administrative Agent within 15 days after such request
by the Administrative Agent (each, as the same may be amended, modified,
restated or supplemented from time to time, a "Mortgage Instrument" and
collectively the "Mortgage Instruments") encumbering such fee interest or
leasehold interest (each a "Mortgaged Property" and collectively the "Mortgaged
Properties");
(b) for each real property encumbered by a Mortgage Instrument, a title
report obtained by the Credit Parties in respect of each of the Mortgaged
Properties; in the case of each Mortgaged Property, (i) maps or plats of an
as-built survey of the sites of the real property covered by the Mortgaged
Instruments, (ii) title insurance policies, (iii) flood hazard insurance, (iv)
evidence of zoning and (v) any other document, certificate or report requested
by the Administrative Agent, in its reasonable discretion; and
(c) in the case of each real property leasehold encumbered by a
Mortgage Instrument, to the extent permitted by the applicable lease, evidence
that the applicable lease, a memorandum of lease with respect thereto, or other
evidence of such lease in form and substance satisfactory to the Administrative
Agent, has been or will be recorded in all places to the extent necessary or
desirable, in the reasonable judgment of the Administrative Agent, so as to
enable the Mortgage Instrument encumbering such leasehold interest to
effectively create a valid and enforceable first priority lien (subject to
Permitted Liens) on such leasehold interest in favor of the Administrative Agent
(or such other Person as may be required or desired under local law) for the
benefit of the Secured Parties.
Post-Closing Conditions. Within 30 days of the Effective Date, the
Borrower will furnish to the Administrative Agent search reports from each
Uniform Commercial Code filing jurisdiction referred to in Section 4.1(b)(iii)
confirming the filing information set forth therein.
SECTION 7
NEGATIVE COVENANTS
The Parent and the Borrower hereby covenant and agree, jointly and
severally, that so long as this Amended Agreement is in effect or any amounts
payable hereunder or under any other Credit Document shall remain outstanding
and until all of the Commitments hereunder shall have terminated and all Letters
of Credit shall have expired or been cancelled:
Indebtedness. None of the Consolidated Parties will contract, create,
incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Amended Agreement and the other
Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries in existence on
the Effective Date to the extent disclosed in Schedule 7.1;
(c) purchase money Indebtedness (including Capital Leases) incurred by
the Borrower or any of its Subsidiaries after the Closing Date to finance the
purchase of fixed assets acquired after the Closing Date; provided that (i) the
total of all such Indebtedness for the Borrower and its Subsidiaries taken
together shall not exceed an aggregate principal amount of $2,000,000 at any
time outstanding; (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed; (iii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing or on terms or conditions more favorable
in any respect to the holders thereof than the terms and conditions in effect at
the time of such refinancing; and (iv) such Indebtedness is issued and any Liens
securing such Indebtedness are created at the time of, or within 90 days after,
the acquisition of such assets and such Indebtedness is not secured by a Lien on
any other assets; provided, further, that the Borrower may incur Indebtedness
after the Closing Date to finance a Permitted Acquisition; provided that (i) the
total of all such Indebtedness for the Borrower shall not exceed an aggregate
principal amount of $4,000,000 and (ii) such Indebtedness shall be unsecured.
(d) Indebtedness of the Borrower or any of its Subsidiaries in respect
of Interest Rate Protection Agreements, if any, entered into in order to limit
exposure to floating rate indebtedness of the Borrower or any of its
Subsidiaries and not for speculative purposes;
(e) intercompany Indebtedness of any Subsidiaries of the Borrower
arising out of loans and advances permitted under Section 7.6;
(f) Indebtedness arising under the Senior Note Agreement and the Senior
Notes (but not including any renewal, refinancing or extension thereof);
(g) Indebtedness created pursuant to and evidenced by the Junior
Subordinated Note (but not including any renewal, refinancing or extension
thereof);
(h) Indebtedness created pursuant to and evidenced by the Senior
Subordinated Credit Facility (but not including any renewal, refinancing or
extension thereof); provided, that the proceeds thereof are contributed to the
Borrower to consummate Permitted Acquisitions; provided, further that expenses
and indemnities paid pursuant to Sections 8.2 and 8.3 of the Senior Subordinated
Credit Facility are reasonable in the judgment of the Administrative Agent; and
(i) in addition to the Indebtedness otherwise permitted by this Section
7.1, other Indebtedness incurred after the Closing Date by the Borrower;
provided that (A) the loan documentation with respect to such Indebtedness shall
not contain covenants or default provisions relating to any Consolidated Party
that are more restrictive than the covenants and default provisions contained in
the Credit Documents, (B) no Default or Event of Default shall have occurred and
be continuing immediately before or immediately after giving effect to such
incurrence and the Borrower shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro
Forma Basis to the incurrence of such Indebtedness and to the concurrent
retirement of any other Indebtedness of any Consolidated Party, the Credit
Parties shall be in compliance with all of the financial covenants set forth in
Section 7.19 and (C) the aggregate principal amount of such Indebtedness shall
not exceed $2,500,000 at any time outstanding.
Liens. None of the Consolidated Parties will contract, create, incur,
assume or permit to exist any Lien with respect to any of its Property, whether
now owned or hereafter acquired, except for Permitted Liens.
Nature of Business. None of the Consolidated Parties will alter the
character or conduct of the business conducted by such Person as of the
Effective Date.
Consolidation, Merger, Dissolution, etc. Except in connection with an
Asset Disposition permitted by the terms of Section 7.5, none of the
Consolidated Parties will enter into any transaction of merger or consolidation
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, notwithstanding the foregoing provisions of this
Section 7.4:
(a) the Borrower may merge or consolidate with any of its Wholly Owned
Subsidiaries; provided that (i) the Borrower shall be the continuing or
surviving corporation in such merger or consolidation, (ii) the Credit Parties
shall cause to be executed and delivered such documents, instruments and
certificates as the Administrative Agent may request so as to cause the Credit
Parties to be in compliance with the terms of Section 6.10 after giving effect
to such transaction and (iii) no Default or Event of Default shall have occurred
and be continuing immediately before or immediately after giving effect to such
transaction;
(b) any Wholly Owned Subsidiary of the Borrower may merge or
consolidate with any other Wholly Owned Subsidiary of the Borrower; provided
that (i) the Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Administrative Agent may request
so as to cause the Credit Parties to be in compliance with the terms of Section
6.10 after giving effect to such transaction and (ii) no Default or Event of
Default shall have occurred and be continuing immediately before or immediately
after giving effect to such transaction;
(c) any Wholly Owned Subsidiary of the Borrower may dissolve, liquidate
or wind up its affairs at any time; provided that (i) the Credit Parties shall
cause to be executed and delivered such documents, instruments and certificates
as the Administrative Agent may request to cause the Credit Parties to be in
compliance with the terms of Section 6.10 after giving effect to such
transaction and (ii) no Default or Event of Default shall have occurred and be
continuing immediately before or after giving effect to such transaction; and
(d) the Borrower or any Subsidiary of the Borrower may merge with any
Person (other than a Consolidated Party) in connection with a Permitted
Acquisition if (i) the Borrower or such Subsidiary shall be the continuing or
surviving corporation in such merger or consolidation, (ii) the Credit Parties
shall cause to be executed and delivered such documents, instruments and
certificates as the Administrative Agent may request so as to cause the Credit
Parties to be in compliance with the terms of Section 6.10 after giving effect
to such transaction, (iii) no Default or Event of Default shall have occurred
and be continuing immediately before or immediately after giving effect to such
transaction and (iv) the Borrower shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect
on a Pro Forma Basis to such transaction, the Credit Parties shall be in
compliance with all of the financial covenants set forth in Section 7.19 as of
the last day of the most recent period of four consecutive fiscal quarters of
the Borrower which precedes or ends on the date of such transaction and with
respect to which the Administrative Agent has received the Required Financial
Information.
Asset Dispositions. None of the Consolidated Parties will make any
Asset Disposition (other than a Casualty or Condemnation); provided that the
foregoing provisions of this Section 7.5 shall not prohibit the following:
(a) Excluded Asset Dispositions; and
(b) any other Asset Disposition; provided that (i) the consideration
therewith is cash or Cash Equivalents; (ii) if such transaction is a Sale and
Leaseback Transaction, such transaction is permitted by the terms of Sections
7.1 and 7.13; (iii) such transaction does not involve the sale or other
disposition of a minority equity interest in any Consolidated Party; (iv) the
aggregate net book value of all of the assets sold or otherwise disposed of by
the Consolidated Parties in all such transactions in reliance on this paragraph
shall not exceed $500,000 in any fiscal year of the Borrower or $2,500,000 in
the aggregate from and after the Closing Date; and (v) no Default or Event of
Default shall have occurred and be continuing immediately before or immediately
after giving effect to such transaction and the Borrower shall have delivered to
the Administrative Agent a Pro Forma Compliance Certificate demonstrating that,
upon giving effect on a Pro Forma Basis to such transaction, the Credit Parties
shall be in compliance with all of the financial covenants set forth in Section
7.19.
Upon consummation of an Asset Disposition permitted by this Section 7.5, the
Administrative Agent shall (to the extent applicable) deliver to the Borrower,
upon the Borrower's request and at the Borrower's expense, such documentation as
is reasonably necessary to evidence the release of the Administrative Agent's
security interest, if any, in the assets being disposed of, including amendments
or terminations of UCC financing statements, if any, the return of stock
certificates, if any, and the release of any Subsidiary being disposed of in its
entirety from all of its obligations, if any, under the Credit Documents.
Investments; Acquisitions. None of the Consolidated Parties will make
any Investment in, to or for the benefit of any Person or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other Person; provided that any
Consolidated Party (other than the Parent) may purchase inventory in the
ordinary course of business and may make Permitted Investments.
Restricted Payments. None of the Consolidated Parties will, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except (a) dividends payable solely in common stock of such Person, (b)
dividends or other distributions payable to the Borrower or any Wholly Owned
Subsidiary of the Borrower, (c) repurchases of common stock of the Parent from
any employee of the Consolidated Parties (other than any such Person which is a
director, officer or employee of or holder of Capital Stock of the Sponsor or
any of its Affiliates) upon the termination of employment of such Person,
provided that the aggregate amount paid in all such repurchases shall not exceed
$500,000 in the aggregate from and after the Closing Date, (d)(i) cash advances
made or cash dividends paid by the Borrower to the Parent which advances or
dividends are used solely to fund administrative and other miscellaneous
expenses incurred by the Parent in accordance with Section 7.12(b) and (ii) cash
dividends paid by the Borrower to the Parent, provided that (A) the aggregate of
all such cash dividends paid after the date hereof is less than 50% of the
Consolidated Net Income (excluding any amounts paid as a dividend by any Wholly
Owned Subsidiary of the Borrower or the Borrower to the holders of its Capital
Stock) for the period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the date hereof to the end of the
Borrower's most recently ended fiscal quarter for which internal financial
statements are available at the time of such cash dividend payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), (B) immediately prior to and after giving effect to any such dividend,
the Borrower shall be in pro forma compliance with all of the covenants
contained in this Amended Agreement, (C) immediately prior to and after giving
pro forma effect thereto as if such dividend had been made at the beginning of
the applicable four-quarter period, the Borrower shall have a Fixed Charge
Coverage Ratio (as defined in the Senior Note Agreement as in effect on the date
hereof) of at least 2.0 to 1.0 and (D) until the Junior Subordinated Note shall
have been indefeasibly paid in full, the Parent will use such dividend payments
received pursuant to this subclause (d)(ii), if any, promptly upon receipt
thereof, to pay the principal and interest then due and payable on, and prepay
the principal amount outstanding under, the Junior Subordinated Note, (e)
payments of accrued interest on the Senior Notes and (f) tax sharing payments
for taxes (including estimated taxes) that are paid on a combined, consolidated,
unitary or similar basis, to the extent that such payments do not exceed the
amount that the payor would have paid to the relevant taxing authority if the
payor filed a separate tax return for the period in question.
Prepayments of Indebtedness, etc. None of the Consolidated Parties will
(a) after the issuance thereof, amend, waive or modify (or permit the amendment,
waiver or modification of) any of the terms, agreements, covenants or conditions
of or applicable to any Indebtedness issued by such Consolidated Party if such
amendment, waiver or modification would add or change any terms, agreements,
covenants or conditions in a manner adverse to any Consolidated Party, or
shorten the final maturity or average life to maturity or require any payment to
be made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof, or (b)
directly or indirectly redeem, purchase, prepay, retire, defease or otherwise
acquire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness (other than Credit Obligations), or set
aside any funds for such purpose, whether such redemption, purchase, prepayment,
retirement or acquisition is made at the option of any Consolidated Party or at
the option of the holder thereof, and whether or not any such redemption,
purchase, prepayment, retirement or acquisition is required under the term and
conditions applicable to such Indebtedness, including, without limitation, any
Indebtedness arising under the Senior Note Agreement, the Senior Notes, the
Junior Subordinated Note or the Senior Subordinated Credit Facility or (c)
release, cancel, compromise or forgive in whole or in part the Indebtedness
evidenced by the Intercompany Notes.
Transactions with Affiliates. None of the Consolidated Parties will
engage in any transaction or series of transactions with (a) any officer,
director, holder of Capital Stock, Subsidiary or Affiliate of any Consolidated
Party, (b) any Affiliate of any such officer, director, holder, Subsidiary or
Affiliate or (c) the Sponsor or any officer, director, holder of Capital Stock,
Subsidiary or Affiliate of the Sponsor, other than (i) transfers of assets to
any Credit Party other than the Parent permitted by Section 7.5, (ii)(A) the ISG
Capital Guarantee, (B) transactions expressly permitted by Section 7.1, Section
7.4, Section 7.5, Section 7.6 or Section 7.7 and (c) the Tranche B Put
Agreement, (iii) normal compensation and reimbursement of reasonable expenses of
officers and directors, (iv) other transactions with the Sponsor and its
Affiliates in existence on the Effective Date to the extent disclosed in
Schedule 7.9, (v) any transaction entered into among the Borrower and its Wholly
Owned Subsidiaries or among such Wholly Owned Subsidiaries, and (vi) so long as
no Default or Event of Default has occurred and is continuing, other
transactions (including, without limitation, the sale of accounts receivable by
the Borrower or any of its Subsidiaries to ISG Capital) which are engaged in by
any Consolidated Party in the ordinary course of its business on terms and
conditions as favorable to such Person as would be obtainable by it in a
comparable arms'-length transaction with an independent, unrelated third party.
None of the Consolidated Parties will enter into any management, employment,
consulting or similar agreement or arrangement with, or otherwise pay any
professional, consulting management or similar fees to or for the benefit of,
the Sponsor, any members of their families, any Affiliates of the Sponsor or
such family members, any director, officer or security holder of any of the
foregoing, or any successor or transferee of any of the foregoing.
Fiscal Year; Organizational Documents. None of the Consolidated Parties
will (a) change its fiscal year or (b) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) in
any respect or amend, modify or change its bylaws (or other similar document) in
any manner adverse in any respect to the rights or interests of the Lenders or
(c) enter into any amendment, modification or waiver that is adverse in any
respect to the Lenders to (i) any Material Contract as in effect on the Closing
Date, (ii) the Acquisition Agreement as in effect on the Closing Date, (iii) the
Stockholders Agreement as in effect on the Closing Date, (iv) the CVC
Subscription Agreement, the Warrants, the Contribution and Assignment Agreement,
the Contribution and Subscription Agreement, the Deju Subscription Agreement,
the Registration Rights Agreement or any shareholders or similar agreement
relating to Capital Stock or the Warrants, as the case may be, of the Parent as
in effect on the Closing Date, (v) the Senior Note Agreement or any other
documents establishing and setting forth the rights and terms of the Senior
Notes as in effect on April 22, 1998, (vi) the Junior Subordinated Note or any
other documents establishing and setting forth the rights and terms of the
Junior Subordinated Note as in effect on October 14, 1997 (vii) the Senior
Subordinated Credit Facility as in effect on the April 17, 2000 or any other
documents establishing and setting forth the rights and terms of the Senior
Subordinated Credit Facility or (viii) the Stock Purchase Warrants or the
Warrant Agreement as in effect on the Closing Date. The Credit Parties will
cause the Consolidated Parties to promptly provide the Lenders with copies of
all proposed amendments to the foregoing documents and instruments as in effect
as of the Closing Date.
Limitation on Restricted Actions. None of the Consolidated Parties
will, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any
such Person to (a) pay dividends or make any other distributions to any Credit
Party on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness or other
obligation owed to any Credit Party, (c) make loans or advances to any Credit
Party, (d) sell, lease or transfer any of its properties or assets to any Credit
Party or (e) act as a Guarantor and pledge its assets pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses (a)-(d)
above) for such encumbrances or restrictions existing under or by reason of (i)
this Amended Agreement and the other Credit Documents, (ii) the Senior Note
Agreement and the Senior Notes, (iii) the Junior Subordinated Note, (iv) the
Senior Subordinated Credit Facility, (v) applicable law, (vi) any document or
instrument governing Indebtedness incurred pursuant to Section 7.1(c), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith (and any renewals, refinancings,
exchanges, refundings or extensions thereof, so long as the terms of such
encumbrances or restrictions are no more onerous than those with respect to such
Indebtedness upon the original incurrence thereof) or (vii) customary
non-assignment provisions in any lease governing a leasehold interest.
Ownership of Subsidiaries; Limitations on Parent and Borrower. (a) The
Parent and the Borrower will not (i) permit any Person (other than the Borrower
or any Wholly Owned Subsidiary of the Borrower) to own any Capital Stock of any
Subsidiary of the Borrower, (ii) permit any Subsidiary of the Borrower to issue
Capital Stock to any Person, except (A) the Borrower or any Wholly Owned
Subsidiary of the Borrower or (B) to qualify directors where required by
applicable law or to satisfy other requirements of applicable law with respect
to the ownership of Capital Stock of Foreign Subsidiaries or (iii) permit the
Borrower or any Subsidiary of the Borrower to issue any shares of Preferred
Stock.
(b) The Parent shall not (i) hold any assets other than the Capital
Stock of the Borrower and ISG Capital, (ii) have any material liabilities other
than (A) liabilities under the Credit Documents and (B) tax liabilities in the
ordinary course of business or (iii) engage in any business or activity other
than (A) owning the common stock of the Borrower (including purchasing
additional shares of common stock after the Closing Date) and ISG Capital and
activities incidental or related thereto or to the maintenance of the corporate
existence of the Parent or compliance with applicable law, (B) acting as a
Guarantor hereunder and pledging its assets to the Administrative Agent, for the
benefit of the Lenders, pursuant to the Collateral Documents to which it is a
party, (C) issuing its own Capital Stock (other than Disqualified Stock), (D)
entering into the Employment Agreements, the Deju Subscription Agreement, the
Contribution and Subscription Agreement, the Stockholders Agreement, the
Registration Rights Agreement, the CVC Subscription Agreement, the Warrant
Agreement and the Contribution and Assignment Agreement, (E) entering into the
Acquisition Agreement, (F) issuing the Junior Subordinated Note; (G) issuing the
Senior Note; (H) entering into the Senior Subordinated Credit Facility;
provided, that the proceeds of the Senior Subordinated Credit Facility are
contributed to the Borrower to consummate Permitted Acquisitions and (I)
entering into the Subordination Agreement.
(c) The Parent and the Borrower (i) will not permit any Person other
than the Parent to hold any common stock of the Borrower (or any warrants,
securities, options or other rights exercisable for, convertible into or
exchangeable for common stock), (ii) will not permit the Parent to hold any
Capital Stock of the Borrower (other than outstanding shares of common stock)
and (iii) will not permit any other Person to hold any other Capital Stock of
the Borrower.
Sale Leasebacks. None of the Consolidated Parties will, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or hereafter
acquired, (a) which such Consolidated Party has sold or transferred or is to
sell or transfer to a Person which is not a Consolidated Party or (b) which such
Consolidated Party intends to use for substantially the same purpose as any
other Property which has been sold or is to be sold or transferred by such
Consolidated Party to another Person which is not a Consolidated Party in
connection with such lease.
Capital Expenditures. The Borrower will not permit Consolidated Capital
Expenditures for any fiscal year of the Borrower to be more than $12,000,000.
No Further Negative Pledges. None of the Consolidated Parties will
enter into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation,
except (a) pursuant to this Amended Agreement and the other Credit Documents and
(b) pursuant to any document or instrument governing Indebtedness incurred
pursuant to Section 7.1(c), provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired in connection
therewith,
Operating Lease Obligations. None of the Consolidated Parties will
enter into, assume or permit to exist any obligations for the payment of rent
under Operating Leases which in the aggregate for the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis, exceed or would
exceed $12,000,000 in any fiscal year of the Borrower.
Impairment of Security Interests. None of the Consolidated Parties will
take or omit to take any action, which action or omission might or would have
the result of materially impairing the security interests in favor of the
Administrative Agent on behalf of the Secured Parties with respect to the
Collateral and none of the Consolidated Parties will grant to any Person (other
than the Secured Parties pursuant to the Collateral Documents) any interest
whatsoever in the Collateral, except for Permitted Liens.
Sales of Receivables. None of the Consolidated Parties will sell with
recourse, discount or otherwise sell or dispose of its notes or accounts
receivable, except that the Borrower or any of its Subsidiaries may sell with
recourse, discount or otherwise sell or dispose of such accounts receivable to
ISG Capital; provided, that the transaction occurs in the ordinary course of
business on terms and conditions as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with an independent,
unrelated third party.
Financial Covenants. (a) Interest Coverage Ratio. The Borrower will not
permit the Interest Coverage Ratio, as of the last day of any fiscal quarter of
the Borrower to be less than 1.90 to 1.00.
Leverage Ratio. The Borrower will not permit the Leverage Ratio, as of
the last day of any fiscal quarter of the Borrower to be greater than 5.50 to
1.00.
Consolidated Net Worth. The Borrower will not permit Consolidated Net
Worth as of the last day of any fiscal quarter of the Borrower to be less than
the "Minimum Compliance Level." The Minimum Compliance Level shall have been
$24,000,000 on the Closing Date, and shall be increased as of the last day of
each fiscal year of the Borrower ending after the Closing Date, commencing with
the fiscal year ending December 31, 1998, by an amount equal to the sum of 50%
of Consolidated Net Income (if positive) for such fiscal year and 100% of the
Net Cash Proceeds (and the fair market value of any non-cash proceeds) of any
Equity Issuance by any Consolidated Party during such fiscal year (other than
any capital contribution by the Borrower or any of its Wholly Owned Subsidiaries
to any Wholly Owned Subsidiary of the Borrower); provided that, the Minimum
Compliance Level shall be increased beginning the fiscal quarter ended June 30,
2000 by an amount equal to $9,000,000; provided further that the Minimum
Compliance Level shall be increased beginning the fiscal quarter ended September
30, 2000 by an amount equal to $1,000,000 net of fees and expenses paid in
connection with the Senior Subordinated Credit Facility acceptable to the
Administrative Agent in its sole discretion. The foregoing increases in the
Minimum Compliance Level shall be fully cumulative and no reduction in the
Minimum Compliance Level shall be made to reflect negative Consolidated Net
Income for any period.
Xxxxx Cash Accounts. The Borrower will not permit the cash balances in
all Xxxxx Cash Accounts to exceed $50,000.00 in the aggregate at any time,
unless a Depository Bank Agreement shall be delivered with respect to either
Xxxxx Cash Account.
Year 2000 Compliance. The Borrower will promptly notify the
Administrative Agent in the event the Borrower discovers or determines that any
computer application (including those of its suppliers or vendors) that is
material to its or any of its Subsidiaries' business and operations will not be
Year 2000 Compliant on a timely basis, except to the extent that such failure
could not reasonably be expected to have a Material Adverse Effect.
SECTION 8
EVENTS OF DEFAULT
Events of Default. An Event of Default shall exist upon the occurrence
of any of the following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall:
---------------------------------
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings under
Letters of Credit when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise; or
(ii) default, and such default shall continue unremedied for
three (3) or more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings under Letters of
Credit, or of any Fees or other Credit Obligations owing hereunder, under any of
the other Credit Documents or otherwise;
Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to have been false or
misleading in any material respect on the date as of which it was made, deemed
to have been made or delivered;
Covenants. Any Credit Party shall:
---------
(i) default in the due performance or observance of any term,
covenant or agreement contained in Section 6.1(a), (b), (c), (d), (e), (f) or
(i), 6.2, 6.9, 6.11, or 7.1 through 7.21, inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Section 6.1,(g) (h), (j), (k), (l) or (m) and
such default shall continue unremedied for a period of at least 15 days after
the earlier of a Responsible Officer of a Credit Party becoming aware of such
default or notice thereof by the Administrative Agent or the Required Lenders;
or
(iii) default in the due performance or observance of any
term, covenant or agreement (other than those referred to in subsection (a),
(b), (c)(i) or (c)(ii) of this Section 8.1) contained in this Amended Agreement,
any of the other Credit Documents or any Lender Hedging Agreement and such
default shall continue unremedied for a period of at least 30 days after the
earlier of a Responsible Officer of a Credit Party becoming aware of such
default or notice thereof by the Administrative Agent or the Required Lenders;
Credit Documents. Except as applicable to a Subsidiary of the Borrower
as a result of or in connection with a dissolution, merger or disposition of
such Subsidiary permitted under this Amended Agreement and except as a result of
releases of Collateral in accordance with all applicable provisions of the
Credit Documents, any Credit Document shall fail to be in full force and effect
or to give the Administrative Agent or any other Secured Party the Liens,
rights, powers and privileges purported to be created thereby, or any Credit
Party or any Person acting by or on behalf of any Credit Party shall so state in
writing;
Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to any
Consolidated Party;
Defaults under Other Agreements. With respect to any Indebtedness
(other than Indebtedness outstanding under the Credit Documents) in excess of
$750,000 in the aggregate for the Consolidated Parties taken as a whole, (A) any
Consolidated Party shall default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such Indebtedness, (B)
any Consolidated Party shall default in the observance or performance of any
other term, covenant, condition or agreement relating to such Indebtedness or
contained in any instrument or agreement evidencing or securing such
Indebtedness or relating thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or permit the holder or holders of such Indebtedness (or any trustee or
agent on behalf of such holders) to cause (determined without regard to whether
any notice or lapse of time is required) any such Indebtedness (or any portion
thereof) to become due prior to its stated maturity, (C) any such Indebtedness
(or any portion thereof) shall be declared due and payable, or shall be required
to be prepaid (other than by a regularly scheduled required payment) prior to
the stated maturity thereof or (D) any Consolidated Party shall be required by
the terms of such Indebtedness to offer to prepay or repurchase such
Indebtedness (or any portion thereof) prior to the stated maturity thereof;
Judgments. One or more judgments or decrees shall be entered against
one or more of the Consolidated Parties involving a liability of $500,000 or
more in the aggregate (to the extent not paid or fully covered by insurance
provided by a carrier which has acknowledged coverage and has the ability to
perform) and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 30 days from the entry
thereof, or any action shall be legally taken by a judgment creditor to levy
upon assets or properties of any Consolidated Party to enforce any such
judgment;
ERISA. Any of the following events or conditions shall occur: (i) any
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of any Consolidated
Party or any ERISA Affiliate in favor of the PBGC or a Plan; (ii) an ERISA Event
shall occur with respect to a Plan, which is, in the opinion of the
Administrative Agent or the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (iii) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the opinion of the Administrative Agent or the Required Lenders,
reasonably likely to result in (A) the termination of such Plan for purposes of
Title IV of ERISA or (B) any Consolidated Party or any ERISA Affiliate incurring
any liability in connection with a withdrawal from, reorganization of (within
the meaning of Section 4241 of ERISA), or insolvency of (within the meaning of
Section 4245 of ERISA) such Plan; (iv) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject any Consolidated Party or
any ERISA Affiliate to any liability under Section 406, 409, 502(i) or 502(1) of
ERISA or Section 4975 of the Code or under any agreement or other instrument
pursuant to which any Consolidated Party or any ERISA Affiliate has agreed or is
required to indemnify any Person against any such liability; or (v) any other
event or condition out of the ordinary course of business shall occur or exist
with respect to any Plan; and, in each case in clauses (i) through (v) above,
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to involve possible taxes, penalties and other
liabilities affecting the Consolidated Parties in an aggregate amount in excess
of $750,000 or require payments by the Consolidated Parties exceeding $250,000
in any fiscal year of the Borrower;
Intellectual Property. Any Material Intellectual Property or any
material license relating thereto shall be invalid or unenforceable in whole or
in part or shall for any reason not be in full force and effect and enforceable
by the Consolidated Parties or shall infringe the rights of any other Person or
any other adverse change in the Material Intellectual Property rights of the
Consolidated Parties shall occur and such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect;
Environmental Matters. Either (i) any Consolidated Party shall be
liable, whether directly, indirectly through required indemnification of any
Person or otherwise, for the costs of investigation and/or remediation of any
Materials of Environmental Concern originating from or affecting any property or
properties, whether or not owned, leased or operated by any Consolidated Party,
which liability, together with all other liabilities of the Consolidated Parties
arising out of Materials of Environmental Concern could reasonably be expected
to exceed $400,000 in the aggregate or require payments by the Consolidated
Parties exceeding $200,000 in any fiscal year of the Borrower or (ii) any
Federal, state, regional, local or other environmental regulatory agency or
authority shall commence an investigation or take any other action that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
Change of Control. There shall occur any Change of Control;
-----------------
Material Contracts. Any Material Contract shall be declared by any
Governmental Authority to be invalid or unenforceable in whole or in part or
shall for any other reason not be, or shall be asserted by any Consolidated
Party or any Person acting by or on behalf of any Consolidated Party not to be,
in full force and effect and enforceable in accordance with its terms and such
event or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect;
Junior Subordinated Note. There shall occur and be continuing under the
Junior Subordinated Note any Event of Default (as defined therein);
Senior Note Agreement. There shall occur and be continuing under the
Senior Note Agreement any Event of Default (as defined therein);
Senior Subordinated Credit Facility. There shall occur and be
continuing under the Senior Subordinated Credit Facility any Event of Default
(as defined in the Senior Subordinated Credit Facility); or
Tranche B Put Agreement. There shall occur and be continuing under the
Tranche B Put Agreement any event, act or condition which with notice or the
lapse of time, or both, would constitute an event of default thereunder in the
due performance or observance of any term, covenant or agreement by the Sponsor
or the Borrower.
Acceleration; Remedies. Upon the occurrence of an Event of Default, and
at any time thereafter unless and until such Event of Default has been waived by
the requisite Lenders (pursuant to the voting requirements of Section 10.6) or
cured to the satisfaction of the requisite Lenders (pursuant to the voting
requirements of Section 10.6), the Administrative Agent may, and upon the
request and direction of the Required Lenders shall (subject to Section 9.1), by
written notice to the Borrower, take any or all of the following actions
(without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Credit Parties, except as otherwise specifically
provided for in this Amended Agreement):
(a) Termination of Commitments. Declare the Commitments terminated,
whereupon the Commitments shall be immediately terminated.
Acceleration. Declare the unpaid principal of all Loans, any
reimbursement obligations arising from drawings under Letters of Credit, all
accrued interest in respect thereof, all accrued and unpaid Fees, all other
Credit Obligations and any and all other indebtedness or obligations of any and
every kind owing by any Credit Party to the Administrative Agent and/or any of
the Secured Parties under the Credit Documents to be due whereupon the same
shall be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived.
Cash Collateral. Direct the Borrower to pay (and the Borrower agrees
that upon receipt of such notice, or upon the occurrence and during the
continuance of an Event of Default under Section 8.1(e), it will immediately
pay) to the Administrative Agent additional cash, to be held by the
Administrative Agent, in a cash collateral account pursuant to Section 2.3(l),
in an amount equal to the aggregate amount of the outstanding LOC Obligations
(including the maximum aggregate amount which is, or at any time thereafter may
become, available to be drawn under all Letters of Credit then outstanding) and
terminate any Letter of Credit which may be terminated in accordance with its
terms.
Enforcement of Rights. Enforce any and all rights and interests created
and existing under the Credit Documents, including all rights and remedies
existing under the Collateral Documents, all rights and remedies against the
Guarantors and all rights of set-off.
Notwithstanding the foregoing, (x) if an Event of Default specified in Section
8.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees,
all other Credit Obligations and any and all other indebtedness or obligations
owing to the Administrative Agent and/or any of the Secured Parties under the
Credit Documents automatically shall immediately become due and payable without
the giving of any notice or other action by the Administrative Agent or the
Lenders and (y) upon the request and at the direction of Lenders holding a
majority of the Revolving Credit Facility Obligations, the Administrative Agent
shall take the actions specified in Section 8.2(a) and/or 8.2(c).
Agreements with respect to and Specific Remedies relating to the
Tranche B Revolving Loans. The Borrower and the Lenders acknowledge and agree
that the Tranche B Put Agreement is a separate agreement for the obligations of
the Borrower for the benefit of the Tranche B Lenders solely, and the proceeds
of any payment made by the Sponsor pursuant to the Tranche B Put Agreement shall
be distributed solely to the Tranche B Lenders as payment for their respective
Tranche B Revolving Loans in accordance with, and on the terms set forth in, the
Tranche B Put Agreement. The Administrative Agent in taking action under this
Section 8 with respect to the Tranche B Put Agreement shall do so solely for the
benefit of the Tranche B Lenders, and upon the request and direction of Lenders
having in the aggregate at least seventy percent of the outstanding principal
amount of the Tranche B Revolving Loans and Unused Tranche B Revolving
Commitment.
Equitable Remedies. In case any one or more of the covenants and/or
agreements set forth in this Amended Agreement or any other Credit Document
shall have been breached by any Credit Party, then the Administrative Agent may
proceed to protect and enforce the Lenders' rights either by suit in equity
and/or by action at law, including an action for damages as a result of any such
breach and/or an action for specific performance of any such covenant or
agreement contained in this Amended Agreement or such other Credit Document.
Without limitation of the foregoing, each of the Parent and the Borrower agrees
that failure to comply with any of the covenants contained herein will cause
irreparable harm and that specific performance shall be available in the event
of any breach thereof. The Administrative Agent acting pursuant to this
paragraph shall be indemnified by the Borrower against all liability, loss or
damage, together with all reasonable costs and expenses related thereto
(including reasonable legal and accounting fees and expenses) in accordance with
Section 10.5.
SECTION 9
AGENCY PROVISIONS
Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Administrative Agent to act as its administrative
agent under this Amended Agreement and the other Credit Documents with such
powers and discretion as are specifically delegated to the Administrative Agent
by the terms of this Amended Agreement and the other Credit Documents, together
with such other powers as are reasonably incidental thereto. The Administrative
Agent (which term as used in this sentence and in Section 9.5 and the first two
sentences of Section 9.6 hereof shall include its Affiliates and its own and its
Affiliates' officers, directors, employees, and agents): (a) shall not have any
duties or responsibilities except those expressly set forth in this Amended
Agreement and the other Credit Documents and shall not be a trustee or fiduciary
for any Lender or other Secured Party; (b) shall not be responsible to the
Secured Parties for any recital, statement, representation or warranty (whether
written or oral) made in or in connection with any Credit Document or any
certificate or other document referred to or provided for in, or received by any
of them under, any Credit Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any Credit Document, or any other
document referred to or provided for therein or for any failure by any Credit
Party or any other Person to perform any of its obligations thereunder; (c)
shall not be responsible for or have any duty to ascertain, inquire into or
verify the performance or observance of any covenants or agreements by any
Credit Party or the satisfaction of any condition or the use of the proceeds of
the Loans or the use of the Letters of Credit or the existence or possible
existence of any Default or Event of Default or to inspect the property
(including the books and records) of any Credit Party or any of its Subsidiaries
or Affiliates; (d) shall not be required to initiate or conduct any litigation
or collection proceedings under any Credit Document; and (e) shall not be
responsible for any action taken or omitted to be taken by it under or in
connection with any Credit Document, except for its own gross negligence or
willful misconduct. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
Without limiting the generality of the foregoing, the Administrative Agent is
hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Lenders with
respect thereto, as contemplated by and in accordance with the provisions of
this Amended Agreement and the Collateral Documents. The provisions of this
Section 9 are solely for the benefit of the Administrative Agent and the Lenders
and none of the Credit Parties shall have any rights as a third party
beneficiary of the provisions hereof. In performing its functions and duties
under this Amended Agreement and the other Credit Documents, the Administrative
Agent shall act solely as agent of the Lenders and does not assume and shall not
be deemed to have assumed any obligation or relationship of agency or trust with
or for any Credit Party or any of their respective Affiliates.
Reliance by Agents. The Agents shall be entitled to rely upon any
certification, notice, instrument, writing or other communication (including any
thereof by telephone or telecopy) believed by it to be genuine and correct and
to have been signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel for
any Credit Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the holder thereof for all purposes hereof unless and until the
Administrative Agent receives and accepts an Assignment and Acceptance executed
in accordance with Section 10.3 hereof. As to any matters not expressly provided
for by this Amended Agreement and the other Credit Documents, the Administrative
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
Lenders (or to the extent specifically provided in Section 10.6, all the
Lenders), and such instructions shall be binding on all of the Lenders;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to any Credit Document or applicable law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such action.
Defaults. The Agents shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless the Administrative Agent
has received written notice from a Lender or the Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or Event of Default, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall
(subject to Section 9.2 hereof) take such action with respect to such Default or
Event of Default as shall reasonably be directed by the Required Lenders,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative 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
the Lenders.
Rights as Lender. With respect to its Commitments and the Loans made by
them, each of Bank of America and CIBC (and any successor acting as
Administrative Agent or Documentation Agent, as the case may be,) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Administrative Agent or Documentation Agent, as the case may be, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Administrative Agent or Documentation Agent, as the case may be, in
its individual capacity. Bank of America (and any successor acting as
Administrative Agent) and CIBC (and any successor acting as Documentation Agent)
and their respective Affiliates may (without having to account therefor to any
Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust or other
business with any Credit Party or any of its Subsidiaries or Affiliates as if it
were not acting as Administrative Agent or Documentation Agent, as the case may
be, and Bank of America (and any successor acting as Administrative Agent) and
its Affiliates may accept fees and other consideration from any Credit Party or
any of its Subsidiaries or Affiliates for services in connection with this
Amended Agreement or otherwise without having to account for the same to the
Secured Parties.
Indemnification. The Lenders agree to indemnify the Agents (to the
extent not reimbursed under Section 10.5 hereof, but without limiting the
obligations of the Borrower under Section 10.5) ratably in accordance with their
respective Commitments (or, if the Commitments have expired or been terminated,
in accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements of any kind and nature
whatsoever that may at any time (including at any time following the final
payment of all of the obligations of the Borrower hereunder and under the other
Credit Documents) be imposed on, incurred by or asserted against either the
Administrative Agent or the Documentation Agent (including by any Lender) in any
way relating to or arising out of any Credit Document or the transactions
contemplated thereby or any action taken or omitted by either the Administrative
Agent or the Documentation Agent under any Credit Document; provided that no
Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Lender agrees to reimburse the Agents
promptly upon demand for their ratable share of any costs or expenses payable by
the Borrower under Section 10.5, to the extent that the Agents are not promptly
reimbursed for such costs and expenses by the Borrower.
Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that the Agents have not made any representations or warranties to
it and that no act by the Agents hereinafter taken, including any review of the
affairs of any Credit Party or any of their respective Affiliates, shall be
deemed to constitute any representation or warranty by the Agents to any Secured
Party. Each Lender agrees that it has, independently and without reliance on the
Agents or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of the Consolidated Parties
and decision to enter into this Amended Agreement and that it will,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Credit Documents. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of any Credit Party or
any other Consolidated Party or any of their Affiliates that may come into the
possession of the Agents or any of their respective Affiliates.
Resignation of Administrative Agent. The Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $100,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
SECTION 10
MISCELLANEOUS
Notices. Except as otherwise expressly provided herein, all notices and
other communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set forth below, (c) on the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service or (d) on the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Borrower, the Parent and
the Administrative Agent, set forth below, and, in the case of the Lenders, set
forth on Schedule 1.1C, or at such other address as such party may specify by
written notice to the other parties hereto:
if to the Borrower or the Parent,
ISG Resources, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: J. I. Everest, II
Telephone: (000) 000-0000
Telecopy: (000) 000-0000; and
if to the Administrative Agent,
Bank of America, N.A.
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to
Bank of America, N. A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Right of Set-Off. Upon the occurrence and during the continuance of an
Event of Default, each Lender (and each of its Affiliates) is authorized at any
time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or final) and any
other indebtedness at any time held or owing by such Lender (including branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of any Credit Party against obligations and liabilities of such
Person to such Lender (and its Affiliates) hereunder, under the Notes, under the
other Credit Documents or otherwise, irrespective of whether such Lender (or
Affiliate) shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured. Any such
set-off shall be deemed to have been made immediately upon the occurrence of an
Event of Default even though such charge is made or entered on the books of such
Lender subsequent thereto. Each Lender agrees promptly to notify the Borrower
after any such set-off and application made by such Lender (or any of its
Affiliates); provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. Any Person purchasing a
Participation Interest in the Loans and Commitments hereunder pursuant to
Section 3.13 or 10.3(d) may exercise all rights of setoff with respect to its
Participation Interest as fully as if such Person were a Lender hereunder. The
rights of each Lender (and its Affiliates) under this Section 10.2 are in
addition to (and not in limitation of) any other rights and remedies (including
other rights of set-off) that such Lender may have under applicable law or
otherwise.
Benefit of Agreement. (a) Generally. This Amended Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that neither the Parent
nor the Borrower may assign or transfer any of its interests and obligations
without prior written consent of all the Lenders (and any such purported
assignment or transfer without such consent shall be void); provided further
that the rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth in this
Section 10.3.
Assignments. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Amended Agreement
(including all or a portion of its Loans, its Notes and its Commitments);
provided, however, that
-------- -------
(i) each such assignment shall be to an Eligible Assignee;
(ii) each such assignment shall be in an amount at least equal
to $5,000,000, except in the case of (A) an assignment to another Lender or any
Affiliate of a Lender or an assignment of all of a Lender's rights and
obligations under this Amended Agreement or (B) the occurrence and continuation
of an Event of Default, or (C) an assignment to the Sponsor of Tranche B
Revolving Loans pursuant to the Tranche B Put Agreement;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations in respect of
its Commitments under this Amended Agreement and the other Credit Documents; and
(iv) the assignor and the assignee under such assignment shall
execute and deliver to the Administrative Agent for its acceptance an Assignment
and Acceptance, together with any Notes subject to such assignment and a
processing fee of $3,500.
Upon the later of (A) the execution, delivery and acceptance of such Assignment
and Acceptance and (B) the effective date specified in such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of such assignment, have the obligations, rights and benefits of a Lender under
this Amended Agreement and the other Credit Documents and the assigning Lender
shall, to the extent of such assignment, relinquish its rights and be released
from its obligations under this Amended Agreement and the other Credit
Documents. Upon the consummation of any assignment pursuant to this Section
10.3(b), the assignor, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, new promissory notes reflecting
such assignment are issued to the assignor and the assignee in the amount of
their respective interests and in substantially the form of the original Notes
(but with notation thereon that such new Notes are given in substitution for and
replacement of the original Notes or any replacements thereof). If the assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 3.10.
Register. The Administrative Agent shall maintain at its address
referred to in Schedule 1.1C a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amounts and
Interest Periods of the Loans of each Type owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Amended
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice. Upon its receipt of an Assignment and Acceptance executed by the parties
thereto, together with any Notes subject to such assignment and payment of the
processing fee, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in accordance with the applicable
requirements hereof, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
Participations. Each Lender may sell participations to one or more
Persons in all or a portion of its rights, obligations or rights and obligations
under this Amended Agreement (including all or a portion of its Commitments or
Loans); provided, however, that (i) such Lender's obligations under this Amended
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the provisions
contained in Sections 3.6, 3.9, 3.10 and 3.11 and the right of set-off contained
in Section 10.2 on the same basis as if it were a Lender, (iv) the Borrower
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Amended Agreement and such
Lender shall retain the sole right to enforce the obligations of the Borrower
relating to its Loans, its Notes and its Commitments (except for the obligations
to such participant referred to in the foregoing clause (iii)) and to approve
any amendment, modification or waiver of any provision of this Amended Agreement
(other than amendments, modifications or waivers decreasing the amount of
principal of or the rate at which interest is payable on such Loans or Notes in
which such participant is participating, extending any scheduled principal
payment date or scheduled interest payment date in respect of such Loans or
Notes in which such participant is participating, extending such Commitments in
which such participant is participating or, except as expressly provided in the
Credit Documents, releasing all or substantially all the Collateral from the
lien of the Collateral Documents or all or substantially all the Subsidiary
Guarantors from the Subsidiaries Guarantee Agreement) and (v) subparticipations
by any participant shall be prohibited and (vi) each such participation shall be
in an amount equal to at least $5,000,000, except in the case of a participation
to another Lender or any Affiliate of a Lender or a participation of all of a
Lender's rights and obligations under this Amended Agreement.
Regulatory Matters. Notwithstanding any other provision set forth in
this Amended Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning Lender from
its obligations hereunder.
Information. Any Lender may furnish any information concerning any
Credit Party or any of its Subsidiaries or other Affiliates in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the provisions of
Section 10.14 hereof.
No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent or any other Secured Party in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between the Administrative Agent or any other Secured Party and any of
the Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies of the Administrative Agent and the other Secured Parties hereunder and
under the other Credit Documents are cumulative and not exclusive of any rights
or remedies which the Administrative Agent or any other Secured Party would
otherwise have at law or otherwise. No notice to or demand on any Credit Party
in any case shall entitle the Borrower or any other Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the other Secured Parties to
any other or further action in any circumstances without notice or demand.
Expenses; Indemnification. (a) The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with the
syndication, preparation, execution, delivery, administration, modification and
amendment of this Amended Agreement, the other Credit Documents and the other
documents to be delivered hereunder, including the reasonable fees and expenses
of counsel for the Administrative Agent (including the cost of internal counsel,
to the extent not duplicative of work completed by external counsel to the
Administrative Agent) with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under the Credit
Documents. The Borrower further agrees to pay on demand all reasonable costs and
expenses of the Administrative Agent and the Lenders, if any (including
reasonable attorneys' fees and expenses and the cost of internal counsel), in
connection with (i) the enforcement (whether through negotiations, legal
proceedings or otherwise) of the Credit Documents and the other documents to be
delivered hereunder and (ii) any claim in respect of any of the Credit
Obligations in any bankruptcy or insolvency proceeding relating to any Credit
Party.
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Documentation Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including in connection with any investigation, litigation or
proceeding or preparation of defense in connection therewith) (i) the Credit
Documents, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Loans or of the Letters of Credit or (ii) the
presence or Release of any Materials of Environmental Concern at, under or from
any Property owned, operated or leased at any time before or after the date
hereof by any Consolidated Party, or the failure by any Consolidated Party to
comply with any Environmental Law, except to the extent such claim, damage,
loss, liability, cost or expense is found in a final, non-appealable judgment by
a court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct or from a violation of Environmental Laws
with respect to any real property or the presence, release, use, generation,
discharge, disposal, storage or similar action regarding Materials of
Environmental Concern with respect to any real property, which violation or
action first occurs after such real property is transferred to any Indemnified
Party or its successor or assignee by foreclosure sale, deed in lieu of
foreclosure or similar transfer (except to the extent actually caused by any
Consolidated Party). In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 10.5(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Credit Party, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower agrees not to assert any claim against the
Administrative Agent, the Documentation Agent, any Lender, any other Secured
Party, any of their Affiliates or any of their respective directors, officers,
employees, attorneys, agents and advisers, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans or of the Letters of
Credit.
Amendments, Waivers and Consents. Neither this Amended Agreement nor
any other Credit Document nor any of the terms hereof or thereof may be amended,
modified or waived, unless such amendment, modification or waiver is in writing
entered into by, or approved in writing by, the Required Lenders, the Borrower
and the Parent; provided, however, that no such amendment, modification or
waiver shall:
(a) extend the final maturity of any Loan or the time of payment of any
reimbursement obligation (or any portion thereof) arising from a drawing under a
Letter of Credit, without the prior written consent of each Tranche A Lender
holding such Loan or a Participation Interest in such Letter of Credit;
(b) reduce the rate of interest applicable to any Credit Obligation
(other than as a result of waiving the applicability of any post-default
increase in interest rates), extend the time of payment of any interest thereon
(other than as a result of waiving any mandatory prepayment), reduce any Fees
payable hereunder or extend the time of payment of any Fees hereunder, without
the prior written consent of each Lender to whom such interest, Credit
Obligation or Fee is owed;
(c) reduce or waive the principal amount of any Loan or of any
reimbursement obligation (or any portion thereof) arising from a drawing under a
Letter of Credit, without the prior written consent of each Lender holding such
Loan or a Participation interest in such Letter of Credit;
(d) increase the Commitment of a Lender over the amount thereof in
effect or extend the date fixed for the termination of the Commitment of a
Lender (it being understood and agreed that a waiver of any Default or Event of
Default or of any mandatory reduction in the Commitments shall not constitute an
increase in the terms of any Commitment of any Lender), without the prior
written consent of such Lender;
(e) release all or substantially all of the Collateral from the Lien of
the Collateral Documents (except as expressly provided in the Credit Documents),
without the prior written consent of each Lender;
(f) release the Borrower or the Parent or, except as expressly provided
in the Credit Documents, all or substantially all of the Subsidiary Guarantors
from its or their obligations under the Credit Documents, without the prior
written consent of each Lender;
(g) consent to the assignment or transfer by the Borrower or the Parent
or, except as expressly provided in the Credit Documents, all or substantially
all the Subsidiary Guarantors of its or their rights and obligations under or in
respect of the Credit Documents, without the prior written consent of each
Lender;
(h) amend, modify or waive any provision of this Section 10.6 or
Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 8.1(a), 10.2, 10.3, 10.5 or
10.9, without the prior written consent of each Lender;
(i) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders, or otherwise change the percentage of the
Commitments, the percentage of the aggregate unpaid principal amount of the
Notes or the number of Lenders which shall be required for the Lenders or any of
them to take action under any provision of this Amended Agreement or any other
Credit Document, without the prior written consent of each Lender;
(j) release the Sponsor from its obligations under the Tranche B Put
Agreement, without the prior written consent of each Tranche B Lender;
(k) extend the time for, reduce the amount of or modify the manner of
application of proceeds of any mandatory prepayment required by Section
3.3(b)(iii), (iv), (v) or (vi), without the prior written consent of the
Required Lenders;
(l) effect any waiver of the conditions to funding any (i) Tranche A
Revolving Loan or to issuing any Letter of Credit, without the prior written
consent of Lenders having in the aggregate at least a majority of the
outstanding principal amount of Tranche A Revolving Loans, LOC Obligations, and
Unused Tranche A Revolving Credit Commitments or (ii) Tranche B Revolving Loans,
without the prior written consent of Lenders having in the aggregate at least
seventy percent of the outstanding principal amount of Tranche B Revolving Loans
and Unused Tranche B Revolving Credit Commitments.
(m) effect any waiver, amendment or modification of Section 7.8(a) with
respect to the subordination provisions of any Indebtedness, without the prior
written consent of each Lender;
(n) amend any provision of Section 9 or otherwise affect any rights or
duties of the Administrative Agent, without the prior written consent of the
Administrative Agent; or
(o) amend any provision of Section 2.3 or otherwise affect any rights
or duties of the Issuing Lender, without the prior written consent of the
Issuing Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding. The various
requirements of this Section 10.6 are cumulative. Each Lender and each holder of
a Note shall be bound by any waiver, amendment or modification authorized by
this Section 10.6 regardless of whether its Note shall have been marked to make
reference thereto, and any consent by any Lender or holder of a Note pursuant to
this Section 10.6 shall bind any Person subsequently acquiring a Note from it,
whether or not such Note shall have been so marked.
Counterparts. This Amended Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Amended Agreement to produce or account for
more than one such counterpart for each of the parties hereto. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this
Amended Agreement shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed
counterpart hereof will be delivered, but the failure to deliver a manually
executed counterpart shall not affect the validity, enforceability or binding
effect of this Amended Agreement.
Headings. Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Amended Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Amended Agreement.
Survival. All indemnities set forth herein, including those set forth
in Sections 2.3(i), 3.6, 3.10, 3.11, 9.5 and 10.5, shall survive the execution
and delivery of this Amended Agreement, the making of the Loans, the issuance of
the Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents, the termination of the Commitments
hereunder and the termination of this Amended Agreement. All representations and
warranties made by the Parent and the Borrower herein shall survive delivery of
the Notes, the making of the Loans hereunder and the issuance of the Letters of
Credit hereunder.
Governing Law; Submission to Jurisdiction; Venue. (a) THIS AMENDED
AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND OTHER
THAN AS EXPRESSLY SET FORTH IN SUCH OTHER CREDIT DOCUMENTS) AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
AND, AS TO MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, THE LAWS OF THE STATE
OF NEW YORK. Any legal action or proceeding with respect to this Amended
Agreement or any other Credit Document may be brought in the courts of the State
of New York in New York County, or of the United States for the Southern
District of New York, and, by execution and delivery of this Amended Agreement,
each of the Parent and the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the Parent and the Borrower further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at the address set forth
for notices pursuant to Section 10.1, such service to become effective three (3)
days after such mailing. Nothing herein shall affect the right of the
Administrative Agent or any Lender to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(b) Each of the Parent and the Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Amended Agreement or any other Credit Document brought in the courts referred to
in subsection (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT,
THE LENDERS, THE PARENT AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AMENDED AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Severability. If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
Entirety. This Amended Agreement, the other Credit Documents and the
Lender Hedging Agreements, if any, represent the entire agreement of the parties
hereto and thereto regarding the subject matter hereof and thereof and supersede
all prior agreements and understandings, oral or written, if any (including any
commitment letters or correspondence) relating to such subject matters. Nothing
in this Amended Agreement or any other Credit Document, expressed or implied, is
intended to confer upon any party (other than the parties hereto and thereto and
the other Secured Parties) any rights, remedies, obligations or liabilities
under or by reason of this Amended Agreement and the other Credit Documents.
Binding Effect; Termination. (a) This Amended Agreement shall become
effective at such time on or after the Effective Date when it shall have been
executed by the Borrower, the Parent and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and thereafter
this Amended Agreement shall be binding upon and inure to the benefit of the
Borrower, the Parent, the Administrative Agent and each Lender and their
respective permitted successors and assigns.
(b) The term of this Amended Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding, no Letters of Credit shall be
outstanding, all of the Credit Obligations have been irrevocably satisfied in
full and all of the Commitments hereunder shall have expired or been terminated.
Confidentiality. Each of the Administrative Agents and the Lenders
(each, a "Lending Party") agrees to keep confidential any information furnished
or made available to it by any Credit Party pursuant to this Amended Agreement
that is marked confidential; provided that nothing herein shall prevent any
Lending Party from disclosing such information (a) to any other Lending Party or
any Affiliate of any Lending Party, or any officer, director, employee, agent or
advisor of any Lending Party or Affiliate of any Lending Party, (b) to any other
Person if reasonably incidental to the administration of the credit facilities
provided herein, (c) as required by any law, rule or regulation, (d) upon the
order of any court or administrative agency, (e) upon the request or demand of
any regulatory agency or authority, (f) that is or becomes available to the
public or that is or becomes available to any Lending Party other than as a
result of a disclosure by any Lending Party prohibited by this Amended
Agreement, (g) in connection with any litigation to which such Lending Party or
any of its Affiliates may be a party, (h) to the extent necessary in connection
with the exercise of any remedy under this Amended Agreement or any other Credit
Document, (i) subject to provisions substantially similar to those contained in
this Section 10.14, to any actual or proposed participant or assignee and (j) to
the extent that the Borrower shall have consented in writing to such disclosure.
Nothing set forth in this Section 10.14 shall obligate the Administrative Agent
or any Lender to return any materials furnished by the Credit Parties.
Source of Funds. Each of the Lenders hereby represents and warrants to
the Borrower that at least one of the following statements is an accurate
representation as to the source of funds to be used by such Lender in connection
with the financing hereunder:
(a) no part of such funds constitutes assets allocated to any separate
account maintained by such Lender in which any employee benefit plan (or its
related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender has
disclosed to the Borrower the name of each employee benefit plan whose assets in
such account exceed 10% of the total assets of such account as of the date of
such purchase (and, for purposes of this subsection (b), all employee benefit
plans maintained by the same employer or employee organization are deemed to be
a single plan);
(c) to the extent that any part of such funds constitutes assets of an
insurance company's general account, such insurance company has complied with
all of the requirements of the regulations issued under Section 401(c)(1)(A) of
ERISA; or
(d) such funds constitute assets of one or more specific benefit plans
which such Lender has identified in writing to the Borrower.
As used in this Section 10.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of any other
Credit Document, on the other hand, this Amended Agreement shall control.
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amended Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: ISG RESOURCES, INC.,
a Utah corporation
By:
Name:
Title:
PARENT: INDUSTRIAL SERVICES GROUP, INC.,
a Delaware corporation
By:
Name:
Title:
LENDERS: BANK OF AMERICA, N. A.,
individually in its capacities as a Tranche A Lender, as a
Tranche B Lender, as Administrative Agent and as Issuing
Lender
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, individually in
its capacities as a Tranche
A Lender and as
Documentation Agent
By:
Name:
Title:
ZIONS FIRST NATIONAL BANK, as a Tranche A Lender and a
Tranche B Lender
By:
Name:
Title:
SCHEDULE 1.1D
Pro Forma Adjustments
for
Post Closing Acquisitions
Adjustments
Company Name (in thousands of dollars)
------------
JTM $236
Pozzolanic $312
PPA $771
Fly Ash $211
US Ash $2,796
SCHEDULE 5.25
Recordings
ISG Manufactured Products, Inc. Utah - SOS
Don's Building Supply L.L.P. Utah - SOS
Don's Building Supply L.L.P. Texas - SOS
Best Masonry & Tool Supply,
Inc. f/k/a J. Xxxxxx Xxxxx Utah - SOS
ISG Capital Corporation Utah - SOS
Industrial Services Group, Inc. Utah - SOS
Credit Agreement Disclosure Schedule
SCHEDULE 1.1A TO THE
CREDIT AGREEMENT
Permitted Investments
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
(i) Xxxxx Fargo, Salt Lake City, Utah,
4801908005-Master account (lockbox deposits go here,
disbursement accounts are funded from here).
Lockbox # 200988, Dallas, TX-Lockbox for all of ISG Resources
recievables; payments, excluding manufactured products.
4759613581-ISG Resources AP account, controlled disbursement
through Wachovia in Greenville, SC, Positive Pay service, ZBA.
4801907973-Payroll account-ZBA-payments to ADP flow through
here, actual paychecks are cut from ADP accounts, only ACH
transactions and manual payroll checks go through this
account.
4801907981-Medical Claims account-medical claims
reimbursements, etc., ZBA account.
4801907999-Flexible Spending account, ZBA.
4417889045-Sweep account, excess funds from master account go
into this overnight investment account.
(ii) Bank of America, Charlotte, NC
3750884343-Master account-lockbox deposits go here, payables
fund from here, closure pending redirection of receipts.
3299934093-AP-closed.
3299934085-Payroll-closed.
3299943896-Medical Claims-closure pending as checks clear.
0000000000-Flexible Spending-closure pending as checks clear.
Best Masonry & Tool Supply, Inc.
(ii) Xxxxxxx Xxxxx, Houston, Texas
000-00-000, Xxxxxxx Xxxxx-Master account, cash from the Best
store-level bank accounts are collected here; payables were
paid from here until March, 2000, now paid through the account
below-once the checks that are outstanding clear, the account
will be closed, and all cash will be collected in Xxxxx Fargo
account number 0000000000.
(iii) Xxxxx Fargo, Greenville, South Carolina
4759624976, Xxxxx Fargo-ISG Manufactured Products AP
Disbursement Account; all manufactured products subs will fund
payables from this account, Best is currently doing this,
Magna Wall will follow May 1st, then Xxxxxxx and Don's.
Best Store-Level Cash Collection Accounts, all accounts
electronically transfer funds to the Xxxxxxx Xxxxx master
account, these will be switched over once that account closes
to instead transfer funds to the Xxxxx Fargo cash collection
account 0000000000.
0- Xxxxx Xxxx, Xxxxxxx, Xxxxx
05300008375, Xxxxx Xxxx, Xxxxx & Xxxxx Xxxxxxx Stores
(being closed 4/28, switching over to Xxxxx Fargo
account 0000000000)
2- Premier Bank, Xxxxxxx, Xxxxxxx
0000000, Premier Bank, Atlanta, GA stores
0- Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxxxx
230110551, Norwest Bank, San Antonio store
Magna Wall, Inc.
(i) Broadway Bank, Boerne, Texas, Acct. No. 0344613
Xxxxx X. Xxxxxxx, Inc.
(ii) Cerritos Valley Bank, Norwalk, California, Acct.
No. 001-005154
Don's Building Supply, Inc.
(ii) Bank One, Dallas, Texas, Acct. No. 919-103-6490
Credit Agreement Disclosure Schedule
SCHEDULE 1.1B TO THE
CREDIT AGREEMENT
Liens
Industrial Services Group, Inc.
None.
ISG Resources, Inc.
o Arkansas Secretary of State Filing with GE Capital as
Secured Party for equipment lease.
o Arkansas Secretary of State Filing with GE Capital as
Secured Party for screening plant.
o Arkansas Secretary of State Filing with Associates Leasing,
Inc. as Secured Party Re: equipment lease.
o Florida Secretary of State Filing with Tech Data Corp. as
Secured Party for goods sold.
o Georgia Secretary of State Filing with Associates Leasing,
Inc. as Secured Party Re: equipment lease.
o Georgia, Xxxx County Filing with GE Capital as Secured Party
for Michigan Loader lease.
o Georgia, Xxxx County Filing with Deere Credit, Inc. as
Secured Party for Wheel Loader.
o North Carolina Secretary of State Filing with GE Capital as
Secured Party for equipment lease.
o North Carolina Secretary of State Filing with Action Mobile
Industries as Secured Party for Field Office Trailer.
o Texas Secretary of State Filing with Associates Leasing,
Inc. as Secured Party for equipment lease.
o Texas Secretary of State Filing with Hoss Equipment Co. as
Secured Party for Tractor Lease.
o Utah Division of Corporations and Commercial Code State
Filing with Associates Leasing, Inc. as Secured Party for
equipment lease.
o Utah Division of Corporations and Commercial Code State
Filing with Xxx Xxxxx Co. for 3 fax machines.
o Utah Division of Corporations and Commercial Code State
Filing with Revco for 2 copiers and sorters.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 1.1C TO THE
CREDIT AGREEMENT
Lenders
-------
SCHEDULE 1.1D
Pro Forma Adjustments
for
Post Closing Acquisitions
Adjustments
Company Name (in thousands of dollars)
------------
JTM $236
Pozzolanic $312
PPA $771
Fly Ash $211
US Ash $2,796
Credit Agreement Disclosure Schedule
SCHEDULE 5.1 TO THE
CREDIT AGREEMENT
Material Liabilities
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
None.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.8 TO THE
CREDIT AGREEMENT
Litigation
Industrial Services Group, Inc.:
None.
ISG Resouces, Inc.:
None.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.10 TO THE
CREDIT AGREEMENT
Compliance with Law
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
None, other than as disclosed in Schedule 5.15 to the Credit Agreement.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.11 TO THE
CREDIT AGREEMENT
ERISA
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
None.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.12 TO THE
CREDIT AGREEMENT
Subsidiaries
Authorized/ % Outstanding
Outstanding Shares held by
Name State Shares any Person
---- ----- ------ ----------
Best Masonry & Tool Supply, Inc. Texas 100,000/1,000 100% by ISG
f/k/a J. Xxxxxx Xxxxx Interests, Inc.: Resources, Inc.
Xxxxx X. Xxxxxxx, Inc.: California 25,000/12,296 100% by ISG
Resources, Inc.
United Terrazzo Supply Co., Inc.: California 800/16 100 % by ISG
Resources, Inc.
Magna Wall, Inc Texas 1,000,000/1,000 100% by ISG
Resources, Inc.
ISG Manufactured Products, Inc.: Utah 10,000,000/1,000 100% by ISG
Resources, Inc.
ISG Capital Corporation: Utah 10,000,000/100 100% by ISG
Resources, Inc.
Don's Building Supply, L.L.P.: Texas 100 % 99% by ISG Manufactured
Products, Inc. 1% by ISG
Resources, Inc.
Credit Agreement Disclosure Schedule
SCHEDULE 5.15 TO THE
CREDIT AGREEMENT
Environmental Matters
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
On September 10, 1997, JTM Industries, Inc. (predecessor to ISG Resources,
Inc.) Received a Notice of Violation related to a storage pile dusting
problem from the Pennsylvania DEP. This has been corrected by the addition
of water.
o JTM and Xxxxxxxx Metals signed a by-product management
agreement in June of 1993 covering the exclusive marketing
and disposal of kiln residue and landfill leachate. These
material have been managed under RCRA requirements for
non-hazardous solid waste as a de-listed material. The U.S.
EPA issued a Unilateral Administrative Order (UAO) to
Xxxxxxxx that became effective on September 8, 1997 that
orders these materials to be handled as hazardous waste. JTM
is continuing to manage the kiln residue and landfill
leachate in accordance with Reynold's operating instructions
which are in compliance with UAO.
Under contract to Xxxxxxx Metals Company, JTM transported treated spent potliner
to a former bauxite mine for use in reclaiming the mine by filling the mine
pits. The former mine facility is referred to as the "Hurricane Creek" facility.
JTM placed treated spent potliner in the mine pit. On June 27, 1997 Xxxxxxxx
entered into an Administrative Order on Consent with the Arkansas Department of
Pollution Control and Ecology, which requires Xxxxxxxx to discontinue use of the
Hurricane Creek facility for disposal fo treated spent potliner, and to perform
an evaluation of potential impacts to groundwater. The U.S. EPA Unilateral
Administrative Order also requires Xxxxxxxx to perform a geotechnical and
hydrogeologic assessment of the Hurricane Creek facility.
As part of the permits or regulations for structural fills in Tennessee,
Virginia and North Carolina, JTM must place a deed of notice statement which
would notify the public that coal combustion products have been utilized and
placed on the site. This deed of notice statement has been in place at all times
and at all locations as required by Tennessee, Virginia and North Carolina.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.16 TO THE
CREDIT AGREEMENT
Intellectual Property
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
See Attachments to this Schedule.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
TRADEMARKS:
Magna Wall 2,160,040 USA 5/26/98 MAGNAWALL
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
ATTACHMENT TO SCHEDULE 5.16 TO THE
CREDIT AGREEMENT
Intellectual Property
ISG Resources, Inc.:
TRADEMARKS:
1,010,455 USA 5/13/75 POZICON
1,049,269 USA 3/3/00 STA-BLEND
1,152,421 USA 4/28/81 POZZOLANIC
and Design
1,248,044 USA 5/1/89 ORBALOID
1,395,433 USA 6/3/86 POZZALIME
1,402,656 USA 7/22/86 GYPCEM
1,448,523 USA 7/21/87 FLEXCRETE
1,454,791 USA 9/1/87 PEANUT MAKER
1,601,725 USA 6/19/90 POWERLITE
1,623,166 USA 12/20/90 ENVIRA-CEMENT
1,744,157 USA 1/5/93 ALSIL
1,780,954 USA 7/13/93 FERRO FLOW
1,911,817 USA 8/23/95 FLO FIL
1,922,933 USA 9/26/95 FLEXBASE
2,004,062 USA 4/25/95 C-STONE
2,341,611 USA 4/8/96 ALKA PHIX
75,256,274 USA 3/12/97 COAL BYPRODUCTS
& Design
Applied For USA 5/9/00 FIBERLITE
PATENTS:
Apparatus for Continuously Processing Particulate Cementitious Material & Fly
Ash Solids, Etc.
5,433,520 Xxxxx USA 7/18/95
Falls International
Serial 08,573,043 USA
PCT/US96,204,53 Green
Xxxxxxxxx International 12/13/96
Xxxxxxxxx
Xxxxxx
European part:
96945253.1 European 12/13/96
Use of Alumina Clay with Cement Fly Ash Mixtures
5,693,137 Xxxxxx USA 12/2/97
US 94/11799 Xxxxxx PCT 4/27/95
Method of Making Asphaltic Roofing Material Containing Class F Fly Ash
5,565,239 Pike USA 10/15/96
Method & Apparatus for Reducing Carbon Content in Fly Ash
5,513,755 Xxxxxxxx USA 5/7/96
Pike
Savage
Styron
Use of Alumina Clay with Cement Fly Ash Mixtures
5,484,480 Xxxxxx USA 1/16/96
Asphaltic Roofing Material with Class F Fly Ash Filler
5,391,417 Pike USA 2/21/95
Method & Apparatus for Reducing Carbon Content in Particulate Mixtures
5,299,692 Xxxxxx USA 4/5/94
Xxxxxxxx
Xxxxxx
Xxxxxxxx
Artificial Reefs Manufactured from Coal Combustion By-Products
5,199,377 Ghermann, III USA 4/6/93
Xxxxxxxx
Xxx
Xxxxx, Jr.
Fixation & Utilization of Ash Residue from the Incineration of Muni. Waste
5,196,620 Xxxxxx USA 3/23/93
Xxxxxxxxxxxx
Xxxxxx
Mixer Apparatus and Method of Blending Various Materials
5,094,541 Xxxxxx USA 3/10/92
Road Base Stabilization using Lime Kiln Dust
4,373,958 Xxxxx USA 2/15/83
Xxxxx
683101 Xxxxxx Australia 10/30/97
724548 Xxxxxx Europe 8/7/96
0000000 Xxxx Xxxxxx 5/31/94
2,071,139-6 Xxxxxx Canada 12/14/92
Xxxxxxxxxxxx
Xxxxxx
582008 Xxxxxx XX 0/0/00
Xxxxxxxxxxxx
Xxxxxx
0000000 Xxxxxx Xxxxx 5/24/94
Xxxxxxxxxxxx
Xxxxxx
Sludge Stabilizing Method & Apparatus
5,040,900 Xxxxx USA 8/20/91
Ultrasonic & Conditioning & Wet Fly Ash
5,840,179 Minkara USA 8/18/98
Xxxxxxxx
Ultrasonic Conditioning & Wet Fly Ash
5,988,396 Minkara USA 11/23/99
Masonry Cement Compositions
Serial60/155,861 Xxxxx USA 9/24/99
Xxxxxxxxx
Pike
Carbon Scavenger Fly Ash Pretreatment
Serial60/188,737 Xxxxx USA 3/13/00
COPYRIGHTS:
ISG Resources, Inc. TX 1,927,108 USA 9/29/86 The Mobile
Stabilization
Plant
ISG Resources, Inc. TX 1.963,712 USA 12/17/86 JTM Brochure
Credit Agreement Disclosure Schedule
SCHEDULE 5.19(a) TO THE
CREDIT AGREEMENT
Leased and Owned Properties
ISG Resources, Inc.:
1. JTM Industries, Inc., 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 000,
Xxxxxxxx, XX 00000
2. North Carolina-Marshall x/x Xxxxx Xxxxxxxx, X. X. Xxx 000, Xxxxxx, XX
00000
3. Virginia-Birchwood, 00000 Xxx Xxxxx Xxxx, Xxxxxxx, XX 00000
4. Pennsylvania-Allentown, Commerce Plaza, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx
0, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxx 00000
5. Pennsylvania-Bloomsburg, P. X. Xxx 000, Xxxxxxxxxx, XX 00000 (921
Millville Road)
6. Pennsylvania-Good Spring, Xxxxxx Site-Xxxxx, 000 Xxxx Xxxx Xxxxxx, Xxx
00, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
7. Pennsylvania-Holtwood, 000 Xxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
8. Pennsylvania-Montour Plant, c/o Penn Power and Light, Office Space
Lease $150 for both
9. Chemical Lime (5 Silos), Delta, Utah
10. Ohio-Dublin, 000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000, Office
Space-Lease $560
11. Ohio-Xxxxxx, Xxxxxx Station, P. O. Xxx 000, Xxxxxxxx, XX 00000, Office
Space- Lease $250
12. West Virginia-John Amos Plant, P. O. Xxx 000, Xxxxxxxx, Xxxx Xxxxxxxx
00000, Office Space-Lease $100 (0000 Xxxxxxxx Xxxx)
13. Xxxx Xxxxxxxx-Xxxxx Xxxxxxxx, 0000/0Xxxx Xxxxxx, Xxxxx Xxxxxxxx, XX
00000, Office Space-Lease $500
14. Arkansas-Hurricane Creek, P. X. Xxx 00, Xxxxxxx, XX 00000, Office
Trailer-Lease $775 (3201 South Xxxxxxxx Road)
15. Virginia - Xxxx Xxx, P. O. Box 64, Xxxx Xxx, VA, Office Trailer-Lease
$235
16. Second Lease at Dublin, Ohio, 000 Xxxxx Xxxxx, Xxxxx 000
17. KBK Enterprises, Inc., 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 000,
Xxxxxxxx, Xxxxxxx 00000
18. Georgia-Materials Testing and Research Facility, 0000 Xxxxxxx 000, XX,
Xxxxxxxxxxxx, Xxxxxxx 00000, MTRF Plant-Own, Lab Facility @ Pilot
Plant-Own, 34X30 Lab Building Addition-Own
19. Alabama-Xxxxxx, 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000, 12x24 Office
Building-Own, 12x16 Storage Break Area-Own
20. Florida-SIRPP, 00000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxx, XX 00000
(00000 Xxx Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 32226), Office Trailer-Model
S824-Own
21. Georgia-Atlanta Terminal, 0000 Xxxxxxxxx Xxx, Xxxxxxxxx, XX 00000,
Mobile Office-Own, Fly Ash Blower Building-Own
22. Georgia-Dublin, P. O. Xxx 00000, Xxxx Xxxxxx, XX 00000 (Xxxxxxxx Creek
Road), We have an office trailer that we own but it is not on the
Fixed Asset Listing
23. Georgia-Stilesboro, 000 Xxxxxxx Xxxxxx-Xxxx, XX, Xxxxxxxxxxx, Xxxxxxx
00000, Roofs-Xxxxx Building-Own, Plant Xxxxx Building-Own
24. North Carolina-Belews Creek Plant, P. O. Xxx 000, Xxxxxx Xxxxx, XX
00000 (Pine Hall Road-across from Belews Creek Steam Station), Mobile
Office-Own
25. North Carolina-Leland, P. O. Xxx 000, Xxxxxx, Xxxxx Xxxxxxxx 00000
(0000 Xxxxxxxx Xxxxx, XX), Xxxxxx Trailer-Own
26. Tennessee-Lost Ridge (Bull Run), 000 Xxxxxx Xxxx, Xxxxxxxx Xxxxxx,
Xxxxxxx, XX 00000, Office Trailer-Own, Masonite Storage Building-Own
27. Xxxxxxxx-Xxxxx Plant (Operations), P. O. Xxx 00, Xxxxxxxxx, XX 00000
(Appalachian Power Company, Clinch River Plant, Corner of
Intersections of Routes 664 and 665), Field Office Trailer Model
1050-Own
28. Virginia-Richmond, 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Office
Space furnished by Dupont
29. Connecticut-Thames, 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, Office
Trailer-Own
30. Maryland-Xxxxxxx Xxxxxx, Baltimore Gas and Electric, Xxxxxxx Xxxxxx
Station, 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000, Office space
furnished by Baltimore Gas and Electric Company
31. Pennsylvania-Xxxxxxx Island, P. X. Xxx 000, Xxxx Xxxxx, XX 00000 (Wago
Road), Office space furnished
32. Pennsylvania-Good Spring, Xxxxxxxx Site, 000 Xxxx Xxxx Xxxxxx, Xxx 00,
Xxxx Xxxxxx, XX 00000, 9x40 Xxxxxxxx Trailer-Own
33. Pennsylvania-Montour Plant, c/o Pennsylvania Power and Light, P. X.
Xxx 000, Xxxxxxxxxxxxxxx, XX 00000 (State Route 1002-30), 40' Storage
Trailer-Own
34. Pennsylvania-Sunbury, Xxx Xxxxx-Xxxxxxx Xxxxxxxx, Xxxxxxxx Xxx,
Xxxxxxxxxxxx 00000, 8x36 Scale House-Own, Storage Building-Own
35. West Virginia-Mountaineer, P. O. Xxx 000, Xxx Xxxxx, XX 00000 (Broad
Run Road), 50x60x24 Building-Own, Office Trailer-Own
36. Arkansas-Arkadelphia, Gum Springs Plant, 000 Xxxx Xxxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000, Maintenance Facility-Own
37. Texas-Bremond, P. O. Xxx 000, Xxxxxxx, XX 00000, (8 Miles North on
Xxxxxxx, Highway 6), Building for TX/NM Power Project-Own, AC Recovery
System-Own
38. Texas-Carthage, Xxxxx 0, Xxx 00, Xxxxxxxx, XX 00000, Office space
provided by XXXX
00. Xxxxx-Xxxxxx Lake, P. O. Xxx 000, Xxxxx, XX 00000 (0000 Xxxx Xxxx
0000X), Xxxxxxxx we own but not on Fixed Asset Listing
40. Texas-Limestone Plant, P. O. Xxx 000, Xxxxxx, XX 00000 (W.A. Parish
Gen. Station, X.X. Xxxxx Road, Thompsons, TX 77481), Office/Lab
Building-Own
41. California-San Bernanadino, P. O. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxx
00000-0000 (0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxxx, XX 92412), We own
office trailer, but it is not on Fixed Asset Listing
42. Nevada-Xxxx Xxxxxxx, P. O. Xxx 00, Xxxxx, XX 00000, 24x8 Mobile
Office-Own
43. North Dakota-Underwood, P. O. Xxx 000, Xxxxxxxx, XX 00000-0000 (JTM @
Cooperative Power, Coal Creek Station, 5 Miles South Hwy 82,
Underwood, ND 58576), Office space furnished by Coal Creek
44. "Delaware Crossroads", Southhampton County, Virginia, 45.791 Acres,
Parcel No. 3
45. Xxx #0 & Xxx #0, Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00. Xxxxx #0 & Xxxxx #0, Xxxxxxxx Xxxxxx, Xxxxxxxx, Vista Magisterial
District
47. 000 Xxxxxxx Xxxx Xxxx, Xxx. 00, Xxxxxxx, XX 00000
48. 000 Xxxxxxxx Xx., Xxxx Xxxxx, XX 00000
49. 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx Xxxx, XX 00000
50. 0000 X. Xxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxx
51. Xxxxxx Xxxxx #00, Xxxxxxxx, XX
52. 00000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 000X, Xxxxxxx, XX
53. 000 Xxxxx Xxxx, Xxxxxxxxxxx, XX
54. Bartow Railsite
55. Centralia, Washington Terminal
56. Xxxxxxxxxxxx, Xxxxxxx 00X, Xxxxxxx, Xxxxxxxxx
00. Xx Xxxxxx, XX
58. Ogden, Utah
59. Pacolet Plant
60. Pomona Land, CA
Credit Agreement Disclosure Schedule
SCHEDULE 5.19(b) TO THE
CREDIT AGREEMENT
Fee and/or Leasehold Interests
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
See Schedule 5.19(a) to the Credit Agreement
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.19(c) TO THE
CREDIT AGREEMENT
Locations of Tangible Personal Property
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
See Attachment to this Schedule
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
Best Masonry & Tool Supply, Inc.
00000 Xxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
00000 X. Xxxxx Xxxx
Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
0000 Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
0000 XX Xxxxxxx 000
Xxxxxx, XX 00000
Best Masonry & Tool Supply, Inc. - Lab
0000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Inc.:
Xxxxx X. Xxxxxxx, Inc.
Xxxxxxx Building Supply
00000 Xxxxxx Xxxxxx
XxXxxxxx, XX 00000
United Terrazzo Supply Co., Inc.:
United Terrazzo Supply Co., Inc.
00000 Xxxxxx Xxxxxx
XxXxxxxx, XX 00000
Magna Wall, Inc.:
Magna Wall, Inc.
P. O. Box 847
39340 I-H 00 Xxxx Xxxxx X
Xxxxxx, XX 00000
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
Don's Building Supply, L.L.P.
P. O. Box 224289
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
ATTACHMENT TO SCHEDULE 5.19(c) TO THE
CREDIT AGREEMENT
Locations of Tangible Personal Property
ISG Resources, Inc.
Xxxxx Plant C/O Golden Valley Electric Assn.
3.5 miles Usibelli, Xxxx Xxxx
Xxxxx, XX 00000
ISG Resources, Inc.
Denali Borough Xxxxxx
P. O. Xxx 00, 00000 Xxxxxxx 00
0 Xxxx X of Wilsonville on State Route 25
Wilsonville, XX
Xxxxxx County
ISG Resources, Inc.
Gorgas
000 Xxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxxxx, XX 00000
ISG Resources, Inc.
Arkadelphia - Gum Springs
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Hurricane Creek
X.X. Xxx 00
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Independence Steam Electric Power Plant
000 Xxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Independence County
ISG Resources, Inc.
Redfield
Xxxxxxx Road
Redfield, AR 72132
Jefferson County
ISG Resources, Inc.
White Bluff Steam Electric Power Plant
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
Navajo Generating Station
5 Miles East of Page Arizona
Xxxxxxx 00
Xxxx, XX 00000
ISG Resources, Inc.
French Camp Terminal
0000 Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
ISG Resources, Inc.
Fresno Terminal
0000 X. Xxxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Oxnard Terminal - Diversified Minerals Inc.
0000 X. Xxxxxx Xxxx
Xxxxxx, XX 00000
Ventura County
ISG Resources, Inc.
Redwood City Terminal C/O RMC Xxxxxxxx
000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
San Mateo County
ISG Resources, Inc.
Sacramento Terminal c/o RMC Xxxxxxxx
0000 X. Xxxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Yolo County
ISG Resources, Inc.
San Bernadino
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
San Bernadino Terminal
0000 X. 0xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
San Bernadino County
ISG Resources, Inc.
San Francisco Terminal
000 Xxxxx Xxx @ Pier 00 Xxxx Xxxx
Xxx Xxxxxxxxx, XX 00000
ISG Resources, Inc.
Andesite/DuPont
X.X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Craig Plant
ISG Resources c/o Tri-State Generation and
Transmission Associates
0000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Moffat County
ISG Resources, Inc.
Hayden Plant
ISG Resources c/o Public Service Company of Colorado
00000 X. Xxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Thames
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
New London County
ISG Resources, Inc.
CCA
00000 Xxxx Xxxxxx Xx.
Xxxxxxxxx Xxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Jefferson Smurfitt
North 8th Street
Fernandina Beach, FL 32034
Nassau County
ISG Resources, Inc.
Plant Xxxxx
00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Escambia County
ISG Resources, Inc.
Atlanta Terminal
0000 Xxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Gwinett County
ISG Resources, Inc.
Xxxxx
P. O. Box 280
000 Xxxxxxx Xxxxxx Xx., XX
Xxxxxxxxxxxx, XX 00000
Bartow County
ISG Resources, Inc.
Dublin
X.X. Xxx 00000
Xxxx Xxxxxx, XX 00000
Laurens County
ISG Resources, Inc.
Materials Testing & Research Facility
0000 Xxxxxxx 000, XX
Xxxxxxxxxxxx, XX 00000
Bartow County
ISG Resources, Inc.
Stilesboro
000 Xxxxxxx Xxxxxx Xxxx, XX
Xxxxxxxxxxxx, XX 00000
Bartow County
ISG Resources, Inc.
Burlington
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Des Moines County
ISG Resources, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Woodbury County
ISG Resources, Inc.
Mid American Energy
Port Xxxx North 1, 2, 3 & 4
Sioux City, IA 51102
Woodbury County
ISG Resources, Inc.
Mid American Energy
Xxxxxxx Xxxxx 0, 0, & 0
0000 Xxxxx Street
Council Bluff, IA 51501
Pottawattamie County
ISG Resources, Inc.
Mid American Energy
Louisa Generating Station
0000 000xx Xxxxxx
Xxxxxxxxx, XX 00000
Muscatine County
ISG Resources, Inc.
Muscatine
0000 000xx Xxxxxx
Xxxxxxxxx, XX 00000
Muscatine County
ISG Resources, Inc.
Mid American Energy
Riverside Plant
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Prairie Creek
0000 X Xxxxxx, XX
Xxxxx Xxxxxx, XX 00000
Linn County
ISG Resources, Inc.
Boise Terminal
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxxx
ISG Resources, Inc.
Meridian Terminal
Handy Truck Lines
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxxx
ISG Resources, Inc.
Paul Terminal
Handy Truck Lines
000 X. 000 Xxxx
Xxxx, XX 00000
Minidoka County
ISG Resources, Inc.
Twin Falls Terminal
000 Xxxx 000 Xxxxx
Xxxx, XX 00000
ISG Resources, Inc.
X.X. Xxxxxxx Station
P.O. Box 1237
Pekin, IL 61555
Tazewell County
ISG Resources, Inc.
Council Bluffs
0000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Pottawattamie County
ISG Resources, Inc.
Baldwin Plant
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxx County
ISG Resources, Inc.
Duck Creek
P. O. Box 1257
Pekin, IL 61555
Tazewell County
ISG Resources, Inc.
Xxxxxxx Station
0000 x. Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxxx Station
00000 X. Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Wood River Plant
0 Xxxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Bailly Station
000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Cinergy - Noblesville Plant
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxxx County
ISG Resources, Inc.
Xxxxxx Xxxxx
Xxxxxxx 00
Xxxxxxx, XX
Xxxx Xxxxxx
ISG Resources, Inc.
LTV Steel Company
Door 806
0000 Xxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Michigan City
Wasbash Street at the Lake
Michigan City, IN 46360
La Porte County
ISG Resources, Inc.
Xxxxxxxx Generating Xxxxxxx
X.X. Xxx X000
Xxxx, XX 00000
Xxxx Xxxxxx
XXX Resources, Inc.
Petersburg Station
Xxxxx 0,Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, XX 00000
Pike County
ISG Resources, Inc.
Schahfer Station
2723 E. 0000 Xxxxx
Xxxxx, Xxx 000
Xxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Mill Creek
00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Jefferson County
ISG Resources, Inc.
Dolet Hills
P. O. Box 955
963 Power Plant Rd.
Mansfield, LA 71052
DeSoto Parish
ISG Resources, Inc.
Rayville
P. O. Box 477
Rayville, LA 71269
Richland Parish
ISG Resources, Inc.
Xxxx
000 Xxxxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Consumers Power - Xxxx Plant
000 Xxxxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Consumers Power - West Xxxxx - Xxxxxxxx
0000 X. Xxxx Xxxxx
Xxxx Xxxxx, XX 00000
Ottawa County
ISG Resources, Inc.
Consumers Power - Xxxxxxx - Erie
00000/0Xxxx Xxxx
Xxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx
Island Avenue
Lansing, MI 48917
Xxxxxx County
ISG Resources, Inc.
First Energy - Silo Storage Only
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Xxxx
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxx Xxxxxx
ISG Resources, Inc.
Lansing Board Water & Light - Xxxxxxxx
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Lansing Board Water & Light - Xxxxxx
Island Avenue
Lansing, MI 48917
Xxxxxx County
ISG Resources, Inc.
Xxxxxx Park
Island Avenue
Lansing, MI 48917
Xxxxxx County
ISG Resources, Inc.
Sikeston
0000 X. Xxxxxxxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx Xxxx
Route 1, box 87
Xxxxxxx Hill, MO 65244
Xxxxxxxx County
ISG Resources, Inc.
Colstrip
Xxxxxx Xxx. & Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
ISG Resources, Inc.
Xxxxxxxx
000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
ISG Resources, Inc.
Xxxxx & Xxxxx Station
Highway 23, South of Sydney
Xxxxxx, XX 00000
ISG Resources, Inc.
Missoula Terminal
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
ISG Resources, Inc.
Coal Creek
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XxXxxx County
ISG Resources, Inc.
Xxxxxx Station
Xxxxxxxx & Xxx Xxxxxx Avenues
Jersey City, NJ 07306
ISG Resources, Inc.
Albany
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxxx County
Route 1, P. O. Box 177
Bedford, NY 40006
Westchester County
ISG Resources, Inc.
Belews Creek Plant
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Cape Fear
X.X. Xxx 000
Xxxxxx, XX 00000
New Hanover County
ISG Resources, Inc.
Xxxxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Catabba County
ISG Resources, Inc.
Underwood
X.X. Xxx 000
Xxxxxxxx, XX 00000
XxXxxx Xxxxxx
ISG Resources, Inc.
Las Vegas Terminal - Chem Lime
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
ISG Resources, Inc.
Xxxx Xxxxxxx
X.X. Xxx 00
Xxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Fernley Terminal
Nevada Cement Company
00 XX Xxxxxx
Xxxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Las Vegas Terminal
Savage Industries
00 X. Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Xxxx Xxxxxxx Power Plant
Power Plant Road
Moapa, NV 89025
Xxxxx County
ISG Resources, Inc.
Consumers Power - Lakeshore Plant
E. 55th & X. Xxxxxxxx
Cleveland, OH
Cuyahoga County
ISG Resources, Inc.
Dublin
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Franklin County
ISG Resources, Inc.
First Energy
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
First Energy
00000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Lorain County
ISG Resources, Inc.
First Energy
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Ashtabula County
ISG Resources, Inc.
First Energy
00 Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Miami Fort
000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxxxx County
ISG Resources, Inc.
Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
XX Xxxxxxxx Station
0000 Xxxxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
Clermont County
ISG Resources, Inc.
Xxxxxx
0000 XX 00
Xxxxxx, XX 00000
ISG Resources, Inc.
Harrisburg Terminal X/X Xxxxx Xxxxxxxx
Xxxxxxx 00 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Linn County
ISG Resources, Inc.
Xxxxxxxxx
Xxxxxxxx Xxxxx
0000 Xxxxxxxx Xxxxxx
Building 2, Suite 225
Allentown, PA 18104
Lehigh County
ISG Resources, Inc.
Bloomsburg
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Good Spring - Xxxxxx Site
000 Xxxx Xxxx Xxxxxx, Xxx 00
Good Spring, PA 17981
Tremont County
ISG Resources, Inc.
Mansfield
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
XXX Resources, Inc.
Sunbury
Old Trail - General Delivery
Shamokin Dam, PA 17876
Xxxxxx County
ISG Resources, Inc.
Pacolet
000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Lost Ridge (Bull Run)
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Bremond
X.X. Xxx 000
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
Carthage
Xxxxx 0, Xxx 00X
Carthage, TX 75633
Panola County
ISG Resources, Inc.
Limestone Plant
X.X. Xxx 000
Xxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx Lake
P.O. Box 647
Tatum, TX 75691
Xxxx County
ISG Resources, Inc.
Xxxxxx
Longview, TX
Xxxxx County
ISG Resources, Inc.
Stafford (Sales/Administration)
00000 XX Xxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Fort Bend County
ISG Resources, Inc.
W.A. Parish Plant
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Fort Bend County
ISG Resources, Inc.
Carbon Plant
ISG Resources x/x XxxxxxXxxx Xxxxxxx 0, 0 Miles North of Helper Helper, UT 84526
Carbon County
ISG Resources, Inc.
Hunter Plant/Huntington Plant
ISG Resources c/o PacificCorp
2.5 Miles Xxxxx Xxxx Xxxxxxx
X.X. Xxx 000
Xxxxxx Xxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Intermountain Power Service Corp. - Delta
ISG Resources c/o Intermountain Power
000 X. Xxxxx Xxxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx County
ISG Resources, Inc.
Ogden Terminal
ISG Resources c/o PacifiCorp
0000 Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Carbo Plant
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Birchwood
00000 Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxx Xxx
P.O. Box 64
Xxxx Xxx, VA 24093
Xxxxx County
ISG Resources, Inc.
Richmond
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Bellingham Terminal
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Whatcom County
ISG Resources, Inc.
Centralia Plant X/X XxxxxxXxxx
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Centralia Storage
0000 Xxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Holnam Cement
0000 X. Xxxxxxxx Xxx, XX
Xxxxxxx, XX 00000
King County
ISG Resources, Inc.
Spokane Terminal
0000 X. Xxxx
Xxxxxxx, XX 00000
ISG Resources, Inc.
Alma
0000 Xxxx Xxxxxx Xxxxx
Xxxx, XX
Buffalo County
ISG Resources, Inc.
Genoa
S 0000 Xxxxx Xxxx 000
Xxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxx Xxxx Plant
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Kanawha River Facility
X.X. Xxx 000
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Mountaineer
X.X. Xxx 000
Xxx Xxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Point Pleasant
000 0/0Xxxx Xx.
Xx. Xxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Xxxx Xxxxxxxx Plant
ISG Resources x/x XxxxxxXxxx.
0000Xxxx Xxxx Xxxx
Coal Company Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Laramie River Plant
ISG Resources c/o Basin Electric Power
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Xxx Xxxxxxx Plant
ISG Resources x/x XxxxxxXxxx.
00 Xxxxx Xxxx xx Xxxx Xxxxxxx
X.X. Xxx 000
Xxxxx xx Xxxxx, XX 00000
Xxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxxxx Plant
ISG Resources c/o PacifiCorp.
5 Miles SW of Kemmerer on Hwy 189
P.O. Box 109
Kemmerer, WY 83101
Lincoln County
ISG Resources, Inc.
Wyodak Power Plant
ISG Resources x/x XxxxxxXxxx.
00 Xxxxxx Xxxx
Xxxxxx Lake Route
Gillette, WY 82718
Xxxxxxxx County
ISG Resources, Inc.
00000 Xxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Salt Lake County
Credit Agreement Disclosure Schedule
SCHEDULE 5.19(d) TO THE
CREDIT AGREEMENT
Chief Executive Office and Principal Place of Business
Industrial Services Group, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
ISG Resources, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
United Terrazzo Supply Co., Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
Magna Wall, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 X-X Xxxx, Xxxxx X
Xxxxxx, XX 00000
ISG Manufactured Products, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Don's Building Supply, L.L.P.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ISG Capital Corporation:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Credit Agreement Disclosure Schedule
SCHEDULE 5.21 TO THE
CREDIT AGREEMENT
Material Contracts
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
See Attachment to this Schedule.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
Xxxxx X. Xxxxxxx, Inc.:
Quality Systems, Inc. Toll Manufacturing Agreement 5/1/00
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
Teifs Wall Systems Private Label Pricing Agreement 2/6/97
Texas EIFS Private Label Pricing Agreement 2/6/97
Florida Mega Mix, Inc. Purchase Agreement 1/1/99
Midwest Block and Brick Manufacturing/Sales Agreement 7/25/96
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Contracting Party Contract Start Date:
------------------------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Manufacturing Co. Fly Ash & Bottom Ash Marketing Agreement 9/20/93
Acme Brick Company Purchase Agreement for Bottom Ash 11/27/91
AES Puerto Rico Joint Bidding & Operating Understanding
AES Shady Point Marketing Agreement 10/6/93
Alabama Power Company Plant Xxxxxx Bottom Ash Agreement 8/1/98
Alabama Power Company Plant Xxxxxx/Bottom Ash Agreement 3/18/96
Alliant Energy Corporate Services, Inc. Iowa Ash Marketing Agreement 1/1/99
Amerian Electric (AEP) - Mountaineer/Sporn #2230 Disposal/Landfill Development 1/1/98
American Electric - Kanawha River #2271 Fly Ash & Bottom Ash Disposal 3/1/98
American Electric (AEP) - Mountaineer #9452 (App) Fly Ash Sales Agreement 10/1/94
American Electric (AEP) -Xxxx #9721(Appalachain) Fly Ash & Bottom Ash Sales Agreement 1/1/96
American Electric Power Coal combustion By-Product Utilization Agreement 3/1/99
Appalachian Power Co. Fly Ash Sales Agreement - Clinch River #9365 7/1/94
Appalachian Power Co. Ash Disposal/Landfill Dev. - Clinch River #2128 7/15/97
Appalachian Power Co. Ash Disposal/Landfill Dev. - Xxxx Xxx #2119 7/1/97
Arkansas Power & Light - (Entergy) Marketing/Disposal Agreement 8/1/87
Ash Grove Cement Co. (Louisville) - PPA Marketing Agreement 7/3/97
Associated Electric Cooperative, Inc. (Xxxxxx Hill) Fly Ash Sales Agreement 7/1/98
Xxxxxxxx-Xxxxxxxxxx-Xxxxxx P. O. 2216-2995 6/6/96
Baltimore Gas & Electric Ash Sale & Marketing Agreement 6/1/93
Basin Electric (Laramie River) Fly Ash Marketing Agreement 7/1/90
Becon Construction Company Remove Ash From #1 & #4 Ponds 4/27/98
Big Rivers Electric Corporation (Xxxxxx Station) Fly Ash Marketing Agreement 4/4/96
Birchwood Power Partners Consent & Agreement Documents
Birchwood Power Partners Ash Disposal Agreement 10/14/91
Birchwood Power Partners Short Term Arrangement 6/26/96
BIT Manufacturing Marketing of Iron Calcine 00/0/00
Xxxx Xxxxxx Xxxxxxx, Inc. Lime Sales Agreement 5/10/99
Carolinas Cement Company Sales Agreement for Gypsum from J. River 5/8/95
C-E Minerals, Inc. Metakaolin Marketing Agreement 1/22/98
Celeanese Acetate Celco (Narrows, VA) CCBP - Purchase Agreement 0/0/00
Xxxxxxxxx Xxxxxxx Xxxxx (Xxxxxxx, XX) Services Agreement (Xxxxx) 6/14/99
Central & South West Services (CSWS) (Xxxxxx) Fly & Bottom Ash Sales Agreement 8/18/99
Central Illinois Light Company (X.X. Xxxxxxx) Pond Cleanout Agreement 8/12/98
Centrial Illinois Light Company (Duck Creek) Pond Cleanout Agreement 3/8/99
Centrial Illinois Light Company (X.X. Xxxxxxx) Pond Cleanout Agreement 3/10/99
Chemical Lime New Braunfels, Ltd. Supply Agreement 1/4/00
Chesapeake Operating , Inc. Master Service Contract 2/3/98
Cinncinati Gas & Electric (Cinergy - CG & E) Ash Marketing Ageement 1/1/95
Cleco Corporation - Dolet Hills Marketing/Disposal Agreement 4/9/99
Commonwealth Edison Company-ComEd (Xxxxxxx) Fly Ash Sales Agreement 7/31/96
Consumers Energy (Michigan Ash) Change Order No. 6 to Contract 3/5/90
Container Corporation of Am. Purchase of Fly Ash 4/10/89
Continental Lime, Inc. (Circket Mtn. & Pilot Peak) LKD Marketing Agreement 4/1/99
CST/SRI/ISG (Ltr. Agree Brazil Granulated Slag) Purchase of Grannulated Slag for N. America 12/18/98
CSX Transportation (CSXT) Ash Management Agreement 6/30/94
CSX Transportation (CSXT) Bid Bond for AES Thames
Dairyland Power Cooperative Ash Marketing and Transportation Services Agreement 1/1/00
DDS Aggregates Guaranty Agreement from Xxxxxxxx Brothers 8/28/96
Duke Power Company Exc. X. Xxx Mkt. Agr. - B.Creek & Xxxxxxxx 12/31/96
XxXxxx Xxxxx River Contract 1/1/93
DuPont Cape Fear Ash Management Services 3/23/98
Earth Conservancy Letter of Intent 4/20/98
Xxxxxxx Chemical Co. Fly Ash Marketing Agreement (Contract Ext 01/99) 10/1/93
ECDC East L.C. Reagent Supply and Service Agreement 6/1/98
Elk Corporation of Texas Alsil Purchase Agreement 9/1/96
Xxxxx Industries (See Golden Valley) Fly Ash Marketing 4/7/95
Xxxxx, N.E. Company Equipment Rental Agreement (CILCO) 1/20/98
Xxxxx, N.E. Company (24 Hr. Notice for Termination) Equip. Rental Agreement (from JTM for CILCO) 1/20/98
First Energy (Lake Plants "5") T&C's under Neg. Coal Ash Marketing Agreement 1/1/97
Fort Bend County Purchase and Hauling of earth type road mat. 7/1/97
General Motors Corp. (Pontiac) Exclusive Ash Marketing Agreement 1/11/94
Georgia Power (Admen. No. 7 [01/01/99]) Purchase of Bottom Xxx - Xxxxx 4/1/85
Georgia-Pacific Corp. Supply Agreement (Alsil) 11/14/91
Giant Resource Recovery Co. Kiln Dust Purchase Agreement 1/15/97
Golden Valley (Xxxxx) Fly Ash Marketing 1/28/80
Great River Energy - Cooperative Power (Coal Creek) Fly Ash Marketing Agreement 1/1/97
GS Roofing Products Filler Supply Agreement 4/11/96
Gulf States Materials, Inc. Purchase Agreement 5/1/96
Holnam - Devils Slide CKD Marketing Agreement 1/26/96
Holnam, Inc. (Ada, OK) CKD Marketing Agreement 6/7/96
Holnam, Inc. (Xxxxx Hill) Exclusive CKD Marketing Agreement 12/14/95
Holnam/Ft. Xxxxxxx (PPA) Disposal 1/1/95
Holnam/Ft. Xxxxxxx (PPA) Purchase Agreement 1/1/95
Home Crete, Inc. Toll Manufacturing Agreement 5/10/00
Houston Light & Power Marketing/Disposal CCBP
Houston Light & Power Marketing/Disposal (Limestone) 6/1/96
Houston Light & Power Contract KA-P-94-1128 2/1/94
Houston Light & Power Marketing/Disposal (Parish) 6/1/96
Houston Light & Power Misc. Personnel & Equipment 1/1/95
Houston Light & Power Internal Utilization Program CCBP 2/1/94
Houston Light & Power Dynastone Technology N/A
Illinois Power Contract IP1001 Ash Marketing Services 10/1/94
Illinois Power Contract IP-1013 CCB Marketing Services 5/1/99
Indiana-Kentucky Electric Corporation (Clifty Creek) Fly Ash Sales Agreement 6/1/96
Indianapolis Power & Light Company CCB Marketing Agreement 7/1/97
Intermountain Power Service Corporation (Delta) Fly Ash Marketing/Bottom Ash Sales 1/1/92
Intermountain Power Service Corporation (Delta) Amendments to Agreements
Keystone Energy Service Co. (Xxxxx Generating) Ash Management Services 1/31/92
Lafarge Canada, Inc. Ash Purchase & Supply Agreement (Thames) 4/1/97
LaFarge Corporation Purchase of Ash from Parish 6/26/90
LeHigh Portland Cement Company (Xxxxx) - PPA CKD Purchase Agreement 3/1/92
LeHigh Portland Cement Company (Xxxxxxxx, IN) CKD Purchase Agreement - ISG 5/14/99
Lockheed Xxxxxx Energy P. O. 80X-LTM08V - Plant ORNL 4/21/97
Log Lighter Material Supply Agreement 3/1/00
Louisville Gas & Electric Company (Mill Creek) CCB Marketing Agreement 10/18/94
Louisville Gas & Electric Company (Trimble) Fly Ash Sales Agreement 3/31/97
Medusa Cement (Charlevoix) - Michigan Ash CKD Marketing Agreement 7/17/97
Mid-American Energy Company Ash Management Agreement 5/1/98
Monarch Cement Company (Humboldt) - PPA CKD Marketing Agreement 7/17/90
Monex Resources, Inc. Purchase of Fly Ash (Agr. with Melitech) 1/1/89
Montana Power Company (Colstrip) CCB's Purchase Agreement 5/28/99
Montana Power Company (Xxxxxxx) Fly/Bottom Ash Purchase Agreement 9/9/96
Montana-Dakota Utilities, Co. (Xxxxx & Xxxxx) Fly Ash Sales Agreement 5/10/99
Nevada Cement Company Cement Kiln Dust Agreement (CKD) 4/1/00
Nevada Power Company (Xxxx Xxxxxxx) Fly Ash Sales 12/7/95
Northern Indiana Public Service Co. (NIPSCO) Xxxxxxxx XX00000 Marketing CCP 4/1/97
Northern Indiana Public Service Co. (NIPSCO) Xxxxxxxx XX00000 Equip. Lease Xxxxx 00 & 00 0/0/00
Xxxxxxxx Xxxxxxx Public Service Co. (NIPSCO) Xxxxxxxx XX00000 Fly Ash Mkg. and Disposal 1/1/95
Ohio Edison Company Interim Marketing Agreement 7/1/96
Olympic Waste Services, Inc. General Service Agreement 9/1/98
Ottumwa Midland Landfill Operations Agreement 4/1/99
Pacific Corp (Xxxx Xxxxxxx) Fly Ash Sales 4/12/93
Pacific Corp (Wyodak) Fly Ash Marketing/Bottom Ash Sales 3/12/90
PacificCorp (Carbon, Hunter & Huntington) Fly Ash Marketing/Bottom Ash Sales 12/17/97
PacificCorp (Centrailia Steam Plant) Fly Ash Marketing/Bottom Ash Sales 3/1/77
PacificCorp (Xxx Xxxxxxx) Fly Ash Marketing Contract 3/15/90
PacificCorp (Xxxxxxxx) Fly Ash Marketing/Bottom Ash Sales 3/12/90
Pennsylvania Power & Light Mine Reclamation Agreement (Sunbury/Xxxx.) 7/1/94
Pennsylvania Power & Light Power Plant Reclamation Agreement (Montour) 4/1/96
Platte River Power Authority (PPA) Sales Agreement 5/4/89
Public Service Elec. & Gas Co. (PSE&G) Award Notification / Interim Agreement Extension 6/22/98
Public Service Elec. & Gas Co. (PSE&G) Agreement to Permit Access 1/7/99
Public Service of Colorado (Hayden) Fly Ash Marketing Agreement 8/1/81
Xxxxxxxx Metals Company Blanket Engineering Services Agreement 5/20/94
Xxxxxxxx Metals Company Disposal Agreement 1/1/98
Xxxxxxxx Metals Company Const. Contract P. O. 84351ME 9/4/98
Xxxxxxxx Metals Company (Gum Springs) Exclusive Marketing Agreement 6/24/93
Xxxxxx Materials Corporation P. O. 4050-07647 (Ash from Clinch) 11/1/93
Xxxxxx Materials Corporation Fly Ash Supply & Purchase Agreement 5/7/97
Roanoke Cement Company Same Contract as Carolina Cement 5/8/95
Rust Remedial Services, Inc. Government Contract Compliance
Salt River Project (SRP)- Navajo Generating Station CCP's Marketing Agreement 10/16/00
Sherwood Block & Brick Purchase of Pyritic Bottom Ash (Xxxx) 5/26/87
Sikeston Board of Municipal Utilities Ash Marketing Agreement 9/15/98
SK Services, Inc. - Monroe, Louisiana Recycling Plastic By-products 5/25/99
Southdown CKD Sales Agreement 10/23/98
Southdown - PPA - Lyons, Colorado CKD Sales Agreement 3/13/96
Southdown (MMA No. 1) Master Materials Agreement 12/23/98
Southdown (MMA No. 2) Master Materials Agreement 12/23/98
Southdown (MMA No. 3) Master Materials Agreement 12/23/98
Southdown (N-Viro) CKD Agreement Extension
Southeast Paper Landfill Operations/Sludge Pond Reclamation 1/1/99
Southern Company Services, Inc. (Gulf Power) Interim Ash Management Services Agreement(Xxxxx) 10/1/99
Sylvan Products Letter of Intent 7/19/96
Synthetic Industries, Inc. (IA / SD) Distributorship Agreement 6/30/99
Tennessee Valley Authority Ash Disposal - Bull Run 4/2/90
Texaco Exploration and ... Independent Contractor Agreement 7/12/95
Texas Lime Company (Cleburn) LKD Marketing Agreement 11/30/98
Texas Utilities (TXU Electric Co.) - Xxxxxx Lake Purchase Fly Ash & Bottom Ash 8/20/99
Texas-New Mexico Power Marketing/Disposal CCBP 9/1/97
Tractebel Electricity & Gas International Ash and Limestone Handling Agreement 10/11/99
Tri-State Generation (Xxxxx) Fly Ash Marketing 11/1/95
Union Camp Purchase - CCBP 3/2/92
Union Pacific Resources Master Service Contract 3/24/98
VFL Technology Corporation Fly Ash Agreement 3/9/98
Xxxxxxxx Brothers Const. Co. Guaranty Agreement 8/28/96
Winston Company Material Purchase 10/26/98
Xxxxxxxx-Xxxxx International Master Agreement for Professional Services 7/9/97
Credit Agreement Disclosure Schedule
SCHEDULE 5.22 TO THE
CREDIT AGREEMENT
Labor Matters
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
None.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.25 TO THE
CREDIT AGREEMENT
Filings or Recordings
Credit Agreement Disclosure Schedule
SCHEDULE 5.26 TO THE
CREDIT AGREEMENT
Transactions with Affiliates
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
None.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 5.27 TO THE
CREDIT AGREEMENT
Ownership
Industrial Services Group, Inc.:
Number of
Shares
Owner Outstanding
Class Series Par Value
Citicorp Venture Capital, Ltd. 187,425.00 Common n/a No par
CCT Partners IV, L.P 33,075.00 Common n/a No par
Natasha Partnership 7,840.00 Common n/a No par
Xxxxxxx X. Xxxxxx, Xx. 7,840.00 Common n/a No par
Xxxxx X. Xxxxxx 7,840.00 Common n/a No par
Xxxxxx X. Xxxxxxxxx 980.00 Common n/a No par
Xxxx X. Xxxx 45,317.00 Common n/a No par
Xxxxx X. Xxxxxxx 4,950.00 Common n/a No par
RACT, Inc. 187,833.00 Common n/a No par
J.I. Everest, II 11,900.00 Common n/a No par
Citicorp Venture Capital, Ltd. 26,813.25 Preferred A No Par
CCT Partners IV, L.P. 4,731.75 Preferred A No Par
Natasha Partnership 1,121.60 Preferred A No Par
Xxxxxxx X. Xxxxxx, Xx. 1,121.60 Preferred A No Par
Xxxxx X. Xxxxxx 1,121.60 Preferred A No Par
Xxxxxx X. Xxxxxxxxx 140.20 Preferred A No Par
Xxxx X. Xxxx 2,023.00 Preferred B No Par
Xxxxx X. Xxxxxxx 700.50 Preferred B No Par
RACT, Inc. 31,689.50 Preferred B No Par
J.I. Everest, II 587.00 Preferred B No Par
ISG Resources, Inc.:
Industrial Services Group 100 Common N/A No Par
Credit Agreement Disclosure Schedule
SCHEDULE 5.28 TO THE
CREDIT AGREEMENT
Insurance
Industrial Services Group, Inc.:
See attached Aon Certificate.
ISG Resources, Inc.:
See attached Aon Certificate.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
See attached Aon Certificate.
Xxxxx X. Xxxxxxx, Inc.:
See attached Aon Certificate.
United Terrazzo Supply Co., Inc.:
See attached Aon Certificate.
Magna Wall, Inc.:
See attached Aon Certificate.
ISG Manufactured Products, Inc.:
See attached Aon Certificate.
Don's Building Supply, L.L.P.:
See attached Aon Certificate.
ISG Capital Corporation:
See attached Aon Certificate.
Credit Agreement Disclosure Schedule
SCHEDULE 5.29 TO THE
CREDIT AGREEMENT
Licenses
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
1. Licensee of various standard office products and computer programs
used in connection with day-to-day operations.
2. ABC Cement, Inc., ABC Cement License Agreement dated March 15, 1999:
Agreement to license technology for the manufacture of quick set
products with fly ash.
3. Dynastone, L.C.., Dynastone License Agreement dated August 6, 1998, to
license technology for the manufacture of acid and salt resistant
products with fly ash.
4. Xxxxxx Pipe & Products, Inc.: Sublicense Agreement dated January 5,
2000to license technology for the manufacture of acid and salt
resistant pipe products with fly ash.
5. Dynastone, L.C., Hydro Conduit Agreement dated December 16, 1998 to
license technology for the manufacture of acid and salt resistant pipe
products with fly ash.
6. Mainland Laboratory, Ltd. Mainland Laboratory Diagnostic Technology
License Agreement dated April 14, 2000, Technology Sublicense
Agreement to license technology for the manufacture of products with
fly ash.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
1. Acro Crete, Inc. technology sub-license agreement of April 6, 1999 for
Magna Wall.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 7.1 TO THE
CREDIT AGREEMENT
Indebtedness
Industrial Services Group, Inc.:
Junior Subordinated Note due 2005 in the principal sum of $17.5
million; and Senior Subordinated Credit Agreement due 2005 in the
principal $10 million
ISG Resources, Inc.:
Senior Subordinated Notes (10%) due 2008 in the principal sum of
100,000,000;
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
Purchase money promissory note dated April 20, 1999 payable to Xxxxxxx
X. Xxxxxx with a principal balance of $127,306.64 for purchase of Real
Property in Texas at Don's location.
ISG Capital Corporation:
None.
Credit Agreement Disclosure Schedule
SCHEDULE 7.9 TO THE
CREDIT AGREEMENT
Transactions with the Sponsor and its Affiliates
Industrial Services Group, Inc.:
(i) Warrants issued to Citicorp Venture Capital, Ltd., CCT Partners IV and
CVC Co-Investors on October 14, 1997 for an aggregate of 5,000 Warrant
Shares;
(ii) Stockholders' Agreement by and among Industrial Quality Services, Inc.
and its Stockholders dated as of October 14, 1997;
(iii)Registration Rights Agreement by and among Industrial Quality
Services, Inc. and its Stockholders dated as of October 14, 1997;
(iv) Subscription Agreement, dated as of October 14, 1997, among Industrial
Quality Services, Inc. and Citicorp Venture Capital, Inc., CCT
Partners IV, LP and the CVC Co-Investors re: Class A Common Stock,
Series A Preferred Stock and Series A Stock Purchase Warrants.
(v) Senior Subordinated Credit Agreement dated as of April 17, 2000 (CVC)
between Industrial Services Group, Inc. and Citicorp Mezzanine
Partners, L.P. and associated agreements including the Warrant
Agreement
ISG Resources, Inc.:
None.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
None.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated as
of May [___], 2000 (as amended, modified, restated or supplemented from time to
time, the "Credit Agreement") among ISG Resources, Inc., a Utah corporation
(successor to JTM Industries, Inc., a Texas corporation) (the "Borrower"),
Industrial Services Group, Inc., a Delaware corporation (the "Parent"), the
Lenders (as defined in the Credit Agreement), Bank of America, N.A. (formerly
known as NationsBank, N.A.), as Administrative Agent for the Lenders (the
"Administrative Agent") and Issuing Lender, and Canadian Imperial Bank of
Commerce, as Documentation Agent. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Credit Agreement.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
effective as of the Effective Date (as defined below), the interests set forth
below (the "Assigned Interest") in the Assignor's rights and obligations under
the Credit Agreement, including, without limitation, the interests set forth
below in the Commitments and the outstanding Loans of the Assignor on the
Effective Date, to the extent of the interests specified below, together with
unpaid Fees accrued in respect of the assigned Commitments to the Effective Date
and unpaid interest accrued on the assigned Loans to the Effective Date.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interests being assigned by it hereunder and that such
interests are free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Credit Documents or any other instrument or document furnished
pursuant thereto; and (iv) attaches the Note[s] held by the Assignor and
requests that the Administrative Agent exchange such Note[s] for new Note[s]
payable to the order of the Assignee in the amount[s] specified on line[s] [(j)]
[and (p)] of Schedule 1, and to the order of the Assignor in the amounts, if
any, specified on line[s] [(i)] [ and (o)] of Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 6.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Documents
as are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) attaches any U.S. Internal Revenue Service or other forms
required under Section 3.10(d) of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Administrative
Agent, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interests assigned
hereby (including, without limitation, all payments of principal, interest,
[Tranche A Commitment Fees] [and] [Tranche B Commitment Fees] and other Fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York. This Assignment and
Acceptance may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of this Assignment
and Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
8. This Assignment and Acceptance shall be effective only upon consent
of the Administrative Agent (and, if applicable, the Borrower) and delivery to
the Administrative Agent of this Assignment and Acceptance, together with the
transfer fee payable pursuant to Section 10.3(b)(iv) of the Credit Agreement in
connection herewith and recordation in the Register pursuant to Section 10.3(c)
of the Credit Agreement of the terms hereof.
[Signature Page to Follow]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
[ ], as Assignor
By:
-------------------------------
Name:
Title:
[ ], as Assignee
By:
-------------------------------
Name:
Title:
See Schedule II attached hereto
CONSENTED TO:
Bank of America, N.A.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
ISG RESOURCES, INC.
By:
--------------------------------
Name:
Title:
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment:1
(e) Tranche A Revolving Commitment Percentage Assigned
(expressed as a percentage set forth to at least 8 decimals) _______%
(f) Tranche A Revolving Commitment Percentage of Assignee
after giving effect to this Assignment and Acceptance
as of the Effective Date (set forth to at least 8 decimals) _______%
(g) Tranche A Revolving Commitment Percentage of Assignor
after giving effect to this Assignment and Acceptance
as of the Effective Date (set forth to at least 8 decimals) _______%
(h) Tranche A Revolving Committed Amount as of Effective Date $____________
(i) Dollar Amount of Assignor's Tranche A Revolving Commitment
Percentage as of the Effective Date (the amount set
forth in (h) multiplied by the percentage set forth in (g)) $____________
(j) Dollar Amount of Assignee's Tranche A Revolving Commitment
Percentage as of the Effective Date (the amount set
forth in (h) multiplied by the percentage set forth in (f)) $____________
(k) Tranche B Revolving Commitment Percentage Assigned
(expressed as a percentage set forth to at least 8 decimals) _______%
(l) Tranche B Revolving Commitment Percentage of Assignee
after giving effect to this Assignment and Acceptance
as of the Effective Date (set forth to at least 8 decimals) _______%
(m) Tranche B Revolving Commitment Percentage of Assignor
after giving effect to this Assignment and Acceptance
as of the Effective Date (set forth to at least 8 decimals) _______%
(n) Tranche B Revolving Committed Amount as of Effective Date $____________
(o) Dollar Amount of Assignor's Tranche B Revolving Commitment
Percentage as of the Effective Date (the amount set
forth in (n) multiplied by the percentage set forth in (m)) $____________
(p) Dollar Amount of Assignee's Tranche B Revolving Commitment
Percentage as of the Effective Date (the amount set
forth in (n) multiplied by the percentage set forth in (l)) $____________
Schedule II
Notice Address of Assignee
--------
1 This date should be no earlier than five (5) Business Days after the delivery
of this Assignment and Acceptance to the Agent.
EXHIBIT B
[FORM OF]
DEPOSITORY BANK AGREEMENT
[DATE]
[Depository Bank]
[Address]
Dear [name]:
Reference is made to (a) the Amended and Restated Credit Agreement
dated as of May [___], 2000 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among ISG Resources, Inc., a Utah
corporation (successor to JTM Industries, Inc.) (the "Borrower"), Industrial
Services Group, Inc., a Delaware corporation (the "Parent"), the financial
institutions party thereto as lenders (the "Lenders"), and Bank of America, N.A.
(formerly known as NationsBank, N.A.), as Administrative Agent for the Lenders
(in such capacity, the "Administrative Agent") and Issuing Lender, and Canadian
Imperial Bank of Commerce, as Documentation Agent, and (b) the Amended and
Restated Pledge and Security Agreement dated as of May [___], 2000 (the
"Security Agreement") among the Parent, the Borrower, the other grantors named
therein and the Administrative Agent for the benefit of the Secured Parties (as
defined in the Credit Agreement).
This letter refers to Account No. _____________ which [the Borrower]
(the "Obligor") maintains with ______________ (the "Depository Bank") in the
Obligor's name (the "Account").
Please be advised that the Obligor has granted to the Administrative
Agent, for the benefit of the Secured Parties, under the Security Agreement, a
security interest in all of the Obligor's assets, including, without limitation,
all of the Obligor's right, title and interest in and to the Account.
This letter shall constitute notice to the Depository Bank from the
Obligor that so long as any Credit Obligations (as defined in the Credit
Agreement) are outstanding and unpaid the Obligor and the Administrative Agent
have agreed that all funds which from time to time may be on deposit in the
Account are the sole and exclusive property of the Administrative Agent, for the
benefit of the Secured Parties. In accordance therewith, the Obligor irrevocably
instructs the Depository Bank that upon receipt at the above address by the
Depository Bank of written notification from the Administrative Agent, except as
otherwise provided in the paragraph immediately preceding the final paragraph of
this letter, the Depository Bank will not permit the Obligor to withdraw funds
from the Account, the Administrative Agent will have sole and exclusive control
over the Account, and unless otherwise notified by the Administrative Agent, the
Depository Bank shall transfer collected funds from the Account by wire transfer
or by ACH method (or other means acceptable to the Administrative Agent) solely
to the Administrative Agent's account, Account No. , Attn: Agency Services, at
the Administrative Agent's office located at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx Center, 00xx Xxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
ABA No. .
The Obligor agrees to indemnify and hold harmless the Depository Bank
from and against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses and liabilities of every nature and
character arising out of or related to this letter or the transactions
contemplated hereby or the Depository Bank's actions taken hereunder, except to
the extent that any of same shall be directly caused by the Depository Bank's
willful misconduct or gross negligence as shall be determined by a state or
federal court of law in the State of New York.
This letter agreement shall be terminable upon the Obligor's and the
Administrative Agent's joint delivery of written notice of termination to the
Depository Bank.
By signing this letter, the Depository Bank hereby consents and agrees
to the foregoing, and agrees that it will not exercise any right of setoff or
any similar right in connection with the Account or any funds on deposit
therein, except that the Depository Bank may debit the Account and permit the
Obligor to withdraw funds from the Account in payment of customary service
charges associated with administering the Account and for returned items and
similar charges due to the Depository Bank.
If the foregoing is acceptable to the Depository Bank, please execute
the enclosed copy of this letter and return it to the Obligor in the enclosed
stamped, self-addressed envelope provided.
[NAME OF OBLIGOR]
By:
-----------------------------------
Name:
Title:
Consented and Agreed as of
this day of , 2000
----- ----------
("Depository Bank")
By:
Name:
Title:
Bank of America, N.A.,
as Administrative Agent
By:
Name:
Title:
EXHIBIT C
AMENDED AND RESTATED SUBROGATION AGREEMENT
AMENDED AND RESTATED INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT
dated as of May 26, 2000, among ISG Resources, Inc., a Utah corporation
(successor to JTM Industries, Inc., a Texas corporation) (the "Borrower"), ISG
Capital Corporation, a Utah corporation ("ISG Capital"),each Domestic Subsidiary
of the Borrower listed on the signature pages hereof and such other Domestic
Subsidiaries as shall become parties hereto in accordance with Section 5 hereof
(ISG Capital and such listed and other Subsidiaries being referred to herein
individually as a "Guarantor" and collectively as the "Guarantors") and Bank of
America, N.A. (formerly known as NationsBank, N.A.), as Administrative Agent (in
such capacity, the "Administrative Agent") for the Lenders (as defined herein).
Reference is made to (a) the Amended and Restated Credit Agreement
dated as of May 26, 2000 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among the Borrower, Industrial Services
Group, Inc., a Delaware corporation, the financial institutions party thereto as
lenders (the "Lenders"), and Bank of America, N.A., as Administrative Agent and
Issuing Lender, and Canadian Imperial Bank of Commerce, as Documentation Agent,
(b) the Amended and Restated Guarantee Agreement dated as of May 26, 2000, among
the Guarantors and the Administrative Agent (the "Subsidiaries Guarantee
Agreement") and (c) the Amended and Restated Guarantee Agreement dated as of May
26, 2000, between ISG Capital and the Administrative Agent (the "ISG Guarantee
Agreement"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
The Lenders have agreed to extend credit to the Borrower pursuant to,
and upon the terms and subject to the conditions set forth in, the Credit
Agreement. The Guarantors have guaranteed the Loans of the Borrower and the
other Guaranteed Obligations (as defined in the Subsidiaries Guarantee
Agreement) under the Credit Agreement pursuant to the Subsidiaries Guarantee
Agreement and the ISG Guarantee Agreement and have granted Liens on and security
interests in their assets to secure such guarantees pursuant to the Security
Agreement. The obligations of the Lenders to extend credit under the Credit
Agreement are conditioned on, among other things, the execution and delivery by
the Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
Indemnity and Subrogation. In addition to all such rights of indemnity
and subrogation as the Guarantors may have under applicable law (but subject to
Section 3), the Borrower agrees that (a) in the event a payment shall be made by
any Guarantor under the Subsidiaries Guarantee Agreement or ISG Capital under
the ISG Capital Guarantee Agreement, the Borrower shall indemnify such Guarantor
for the full amount of such payment and such Guarantor shall be subrogated to
the rights of the person to whom such payment shall have been made to the extent
of such payment and (b) in the event any assets of any Guarantor shall be sold
pursuant to any Collateral Document to satisfy a claim of any Secured Party, the
Borrower shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
Contribution and Subrogation. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 3) that, in the event a payment shall be
made by any other Guarantor under the Subsidiaries Guarantee Agreement or assets
of any other Guarantor shall be sold pursuant to any Collateral Document to
satisfy a claim of any Secured Party and such other Guarantor (the "Claiming
Guarantor") shall not have been fully indemnified by the Borrower as provided in
Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment or the greater of the book value
or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date that the obligation(s) supporting such claim
were incurred under the Subsidiaries Guarantee Agreement and the denominator
shall be the aggregate net worth of all the Guarantors on such date (or, in the
case of any Guarantor becoming a party hereto pursuant to Section 5, the date of
the Joinder Agreement hereto executed and delivered by such Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this Section 2 shall be subrogated to the rights of such Claiming Guarantor
under Section 1 to the extent of such payment.
Subordination. Notwithstanding any provision of this Agreement to the
contrary, all rights of the Guarantors under Sections 1 and 2 and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Guaranteed Obligations. No failure on the part of the Borrower or
any Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
Continuing Guarantee; Reinstatement; Release(a) . (a) This Agreement
shall survive and remain in full force and effect until the Guaranteed
Obligations and all other amounts payable under this Agreement have been
indefeasibly paid in full in cash, the Commitments have been terminated, all
Letters of Credit have been cancelled or have expired, all LOC Obligations have
been reimbursed in full.
(b) This Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Guaranteed Obligations
is rescinded or must otherwise be returned by the Administrative Agent or any
other Secured Party upon the insolvency, bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise, all as though such payment had not been
made.
(c) Notwithstanding anything to the contrary set forth herein, at the
time any Guarantor is released from its obligations under the Subsidiaries
Guarantee Agreement or the ISG Capital Guarantee Agreement in accordance with
the Subsidiaries Guarantee Agreement or the ISG Capital Guarantee Agreement, as
the case may be, and the Credit Agreement, such Guarantor will cease to have any
rights or obligations under this Agreement.
Joinder Agreement. Upon execution and delivery by the Administrative
Agent and a Domestic Subsidiary of any Credit Party of a Joinder Agreement
substantially in the form of Exhibit E to the Credit Agreement, such Domestic
Subsidiary shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor herein. The execution and delivery of any
such instrument shall not require the consent of any other Guarantor hereunder.
The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Guarantor as a party to
this Agreement.
Notices. Except as otherwise expressly provided herein, all notices and
other communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set forth in Section 10.1 of the Credit Agreement, (c) on the Business
Day following the day on which the same has been delivered prepaid to a
reputable national overnight air courier service or (d) on the third Business
Day following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address, in the
case of the Administrative Agent, set forth in Section 10.1 of the Credit
Agreement, in the case of any Guarantor, on the signature pages to the
Subsidiaries Guarantee Agreement, and, in the case of ISG Capital, on the
signature pages of the ISG Guarantee Agreement or at such other address as such
party may specify by written notice to the other parties hereto.
Benefit of Agreement(a) . (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Guarantors may assign
or transfer any of its interests and obligations without prior written consent
of the requisite Lenders in accordance with Section 10.6 of the Credit Agreement
(and any such purported assignment or transfer without such consent shall be
void); provided further that the rights of each Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall be limited
as set forth in Section 10.3(b) of the Credit Agreement. Upon the assignment by
any Lender of all or any portion of its rights and obligations under the Credit
Agreement (including all or any portion of its Commitments and the Loans owing
to it) to any other Person, such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such transferor or assignor
herein or otherwise.
(b) A Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Guarantor shall be sold, transferred or
otherwise disposed of by the Borrower or any of its Subsidiaries that shall own
such stock to a Person that is not a Credit Party or an Affiliate of any Credit
Party; provided that such sale, transfer or disposition shall be permitted
pursuant to the Credit Agreement and the other Credit Documents or any
amendment, modification or waiver thereof granted in accordance with the terms
thereof.
No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent or any other Secured Party in exercising any right, power
or privilege hereunder and no course of dealing between the Administrative Agent
or any other Secured Party and any of the Guarantors shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. The rights and
remedies of the parties hereunder are cumulative and not exclusive of any rights
or remedies which they would otherwise have at law or otherwise. No notice to or
demand on any Guarantor in any case shall entitle any Guarantor to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any party to any other or further action in any
circumstances without notice or demand.
Amendments, Waivers and Consents. Neither this Agreement nor any of the
terms hereof may be amended, modified or waived, unless such amendment,
modification or waiver is in writing and is entered into in accordance with
Section 10.6 of the Credit Agreement; provided, however, that this Agreement may
be amended, modified or waived with respect to any Guarantor, including by
releasing any Guarantor hereunder, without the approval of any other Guarantor
and without affecting the obligations of any other Guarantor hereunder.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile by
any of the parties hereto of an executed counterpart of this Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered,
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Agreement.
Headings. Section headings used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction of,
or to be taken into consideration in interpreting, this Agreement.
Governing Law; Submission to Jurisdiction; Venue(a) . (a) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Agreement may
be brought in the courts of the State of New York in New York County, or of the
United States for the Southern District of New York, and, by execution and
delivery of this Agreement, each of the Guarantors hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Nothing herein shall affect the right
of the Administrative Agent or any Lender to serve process in any manner
permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(c) Each of the Guarantors hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(d) TO THE EXTENT PERMITTED BY LAW, EACH OF THE GUARANTORS HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Severability. If any provision of this Agreement is determined to be
illegal, invalid or unenforceable with respect to any Guarantor, such provision
shall be fully severable as to such Guarantor and the remaining provisions (and
such provision as to all other Guarantors) shall remain in full force and effect
and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions as to such Guarantor. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Entirety. This Agreement, the other Credit Documents and the Lender
Hedging Agreements, if any, represent the entire agreement of the parties hereto
and thereto regarding the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, if any (including any
commitment letters or correspondence) relating to such subject matters. Nothing
in this Agreement, expressed or implied, is intended to confer upon any party
(other than the parties hereto and thereto and the other Secured Parties) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Binding Effect; Termination(a) . (a) This Agreement shall become
effective at such time on or after the Effective Date when it shall have been
executed by any Guarantor and the Administrative Agent and thereafter this
Agreement shall be binding upon and inure to the benefit of the Guarantors, the
Administrative Agent and their respective permitted successors and assigns.
(b) The term of this Agreement shall be until no Loans, LOC Obligations
or any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, no Letters of Credit shall be outstanding,
all of the Credit Obligations have been irrevocably satisfied in full and all of
the Commitments shall have expired or been terminated.
Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of the Credit
Agreement, on the other hand, the Credit Agreement shall control.
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: ISG RESOURCES, INC.,
-------- a Utah corporation
By:_________________________________
Name:
Title:
GUARANTORS: ISG CAPITAL CORPORATION
a Utah corporation
By:_________________________________
Name:
Title:
BEST MASONRY & TOOL SUPPLY, INC.
a Texas corporation
By:_________________________________
Name:
Title:
UNITED TERRAZZO SUPPLY CO., INC.
a California corporation
By:__________________________________
Name:
Title:
XXXXX X. XXXXXXX, INC.
a California corporation
By:_________________________________
Name:
Title:
MAGNA WALL, INC.
a Texas corporation
By:_________________________________
Name:
Title:
DON'S BUILDING SUPPLY L.L.P.,
a Texas limited liability partnership
By:__________________________________
Name:
Title:
ISG MANUFACTURED PRODUCTS, INC.
a Utah corporation
By:__________________________________
Name:
Title:
Administrative Agent: BANK of AMERICA, N.A.,
in its capacity as Administrative Agent
By:__________________________________
Name:
Title:
EXHIBIT D
[FORM OF]
INTERCOMPANY NOTE
$65,000,000.00 [Date]
FOR VALUE RECEIVED, the undersigned, , a corporation organized under
the laws of (the "Borrower"), hereby promises to pay to the order of ISG
Resources, Inc., (the "Lender"), at [address] , (i) the principal amount of
[DOLLARS] ($__,000,000.00), or, if less, the aggregate unpaid principal amount
of each loan or advance made by the Lender to the Borrower, at any time upon
demand by the Lender, in lawful money of the United States of America in
immediately available funds, and (ii) interest from the date hereof on the
principal amount hereof from time to time outstanding, in like funds, at a rate
per annum equal to the rate applicable at such time to Loans which are Base Rate
Loans pursuant to Section 2.2(d) if same rate, list A of the Credit Agreement
referred to below. This Note may be prepaid in whole or in part at any time
without premium or penalty. Amounts prepaid on this Note may be reborrowed.
Terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Amended and Restated Credit Agreement dated as of May
[___], 2000 (as amended, modified, restated or supplemented from time to time,
the "Credit Agreement"), among the Lender, Industrial Services Group, Inc., a
Delaware corporation, the financial institutions party thereto as lenders, Bank
of America, N.A. (formerly known as NationsBank, N.A.), as Administrative Agent
and Issuing Lender, and Canadian Imperial Bank of Commerce, as Documentation
Agent.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in Section 3.1 of the Credit Agreement.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
of and interest on this Note, all costs of collection, including reasonable
attorneys' fees and expenses.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive
grace, presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration) and diligence in collecting and bringing suit against any party
hereto, and agree (i) to all extensions and partial payments, with or without
notice, before or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon and (iv) that it will not be
necessary for the Lender, or any of its successors or assigns, in order to
enforce payment of this Note, to first institute or exhaust their remedies
against the Borrower or any other party liable therefor or against any security
for this Note. The nonexercise by the holder of any of its rights hereunder in
any particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
The outstanding principal balance of the loans and advances evidenced
by this Note shall automatically become immediately due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
expressly waived by the Borrower, upon the occurrence of an Event of Default
under the Credit Agreement and acceleration thereunder.
The Borrower hereby subordinates in right of payment all indebtedness
of the Borrower owing to the Lender, whether originally contracted with the
Lender or acquired by the Lender by assignment, transfer or otherwise, whether
now owed or hereafter arising, whether for principal, interest, fees, expenses
or otherwise, together with all renewals, extensions, increases or
rearrangements thereof, to the prior indefeasible payment in full in cash of the
Credit Obligations (as defined in the Credit Agreement), whether now owed or
hereafter arising, whether for principal, interest (including interest accruing
after the filing of a Bankruptcy Event (as defined in the Credit Agreement) with
respect to the Borrower, regardless of whether such interest is an allowed claim
under the Bankruptcy Code (as defined in the Credit Agreement)), fees, expenses
or otherwise, together with all renewals, extensions, increases or
rearrangements thereof.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
[NAME OF BORROWER]
ATTEST:
By: By:
---------------------------------- -------------------------------
Title: Name:
------------------------------ -----------------------------
(Corporate Seal) Title:
----------------------------
Accepted and agreed to as of the
date first written above:
ISG RESOURCES, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
ASSIGNMENT
FOR VALUE RECEIVED, ISG Resources, Inc. (the "Lender")hereby assigns
and transfers the Intercompany Note dated as of [DATE], issued to the Lender by
[Name of Borrower], to Bank of America, N.A., as Administrative Agent under the
Credit Agreement referred to in such Intercompany Note.
Dated:
----------------
ISG RESOURCES, INC.
By:
---------------------------------
Title:
------------------------------
EXHIBIT E
[FORM OF]
JOINDER AGREEMENT
JOINDER AGREEMENT dated as of , among ISG Resources, Inc., a Utah
corporation (successor to JTM Industries, Inc., a Texas corporation) (the
"Borrower"), the Domestic Subsidiary of a Credit Party listed on the signature
page hereto (the "New Subsidiary"), and Bank of America, N.A. (formerly known as
NationsBank, N.A.), as Administrative Agent (in such capacity, the
"Administrative Agent"), for the Lenders (as defined herein).
Reference is made to (a) the Amended and Restated Credit Agreement
dated as of May [___], 2000 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among the Borrower, Industrial Services
Group, Inc., a Delaware corporation (the "Parent"), the financial institutions
party thereto as lenders (the "Lenders"), Bank of America, as Administrative
Agent and Issuing Lender, and Canadian Imperial Bank of Commerce, as
Documentation Agent, (b) the Amended and Restated Pledge and Security Agreement
dated as of May [___], 2000 (as amended, modified, supplemented or restated from
time to time, the "Security Agreement"), among the Parent, the Borrower, the
other Grantors named therein and the Administrative Agent, (c) the Amended and
Restated Subsidiaries Guarantee Agreement dated as of May [___], 2000 (as
amended, modified, supplemented or restated from time to time, the "Subsidiaries
Guarantee Agreement"), among the Subsidiary Guarantors named therein and the
Administrative Agent and (d) the Amended and Restated Indemnity, Subrogation and
Contribution Agreement dated as of May [___], 2000 (as amended, modified,
supplemented or restated from time to time, the "Indemnity, Subrogation and
Contribution Agreement"), among the Borrower, the Subsidiary Guarantors named
therein and the Administrative Agent. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Credit Agreement.
The Credit Agreement requires each Person that was not a Domestic
Subsidiary of any Credit Party on the date thereof but subsequently becomes, or
comes into existence as, a Domestic Subsidiary of any Credit Party to enter into
the Security Agreement as an additional "Grantor," the Subsidiaries Guarantee
Agreement as an additional "Guarantor" and the Indemnity, Subrogation and
Contribution Agreement as an additional "Guarantor."
The Credit Agreement, the Security Agreement, the Subsidiaries
Guarantee Agreement and the Indemnity, Subrogation and Contribution Agreement
specify that additional Domestic Subsidiaries of the Credit Parties may become
"Grantors" under the Security Agreement and may become "Guarantors" under the
Subsidiaries Guarantee Agreement and the Indemnity, Subrogation and Contribution
Agreement by execution and delivery of an instrument in the form of this
Agreement. The undersigned is a Domestic Subsidiary of a Credit Party and is
executing this Agreement in accordance with the requirements of the Credit
Agreement in order to become a "Grantor" under the Security Agreement and a
"Guarantor" under the Subsidiaries Guarantee Agreement and the Indemnity,
Subrogation and Contribution Agreement, to induce the Lenders to make or
maintain extensions of credit to the Borrower and as consideration for
extensions of credit previously made to the Borrower.
Accordingly, the Borrower, the Administrative Agent and the New
Subsidiary agree as follows:
Security Agreement. In accordance with Section 7.13 of the Security
Agreement, the New Subsidiary by its signature hereto shall become a "Grantor"
under the Security Agreement with the same force and effect as if originally
named therein as a Grantor (as defined in the Security Agreement) and the New
Subsidiary hereby (a) agrees to all the terms and provisions of the Security
Agreement applicable to it as a Grantor thereunder, (b) represents and warrants
that the representations and warranties made by it as a Grantor thereunder are
true and correct on and as of the date hereof and (c) acknowledges receipt of a
copy of and agrees to be bound by the terms of the Security Agreement. In
furtherance of the foregoing, as security for the payment or performance, as the
case may be, of the Secured Obligations (as defined in the Security Agreement)
of the New Subsidiary as a Grantor, the New Subsidiary hereby grants to the
Administrative Agent, its successors and assigns, for the benefit of the Secured
Parties, a security interest in and hereby pledges, and with respect to the
Deposit Accounts (as defined in the Security Agreement), pledges and assigns,
all of such New Subsidiary's right, title and interest in, to and under the
Collateral listed on Schedules 2 through 12 attached hereto and all other
Collateral referred to in the Security Agreement. Each reference to a "Grantor"
in the Security Agreement shall be deemed to include the New Subsidiary, and
each schedule attached to this Agreement shall be incorporated into and become
part of and supplement the corresponding Schedules 2 through 12 to the Security
Agreement.
Subsidiaries Guarantee Agreement. In accordance with Section 10 of the
Subsidiaries Guarantee Agreement, the New Subsidiary by its signature hereto
shall become a "Guarantor" under the Subsidiaries Guarantee Agreement with the
same force and effect as if originally named therein as a Guarantor (as defined
in the Subsidiaries Guarantee Agreement) and the New Subsidiary hereby (a)
agrees to all the terms and provisions of the Subsidiaries Guarantee Agreement
applicable to it as a Guarantor thereunder, (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and
correct on and as of the date hereof and (c) acknowledges receipt of a copy of
and agrees to be obligated and bound by the terms of the Subsidiaries Guarantee
Agreement. Each reference to a "Guarantor" in the Subsidiaries Guarantee
Agreement shall be deemed to include the New Subsidiary. The New Subsidiary
hereby waives acceptance by the Administrative Agent and the Lenders of the
guarantee by the New Subsidiary under the Subsidiaries Guarantee Agreement upon
the execution of this Agreement by the New Subsidiary.
Indemnity, Subrogation and Contribution Agreement. In accordance with
Section 5 of the Indemnity, Subrogation and Contribution Agreement, the New
Subsidiary by its signature hereto shall become a "Guarantor" under the
Indemnity, Subrogation and Contribution Agreement with the same force and effect
as if originally named therein as a Guarantor (as defined in the Indemnity,
Subrogation and Contribution Agreement) and the New Subsidiary hereby (a) agrees
to all the terms and provisions of the Indemnity, Subrogation and Contribution
Agreement applicable to it as a Guarantor thereunder, and (b) acknowledges
receipt of a copy of and agrees to be obligated and bound by the terms of the
Indemnity, Subrogation and Contribution Agreement. Each reference to a
"Guarantor" in the Indemnity, Subrogation and Contribution Agreement shall be
deemed to include the New Subsidiary.
Representations. The New Subsidiary hereby represents and warrants that
(a) this Agreement has been duly authorized, executed and delivered by the New
Subsidiary and constitutes a legal, valid and binding obligation of the New
Subsidiary enforceable against it in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent conveyance, voidable preference or similar laws and the application
of equitable principles generally, and (b) attached hereto is a true, accurate
and complete Perfection Certificate relating to the New Subsidiary and its
Collateral.
Effectiveness. This Agreement shall become effective upon satisfaction of
the following conditions:
(a) the receipt by the Administrative Agent, in form and substance
satisfactory to the Administrative Agent, of the following:
(i) duly executed counterparts of this Agreement;
(ii) a copy of the New Subsidiary's certificate of
incorporation or other constitutive documents, including all
amendments thereto, certified as of a recent date by the
Secretary of State of the jurisdiction of its organization,
and a certificate as to its good standing, as of a recent
date, from such Secretary of State;
(iii) a certificate of the Secretary, Assistant
Secretary or other authorized representative of the New
Subsidiary certifying (A) that attached thereto is a true and
complete copy of its by-laws in effect on the date thereof and
at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the
Board of Directors of the New Subsidiary (or, in the case of a
partnership, the managing general partner thereof) authorizing
the execution, delivery and performance of this Agreement and
the performance of the Security Agreement, the Subsidiaries
Guarantee Agreement and the Indemnity, Subrogation and
Contribution Agreement to which it will be a party and that
such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the certificate of
incorporation or other constitutive documents of the New
Subsidiary have not been amended since the date of the last
amendment thereto shown on the certificate of good standing
furnished pursuant to clause (ii) above and (D) as to the
incumbency and specimen signature of each authorized
representative executing any document delivered in connection
herewith on behalf of such party;
(iv) a certificate of another authorized
representative as to the incumbency and specimen signature of
the person executing the certificate pursuant to clause (iii)
above;
(v) upon the request of the Administrative Agent,
certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports from an independent search
service satisfactory to the Administrative Agent, listing (A)
any judgment naming the New Subsidiary as judgment debtor in
any of the jurisdictions where a Uniform Commercial Code
financing statement would be required by law to be filed in
order to create a perfected security interest in or lien on
any of the personal or real property of the New Subsidiary,
(B) any tax lien that names the New Subsidiary as a delinquent
taxpayer in any of the jurisdictions referred to in the
preceding clause (A), and (C) any Uniform Commercial Code
financing statement that names the New Subsidiary as debtor or
seller filed in any of the jurisdictions referred to in the
preceding clause (A);
(vi) appropriate duly executed termination statements
(Form UCC-3) signed by all persons disclosed on current
financing statements as secured parties in the jurisdictions
referred to in clause (v) above in form for filing under the
Uniform Commercial Code of such jurisdictions (except with
respect to Liens permitted under Section 7.2 of the Credit
Agreement);
(vii) certificates representing all outstanding
Capital Stock of any Domestic Subsidiary of the New Subsidiary
and 65% of all outstanding Capital Stock of any direct Foreign
Subsidiary of the New Subsidiary, accompanied by stock powers
endorsed in blank, and any Intercompany Note, duly executed by
the New Subsidiary, accompanied by an assignment executed in
blank;
(viii) an acknowledgement copy, or other evidence
satisfactory to the Administrative Agent, of the proper
filing, registration or recordation of each document
(including each Uniform Commercial Code financing statement)
required by law or reasonably requested by the Administrative
Agent to be filed, registered or recorded in order to create
in favor of the Administrative Agent for the benefit of the
Secured Parties a valid, legal and perfected security interest
in or Lien on the Collateral that is the subject of the
Security Agreement in each jurisdiction in which the filing,
registration or recordation thereof is so required or
requested;
(ix) an opinion of counsel for the New Subsidiary,
dated the date that this Agreement shall become effective, as
to all matters relating to the New Subsidiary as the
Administrative Agent may reasonably request;
(x) a Perfection Certificate duly executed by the New
Subsidiary; and
(xi) all documents the Administrative Agent may
reasonably request relating to the existence of the New
Subsidiary and its corporate or partnership authority to
execute, deliver and perform the Security Agreement, the
Subsidiaries Guarantee Agreement and the Indemnity,
Subrogation and Contribution Agreement, as applicable, and any
other matters relevant hereto or thereto; and
(b) No Default or Event of Default shall have occurred and be
continuing at the time of the execution and delivery hereof or would
occur immediately after giving effect thereto.
Effect on Loan Documents. Except as expressly supplemented hereby, the
Security Agreement, the Subsidiaries Guarantee Agreement and the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Severability. If any provision of this Agreement is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions. The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
Notices. The address of the New Subsidiary for purposes of all notices
and other communications is __________________, ______________________,
Attention of _______________________ (Facsimile No.__________________).
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
Expenses. The New Subsidiary agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Agreement, including the reasonable fees and expenses of counsel for the
Administrative Agent.
IN WITNESS WHEREOF, the Borrower, the New Subsidiary and the
Administrative Agent have duly executed this Supplemental Agreement as of the
day and year first above written.
ISG RESOURCES, INC.,
By:_____________________________
Name:
Title:
[NAME OF NEW SUBSIDIARY],
By:____________________________
Name:
Title:
Address:
Telecopy:
BANK OF AMERICA, N.A., as Administrative
Agent,
By:____________________________
Name:
Title:
Schedule 2
CHIEF EXECUTIVE OFFICE AND PRINCIPAL PLACE OF BUSINESS
Name Mailing Address County State
LOCATIONS OF RECORDS OF RECEIVABLES AND GENERAL INTANGIBLES
Name Mailing Address County State
Schedule 3
PLEDGED INTERESTS
Part I List of Pledged Interests:
-------------------------
Class Stock Par Number
Grantor Stock Issuer Of Stock Certificate Nos. Value of Shares
------- ------------ -------- ---------------- ----- ---------
Part II List of Pledged Debt:
--------------------
Grantor Debt Issuer Date of Issuance Outstanding Balance
Schedule 4
LOCATIONS OF EQUIPMENT AND INVENTORY
Grantor Mailing Address County State
Schedule 5
TRADE NAMES, DIVISION NAMES, ETC.
Grantor Trade Names, Division Names, Etc.
------- ---------------------------------
Schedule 6
REQUIRED FILINGS AND RECORDINGS
Grantor UCC Filings & Locations Other Filings
Schedule 7
PATENTS AND PATENT APPLICATIONS
Serial No. or Issue or
Grantor Patent No. Inventor County Filing Date
------- ---------- -------- ------ -----------
Schedule 8
TRADEMARKS AND TRADEMARK APPLICATIONS
Serial No. or Issue or
Grantor Registration No. Country Filing Date Xxxx
------- ---------------- ------- ----------- ----
Schedule 9
COPYRIGHTS AND COPYRIGHT APPLICATIONS
Serial No. or Issue or
Grantor Registration No. Country Filing Date Xxxx
------- ---------------- ------- ----------- ----
Schedule 10
LICENSES
Grantor Licenses
Schedule 11
MOTOR VEHICLES AND OTHER ROLLING STOCK
Schedule 12
ACCOUNTS
Financial Address of Financial Account
Grantor Institution Account No. Institution Purpose
EXHIBIT F
[FORM OF]
NOTICE OF BORROWING
Bank of America, N.A.,
as Administrative Agent for the Lenders
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, ISG Resources, Inc., a Utah corporation (successor to
JTM Industries, Inc., a Texas corporation) (the "Borrower"), refers to the
Amended and Restated Credit Agreement dated as of May [___], 2000 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
among the Borrower, Industrial Services Group, Inc., a Delaware corporation, the
financial institutions party thereto as lenders (the "Lenders"), Bank of
America, N.A. (formerly known as NationsBank, N.A.), as Administrative Agent and
Issuing Lender, and Canadian Imperial Bank of Commerce, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives notice pursuant to Section [2.2] [2.3] [2.4] of the Credit Agreement that
it requests a [Tranche A Revolving Loan] [Tranche B Revolving Loan] advance
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such [Tranche A Revolving Loan] [Tranche B Revolving Loan]
advance is requested to be made:
(A) Date of Borrowing (which is a Business Day);
(B) Principal Amount of Borrowing;
(C) Type of [Tranche A Revolving Loan] [Tranche B Revolving Loan];
and
(D) Interest Period and the last day thereof, if applicable.
[In accordance with Section 2.4, in the event the Borrower is
requesting a Tranche B Revolving Loan, the Borrower confirms that all amounts
under the Tranche A Revolving Loans have been borrowed in full and are
outstanding.] In accordance with the requirements of Section 4.2 of the Credit
Agreement, the Borrower hereby reaffirms the representations and warranties set
forth in the Credit Documents (as updated pursuant to the most recent amended
schedules to the Credit Agreement and Pledge Agreement, if any, which, if
necessary, are attached hereto) as provided in subsection (b) of such Section,
and confirms that the matters referenced in subsections (c), (d), (e), (f) and
(g) of such Section are true and correct as of the date hereof.
Please distribute funds to the following accounts:
ISG RESOURCES, INC.
By:_________________________
Name:_______________________
Title:______________________
EXHIBIT G
[FORM OF]
NOTICE OF EXTENSION/CONVERSION
Bank of America, N. A.,
as Administrative Agent for the Lenders
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, ISG Resources, Inc., a Utah corporation (successor to
JTM Industries, Inc., a Texas corporation) (the "Borrower"), refers to the
Amended and Restated Credit Agreement dated as of May [___], 2000 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
among the Borrower, Industrial Services Group, Inc., a Delaware corporation, the
financial institutions party thereto (the "Lenders"), Bank of America, N.A.
(formerly known as NationsBank, N.A.), as Administrative Agent and Issuing
Lender, and Canadian Imperial Bank of Commerce, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives notice pursuant to Section 3.2 of the Credit Agreement that it requests an
extension or conversion of a [Tranche A Revolving Loan] [Tranche B Revolving
Loan] outstanding under the Credit Agreement, and in connection therewith sets
forth below the terms on which such extension or conversion is requested to be
made:
(A) Date of Extension or Conversion (which is a Business Day);
(B) Principal Amount of Extension or Conversion;
(C) Type of [Tranche A Revolving Loan] [Tranche B Revolving Loan]
prior to Extension or Conversion and Type of [Tranche A Revolving
Loan] [Tranche B Revolving Loan] after Extension or Conversion;
and
(D) Interest Period and the last day thereof, if applicable.
[In accordance with Section 2.4, in the event the Borrower is
requesting a Tranche B Revolving Loan, the Borrower confirms that all amounts
under the Tranche A Revolving Loans have been borrowed in full and are
outstanding.] In accordance with the requirements of Section 4.2 of the Credit
Agreement, the Borrower hereby reaffirms the representations and warranties set
forth in the Credit Documents (as updated pursuant to the most recent amended
schedules to the Credit Agreement and Pledge Agreement, if any, which, if
necessary, are attached hereto) as provided in subsection (b) of such Section,
and confirms that the matters referenced in subsections (c), (d), (e), (f) and
(g) of such Section, are true and correct as of the date hereof.
ISG RESOURCES, INC.
By:_______________________
Name:_____________________
Title:____________________
EXHIBIT H-1
AMENDED AND RESTATED GUARANTEE AGREEMENT
Dated as of May 26, 2000
between
INDUSTRIAL SERVICES GROUP, INC.,
as Guarantor
and
BANK OF AMERICA, N.A.,
as Administrative Agent
AMENDED AND RESTATED GUARANTEE AGREEMENT dated as of May 26, 2000
between INDUSTRIAL SERVICES GROUP, INC., a Delaware corporation (the
"Guarantor"), and BANK OF AMERICA, N.A. (formerly known as NationsBank, N.A.),
as Administrative Agent (in such capacity, the "Administrative Agent")
for the Lenders (as defined herein).
Reference is made to the Amended and Restated Credit Agreement dated as
of May 26, 2000 (as amended, modified, restated, or supplemented or otherwise
modified from time to time, the "Credit Agreement"), among ISG Capital, Inc.
(successor to JTM Industries, Inc.), a Texas corporation (the "Borrower"), the
Guarantor, the financial institutions party thereto as Lenders (the "Lenders"),
Bank of America, N.A. (formerly known as NationsBank, N.A.), as Administrative
Agent and Issuing Lender, and Canadian Imperial Bank of Commerce, as
Documentation Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement. As used
herein, "Other Credit Parties" shall mean any and all of the Credit Parties
other than the Guarantor.
The Lenders have agreed to extend credit to the Borrower pursuant to,
and upon the terms and subject to the conditions set forth in, the Credit
Agreement. As the parent company of the Borrower, the Guarantor acknowledges
that it will derive substantial benefits from the extension of credit to the
Borrower under the Credit Agreement. The obligations of the Lenders to extend
credit under the Credit Agreement are conditioned on, among other things, the
execution and delivery by the Guarantor of an agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make Loans, the
Guarantor is willing to execute and deliver this Agreement.
Accordingly, the Guarantor, intending to be legally bound, hereby
agrees with the Administrative Agent, for the ratable benefit of the Secured
Parties, as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, (a) the due and punctual payment of
(i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each payment
required to be made by the Borrower under the Credit Agreement in respect of any
Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including indemnities and
fees, costs and expenses, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Other Credit Parties to
the Secured Parties under the Credit Agreement and the other Credit Documents,
(b) the due and punctual performance of all covenants, agreements, obligations
and liabilities of the Other Credit Parties under or pursuant to the Credit
Agreement and the other Credit Documents and (c) all obligations of the Borrower
or any of its Subsidiaries, monetary or otherwise, under each Lender Hedging
Agreement (all the monetary and other obligations referred to in the preceding
clauses (a) through (c) being collectively called the "Guaranteed Obligations").
The Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Guaranteed Obligation.
SECTION 2. Guarantee Absolute. (a) The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with their terms,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Secured Parties
with respect thereto. The obligations of the Guarantor under this Agreement are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Agreement,
irrespective of whether any action is brought against any Other Credit Party or
the Sponsor or whether any Other Credit Party or the Sponsor is joined in any
such action or actions. This Agreement is an absolute and unconditional guaranty
of payment when due, and not of collection, by the Guarantor of the Guaranteed
Obligations in each and every particular. The obligations of the Guarantor
hereunder are several from those of the Other Credit Parties and the Sponsor and
are primary obligations concerning which the Guarantor is the principal obligor.
(b) This Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Guaranteed Obligations
is rescinded or must otherwise be returned by the Administrative Agent or any
other Secured Party upon the insolvency, bankruptcy or reorganization of any
Other Credit Party or the Sponsor or otherwise, all as though such payment had
not been made.
(c) The obligations of the Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
the existence of any claim, set-off or other right which the Guarantor may have
at any time against any Other Credit Party, the Sponsor, the Administrative
Agent or other Secured Party or any other Person, whether in connection herewith
or any unrelated transactions. Without limiting the generality of the foregoing,
the Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by any Other Credit Party or the
Sponsor to any Secured Party under the Credit Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Other Credit Party or the
Sponsor.
SECTION 3. Waivers. The Guarantor hereby waives presentment to, demand
of payment from and protest to the Other Credit Parties or the Sponsor of any of
the Guaranteed Obligations, and also waives promptness, diligence, notice of
acceptance of its guarantee, any other notice with respect to any of the
Guaranteed Obligations and this Agreement and any requirement that the
Administrative Agent or any other Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto. The Guarantor further waives
any right to require that resort be had by the Administrative Agent or any other
Secured Party to any security held for payment of the Guaranteed Obligations or
to any balance of any deposit, account or credit on the books of the
Administrative Agent or any other Secured Party in favor of any Credit Party or
any other Person. The Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that its
obligations under this Agreement shall not be released, diminished, impaired,
reduced or adversely affected by any of the following, and waives any rights
(including rights to notice) which it might otherwise have as a result of or in
connection with any of the following:
(a) any renewal, extension, amendment, modification, increase,
decrease, alteration or rearrangement of all or any part of the
Guaranteed Obligations or any instrument executed in connection
therewith, or any contract or understanding with any Credit Party, the
Sponsor. the Administrative Agent, the Documentation Agent, the other
Secured Parties, or any of them, or any other Person, pertaining to the
Guaranteed Obligations;
(b) any adjustment, indulgence, forbearance or compromise that
might be granted or given by the Administrative Agent, the
Documentation Agent or any other Secured Party to any Credit Party, the
Sponsor or any other Person liable on the Guaranteed Obligations; or
the failure of the Administrative Agent, the Documentation Agent or any
other Secured Party to assert any claim or demand or to exercise any
right or remedy against any Credit Party or the Sponsor under the
provisions of any Credit Document or otherwise; or any rescission,
waiver, amendment or modification of, or any release from any of the
terms or provisions of, any Credit Document or any other agreement,
including with respect to any Subsidiary Guarantor under the
Subsidiaries Guarantee Agreement;
(c) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of
any Credit Party or the Sponsor, any other Person at any time liable
for the payment of all or part of the Guaranteed Obligations; or any
dissolution of any Credit Party or the Sponsor, or any change,
restructuring or termination of the organizational structure or
existence of any Credit Party or the Sponsor, or any sale, lease or
transfer of any or all of the assets of any Credit Party, or any change
in the shareholders, partners, or members of any Credit Party or the
Sponsor; or any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations;
(d) the invalidity, illegality or unenforceability of all or
any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including the fact that the Guaranteed Obligations, or any
part thereof, exceed the amount permitted by law, the act of creating
the Guaranteed Obligations or any part thereof is ultra xxxxx, the
officers or representatives executing the documents or otherwise
creating the Guaranteed Obligations acted in excess of their authority,
the Guaranteed Obligations violate applicable usury laws, any Other
Credit Party or the Sponsor has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from such Other Credit
Party or the Sponsor, the creation, performance or repayment of the
Guaranteed Obligations (or the execution, delivery and performance of
any document or instrument representing part of the Guaranteed
Obligations or executed in connection with the Guaranteed Obligations
or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or the
documents or instruments pertaining to the Guaranteed Obligations have
been forged or otherwise are irregular or not genuine or authentic;
(e) any full or partial release of the liability of any Other
Credit Party, the Sponsor or of any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly
and severally, to pay, perform, guarantee or assure the payment of the
Guaranteed Obligations or any part thereof, it being recognized,
acknowledged and agreed by the Guarantor that the Guarantor may be
required to pay the Guaranteed Obligations in full without assistance
or support of any other Person, and the Guarantor has not been induced
to enter into this Agreement on the basis of a contemplation, belief,
understanding or agreement that any party other than the Borrower will
be liable to perform the Guaranteed Obligations, or that the Secured
Parties will look to any other party to perform the Guaranteed
Obligations;
(f) the taking or accepting of any other security, collateral
or guarantee, or other assurance of payment, for all or any part of the
Guaranteed Obligations;
(g) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including negligent, willful,
unreasonable or unjustifiable impairment) of any Letter of Credit,
collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the
Guaranteed Obligations;
(h) the failure of the Administrative Agent, the Documentation
Agent, any other Secured Party or any other Person to exercise
diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of
such collateral, property or security;
(i) the fact that any collateral, security, security interest
or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized
and agreed by the Guarantor that the Guarantor is not entering into
this Agreement in reliance on, or in contemplation of the benefits of,
the validity, enforceability, collectibility or value of any of the
Collateral;
(j) any payment by any Other Credit Party or the Sponsor to
the Administrative Agent or any other Secured Party being held to
constitute a preference under Title 11 of the United States Code or any
similar Federal or state law, or for any reason the Administrative
Agent, the Documentation Agent or any other Secured Party being
required to refund such payment or pay such amount to any Other Credit
Party, the Sponsor or someone else;
(k) any other action taken or omitted to be taken with respect
to the Guaranteed Obligations, or the security and collateral therefor,
whether or not such action or omission prejudices the Guarantor or
increases the likelihood that the Guarantor will be required to pay the
Guaranteed Obligations pursuant to the terms hereof, it being the
unambiguous and unequivocal intention of the Guarantor that the
Guarantor shall be obligated to pay the Guaranteed Obligations when
due, notwithstanding any occurrence, circumstance, event, action or
omission whatsoever, whether or not contemplated, and whether or not
otherwise or particularly described herein, except for the full and
final payment and satisfaction of the Guaranteed Obligations in cash;
(l) the fact that all or any of the Guaranteed Obligations
cease to exist by operation of law, including by way of a discharge,
limitation or tolling thereof under applicable bankruptcy laws;
(m) the existence of any claim, set-off or other right which
the Guarantor may have at any time against any Other Credit Party, the
Sponsor, the Administrative Agent, the Documentation Agent, any other
Secured Party or any other Person, whether in connection herewith or
any unrelated transactions; provided that nothing herein shall prevent
the assertion of any such claim by separate suit or compulsory
counterclaim; or
(n) any other circumstance that might in any manner or to any
extent otherwise constitute a defense available to, vary the risk of,
or operate as a discharge of, the Guarantor as a matter of law or
equity.
All waivers herein contained shall be without prejudice to the Administrative
Agent at its option to proceed against any Credit Party, the Sponsor or any
other Person, whether by separate action or by joinder.
SECTION 4. Security for Guarantee. The Guarantor authorizes the
Administrative Agent, in accordance with the terms and subject to the conditions
set forth in the Collateral Documents, (a) to take and hold security for the
payment of this Agreement and the Guaranteed Obligations and to exchange,
enforce, waive and release any such security, (b) to apply such security and
direct the order or manner of sale thereof as the Administrative Agent in its
sole discretion may determine and (c) to release or substitute any one or more
endorsees, other guarantors or other obligors. The Administrative Agent may, at
its election, in accordance with the terms and subject to the conditions set
forth in the Collateral Documents, foreclose on any security held by it by one
or more judicial or nonjudicial sales, or exercise any other right or remedy
available to it against any Credit Party, or any security, without affecting or
impairing in any way the liability of the Guarantor hereunder, except to the
extent the Guaranteed Obligations have been indefeasibly paid in full in cash.
SECTION 5. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any other Secured Party has at law or in equity against the Guarantor by
virtue hereof, upon the failure of any Other Credit Party or the Sponsor to pay
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, the
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent or such other Secured Party as designated thereby in cash
the amount of such unpaid Guaranteed Obligations. Upon payment by the Guarantor
of any sums to the Administrative Agent or any Secured Party as provided above,
all rights of the Guarantor against any Other Credit Party or the Sponsor
arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full of cash of
all the Guaranteed Obligations. If any amount shall erroneously be paid to the
Guarantor on account of such subrogation, contribution, reimbursement, indemnity
or similar right, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be turned over to the Administrative Agent
in the exact form received by the Guarantor (duly endorsed by the Guarantor to
the Administrative Agent, if required) to be credited against the payment of the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Documents.
SECTION 6. Representations and Warranties and Covenants. The Guarantor
hereby represents, warrants and covenants as follows:
(a) The Guarantor acknowledges that any default in the due
observance or performance by the Guarantor of any covenant, condition
or agreement contained herein may constitute an Event of Default under
Section 8.1 of the Credit Agreement.
(b) There are no conditions precedent to the effectiveness of
this Agreement that have not
been satisfied or waived.
(c) The Guarantor has, independently and without reliance upon
the Administrative Agent or any other Secured Party and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. The
Guarantor has investigated fully the benefits and advantages which will
be derived by it from execution of this Agreement, and the Board of
Directors of the Guarantor has decided that a direct or an indirect
benefit will accrue to the Guarantor by reason of the execution of this
Agreement.
(d) (i) This Agreement is not given with actual intent to
hinder, delay or defraud any Person to which the Guarantor is or will
become, on or after the date hereof, indebted; (ii) the Guarantor has
received at least a reasonably equivalent value in exchange for the
giving of this Agreement; (iii) the Guarantor is not insolvent on the
date hereof and will not become insolvent as a result of the giving of
this Agreement; (iv) the Guarantor is not engaged in a business or
transaction, nor is about to engage in a business or transaction, for
which any assets owned by the Guarantor (after engaging in such
business or transaction) constitute an unreasonably small amount of
capital; and (v) the Guarantor does not intend to incur debts that will
be beyond the Guarantor's ability to pay as such debts mature.
(e) The Guarantor (i) has not engaged in any business or
activity except for (A) the owning and holding of material assets other
than the Capital Stock of the Borrower and activities directly related
thereto or to the maintenance of the corporate existence of the
Guarantor or compliance with applicable law, (B) performing its
obligations under the Credit Agreement, acting as a Guarantor in
accordance with the provisions thereof and pledging its assets to the
Administrative Agent, for the benefit of the Lenders, pursuant to the
Collateral Documents to which it is a party, (C) issuing the Xxxxxxx
Bridge Note pursuant to the Xxxxxxx Bridge Agreement, (D) issuing its
own Capital Stock (other than Disqualified Stock), (E) entering into
the Employment Agreements, the Deju Subscription Agreement, the
Contribution and Subscription Agreement, the Stockholders Agreement,
the Registration Rights Agreement and the CVC Subscription Agreement,
the Senior Subordinated Credit Facility, the Subordination Agreement
and (F) entering into the Acquisition Agreement, in the case of clauses
(D), (E) and (F), on terms satisfactory to the Administrative Agent, in
its sole discretion and (ii) shall not merge with or into the Borrower
or any other Person.
SECTION 7. Continuing Guarantee. This Agreement is a continuing
guarantee and shall survive and remain in full force and effect until the
Guaranteed Obligations and all other amounts payable under this Agreement have
been indefeasibly paid in full in cash, the Commitments have been terminated,
all Letters of Credit have been cancelled or have expired, all LOC Obligations
have been reimbursed in full, and shall be reinstated to the extent provided in
Section 2(b).
SECTION 8. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition and assets of the
Other Credit Parties, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that the Guarantor assumes and incurs hereunder, and agrees that none of
the Administrative Agent or the other Secured Parties will have any duty to
advise the Guarantor of information known to it or any of them regarding such
circumstances or risks.
SECTION 9. Subordination by Guarantor. In addition to the terms of
subordination provided for under Section 5, the Guarantor hereby subordinates in
right of payment all indebtedness of the Other Credit Parties or the Sponsor
owing to it, whether originally contracted with the Guarantor or acquired by the
Guarantor by assignment, transfer or otherwise, whether now owed or hereafter
arising, whether for principal, interest, fees, expenses or otherwise, together
with all renewals, extensions, increases or rearrangements thereof, to the prior
indefeasible payment in full in cash of the Guaranteed Obligations, whether now
owed or hereafter arising, whether for principal, interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding), fees, expenses or otherwise, together with all renewals,
extensions, increases or rearrangements thereof.
SECTION 10. Notices. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy (or other
facsimile device) to the number set forth in Section 10.1 of the Credit
Agreement, (c) on the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service or (d)
on the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case to the respective
parties at the address set forth in Section 10.1 of the Credit Agreement or at
such other address as such party may specify by written notice to the other
parties hereto.
SECTION 11. Benefit of Agreement. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that the Guarantor shall not be
permitted to assign or transfer any of its interests and obligations without
prior written consent of all the Lenders (and any such purported assignment or
transfer without such consent shall be void); provided further that the rights
of each Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth in Section 10.3(b) of the
Credit Agreement. Upon the assignment by any Lender of all or any portion of its
rights and obligations under the Credit Agreement (including all or any portion
of its Commitments and the Loans owing to it) to any other Person, such other
Person shall thereupon become vested with all the benefits in respect thereof
granted to such transferor or assignor herein or otherwise.
SECTION 12. No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any other Secured Party in exercising any
right, power or privilege hereunder and no course of dealing between the
Administrative Agent or any other Secured Party and the Guarantor shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies of the Administrative Agent and the other Secured Parties
hereunder are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any other Secured Party would otherwise have at law or
otherwise. No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the other Secured Parties to any other or further action in any circumstances
without notice or demand.
SECTION 13. Amendments, Waivers and Consents. Neither this Agreement
nor any of the terms hereof may be amended, modified or waived, unless such
amendment, modification or waiver is in writing and is entered into in
accordance with Section 10.6 of the Credit Agreement.
SECTION 14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart for each of the parties hereto. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this
Agreement shall be as effective as an original executed counterpart hereof and
shall be deemed a representation that an original executed counterpart hereof
will be delivered, but the failure to deliver a manually executed counterpart
shall not affect the validity, enforceability or binding effect of this
Agreement.
SECTION 15. Headings. Section headings used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION 16. Survival. All indemnities set forth herein shall survive
the execution and delivery of this Agreement, the making of the Loans, the
issuance of the Letters of Credit, the repayment of the Loans, LOC Obligations
and other obligations under the Credit Documents, the termination of the
Commitments, and the termination of this Agreement. All representations and
warranties made by the Guarantor herein shall survive delivery of the Notes, the
making of the Loans under the Credit Agreement and the issuance of the Letters
of Credit under the Credit Agreement.
SECTION 17. Governing Law, Submission of Jurisdiction. (a) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this
Agreement may be brought in the courts of the State of New York in New York
County, or of the United States for the Southern District of New York, and, by
execution and delivery of this Agreement, the Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. The Guarantor
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set forth for notices pursuant to Section 10 hereof, such service to become
effective three (3) days after such mailing. Nothing herein shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(b) The Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to in subsection (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, THE GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 18. Severability. If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 19. Entirety. This Agreement, the other Credit Documents and,
the Lender Hedging Agreements, if any, represent the entire agreement of the
parties hereto and thereto regarding the subject matter hereof and thereof and
supersede all prior agreements and understandings, oral or written, if any
(including any commitment letters or correspondence) relating to such subject
matters. Nothing in this Agreement, expressed or implied, is intended to confer
upon any party (other than the parties hereto and thereto and the other Secured
Parties) any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
SECTION 20. Binding Effect; Termination. (a) This Agreement shall
become effective at such time on or after the Effective Date when it shall have
been executed by the Guarantor and the Administrative Agent and thereafter this
Agreement shall be binding upon and inure to the benefit of the Guarantor, the
Administrative Agent and their respective permitted successors and assigns.
(b) The term of this Agreement shall be until no Loans, LOC Obligations
or any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, no Letters of Credit shall be outstanding,
all of the Credit Obligations have been irrevocably satisfied in full and all of
the Commitments shall have expired or been terminated.
SECTION 21. Conflict. To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of the Credit Agreement, on the other hand, the Credit Agreement shall control.
SECTION 22. Right of Set-Off. Upon the occurrence and during the
continuance of an Event of Default, each Lender (and each of its Affiliates) is
authorized at any time and from time to time, to the fullest extent permitted by
law, without presentment, demand, protest or other notice of any kind (all of
which rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final) and any other indebtedness at any time held or owing by such Lender
(including branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of the Guarantor against obligations and
liabilities of the Guarantor to such Lender (and its Affiliates) hereunder,
under the Notes, under the other Credit Documents or otherwise, irrespective of
whether such Lender (or Affiliate) shall have made any demand hereunder and
although such obligations, liabilities or claims, or any of them, may be
contingent or unmatured. Any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent thereto. Each Lender
agrees promptly to notify the Guarantor after any such set-off and application
made by such Lender (or any of its Affiliates); provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. Any Person purchasing a Participation Interest in the Loans and
Commitments pursuant to the applicable provisions of the Credit Agreement may
exercise all rights of setoff with respect to its Participation Interest as
fully as if such Person were a Lender. The rights of each Lender (and its
Affiliates) under this Section 22 are in addition to (and not in limitation of)
any other rights and remedies (including other rights of set-off) that such
Lender may have under applicable law or otherwise.
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
GUARANTOR: INDUSTRIAL SERVICES GROUP, INC.,
a Delaware corporation
By:____________________________
Name:__________________________
Title:_________________________
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By:____________________________
Name:__________________________
Title:_________________________
--------------------------------------------------------------------------------
EXHIBIT H-2
AMENDED AND RESTATED
SUBSIDIARIES GUARANTEE AGREEMENT
Dated as of May 26, 2000
among
THE GUARANTORS NAMED HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent
--------------------------------------------------------------------------------
AMENDED AND RESTATED SUBSIDIARIES GUARANTEE AGREEMENT dated as of May
26, 2000 among the Domestic Subsidiaries of the Borrower listed on the signature
pages hereof and such other Domestic Subsidiaries of the Borrower as shall
become parties hereto in accordance with Section 10 hereof (such listed and
other Subsidiaries being referred to herein individually as a "Guarantor" and
collectively as the "Guarantors") and Bank of America, N.A. (formerly known as
NationsBank, N.A.), as Administrative Agent (in such capacity, the
"Administrative Agent") for the Lenders (as defined herein) the "Guarantee
Agreement").
Reference is made to the Amended and Restated Credit Agreement dated as
of May 26, 2000 (as amended, modified, restated or supplemented from time to
time, the "Credit Agreement"), among ISG Resources, Inc., a Utah corporation
(successor to JTM Industries, Inc., a Texas corporation) (the "Borrower"),
Industrial Services Group, Inc., a Delaware corporation, the financial
institutions party thereto as lenders (the "Lenders"), Bank of America, N.A., as
Administrative Agent and Issuing Lender, and Canadian Imperial Bank of Commerce,
as Documentation Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement. As used
herein, "Other Credit Parties" shall mean, with respect to any Guarantor, any
and all the Credit Parties other than such Guarantor.
The Lenders have agreed to extend credit to the Borrower pursuant to,
and upon the terms and subject to the conditions set forth in, the Credit
Agreement. The obligations of the Lenders to extend credit under the Credit
Agreement are conditioned on, among other things, the execution and delivery by
the Guarantors of a Guarantee Agreement in the form hereof. As Subsidiaries, the
Guarantors acknowledge that they will derive substantial benefits from the
extension of credit to the Borrower under the Credit Agreement. As consideration
therefor and in order to induce the Lenders to make Loans, the Guarantors are
willing to execute and deliver this Agreement.
Accordingly, the Guarantors, intending to be legally bound, hereby
agree with the Administrative Agent, for the ratable benefit of the Secured
Parties, as follows:
Guarantee. Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety,
(a) the due and punctual payment of (i) the principal of and premium, if any,
and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations,
including indemnities and fees, costs and expenses, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Other Credit Parties to the Secured Parties under the Credit Agreement and
the other Credit Documents, (b) the due and punctual performance of all
covenants, agreements, obligations and liabilities of the Other Credit Parties
under or pursuant to the Credit Agreement and the other Credit Documents and (c)
all obligations of the Borrower or any of its Subsidiaries, monetary or
otherwise, under each Lender Hedging Agreement (all the monetary and other
obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Guaranteed Obligations"). Each Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Guaranteed
Obligation.
Anything contained in this Agreement to the contrary notwithstanding,
the obligations of each Guarantor hereunder shall be limited to a maximum
aggregate amount equal to the greatest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (a) in respect of intercompany indebtedness to the Borrower or any of
its Affiliates to the extent that such indebtedness (i) would be discharged or
would be subject to a right of set-off in an amount equal to the amount paid by
such Guarantor hereunder or (ii) has been pledged to, and is enforceable by, the
Administrative Agent on behalf of the Secured Parties and (b) under any
Guarantee of Indebtedness subordinated in right of payment to the Guaranteed
Obligations which Guarantee contains a limitation as to a maximum amount similar
to that set forth in this paragraph, pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets of such
Guarantor to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights of such Guarantor pursuant to (A)
applicable law or (B) any agreement providing for an equitable allocation among
such Guarantor and other Affiliates of the Borrower of obligations arising under
Guarantees by such parties (including the Indemnity, Subrogation and
Contribution Agreement). In the event that any Guarantor's liability hereunder
is limited pursuant to this paragraph to an amount that is less than the total
amount of the Guaranteed Obligations, then it is understood and agreed that the
portion of the Guaranteed Obligations for which such Guarantor is liable
hereunder shall be the last portion of the Guaranteed Obligations to be repaid.
Guarantee Absolute(a) . (a) Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Credit Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Secured Parties with respect thereto. The obligations of the Guarantors under
this Agreement are independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Agreement, irrespective of whether any action is brought against
the Borrower, any Other Credit Party or the Sponsor or whether the Borrower, any
Other Credit Party or the Sponsor is joined in any such action or actions. This
Agreement is an absolute and unconditional guaranty of payment when due, and not
of collection, by each Guarantor, jointly and severally with any other Guarantor
of the Guaranteed Obligations in each and every particular. The obligations of
each Guarantor hereunder are several from those of the Other Credit Parties and
the Sponsor and are primary obligations concerning which each Guarantor is the
principal obligor.
(b) This Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Guaranteed Obligations
is rescinded or must otherwise be returned by the Administrative Agent or any
other Secured Party upon the insolvency, bankruptcy or reorganization of any
Other Credit Party or the Sponsor or otherwise, all as though such payment had
not been made.
(c) The obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
the existence of any claim, set-off or other right which any Guarantor may have
at any time against any Other Credit Party, the Sponsor, the Administrative
Agent or other Secured Party or any other Person, whether in connection herewith
or any unrelated transactions. Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by any Other Credit Party or the
Sponsor to any Secured Party under the Credit Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower, any Other Credit
Party or the Sponsor.
Waivers. Each Guarantor hereby waives presentment to, demand of payment
from and protest to the Other Credit Parties or the Sponsor of any of the
Guaranteed Obligations, and also waives promptness, diligence, notice of
acceptance of its guarantee, any other notice with respect to any of the
Guaranteed Obligations and this Agreement and any requirement that the
Administrative Agent or any other Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto. Each Guarantor further waives
any right to require that resort be had by the Administrative Agent or any other
Secured Party to any security held for payment of the Guaranteed Obligations or
to any balance of any deposit, account or credit on the books of the
Administrative Agent or any other Secured Party in favor of any Credit Party or
any other Person. Each Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that such
Guarantor's obligations under this Agreement shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives any
rights (including rights to notice) which such Guarantor might otherwise have as
a result of or in connection with any of the following:
(a) any renewal, extension, modification, increase, decrease,
alteration or rearrangement of all or any part of the Guaranteed
Obligations or any instrument executed in connection therewith, or any
contract or understanding with any Credit Party, the Administrative
Agent, the Documentation Agent, the other Secured Parties, or any of
them, or any other Person, pertaining to the Guaranteed Obligations;
(b) any adjustment, indulgence, forbearance or compromise that
might be granted or given by the Administrative Agent, the
Documentation Agent or any other Secured Party to any Credit Party or
any other Person liable on the Guaranteed Obligations; or the failure
of the Administrative Agent, the Documentation Agent or any other
Secured Party to assert any claim or demand or to exercise any right or
remedy against any Credit Party under the provisions of any Credit
Document or otherwise; or any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of,
any Credit Document or any other agreement, including with respect to
any Other Credit Party under this Agreement or the Parent Guarantee
Agreement;
(c) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of
any Credit Party, the Sponsor or any other Person at any time liable
for the payment of all or part of the Guaranteed Obligations; or any
dissolution of any Credit Party or the Sponsor, or any change,
restructuring or termination of the corporate structure or existence of
any Credit Party or the Sponsor, or any sale, lease or transfer of any
or all of the assets of any Credit Party or the Sponsor, or any change
in the shareholders, partners, or members of any Credit Party; or any
default, failure or delay, willful or otherwise, in the performance of
the Guaranteed Obligations;
(d) the invalidity, illegality or unenforceability of all or
any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including the fact that the Guaranteed Obligations, or any
part thereof, exceed the amount permitted by law, the act of creating
the Guaranteed Obligations or any part thereof is ultra xxxxx, the
officers or representatives executing the documents or otherwise
creating the Guaranteed Obligations acted in excess of their authority,
the Guaranteed Obligations violate applicable usury laws, any Other
Credit Party or the Sponsor has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from such Other Credit
Party or the Sponsor, the creation, performance or repayment of the
Guaranteed Obligations (or the execution, delivery and performance of
any document or instrument representing part of the Guaranteed
Obligations or executed in connection with the Guaranteed Obligations
or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or the
documents or instruments pertaining to the Guaranteed Obligations have
been forged or otherwise are irregular or not genuine or authentic;
(e) any full or partial release of the liability of any Other
Credit Party, the Sponsor or of any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly
and severally, to pay, perform, guarantee or assure the payment of the
Guaranteed Obligations or any part thereof, it being recognized,
acknowledged and agreed by each Guarantor that such Guarantor may be
required to pay the Guaranteed Obligations in full without assistance
or support of any other Person, and such Guarantor has not been induced
to enter into this Agreement on the basis of a contemplation, belief,
understanding or agreement that any party other than the Borrower will
be liable to perform the Guaranteed Obligations, or that the Secured
Parties will look to any other party to perform the Guaranteed
Obligations;
(f) the taking or accepting of any other security, collateral
or guarantee, or other assurance of payment, for all or any part of the
Guaranteed Obligations;
(g) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including negligent, willful,
unreasonable or unjustifiable impairment) of any Letter of Credit,
collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the
Guaranteed Obligations;
(h) the failure of the Administrative Agent, the Documentation
Agent, any other Secured Party or any other Person to exercise
diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of
such collateral, property or security;
(i) the fact that any collateral, security, security interest
or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized
and agreed by each Guarantor that such Guarantor is not entering into
this Agreement in reliance on, or in contemplation of the benefits of,
the validity, enforceability, collectibility or value of any of the
Collateral;
(j) any payment by any Other Credit Party or the Sponsor to
the Administrative Agent or any other Secured Party being held to
constitute a preference under Title 11 of the United States Code or any
similar Federal or state law, or for any reason the Administrative
Agent, the Documentation Agent or any other Secured Party being
required to refund such payment or pay such amount to any Other Credit
Party, the Sponsor or someone else;
(k) any other action taken or omitted to be taken with respect
to the Guaranteed Obligations, or the security and collateral therefor,
whether or not such action or omission prejudices any Guarantor or
increases the likelihood that any Guarantor will be required to pay the
Guaranteed Obligations pursuant to the terms hereof, it being the
unambiguous and unequivocal intention of each Guarantor that such
Guarantor shall be obligated to pay the Guaranteed Obligations when
due, notwithstanding any occurrence, circumstance, event, action or
omission whatsoever, whether or not contemplated, and whether or not
otherwise or particularly described herein, except for the full and
final payment and satisfaction of the Guaranteed Obligations in cash;
(l) the fact that all or any of the Guaranteed Obligations
cease to exist by operation of law, including by way of a discharge,
limitation or tolling thereof under applicable bankruptcy laws;
(m) the existence of any claim, set-off or other right which
any Guarantor may have at any time against any Other Credit Party, the
Sponsor, the Administrative Agent, the Documentation Agent, any other
Secured Party or any other Person, whether in connection herewith or
any unrelated transactions; provided that nothing herein shall prevent
the assertion of any such claim by separate suit or compulsory
counterclaim; or
(n) any other circumstance that might in any manner or to any
extent otherwise constitute a defense available to, vary the risk of,
or operate as a discharge of, such Guarantor as a matter of law or
equity.
All waivers herein contained shall be without prejudice to the Administrative
Agent at its option to proceed against any Credit Party, the Sponsor or any
other Person, whether by separate action or by joinder.
Security for Guarantee. Each of the Guarantors authorizes the
Administrative Agent, in accordance with the terms and subject to the conditions
set forth in the Collateral Documents, (a) to take and hold security for the
payment of this Agreement and the Guaranteed Obligations and to exchange,
enforce, waive and release any such security, (b) to apply such security and
direct the order or manner of sale thereof as the Administrative Agent in its
sole discretion may determine and (c) to release or substitute any one or more
endorsees, other guarantors or other obligors. The Administrative Agent may, at
its election, in accordance with the terms and subject to the conditions set
forth in the Collateral Documents, foreclose on any security held by it by one
or more judicial or nonjudicial sales, or exercise any other right or remedy
available to it against any Credit Party, or any security, without affecting or
impairing in any way the liability of any of the Guarantors hereunder, except to
the extent the Guaranteed Obligations have been indefeasibly paid in full in
cash.
Agreement to Pay; Subordination. In furtherance of the foregoing and
not in limitation of any other right that the Administrative Agent or any other
Secured Party has at law or in equity against any Guarantor by virtue hereof,
upon the failure of any Other Credit Party or the Sponsor to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent or such other Secured Party as designated thereby in cash the amount of
such unpaid Guaranteed Obligations. Upon payment by any Guarantor of any sums to
the Administrative Agent or any Secured Party as provided above, all rights of
such Guarantor against any Other Credit Party or the Sponsor arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall in all respects be subordinate and junior in right of payment
to the prior indefeasible payment in full of cash of all the Guaranteed
Obligations. If any amount shall erroneously be paid to any Guarantor on account
of such subrogation, contribution, reimbursement, indemnity or similar right,
such amount shall be held in trust for the benefit of the Secured Parties and
shall forthwith be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly endorsed by such Guarantor to the
Administrative Agent, if required) to be credited against the payment of the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Documents.
Representations and Warranties and Covenants. Each Guarantor hereby
represents, warrants and covenants as follows:
(a) All representations and warranties contained in the Credit
Agreement that relate to such Guarantor are true and correct.
(b) Such Guarantor agrees to comply with each of the covenants
contained in the Credit Agreement that imposes or purports to impose,
through agreements with the Borrower, restrictions or obligations on
such Guarantor.
(c) Such Guarantor acknowledges that any default in the due
observance or performance by such Guarantor of any covenant, condition
or agreement contained herein may constitute an Event of Default under
Section 8.1 of the Credit Agreement.
(d) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
(e) Such Guarantor has, independently and without reliance
upon the Administrative Agent or any other Secured Party and based on
such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Such
Guarantor has investigated fully the benefits and advantages which will
be derived by it from execution of this Agreement, and the Board of
Directors of such Guarantor has decided that a direct or an indirect
benefit will accrue to such Guarantor by reason of the execution of
this Agreement.
(f) (i) This Agreement is not given with actual intent to
hinder, delay or defraud any Person to which such Guarantor is or will
become, on or after the date hereof, indebted; (ii) such Guarantor has
received at least a reasonably equivalent value in exchange for the
giving of this Agreement; (iii) such Guarantor is not insolvent on the
date hereof and will not become insolvent as a result of the giving of
this Agreement; (iv) such Guarantor is not engaged in a business or
transaction, nor is about to engage in a business or transaction, for
which any assets owned by such Guarantor (after engaging in such
business or transaction) constitute an unreasonably small amount of
capital; and (v) such Guarantor does not intend to incur debts that
will be beyond such Guarantor's ability to pay as such debts mature.
Continuing Guarantee; Release(a) . (a) This Agreement is a continuing
guarantee and shall survive and remain in full force and effect until the
Guaranteed Obligations and all other amounts payable under this Agreement have
been indefeasibly paid in full in cash, the Commitments have been terminated,
all Letters of Credit have been cancelled or have expired, all LOC Obligations
have been reimbursed in full, and shall be reinstated to the extent provided in
Section 2(b).
(b) A Guarantor shall be released from its guarantee hereunder in the
event that all the Capital Stock of such Guarantor shall be sold, transferred or
otherwise disposed of by the Borrower or any of its Subsidiaries that shall own
such stock to a Person that is not a Credit Party or an Affiliate of any Credit
Party; provided that such sale, transfer or disposition shall be permitted
pursuant to the Credit Agreement and the other Credit Documents or any
amendment, modification or waiver thereof granted in accordance with the terms
thereof.
Information. Each of the Guarantors assumes all responsibility for
being and keeping itself informed of the financial condition and assets of the
Other Credit Parties, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Administrative Agent or the other Secured Parties will have any duty to
advise any of the Guarantors of information known to it or any of them regarding
such circumstances or risks.
Subordination by Guarantors. In addition to the terms of subordination
provided for under Section 5, each Guarantor hereby subordinates in right of
payment all indebtedness of the Other Credit Parties or the Sponsor owing to it,
whether originally contracted with such Guarantor or acquired by such Guarantor
by assignment, transfer or otherwise, whether now owed or hereafter arising,
whether for principal, interest, fees, expenses or otherwise, together with all
renewals, extensions, increases or rearrangements thereof, to the prior
indefeasible payment in full in cash of the Guaranteed Obligations, whether now
owed or hereafter arising, whether for principal, interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding), fees, expenses or otherwise, together with all renewals,
extensions, increases or rearrangements thereof.
Joinder Agreement. Upon execution and delivery by the Administrative
Agent and a Domestic Subsidiary of any Credit Party of a Joinder Agreement
substantially in the form of Exhibit E to the Credit Agreement, such Domestic
Subsidiary shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor herein. The execution and delivery of any
such instrument shall not require the consent of any other Guarantor hereunder.
The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Guarantor as a party to
this Agreement.
Notices. Except as otherwise expressly provided herein, all notices and
other communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set forth below, (c) on the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service or (d) on the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Administrative Agent, set
forth in Section 10.1 of the Credit Agreement, and, in the case of any
Guarantor, on the signature pages hereof, or at such other address as such party
may specify by written notice to the other parties hereto.
Benefit of Agreement. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that none of the Guarantors may assign or transfer
any of its interests and obligations without prior written consent of the
requisite Lenders in accordance with Section 10.6 of the Credit Agreement (and
any such purported assignment or transfer without such consent shall be void);
provided further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited as
set forth in Section 10.3(b) of the Credit Agreement. Upon the assignment by any
Lender of all or any portion of its rights and obligations under the Credit
Agreement (including all or any portion of its Commitments and the Loans owing
to it) to any other Person, such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such transferor or assignor
herein or otherwise.
No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent or any other Secured Party in exercising any right, power
or privilege hereunder and no course of dealing between the Administrative Agent
or any other Secured Party and any of the Guarantors shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. The rights and
remedies of the Administrative Agent and the other Secured Parties hereunder are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any other Secured Party would otherwise have at law or otherwise. No
notice to or demand on any Guarantor in any case shall entitle any Guarantor to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or the other
Secured Parties to any other or further action in any circumstances without
notice or demand.
Amendments, Waivers and Consents. Neither this Agreement nor any of the
terms hereof may be amended, modified or waived, unless such amendment,
modification or waiver is in writing and is entered into in accordance with
Section 10.6 of the Credit Agreement; provided, however, that this Agreement may
be amended, modified or waived with respect to any Guarantor, including by
releasing any Guarantor hereunder, without the approval of any other Guarantor
and without affecting the obligations of any other Guarantor hereunder.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile by
any of the parties hereto of an executed counterpart of this Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered,
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Agreement.
Headings. Section headings used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction of,
or to be taken into consideration in interpreting, this Agreement.
Survival. All indemnities set forth herein shall survive the execution
and delivery of this Agreement, the making of the Loans, the issuance of the
Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents, the termination of the Commitments, and
the termination of this Agreement. All representations and warranties made by
the Guarantors herein shall survive delivery of the Notes, the making of the
Loans under the Credit Agreement and the issuance of the Letters of Credit under
the Credit Agreement.
Governing Law; Submission to Jurisdiction; Venue(a) . (a) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this
Agreement may be brought in the courts of the State of New York in New York
County, or of the United States for the Southern District of New York, and, by
execution and delivery of this Agreement, each of the Guarantors hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each of the
Guarantors further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to it at the
address set forth for notices pursuant to Section 11 hereof, such service to
become effective three (3) days after such mailing. Nothing herein shall affect
the right of the Administrative Agent or any Lender to serve process in any
other manner permitted by law or to commence legal proceedings or to otherwise
proceed against any Credit Party in any other jurisdiction.
(b) Each of the Guarantors hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE GUARANTORS HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Severability. If any provision of this Agreement is determined to be
illegal, invalid or unenforceable with respect to any Guarantor, such provision
shall be fully severable as to such Guarantor and the remaining provisions (and
such provision as to all other Guarantors) shall remain in full force and effect
and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions as to such Guarantor. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Entirety. This Agreement, the other Credit Documents and the Lender
Hedging Agreements, if any, represent the entire agreement of the parties hereto
and thereto regarding the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, if any (including any
commitment letters or correspondence) relating to such subject matters. Nothing
in this Agreement, expressed or implied, is intended to confer upon any party
(other than the parties hereto and thereto and the other Secured Parties) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Binding Effect; Termination(a) . (a) This Agreement shall become
effective at such time on or after the Effective Date when it shall have been
executed by any Guarantor and the Administrative Agent and thereafter this
Agreement shall be binding upon and inure to the benefit of the Guarantors, the
Administrative Agent and their respective permitted successors and assigns.
(b) The term of this Agreement shall be until no Loans, LOC Obligations
or any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, no Letters of Credit shall be outstanding,
all of the Credit Obligations have been irrevocably satisfied in full and all of
the Commitments shall have expired or been terminated.
Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of the Credit
Agreement, on the other hand, the Credit Agreement shall control.
Right of Set-Off. Upon the occurrence and during the continuance of an
Event of Default, each Lender (and each of its Affiliates) is authorized at any
time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or final) and any
other indebtedness at any time held or owing by such Lender (including branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of any Guarantor against obligations and liabilities of such
Guarantor to such Lender (and its Affiliates) hereunder, under the Notes, under
the other Credit Documents or otherwise, irrespective of whether such Lender (or
Affiliate) shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured. Any such
set-off shall be deemed to have been made immediately upon the occurrence of an
Event of Default even though such charge is made or entered on the books of such
Lender subsequent thereto. Each Lender agrees promptly to notify the applicable
Guarantor after any such set-off and application made by such Lender (or any of
its Affiliates); provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. Any Person purchasing a
Participation Interest in the Loans and Commitments pursuant to the applicable
provisions of the Credit Agreement may exercise all rights of setoff with
respect to its Participation Interest as fully as if such Person were a Lender.
The rights of each Lender (and its Affiliates) under this Section 23 are in
addition to (and not in limitation of) any other rights and remedies (including
other rights of set-off) that such Lender may have under applicable law or
otherwise.
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
GUARANTORS: BEST MASONRY & TOOL SUPPLY, INC.
a Texas corporation
By:_____________________________
Name:___________________________
Title:__________________________
UNITED TERRAZZO SUPPLY CO., INC.
a California corporation
By:____________________________
Name:__________________________
Title:_________________________
XXXXX X. XXXXXXX, INC.
a California corporation
By:____________________________
Name:__________________________
Title:_________________________
MAGNA WALL, INC.
a Texas corporation
By:____________________________
Name:__________________________
Title:_________________________
DON'S BUILDING SUPPLY L.L.P.,
a Texas limited liability partnership
By:____________________________
Name:__________________________
Title:_________________________
ISG MANUFACTURED PRODUCTS, INC.
a Utah corporation
By:____________________________
Name:__________________________
Title:_________________________
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT H-3
AMENDED AND RESTATED GUARANTEE AGREEMENT
Dated as of May 26, 2000
between
ISG CAPITAL CORPORATION
and
BANK OF AMERICA, N.A., as Administrative Agent
TABLE OF CONTENTS
Section Page
SECTION 1. Guarantee..........................................................1
SECTION 2. Guarantee Absolute.................................................1
SECTION 3. Waivers............................................................2
SECTION 4. Waiver of Subrogation..............................................5
SECTION 5. Representations, Warranties and Covenants..........................6
SECTION 6. Amendments, Etc....................................................7
SECTION 7. Notices, Etc.......................................................8
SECTION 8. No Waiver; Remedies................................................8
SECTION 9. Continuing Guarantee...............................................8
SECTION 10. Assignments.......................................................8
SECTION 11. Counterparts......................................................9
SECTION 12. Savings Clause....................................................9
SECTION 13. Subordination by Guarantor........................................9
SECTION 14. Survival of Agreement.............................................9
SECTION 15. Entire Agreement.................................................10
SECTION 16. Headings.........................................................10
SECTION 17. Governing Law....................................................10
SECTION 18. Submission of Jurisdiction........................................10
AMENDED AND RESTATED GUARANTEE AGREEMENT dated as of May 26, 2000,
between ISG CAPITAL CORPORATION, a Utah corporation (the "Guarantor"), and BANK
OF AMERICA, N.A. (formerly known as NationsBank, N.A.), as Administrative Agent
(the "Administrative Agent").
Reference is made to the Amended and Restated Credit Agreement dated as
of May 26, 2000 (as amended, modified, restated, or supplemented from time to
time, the "Credit Agreement"), among ISG Resources, Inc. (successor to JTM
Industries, Inc.), a Texas corporation (the "Borrower"), Industrial Services
Group, Inc., a Delaware corporation (the "Parent"), the financial institutions
party thereto as lenders (the "Lenders"), Bank of America, N.A. (formerly known
as NationsBank, N.A.), as Administrative Agent and Issuing Lender, and Canadian
Imperial Bank of Commerce, as Documentation Agent. Unless otherwise expressly
noted herein, terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement. As used herein, "Other Credit
Parties" shall mean, with respect to any Guarantor, any and all Credit Parties
other than such Guarantor.
The Lenders have respectively agreed to extend credit to the Borrower
and the Issuing Bank has agreed to issue Letters of Credit for the account of
the Borrower, pursuant to and upon the terms and subject to the conditions set
forth in the Credit Agreement. As consideration therefor and in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Guarantor is willing to execute and deliver this Guarantee Agreement.
Accordingly, the Guarantor, a direct, wholly owned subsidiary of the
Parent, intending to be legally bound, hereby agrees with the Administrative
Agent, for the ratable benefit of the Secured Parties, as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees as a
primary obligor and not merely as a surety, the due and punctual payment by the
Borrower of the principal of and interest on (including interest accruing after
the filing of a petition initiating any proceeding referred to in paragraph (e)
of Section 8.1 of the Credit Agreement) the Loans, and all amounts drawn under
the Letters of Credit, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise (the "Guaranteed
Obligations"). In addition, the Guarantor agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the Administrative
Agent in enforcing any rights under this Guarantee Agreement.
SECTION 2. Guarantee Absolute. (a) The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Credit Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Secured Parties with respect thereto. The obligations of the Guarantor under
this Guarantee Agreement are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against the Guarantor
to enforce this Guarantee Agreement, irrespective of whether any action is
brought against the Borrower, any Other Credit Parties or the Sponsor or whether
the Borrower, any Other Credit Party, or the Sponsor is joined in any such
action or actions. This Guarantee Agreement is an absolute and unconditional
guaranty of payment when due, and not of collection, by the Guarantor. The
obligations of the Guarantor hereunder are several from those of the Borrower,
any Other Credit Party or the Sponsor and are primary obligations concerning
which the Guarantor is the principal obligor. The Secured Parties shall not be
required to mitigate damages or take any action to reduce, collect or enforce
the Guaranteed Obligations.
(b) This Guarantee Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the Guaranteed
Obligations is rescinded or must otherwise be returned by the Administrative
Agent or any other Secured Party upon the insolvency, bankruptcy or
reorganization of the Borrower, any Other Credit Party, the Sponsor or
otherwise, all as though such payment had not been made.
(c) The obligations of the Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
the existence of any claim, set-off or other right which the Guarantor may have
at any time against the Borrower, any Other Credit Party, the Sponsor or the
Administrative Agent or any other person, whether in connection herewith or any
unrelated transactions; provided, that, nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim. Without
limiting the generality of the foregoing, the Guarantor's liability shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by the Borrower, any Other Credit Party or the Sponsor to the
Administrative Agent or any other Secured Party under the Credit Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Borrower.
SECTION 3. Waivers. The Guarantor hereby waives presentment to, demand
of payment from and protest to the Borrower, any Other Credit Party or the
Sponsor of any of the Guaranteed Obligations, and also waives promptness,
diligence, notice of acceptance of its guarantee, any other notice with respect
to any of the Guaranteed Obligations and this Guarantee Agreement and any
requirement that the Administrative Agent or any other Secured Party protect,
secure, perfect or insure any Lien or any property subject thereto. The
Guarantor further waives any right to require that resort be had by the
Administrative Agent or any other Secured Party to any security held for payment
of the Guaranteed Obligations or to any balance of any deposit, account or
credit on the books of the Administrative Agent or any other Secured Party in
favor of the Borrower, any Other Credit Party, the Sponsor or any other Person.
The Guarantor hereby consents and agrees to each of the following to the fullest
extent permitted by law, and agrees that the Guarantor's obligations under this
Guarantee Agreement shall not be released, diminished, impaired, reduced or
adversely affected by any of the following, and waives any rights (including
rights to notice) which the Guarantor might otherwise have as a result of or in
connection with any of the following:
(a) any extension, modification, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any
instrument executed in connection therewith, or any contract or
understanding with the Borrower, any Other Credit Party, the Sponsor,
the Administrative Agent, the other Secured Parties, or any other
person, pertaining to the Guaranteed Obligations;
(b) any adjustment, indulgence, forbearance or compromise that
might be granted or given by the Administrative Agent or any other
Secured Party to the Borrower, any Other Credit Party, the Sponsor or
any Person liable on the Guaranteed Obligations; or the failure of the
Administrative Agent, any other Secured Party or any Other Credit Party
or the Sponsor to assert any claim or demand or to exercise any right
or remedy against the Borrower, any Other Credit Party, the Sponsor
under the provisions of any Loan Document or otherwise; or any
rescission, waiver, amendment or modification of, or any release from
any of the terms or provisions of, any Credit Document, any guarantee
or any other agreement;
(c) the insolvency, bankruptcy arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of
the Borrower, any Other Credit Party, the Sponsor or any other Person
at any time liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of the Borrower, any Other Credit Party
or the Sponsor or any change, restructuring or termination of the
existence of the Borrower, any Other Credit Party or the Sponsor, or
any sale, lease or transfer of any or all of the assets of the
Borrower, any Other Credit Party, the Sponsor or any change in the
partners or members of the Borrower, any Other Credit Party or the
Sponsor; or any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations;
(d) the invalidity, illegality or unenforceability of all or
any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including the fact that the Guaranteed Obligations, or any
part thereof, exceed the amount permitted by law, the act of creating
the Guaranteed Obligations or any part thereof is ultra xxxxx, the
officers or representatives executing the documents or otherwise
creating the Guaranteed Obligations acted in excess of their authority,
the Guaranteed Obligations violate applicable usury laws, the Borrower,
any Other Credit Party or the Sponsor has valid defenses, claims or
offsets (whether at law, in equity or by agreement) which render the
Guaranteed Obligations wholly or partially uncollectible from the
Borrower, any Other Credit Party or the Sponsor, the creation,
performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in
connection with the Guaranteed Obligations or given to secure the
repayment of the Guaranteed Obligations) is illegal, uncollectible,
legally impossible or unenforceable, or the documents or instruments
pertaining to the Guaranteed Obligations have been forged or otherwise
are irregular or not genuine or authentic;
(e) any full or partial release of the liability of the
Borrower on the Guaranteed Obligations or any part thereof, of any
Other Credit Party, the Sponsor or of any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly
and severally, to pay, perform, guarantee or assure the payment of the
Guaranteed Obligations or any part thereof, it being recognized,
acknowledged and agreed by the Guarantor that the Guarantor may be
required to pay the portions of the Guaranteed Obligations it has
guaranteed hereunder in full without assistance or support of any other
Person, and the Guarantor has not been induced to enter into this
Guarantee Agreement on the basis of a contemplation, belief,
understanding or agreement that other parties other than the Borrower
will be liable to perform the Guaranteed Obligations, or the Secured
Parties will look to other parties to perform the Guaranteed
Obligations;
(f) the taking or accepting of any other security, collateral
or guaranty, or other assurance of payment, for all or any part of the
Guaranteed Obligations;
(g) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including negligent, willful,
unreasonable or unjustifiable impairment) of any Letter of Credit,
collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the
Guaranteed Obligations;
(h) the failure of the Administrative Agent, any other Secured
Party or any other person to exercise diligence or reasonable care in
the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;
(i) the fact that any collateral, security, security interest
or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized
and agreed by the Guarantor that the Guarantor is not entering into
this Guarantee Agreement in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectibility or value of
any such collateral, security, security interest or lien;
(j) any payment by the Borrower, any Other Credit Party or the
Sponsor to the Administrative Agent or any other Secured Party being
held to constitute a preference under Title 11 of the United States
Code or any similar Federal or state law, or for any reason the
Administrative Agent or any other Secured Party being required to
refund such payment or pay such amount to the Borrower, any Other
Credit Party or the Sponsor or someone else;
(k) any other action taken or omitted to be taken with respect
to the Guaranteed Obligations, or the security and collateral therefor,
whether or not such action or omission prejudices the Guarantor or
increases the likelihood that the Guarantor will be required to pay the
portion of the Guaranteed Obligations it has guaranteed hereunder
pursuant to the terms hereof, it being the unambiguous and unequivocal
intention of the Guarantor that the Guarantor shall be obligated to pay
the portion of the Guaranteed Obligations it has guaranteed hereunder
when due, notwithstanding any occurrence, circumstance, event, action
or omission whatsoever, whether or not contemplated, and whether or not
otherwise or particularly described herein, except for the full and
final payment and satisfaction of the Guaranteed Obligations in cash;
(l) the fact that all or any of the Guaranteed Obligations
cease to exist by operation of law, including by way of a discharge,
limitation or tolling thereof under applicable bankruptcy laws; or
(m) any other circumstance (including any statute of
limitations) that might in any manner or to any extent otherwise
constitute a defense available to, vary the risk of, or operate as a
discharge of, the Borrower or the Guarantor as a matter of law or
equity.
All waivers herein contained shall be without prejudice to the Administrative
Agent at its option to proceed against the Borrower, the Guarantor, any Other
Credit Party, the Sponsor or any other Person, whether by separate action or by
joinder.
SECTION 4. Waiver of Subrogation. In furtherance of the foregoing and
not in limitation of any other right which the Administrative Agent or any other
Secured Party has at law or in equity against the Guarantor by virtue hereof,
upon the failure of the Borrower to pay any Guaranteed Obligation when and as
the same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Guarantor hereby promises to and will, upon receipt
of written demand by the Administrative Agent, forthwith pay, or cause to be
paid, to the Administrative Agent, if and as appropriate, in cash the amount of
such unpaid Guaranteed Obligation that is guaranteed hereunder. The Guarantor
hereby irrevocably waives, until after the Guaranteed Obligations are paid
indefeasibly in full, any claim or other rights that it may now or hereafter
acquire against the Borrower, any Other Credit Party or the Sponsor that arise
from the existence, payment, performance or enforcement of the Guarantor's
obligations under this Guarantee Agreement or any other Credit Document,
including any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Administrative Agent or any other Secured Party against the Borrower, any Other
Credit Party or the Sponsor or any collateral, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, including
the right to take or receive from the Borrower, any Other Credit Party or the
Sponsor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence at any time prior to the later of (a) the indefeasible cash payment in
full of the Guaranteed Obligations and all other amounts payable under this
Guarantee Agreement and (b) the termination of the Commitment, such amount shall
be held in trust for the benefit of the Administrative Agent and the other
Secured Parties and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guarantee Agreement, whether matured or unmatured, in accordance with
the terms of the Credit Documents, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guarantee Agreement
thereafter arising. The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by the Credit
Documents and that the waiver set forth in this Section 4 is knowingly made in
contemplation of such benefits.
SECTION 5. Representations, Warranties and Covenants. The Guarantor
hereby represents, warrants and covenants as follows:
(a) The Guarantor (i) is a corporation duly organized, validly
existing and good standing under the laws of the State of Utah, (ii)
has all requisite power and authority to own its property and assets
and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in every jurisdiction
where qualification is required except where the failure to qualify
would not result in a Material Adverse Effect and (iv) has the
corporate power and authority to execute, deliver and perform its
obligations hereunder.
(b) The execution, delivery and performance by the Guarantor
of this Guarantee Agreement (i) has been duly authorized by all
requisite corporate action, and (ii) will not (A) violate (1) any
provision of law, statute, rule or regulation, or the articles of
incorporation, by-laws, partnership agreement or other constitutive
documents of the Guarantor, (2) any order of any Governmental Authority
applicable to the Guarantor, or (3) any provisions of any indenture,
agreement or other instrument to which the Guarantor is a party or by
which any of its property may be bound, or (B) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of
time or both) a default or give rise to increased, additional,
accelerated or guaranteed rights of any person under any such
indenture, agreement or other instrument.
(c) This Guarantee Agreement has been duly executed and
delivered by the Guarantor and constitutes the legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms.
(d) No consent or approval of, registration or filing with or
any other action by (i) any Governmental Authority, (ii) any creditor,
partner, member or shareholder of the Guarantor or (iii) any other
person is or will be required in connection with the performance by the
Guarantor of this Guarantee Agreement except such as have been made or
obtained and in full force and effect.
(e) In the event any (i) default occurs in the due observance
or performance by the Guarantor of any covenant, condition or agreement
contained herein, or (ii) representation or warranty made herein or any
representation, warranty, statement or information contained in any
certificate or financial statement furnished pursuant hereto, shall
prove to have been false or misleading in any material respect when so
made, deemed made or furnished, then the same shall constitute an Event
of Default as provided in Section 8 of the Credit Agreement.
(f) There are no conditions precedent to the effectiveness of
this Guarantee Agreement that have not been satisfied or waived.
(g) The Guarantor has, independently and without reliance upon
the Administrative Agent or any other Secured Party and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Guarantee Agreement.
The Guarantor has investigated fully the benefits and advantages which
will be derived by it from execution of this Guarantee Agreement, and
the Guarantor has decided that a direct or an indirect benefit will
accrue to the Guarantor by reason of the execution of this Guarantee
Agreement.
(h) (a) This Guarantee Agreement is not given with actual
intent to hinder, delay or defraud any person to which the Guarantor is
or will become, on or after the date hereof, indebted; (b) the
Guarantor has received at least a reasonably equivalent value in
exchange for the giving of this Guarantee Agreement; (c) the Guarantor
is not insolvent on the date hereof and will not become insolvent as a
result of the giving of this Guarantee Agreement; (d) the Guarantor is
not engaged in a business or transaction, nor is about to engage in a
business or transaction, for which any property remaining with the
Guarantor constitutes an unreasonably small amount of capital; and (e)
the Guarantor does not intend to incur debts that will be beyond the
Guarantor's ability to pay as such debts mature.
(i) The Guarantor will ensure that at any time and from time
to time until all of the Guaranteed Obligations have been paid in full
the aggregate fair market value of the Guarantor's assets (including
non-restricted marketable securities and restricted securities readily
salable pursuant to Rule 144 under the Securities Act of 1933, as
amended) that are readily available to pay the Guaranteed Obligations
is sufficient to pay the Guaranteed Obligations in full together with
any of the other indebtedness or contingent liabilities of the
Guarantor, and forthwith upon any amount becoming due and payable
hereunder will take all steps necessary to liquidate or otherwise apply
such assets and call cash capital contributions in an amount
sufficient, and use the proceeds thereof, to pay the Guaranteed
Obligations in full.
(j) As soon as available but in any event not later than 90
days after the end of each fiscal year of the Guarantor, the Guarantor
shall deliver to the Administrative Agent copies of the audited
financial statements of the Guarantor consisting of at least the
balance sheet, statement of operations, with related notes specifying
significant accounting practices and their impact on such financial
statements and schedules as at and for the year then ended for the
Guarantor, certified by a firm of independent certified public
accountants. Within 45 days after the end of each of the first three
quarters of the fiscal year of the Guarantor, the Guarantor shall
deliver to the Administrative Agent copies of the unaudited financial
statements of the Guarantor. The Guarantor shall also furnish to the
Administrative Agent any other documents or information which the
Administrative Agent may from time to time reasonably request.
SECTION 6. Amendments, Etc. No amendment, modification or waiver of any
provision of this Guarantee Agreement and no consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and shall be executed and delivered by the Guarantor and the
Administrative Agent and otherwise in accordance with the Credit Agreement, and
then such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 7. Notices, Etc. Unless otherwise specified herein, all
notices, requests or other communications to any party hereunder shall be in
writing, shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, and shall be given to such
party at its address or telecopy number set forth on the signature pages hereof,
in Section 10.1 of the Credit Agreement or at any other address or telecopy
number which such party shall have specified for the purpose of communications
hereunder by notice to the other parties hereunder. All notices and other
communications given to any party hereto in accordance with the provisions of
this Guarantee Agreement shall be deemed to have been given on the date of
receipt if delivered by hand or overnight courier service or sent by telecopy or
on the date three (3) Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to
such party as provided in this Section 7 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 7.
SECTION 8. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Secured Party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent or any other Secured Party preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder and under the other Credit Documents are cumulative and
are not exclusive of any other remedies provided by law.
SECTION 9. Continuing Guarantee. This Guarantee Agreement is a
continuing guarantee and shall survive and remain in full force and effect until
the Guaranteed Obligations and all other amounts payable under this Guarantee
Agreement have been indefeasibly paid in full in cash, the Commitments have been
terminated, all Letters of Credit have been cancelled or have expired and all
disbursements with respect to Letters of Credit have been reimbursed in full,
and shall be reinstated to the extent provided in Section 2(b).
SECTION 10. Assignments. This Guarantee Agreement and the terms,
covenants and conditions hereof shall be binding upon the Guarantor and its
successors and shall inure to the benefit of the Administrative Agent, the other
Secured Parties and their respective successors and assigns. Upon the assignment
by any Lender of all or any portion of its rights and obligations under the
Credit Agreement (including all or any portion of its Commitment, the Loans
owing to it and the Note held by it) to any other person, such other person
shall thereupon become vested with the benefits in respect thereof granted to
such Lender herein or otherwise, but only to the extent of such assignment. The
Guarantor shall not be permitted to assign, transfer or delegate any of its
rights or obligations under this Guarantee Agreement without the prior written
consent of the Administrative Agent (and any such purported assignment, transfer
or delegation without such consent shall be void).
SECTION 11. Counterparts. This Guarantee Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument. This Guarantee
Agreement shall be effective with respect to the Guarantor when a counterpart
hereof which bears the signature of the Guarantor shall have been delivered to
the Bank. Delivery by facsimile by any of the parties hereto of an executed
counterpart of this Guarantee Agreement shall be as effective as an original
executed counterpart hereof and shall be deemed a representation that an
original executed counterpart hereof will be delivered, but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability or binding effect of this Guarantee Agreement.
SECTION 12. Savings Clause. In the event any one or more of the
provisions contained in this Guarantee Agreement should be held invalid, illegal
or unenforceable in any respect with respect to the Guarantor, no party hereto
shall be required to comply with such provision with respect to the Guarantor
for so long as such provision is held to be invalid, illegal or unenforceable,
and the validity, legality and enforceability of the remaining provisions
contained herein, and of such invalid, illegal or unenforceable provision with
respect to the Guarantor, shall not in any way be affected or impaired. The
parties shall endeavor in good-faith negotiations to replace any invalid,
illegal or unenforceable provisions with valid provisions, the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 13. Subordination by Guarantor. The Guarantor hereby
subordinates in right of payment all indebtedness of the Borrower, any Other
Credit Party or the Sponsor owing to it, whether originally contracted with the
Guarantor or acquired by the Guarantor by assignment, transfer or otherwise,
whether now owed or hereafter arising, whether for principal, interest, fees,
expenses or otherwise, together with all renewals, extensions, increases or
rearrangements thereof, to the prior indefeasible payment in full in cash of the
Guaranteed Obligations and of all other indebtedness of the Borrower to any
Lender, whether originally contracted with such Lender or acquired by such
Lender by assignment, transfer or otherwise, including any obligations the
proceeds of which are used to refinance any Guaranteed Obligations or other
indebtedness, in each case whether now owed or hereafter arising, whether for
principal, interest (including interest accruing after the filing of a petition
initiating any proceeding referred to in paragraph (e) of Section 8.1 of the
Credit Agreement), fees, expenses or otherwise, together with all renewals,
extensions, increases or rearrangements thereof, provided, that, the foregoing
subordination shall not prohibit, until, upon and during the occurrence or
continuance of any Event of Default, the Guarantor's acceptance of payments or
prepayments of indebtedness of the Borrower owing to it.
SECTION 14. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Guarantor herein shall be considered
to have been relied upon by the Administrative Agent and the other Secured
Parties and shall survive the making by the Lenders of the Loans and the
execution and delivery to the Lenders of the Notes evidencing such Loans,
regardless of any investigation made by the Lenders or the Administrative Agent
or on their behalf, and shall continue in full force and effect until the
Guaranteed Obligations and any other amounts payable under this Guarantee
Agreement or any other Credit Document have been indefeasibly paid in full in
cash and the Commitment has been terminated, or for such longer time as herein
expressly contemplated.
SECTION 15. Entire Agreement. This Guarantee Agreement constitutes the
entire contract between the parties hereto relative to the subject matter
hereof. Any agreement previously entered into among the parties with respect to
the subject matter hereof is superseded by this Guarantee Agreement and the
other Credit Documents. Nothing in this Guarantee Agreement, expressed or
implied, is intended to confer upon any party, other than the parties hereto,
any rights, remedies, obligations or liabilities under or by reason of this
Guarantee Agreement.
SECTION 16. Headings. Section headings used herein are for convenience
of reference only, are not part of this Guarantee Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Guarantee Agreement. The general rules of interpretation specified in
Section 1.4 of the Credit Agreement shall be applicable to this Guarantee
Agreement.
SECTION 17. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 18. Submission of Jurisdiction. (a) Any legal action or
proceeding with respect to this Guarantee Agreement may be brought in the courts
of the State of New York in New York County, or of the United States for the
Southern District of New York, and, by execution and delivery of this Guarantee
Agreement, the Guarantor hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the nonexclusive jurisdiction of
such courts. The Guarantor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address set forth for notices pursuant to Section 7
hereof, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) The Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guarantee Agreement
brought in the courts referred to in subsection (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, THE GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTEE AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, each party hereto has caused this Guarantee
Agreement to be duly executed, attested and delivered by its officers thereunto
duly authorized as of the date first above written.
GUARANTOR: ISG CAPITAL CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address: 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Telecopy: (000) 000-0000
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., in its capacity
as Administrative Agent
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT I
PERFECTION CERTIFICATE
ISG Resources, Inc., a Utah corporation (successor to JTM Industries,
Inc., a Texas corporation) (the "Borrower"), hereby certifies to the
Administrative Agent and each Secured Party in connection with (a) the Amended
and Restated Credit Agreement dated as of May 26, 2000 (the "Credit Agreement"),
among the Borrower, Industrial Services Group, Inc., a Delaware corporation, the
Lenders party thereto, Bank of America, N.A. (formerly known as NationsBank,
N.A.), as Administrative Agent and Issuing Lender, and Canadian Imperial Bank of
Commerce, as Documentation Agent, and (b) the Amended and Restated Pledge and
the Security Agreement (the "Security Agreement") (such term and all other terms
used but not defined herein having the meanings given them in the Credit
Agreement and the Security Agreement), as follows:
Names(a) . (a) The exact corporate or partnership name of each Grantor
under the Security Agreement, as such name appears in its respective certificate
of incorporation or certificate of limited partnership, is as follows:
See Schedule 1(a)
(b) The following is a list of all other names (including trade names
or similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years:
See Schedule 1(b)
Current Locations(a) . (a) The chief executive office and principal
place of business of each Grantor is located at the following address:
Grantor Mailing Address County State
See Schedule 2(a)
(b) Set forth on Schedule 2(b) are the Grantors' places of business not
identified in 2(a).
Unusual Transactions. All Receivables originated by such Grantor have
been originated in the ordinary course of its business.
Search Reports. Attached hereto as Schedule 4 is a summary of all of
the search reports from the Uniform Commercial Code filing offices where filings
would be required by law to be filed in order to create a perfected security
interest in or lien on any of the personal or real property of the Grantors and
of each financing statement or other filing identified in such search reports.
UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 5 hereto has been delivered to the
Administrative Agent for filing in the Uniform Commercial Code filing office in
each jurisdiction identified in Section 2 hereof. True, correct and complete
acknowledgement copies of all such financing statements as filed in such filing
offices will be delivered to the Administrative Agent.
Schedule of Filings. Attached hereto as Schedule 6 is a schedule
setting forth, with respect to the filings described in Section 5 above, each
filing office in which such filing will be made. Upon filing, the date and file
number thereof will be noted on such Schedule.
Filing Fees. All filing fees and taxes payable in connection with the
filings described in Section 5 above have been or will be paid by the Borrower.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of
___________, 2000.
ISG RESOURCES, INC.
By:_____________________________
Name:
Title:
Attachments:
-----------
Schedule 1(a) - Corporate Names
Schedule 1(b) - Trade names, Division Names, Etc.
Schedule 2(a) - Chief Executive Offices and Principal Places of Business
Schedule 2(b) - Places of Business
Schedule 4 - Summary of UCC Search Reports
Schedule 5 - Form of UCC-1
Schedule 6 - Places of Filing
Perfection Certificate Schedules
SCHEDULE 1(a)
Corporate Names
Industrial Services Group, Inc.
ISG Resources, Inc.
ISG Capital Corporation
ISG Manufactured Products
Best Masonry & Tool Supply, Inc.
Don's Building Supply, L.L.P
Xxxxx X. Xxxxxxx, Inc.
Magna Wall, Inc.
United Terrazzo Supply Co., Inc.
Perfection Certificate Schedules
SCHEDULE 1(b)
Trade Names, Division Names, Etc.
Corporate Name: d/b/a: f/k/a:
-------------- ------ ------
Industrial Services Group, Inc. ISG Industrial Quality Services, Inc.
JTM, Inc.
ISG Resources, Inc. N/A JTM Industries, Inc.; JTM;
UP/JTM Industries, Inc.;
JTM/Xxxxxxx Environmental Services Group;
ISG Capital Corporation N/A N/A
ISG Manufactured Products N/A N/A
Best Masonry & Tool Supply, Inc. Best Masonry; J. Xxxxxx Xxxxx Interests, Inc.
Best Stucco
Best Mortar
Don's Building Supply, L.L.P N/A Don's Building Supply, Inc.
Xxxxx X. Xxxxxxx, Inc. Xxxxxxx Building N/A
Supply; Xxxxxxx
Supply
Magna Wall, Inc. N/A N/A
United Terrazzo Supply Co., Inc. United Terrazzo; N/A
United Terrazzo
Supply
Perfection Certificates Schedules
SCHEDULE 2(a)
Chief Executive Offices and Principal Places of Business
Industrial Services Group, Inc.: FEIN: 00-0000000
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
ISG Resources, Inc.: FEIN: 00-0000000
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000 XXXX: 00-0000000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Inc.: FEIN: 00-0000000
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
United Terrazzo Supply Co., Inc.: FEIN: 00-0000000
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
Magna Wall, Inc.: FEIN: 01177918-00
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 X-X Xxxx, Xxxxx X
Xxxxxx, XX 00000
ISG Manufactured Products, Inc.: FEIN: Applied For
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Don's Building Supply, L.L.P.: FEIN: 00-0000000
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ISG Capital Corporation: FEIN: 00-0000000
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Schedule 2(b) to the
Perfection Certificate
Places of Business
Schedule 4 to the
Perfection Certificate
Summary of UCC Search Reports
[To be attached
by MWBB
Schedule 5 to the
Perfection Certificate
Form of UCC-1
[To be attached
by MWBB]
Schedule 6 to the
Perfection Certificate
Places of Filing
ISG Manufactured Products, Inc. Utah - SOS
Don's Building Supply L.L.P. Utah - SOS
Don's Building Supply L.L.P. Texas - SOS
Best Masonry & Tool Supply,
Inc. f/k/a J. Xxxxxx Xxxxx Utah - SOS
ISG Capital Corporation Utah - SOS
Industrial Services Group, Inc. Utah - SOS
AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT
dated as of May 26, 2000
among
THE GRANTORS NAMED HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent
TABLE OF CONTENTS
Article Section Page
ARTICLE I DEFINITIONS.................................................................................1
Section 1.01 Terms Defined in the Credit Agreement...........................................1
Section 1.02 Definition of Certain Terms Used Herein.........................................1
Section 1.03 UCC Definitions.................................................................6
Section 1.04 Terms Generally.................................................................6
ARTICLE II SECURITY INTERESTS.........................................................................6
Section 2.01 The Security Interests..........................................................6
Section 2.02 Continuing Liability of each Grantor............................................7
Section 2.03 Delivery of Pledged Securities and Chattel Paper................................7
Section 2.04 Security Interests Absolute.....................................................8
Section 2.05 Sales and Collections...........................................................9
Section 2.06 Segregation of Proceeds.........................................................9
Section 2.07 Verification of Receivables....................................................10
Section 2.08 Release of Collateral..........................................................10
Section 2.09 Amendment of Schedules.........................................................11
ARTICLE III REPRESENTATIONS AND WARRANTIES...........................................................11
Section 3.01 Pledged Securities.............................................................11
Section 3.02 Validity, Perfection, Assignment and Priority of Security Interests............11
Section 3.03 Patents, Trademarks and Copyrights.............................................12
Section 3.04 Enforceability of Receivables and General Intangibles..........................12
Section 3.05 Place of Business, Location of Collateral......................................12
Section 3.06 Trade Names....................................................................13
Section 3.07 Outstanding Interests..........................................................13
Section 3.08 Licensor Consents..............................................................13
Section 3.09 Motor Vehicles and Other Rolling Stock.........................................13
Section 3.10 Accounts.......................................................................13
Section 3.11 Real Estate....................................................................13
ARTICLE IV COVENANTS.................................................................................14
Section 4.01 Perfection of Security Interests...............................................14
Section 4.02 Further Actions................................................................14
Section 4.03 Change of Name, Identity or Structure..........................................16
Section 4.04 Place of Business and Collateral...............................................17
Section 4.05 Fixtures.......................................................................17
Section 4.06 Maintenance of Records.........................................................17
Section 4.07 Compliance with Laws, etc......................................................17
Section 4.08 Payment of Taxes, etc..........................................................18
Section 4.09 Compliance with Terms of Accounts, Contracts and Licenses......................18
Section 4.10 Limitation on Liens on Collateral..............................................18
Section 4.11 Limitations on Modifications of Receivables and General Intangibles;
No Waivers or Extensions................................................18
Section 4.12 Maintenance of Insurance.......................................................19
Section 4.13 Limitations on Dispositions of Collateral......................................19
Section 4.14 Periodic Certification.........................................................19
Section 4.15 Notices........................................................................19
Section 4.16 Change of Law..................................................................20
Section 4.17 Right of Inspection............................................................20
Section 4.18 Maintenance of Equipment.......................................................20
Section 4.19 Covenants Regarding Patent, Trademark and Copyright Collateral.................20
Section 4.20 Reimbursement Obligation.......................................................22
Section 4.21 Bank Accounts..................................................................22
Section 4.22 Amendments to Schedules........................................................22
ARTICLE V DISTRIBUTIONS ON PLEDGED SECURITIES; VOTING................................................22
Section 5.01 Right to Receive Distributions on Pledged Collateral; Voting...................22
ARTICLE VI REMEDIES; RIGHTS UPON DEFAULT.............................................................23
Section 6.01 UCC Rights.....................................................................23
Section 6.02 Payments on Collateral.........................................................24
Section 6.03 Possession of Collateral.......................................................24
Section 6.04 Sale of Collateral.............................................................25
Section 6.05 Rights of Purchasers...........................................................25
Section 6.06 Additional Rights of the Administrative Agent..................................26
Section 6.07 Securities Act, etc............................................................26
Section 6.08 Remedies Not Exclusive.........................................................28
Section 6.09 Waiver and Estoppel............................................................28
Section 6.10 Power of Attorney..............................................................29
Section 6.11 Application of Proceeds........................................................31
Section 6.12 Grant of License or Sub-License to Use Patent, Trademark,
Copyright and License Collateral........................................31
ARTICLE VII MISCELLANEOUS............................................................................32
Section 7.01 Notices........................................................................32
Section 7.02 Benefit of Agreement...........................................................32
Section 7.03 No Waiver; Remedies Cumulative.................................................32
Section 7.04 Amendments, Waivers and Consents...............................................32
Section 7.05 Counterparts...................................................................33
Section 7.06 Headings.......................................................................33
Section 7.07 Survival.......................................................................33
Section 7.08 Governing Law; Submission to Jurisdiction; Venue...............................33
Section 7.09 Severability...................................................................34
Section 7.10 Entirety.......................................................................34
Section 7.11 Binding Effect; Termination....................................................34
Section 7.12 Conflict.......................................................................35
Section 7.13 Joinder Agreement..............................................................35
Section 7.14 Right of Set-Off...............................................................35
Schedules
Schedule 1 List of Domestic Subsidiary Grantors
Schedule 2 Chief Executive Office and Principal Place of Business;
Locations of Records of Receivables and
General Intangibles
Schedule 3 Pledged Securities
Schedule 4 Locations of Equipment and Inventory
Schedule 5 Trade Names, Division Names, etc.
Schedule 6 Required Filings and Recordings
Schedule 7 Patents and Patent Applications
Schedule 8 Trademarks and Trademark Applications
Schedule 9 Copyrights and Copyright Applications
Schedule 10 Licenses
Schedule 11 Motor Vehicles and other Rolling Stock
Schedule 12 Accounts
Schedule 13 Real Estate
Exhibits
Exhibit A Form of Assignment of Security Interests in United States
Patent and Trademarks
Exhibit B Form of Assignment of Security Interests in United States Copyrights
Exhibit C Form of Estoppel, Consent and Agreement
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (this "Agreement")
dated as of May 26, 2000, among INDUSTRIAL SERVICES GROUP, INC., a Delaware
corporation (the "Parent"), ISG RESOURCES, INC., a Utah corporation (successor
to JTM Industries, Inc., a Texas corporation) (the "Borrower"), the Domestic
Subsidiaries of the Credit Parties that are listed on Schedule 1 hereto, if any,
and such other Domestic Subsidiaries of the Credit Parties as shall become
parties hereto in accordance with Section 7.13 hereof (such Domestic
Subsidiaries being referred to herein individually as a "Subsidiary Grantor" and
collectively as the "Subsidiary Grantors") and Bank of America, N.A. (formerly
known as NationsBank, N.A.), as Administrative Agent (in such capacity, the
"Administrative Agent") for the Lenders (as defined herein). This Agreement
amends and restates that certain pledge and security agreement dated as of March
4, 1998 executed in favor of the Administrative Agent by each of the Credit
Parties and that certain amended and restated pledge and security agreement
dated as of January 1, 1999 executed in favor of the Administrative Agent by
each of the Credit Parties.
Reference is made to the Amended and Restated Credit Agreement dated as
of May 26, 2000 (as amended, restated, modified or supplemented from time to
time, the "Credit Agreement"), among the Borrower, the Parent, the financial
institutions party thereto as lenders (the "Lenders"), Bank of America, N.A., as
Administrative Agent and Issuing Lender, and Canadian Imperial Bank of Commerce,
as Documentation Agent. The Lenders have agreed to extend credit to the Borrower
pursuant to, and upon the terms and subject to the conditions set forth in, the
Credit Agreement. The obligations of the Lenders to extend credit under the
Credit Agreement are conditioned on, among other things, the execution and
delivery by each of the Parent, the Borrower and the Subsidiary Grantors (such
parties being referred to herein individually as a "Grantor" and collectively as
the "Grantors") of an Amended and Restated Pledge and Security Agreement in the
form hereof.
Accordingly, the Grantors, intending to be legally bound, hereby agree
with the Administrative Agent, for the ratable benefit of the Secured Parties,
as follows:
ARTICLE I
DEFINITIONS
Terms Defined in the Credit Agreement. Capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth in the Credit
Agreement.
Definition of Certain Terms Used Herein. As used herein, the following
terms shall have the following meanings:
"Account Debtor" shall mean any Person who is or who may become
obligated to any Grantor under, with respect to or on account of any Receivable
or General Intangible.
"Cash Collateral Accounts" shall have the meaning assigned to such term
in Section 2.06(a).
"Collateral" shall have the meaning assigned to such term in Section
2.01.
"Contract Rights" shall mean all choses in action and causes of action
and all other rights of any Grantor of every kind and nature now owned or
hereafter acquired by any Grantor pursuant to (a) all contracts under which
Receivables or General Intangibles arise, (b) all Interest Rate Protection
Agreements, (c) the Acquisition Agreement, (d) all Material Contracts and (e)
all other contract rights of any Grantor.
"Copyright License" shall mean any written agreement (a) granting any
right to any third party under any Copyright of any Grantor or (b) granting any
right to any Grantor under any Copyright of any third party.
"Copyrights" shall mean all right, title and interest of any Person in
and to all of the following, whether now owned or hereafter acquired:
(a) the federally registered United States and foreign
copyrights described on Schedule 9 hereto and any renewals thereof, as
such schedule may be amended from time to time;
(b) all other United States and foreign copyrights;
(c) all registrations and applications for registration of any
such copyright in the United States or any other country, including
registrations, recordings, supplemental derivative or collective work
registrations and pending applications for registrations in the United
States Copyright Office;
(d) all computer programs, computer data bases, computer
program flow diagrams, source codes and object codes related to any or
all of the foregoing; and
(e) all tangible property embodying or incorporating any or
all of the foregoing.
"Deposit Accounts" shall mean (a) all Permitted Accounts, (b) all Cash
Collateral Accounts and (c) all other deposit or investment accounts of each
Grantor, all funds held therein and all certificates and instruments, if any,
from time to time representing, evidencing or deposited into such accounts.
"Documents" shall mean all of the books, ledgers, records, computer
programs, tapes, discs, punch cards, data processing software, transaction
files, master files, documents of title, bills of lading and warehouse receipts
and related property and rights (including computer and peripheral equipment) of
any Grantor pertaining to or referencing the Collateral.
"Equipment" shall mean all equipment now owned or hereafter acquired by
any Grantor, including all items of machinery, equipment, tools, parts,
supplies, furnishings and fixtures of every kind, whether affixed to real
property or not, as well as all automobiles, trucks and vehicles of every
description, trailers, handling and delivery equipment, all additions to,
substitutions for, replacements of or accessions to any of the foregoing, all
attachments, components, parts (including spare parts) and accessories whether
installed thereon or affixed thereto and all fuel for any thereof.
"Federal Securities Laws" shall have the meaning assigned to such term
in Section 6.07(a).
"General Intangibles" shall mean all accounts, accounts receivable,
Contract Rights, Documents, instruments, chattel paper, money, general
intangibles, intellectual or other property of any kind or nature now owned or
hereafter acquired by any Grantor, including permits, federal and state tax
refunds, reversionary interests in pension plan assets, inventions, designs,
Patents, Copyrights, Licenses, Trademarks and associated goodwill, trade
secrets, confidential or proprietary technical and business information,
customer and supplier lists, inventions, ideas, designs, including all records
pertaining to know-how, show-how or other data or information, software,
databases and related documentation, registrations, franchises, and all other
intellectual or other similar property rights not otherwise described above, but
excluding Receivables.
"Grantor" and "Grantors" shall have the meanings assigned to such terms
in the second paragraph hereof.
"Inventory" shall mean all inventory now owned or hereafter acquired by
any Grantor, including (a) all goods and other personal property which are held
for sale or lease or are furnished or are to be furnished under a contract of
service or which constitute raw materials, work in process or materials used or
consumed or to be used or consumed in such Grantor's business, (b) all
inventory, wherever located, evidenced by negotiable and non-negotiable
documents of title, warehouse receipts and bills of lading, (c) all of such
Grantor's rights in, to and under all purchase orders now owned or hereafter
received or acquired by it for goods or services and (d) all rights of such
Grantor as an unpaid seller, including rescission, replevin, reclamation and
stopping in transit.
"License" shall mean (a) any Patent License, Trademark License,
Copyright License or other license or sublicense as to which any Grantor is now
or hereafter a party and (b) any license, permit, certificates, authorization,
certification, accreditation, franchise approval, or grant of rights by any
Governmental Authority, or any other party necessary or appropriate for any
Grantor to own, maintain or operate its business, properties and assets.
"Patent License" shall mean any written agreement (a) granting any
right to any third party under any Patent of any Grantor or (b) granting any
right to any Grantor under any Patent of any third party.
"Patents" shall mean all right, title and interest of any Person in and
to all of the following, whether now owned or hereafter acquired:
(a) the letters patent of the United States or any other
country, all registrations and recordings thereof, and all applications
for letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States
Patent and Trademark Office or any other country, as described on
Schedule 7 hereto, as such schedule may be amended from time to time;
(b) the other letters patent of the United States or any other
country and all other applications for letters patent of the United
States or any other country; and
(c) the reissues, continuations, divisions,
continuations-in-part or extensions thereof and the inventions
disclosed therein, including the right to make, use and/or sell the
inventions disclosed therein.
"Permitted Account" of any Grantor shall mean an account of such
Grantor maintained for the benefit of the Administrative Agent and the Secured
Parties pursuant to a Depository Bank Agreement in the form of Exhibit B to the
Credit Agreement or other depository bank security agreement in form and
substance reasonably satisfactory to the Administrative Agent.
"Pledged Debt" shall mean (a) the debt securities listed and described
in Part II of Schedule 3 hereto, payable to such Grantor listed therein, and the
instruments evidencing such debt securities, (b) all additional debt securities
hereafter issued and payable to any Grantor and the instruments evidencing such
debt securities, (c) the Intercompany Notes and (d) all payments of principal or
interest, cash, instruments or other property from time to time received,
receivable or otherwise distributed, in respect of, in exchange for, or upon the
conversion of the debt securities referred to in clause (a), (b) and (c) above.
"Pledged Interests" shall mean (a) the Capital Stock listed and
described in Part I of Schedule 3 hereto, and the certificates, if any,
representing such Capital Stock, (b)(i) all additional Capital Stock of any
issuer of the Pledged Interests from time to time acquired by any Grantor in any
manner and (ii) all Capital Stock of any other Person hereafter acquired by any
Grantor (which Capital Stock referred to in the foregoing clauses (i) and (ii)
shall be considered to be Pledged Interests under this Agreement), together in
each case with the certificates representing such additional Capital Stock, and
(c) all dividends, liquidating dividends, stock dividends, distributions, stock
or partnership rights, options, rights to subscribe, cash, instruments and other
property and proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such listed Capital
Stock referenced in clause (a) above or such additional Capital Stock referenced
in clause (b) above; provided, however, that no shares of Capital Stock of any
issuer incorporated in a jurisdiction outside of the United States of America
shall be included hereunder to the extent that the aggregate amount of shares of
Capital Stock of such issuer pledged hereunder by the Grantors would exceed 65%
of the Capital Stock of such issuer to the extent, and for so long as, the
pledge of any greater percentage would have adverse tax consequences for any
Grantor.
"Pledged Securities" shall mean the Pledged Interests and the Pledged
Debt.
"Proceeds" shall mean all proceeds, including (a) whatever is received
upon any collection, exchange, sale or other disposition of any of the
Collateral and any property into which any of the Collateral is converted,
whether cash or non-cash, (b) any and all payments or other property (in
whatever form) made or due and payable on account of any insurance, indemnity,
warranty or guaranty payable to any Grantor with respect to any of the
Collateral, (c) any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other Person as a result
of the destruction, loss, theft or other involuntary conversion of whatever
nature of any asset or property which constitutes Collateral, (d) any and all
payments (in any form whatsoever) made or due and payable in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority, (e) any claim of any
Grantor against third parties (i) for past, present or future infringement of
any Patent now or hereafter owned by such Grantor or licensed under a Patent
License, (ii) for past, present or future infringement or dilution of any
Trademark now or hereafter owned by such Grantor or licensed under a Trademark
License or injury to the goodwill associated with any Trademark now or hereafter
owned by such Grantor, (iii) for past, present or future infringement of any
Copyright now or hereafter owned by such Grantor or licensed under a Copyright
License and (iv) for past, present or future breach of any other License and (f)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"Real Estate" shall mean all real property and all buildings,
furnishings or fixtures or other improvements to or construction on real
property now owned or hereafter acquired by any Grantor, and all leasehold
interests now owned or hereafter acquired by any Grantor in real property.
"Receivables" shall mean all accounts now or hereafter owing to any
Grantor, and all accounts receivable, Contract Rights, Documents, instruments or
chattel paper representing amounts payable or monies due or to become due to any
Grantor, arising from the sale of Inventory or the rendition of services in the
ordinary course of business or otherwise, whether or not earned by performance,
or arising from or in connection with any Copyright, Patent, Trademark or
License, together with all Inventory to be returned by or reclaimed from
customers wherever such Inventory is located, and all guaranties, securities and
liens held for the payment of any such account, account receivable, Contract
Right, Document, instrument or chattel paper.
"Secured Obligations" of any Grantor shall mean (a) in the case of the
Borrower, all the Credit Obligations, (b) in the case of any Subsidiary Grantor,
all amounts now or hereafter payable by such Subsidiary Grantor under the
Subsidiaries Guarantee Agreement, (c) in the case of the Parent, all amounts now
or hereafter payable by such Parent under the Parent Guarantee Agreement, (d) in
the case of ISG Capital, all amounts now or hereafter payable by ISG Capital
under the ISG Capital Guarantee Agreement, and (e) in the case of any Grantor,
all expenses (including reasonable counsel fees and expenses) incurred in
enforcing any rights of the Administrative Agent and the Secured Parties against
such Grantor under this Agreement.
"Trademark License" shall mean any written agreement (a) granting any
right to any third party under any Trademark of any Grantor or (b) granting any
right to any Grantor under any Trademark of any third party.
"Trademarks" shall mean all right, title and interest of any Person in
and to all of the following whether now owned or hereafter acquired by such
Person: (a) all trademarks, service marks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, trade dress,
logos, slogans, other source or business identifiers, designs and general
intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications filed in connection
therewith, including registrations and applications in the United States Patent
and Trademark Office, any State of the United States or any other country or any
political subdivision thereof, and all extensions or renewals thereof, and (b)
all goodwill associated therewith.
"UCC" shall mean at any time the Uniform Commercial Code as the same
may from time to time be in effect in the State of New York; provided that if,
by reason of mandatory provisions of law, the validity or perfection of any
security interest granted herein is governed by the Uniform Commercial Code in
effect in a jurisdiction other than New York, then, as to the validity or
perfection of such security interest, "UCC" shall mean the Uniform Commercial
Code in effect in such other jurisdiction.
UCC Definitions. The uncapitalized terms "account," "account debtor,"
"chattel paper," "document," "warehouse receipt," "xxxx of lading," "document of
title," "instrument," "inventory," "equipment," "general intangible," "money,"
"proceeds," "products" and "purchase money security interest" as used in Section
1.02 or elsewhere in this Agreement shall have the meanings ascribed thereto in
the UCC.
Terms Generally. The definitions in Section 1.02 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Unless otherwise expressly provided herein,
the word "day" means a calendar day.
ARTICLE II
SECURITY INTERESTS
The Security Interests. To secure the due and punctual payment of all
Secured Obligations of such Grantor, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing or
due or to become due, in accordance with the terms thereof, (a) each Grantor
hereby grants to the Administrative Agent, its successors and its assigns, for
the ratable benefit of the Secured Parties, a security interest in, and (b) each
Grantor hereby pledges, and with respect to all Deposit Accounts, pledges and
assigns, to the Administrative Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, all of such Grantor's right, title and
interest in, to and under the following, whether now existing or hereafter
acquired (all of which are herein collectively called the "Collateral"):
(a) all Receivables;
(b) all General Intangibles;
(c) all Equipment;
(d) all Inventory;
(e) all Pledged Securities;
(f) all Deposit Accounts;
(g) all Real Estate;
(h) to the extent not included in the foregoing (and except to
the extent expressly excluded from the foregoing), all other personal
property, whether tangible or intangible, and wherever located; and
(i) to the extent not otherwise included, all Proceeds and
products of any or all of the foregoing, whether existing on the date
hereof or arising hereafter.
Continuing Liability of each Grantor. Anything herein to the contrary
notwithstanding, each Grantor shall remain liable to observe and perform all the
terms and conditions to be observed and performed by it under any contract,
agreement, warranty or other obligation with respect to the Collateral, and
shall do nothing to impair the security interests herein granted. Neither the
Administrative Agent nor any Secured Party shall have any obligation or
liability under any such contract, agreement, warranty or obligation by reason
of or arising out of this Agreement or the receipt by the Administrative Agent
or any Secured Party of any payment relating to any Collateral, nor shall the
Administrative Agent or any Secured Party be required to perform or fulfill any
of the obligations of any Grantor with respect to any of the Collateral, to make
any inquiry as to the nature or sufficiency of any payment received by it or the
sufficiency of the performance of any party's obligations with respect to any
Collateral. Furthermore, neither the Administrative Agent nor any Secured Party
shall be required to file any claim or demand to collect any amount due or to
enforce the performance of any party's obligations with respect to the
Collateral.
Delivery of Pledged Securities and Chattel Paper. All certificates or
instruments representing or evidencing the Pledged Securities shall be delivered
to and held by or on behalf of the Administrative Agent, for the ratable benefit
of the Secured Parties, pursuant hereto and shall be in suitable form for
transfer by delivery, duly endorsed and shall be accompanied by duly executed
instruments of transfer or assignment in blank with signatures appropriately
guaranteed, and accompanied in each case by any transfer tax stamps required for
purposes of pledging such certificates or instruments hereunder, all in form and
substance satisfactory to the Administrative Agent. The Administrative Agent
shall have the right, at any time in its discretion and without notice to any
Grantor after the occurrence and during the continuance of an Event of Default,
to cause any or all of the Pledged Interests and other Pledged Securities to be
transferred of record into the name of the Administrative Agent or its nominee.
Security Interests Absolute. All rights of the Administrative Agent and
the Secured Parties hereunder, and all obligations of each Grantor hereunder,
shall be absolute and unconditional and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any Secured Obligation, Note or any other
document evidencing or securing any Secured Obligation, by operation of
law or otherwise;
(b) any modification or amendment or supplement to the Credit
Agreement, any Note, any Collateral Document or any other document
evidencing or securing any Secured Obligation;
(c) any release, non-perfection or invalidity of any direct or
indirect security for any Secured Obligation;
(d) any change in the existence, structure or ownership of any
Grantor or any other Consolidated Party, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Grantor or any
other Consolidated Party or its assets or any resulting disallowance,
release or discharge of all or any portion of the Secured Obligations;
(e) the existence of any claim, set-off or other right which
any Grantor may have at any time against any Consolidated Party, the
Administrative Agent, any Secured Party or any other Person, whether in
connection herewith or any unrelated transactions; provided that
nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability for any reason of any
Secured Obligation relating to or against any Grantor or any other
Consolidated Party, or any provision of applicable law or regulation
purporting to prohibit the payment by any Grantor or any other
Consolidated Party of the Secured Obligations;
(g) any failure by the Administrative Agent or any Secured
Party (i) to file or enforce a claim against any Grantor or any other
Consolidated Party or its estate (in a bankruptcy or other proceeding),
(ii) to give notice of the existence, creation or incurrence by any
Grantor or any other Consolidated Party of any new or additional
indebtedness or obligation under or with respect to the Secured
Obligations, (iii) to commence any action against any Grantor or any
other Consolidated Party, (iv) to disclose to any Grantor or any other
Consolidated Party any facts which the Administrative Agent or any
Secured Party may now or hereafter know with regard to any Grantor or
any other Consolidated Party or (v) to proceed with due diligence in
the collection, protection or realization upon any collateral securing
the Secured Obligations; or
(h) any other act or omission to act or delay of any kind by
any Grantor, any other Consolidated Party, the Administrative Agent,
any Secured Party or any other Person or any other circumstance
whatsoever which might, but for the provisions of this clause,
constitute a legal or equitable discharge of any Grantor's obligations
hereunder.
Sales and Collections. (a) Each Grantor is authorized (i) to sell
Collateral in accordance with the Credit Agreement and (ii) to use and dispose
of the Collateral in any lawful manner not inconsistent with the provisions of
this Agreement, the Credit Agreement and the other Credit Documents.
Notwithstanding the foregoing, the Administrative Agent may, upon the occurrence
of any Event of Default, without cause or notice, curtail or terminate such
authority at any time.
(b) Each Grantor is authorized to collect amounts owing to it with
respect to the Collateral, subject to the rights of the Administrative Agent
under Section 2.06 and Article VI of this Agreement.
Segregation of Proceeds. (a) Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent shall have the
right to cause to be opened and maintained at the principal office of the
Administrative Agent bank accounts (the "Cash Collateral Accounts") which will
contain only Proceeds of Collateral of a particular Grantor. Any cash proceeds
(as such term is defined in Section 9-306(1) of the UCC) received by the
Administrative Agent directly from Account Debtors obligated to make payments
under Receivables or General Intangibles to such Grantor or from such Grantor
pursuant to paragraph (b) of this Section 2.06, whether consisting of checks,
notes, drafts, bills of exchange, money orders, commercial paper or other
Proceeds received on account of any Collateral, shall be promptly deposited in
the Cash Collateral Account, and until so deposited shall be held in trust for
the Administrative Agent and the Secured Parties and shall not be commingled
with any funds not constituting Proceeds of the Collateral. Each Cash Collateral
Account shall be designated with the title "Bank of America, N.A., as
Administrative Agent under the Amended and Restated Credit Agreement dated as of
May 26, 2000 among ISG Resources, Inc., a Utah corporation (successor to JTM
Industries, Inc., a Texas corporation) Industrial Services Group, Inc., the
Lenders party thereto, the Administrative Agent and the Documentation Agent."
Such Proceeds, when deposited, shall continue to be security for the Secured
Obligations and shall not constitute payment thereof until applied as
hereinafter provided. The Administrative Agent shall have sole dominion and
control over the funds (including all rights under Article VI of this Agreement
with respect to such funds) deposited in the Cash Collateral Account, and such
funds may be withdrawn therefrom only by the Administrative Agent.
(b) Upon notice by the Administrative Agent to any Grantor that a Cash
Collateral Account has been opened, such Grantor shall cause all cash Proceeds
collected by it to be delivered to the Administrative Agent forthwith upon
receipt, in the original form in which received (with such endorsements or
assignments as may be necessary to permit collection thereof by the
Administrative Agent), and for such purpose each Grantor hereby irrevocably
authorizes and empowers the Administrative Agent, its officers, employees and
authorized agents to endorse and sign the name of such Grantor on all checks,
drafts, money orders or other media of payment so delivered, and such
endorsements or assignments shall, for all purposes, be deemed to have been made
by such Grantor prior to any endorsement or assignment thereof by the
Administrative Agent. The Administrative Agent may use any convenient or
customary means for the purpose of collecting such checks, drafts, money orders
or other media of payment.
Verification of Receivables. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent shall have the
right to make test verifications of Receivables in any manner and through any
medium that it considers advisable, and each Grantor agrees to furnish all such
assistance and information as the Administrative Agent may require in connection
therewith. Upon the occurrence and during the continuance of an Event of
Default, each Grantor, at its own expense, will cause its financial officer to
furnish to the Administrative Agent at any time and from time to time promptly
upon the Administrative Agent's request, the following reports: (a) a
reconciliation of all Receivables, (b) an aging of all Receivables, (c) trial
balances and (d) a test verification of such Receivables as the Administrative
Agent may request.
Release of Collateral. (a) Each Grantor may sell or realize upon or
transfer or otherwise dispose of Collateral to the extent expressly permitted
by, and in accordance with, Section 2.05 and Section 4.13, and the security
interests of the Administrative Agent and the Secured Parties in such Collateral
so sold, realized upon or disposed of (but not in the Proceeds arising from such
sale, realization or disposition) shall cease immediately upon such sale,
realization or disposition, without any further action on the part of the
Administrative Agent or the Secured Parties. The Administrative Agent, if
requested in writing by any Grantor, but at the expense of such Grantor, is
hereby authorized and instructed to deliver to the Account Debtor or the
purchaser or other transferee of any such Collateral upon such sale, realization
or disposition, applicable UCC termination statements for such Collateral and a
certificate stating that the Administrative Agent and the Secured Parties no
longer have a security interest therein, and such Account Debtor or such
purchaser or other transferee shall be entitled to rely conclusively on such
certificate for any and all purposes.
(b) Upon (i) all the Secured Obligations having been indefeasibly paid
in full, (ii) the termination of the Commitments and (iii) the cancellation or
expiration of all Letters of Credit and the reimbursement in full of all LOC
Obligations (or the full cash collateralization of any and all such liabilities
on terms reasonably acceptable to the Administrative Agent), the Administrative
Agent will (as soon as reasonably practicable after receipt of notice from any
Grantor requesting the same, but at the expense of such Grantor) (A) execute and
deliver to such Grantor for each filing made under Section 4.01 or 4.02 to
perfect the security interests granted to the Administrative Agent and the
Secured Parties hereunder, a termination statement prepared by such Grantor and
furnished to the Administrative Agent to the effect that the Administrative
Agent and the other Secured Parties no longer claim a security interest under
such filing, (B) deliver to such Grantor all documents and instruments
previously pledged to the Administrative Agent hereunder and (C) execute a
termination notice with respect to each of the Depository Bank Agreements.
Amendment of Schedules. Each Grantor hereby authorizes the
Administrative Agent to modify this Agreement by amending any Schedule hereto or
to add additional schedules hereto to include any asset or item acquired after
the date hereof that may be Copyrights, Patents, Trademarks, Licenses or any
other type of Collateral, as the case may be, under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Grantors jointly and severally represent and warrant to the
Administrative Agent and each of the Secured Parties that:
Pledged Securities. All Pledged Securities have been duly authorized
and validly issued by the issuers thereof and, in the case of Pledged Securities
consisting of Capital Stock, are fully paid and nonassessable. None of the
Pledged Securities are subject to options to purchase or similar rights of any
Person. No Grantor is or will become a party to or otherwise bound by any
agreement, other than this Agreement and the Credit Agreement, which restricts
in any manner the rights of any present or future holder of any of the Pledged
Interests with respect thereto.
Validity, Perfection, Assignment and Priority of Security Interests.
(a) By complying with Section 4.01 and by delivering all certificates or
instruments, if any, representing or evidencing the Collateral to the
Administrative Agent, each Grantor will have created a valid and duly perfected
security interest in favor of the Administrative Agent for the benefit of the
Secured Parties as security for the due and punctual payment of all Secured
Obligations of such Grantor in all Collateral and identifiable Proceeds of such
Collateral, as to which a security interest may be perfected by (i) filing UCC
financing statements, (ii) filing at the United States Patent and Trademark
Office or the United States Copyright Office pursuant to 35 U.S.C. ss.1060 and
17 U.S.C. ss.205, as applicable, (iii) noting such security interest on its
certificates of title and/or delivering possession thereof and (iv) possession
by the Administrative Agent. Continuing compliance by each Grantor with the
provisions of Section 4.02 will also (A) create and duly perfect valid security
interests in all Collateral acquired or otherwise coming into existence after
the date hereof and in all identifiable Proceeds of such Collateral as security
for the due and punctual payment of all Secured Obligations of such Grantor and
(B) cause such security interests in all Collateral and in all Proceeds which
are (I) identifiable cash Proceeds of Collateral covered by financing statements
required to be filed hereunder, (II) identifiable Proceeds in which a security
interest may be perfected by such filing under the UCC and (III) any Proceeds in
the Deposit Accounts to be duly perfected under the UCC.
(b) The security interests of the Administrative Agent in the
Collateral rank first in priority, except that the priority of the security
interests may be subject to Liens permitted under Section 7.2 of the Credit
Agreement. No financing statements, deeds of trust, mortgages or similar
documents covering all or any part of the Collateral other than with respect to
Liens permitted under Section 7.2 of the Credit Agreement are on file or of
record in any government office in any jurisdiction in which such filing or
recording would be effective to perfect a security interest in such Collateral,
nor is any of the Collateral in the possession of any Person (other than a
Grantor) asserting any claim thereto or security interest therein.
Patents, Trademarks and Copyrights. Schedules 7, 8 and 9 hereto
correctly set forth all of each Grantor's registered Patents, Trademarks and
Copyrights, respectively, and Schedule 10 hereto correctly sets forth all of
each Grantor's material Licenses. Each of the Patents, Trademarks and Copyrights
are subsisting, other than those Patents, Trademarks and Copyrights indicated as
"abandoned" or "dropped" on Schedules 7, 8 and 9, respectively, as of the date
hereof, and have not been adjudged invalid or unenforceable, in whole or in
part.
Enforceability of Receivables and General Intangibles. To the knowledge
of each Grantor, each Receivable and General Intangible is a valid and binding
obligation of the related Account Debtor in respect thereof, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
provisions of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and complies with any applicable legal
requirements.
Place of Business, Location of Collateral. Schedule 2 hereto correctly
sets forth (a) each Grantor's chief executive office and principal place of
business and (b) the offices of each Grantor where records concerning
Receivables and General Intangibles are kept. Schedule 4 hereto correctly sets
forth the location of all Equipment and Inventory of each Grantor, other than
rolling stock, vessels, aircraft and goods in transit. Except for goods in
transit and except as otherwise specified in Schedule 4, all Inventory and
Equipment has been located at the addresses specified on Schedule 4 at all times
during the four-month period prior to the date hereof while owned by the
applicable Grantor. No Inventory is evidenced by a negotiable document of title,
warehouse receipt or xxxx of lading. No non-negotiable document of title,
warehouse receipt or xxxx of lading has been issued to any Person other than a
Grantor, and such Grantor has retained possession of all of such non-negotiable
documents, warehouse receipts and bills of lading. No amount payable under or in
connection with any of the Collateral is evidenced by promissory notes or other
instruments other than instruments evidencing the Pledged Debt which have been
delivered to the Administrative Agent hereunder.
Trade Names. Any and all trade names, division names, assumed names or
other names under which any Grantor transacts, or at any time during the past
five years prior to the date hereof has transacted, business are specified on
Schedule 5 hereto.
Outstanding Interests. The Pledged Interests constitute (i) 100% of the
outstanding common stock of the Borrower, (ii) 100% of the Capital Stock of all
Domestic Subsidiaries of the Borrower and (iii) 65% of the Capital Stock of all
Foreign Subsidiaries of the Borrower.
Licensor Consents. Each Grantor has obtained all requisite consents or
approvals by the licensor of each License to which such Grantor is a licensee to
effect the assignment of all of such Grantor's right, title and interests
thereunder to the Administrative Agent or its designee and to effect the
sub-license contemplated under Section 6.12 upon and during the continuance of
an Event of Default, and such consents are listed on Schedule 10.
Motor Vehicles and Other Rolling Stock. Schedule 11 hereto correctly
sets forth all of each Grantor's owned and leased motor vehicles and other
rolling stock.
Accounts. Each primary collection account, each primary operating
account and each primary investment account of the Borrower and each other
Grantor is a Permitted Account. Schedule 12 correctly sets forth all of each
Grantor's collection, operating and investment accounts, the financial
institutions therewith, the address of such financial institutions, the account
number of each account and the purpose for which such account is used.
Real Estate. Schedule 13 correctly sets forth with respect to all of
each Grantor's Real Estate, the address of such Real Estate, whether such Real
Estate is owned or leased by such Grantor, and the primary use of such Real
Estate.
ARTICLE IV
COVENANTS
Each Grantor covenants and agrees with the Administrative Agent that
until (a) all the Secured Obligations have been indefeasibly paid in full in
cash, (b) the Commitments have been terminated and (c) the cancellation or
expiration of all Letters of Credit and the reimbursement in full of all LOC
Obligations (or the full cash collateralization of any and all such liabilities
on terms reasonably acceptable to the Administrative Agent), each Grantor will
comply with the following:
Perfection of Security Interests. (a) Each Grantor has caused the
filings set forth on Schedule 6 to be completed and filed on or prior to the
Closing Date and, if requested by the Administrative Agent, will, at its
expense, cause all filings, amendments thereto, and recordings and other actions
specified on Schedule 6 to have been completed and filed on or prior to the
Effective Date.
(b) Each Grantor, at its expense, will cause, if requested by the
Administrative Agent, fully executed Assignments of Security Interests,
amendments thereto or related documents, substantially in the forms of Exhibits
A and B hereto, as applicable, to have been completed and filed on or prior to
the Effective Date by the United States Patent and Trademark Office and the
United States Copyright Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060
or 17 U.S.C. ss. 205, as applicable, to perfect the security interests granted
to the Administrative Agent in the federally registered Copyrights, Patents,
Trademarks and Licenses.
(c) Each Grantor, at its expense, has caused each of the accounts
listed on Schedule 12 hereto to be Permitted Accounts on or prior to the Closing
Date and will take any additional actions with respect to Permitted Accounts
requested by the Administrative Agent prior to the Closing Date.
(d) Each Grantor, at its own expense, has caused each certificate of
title to the motor vehicles and other rolling stock set forth on Schedule 11
with a fair market value as of the Closing Date that exceeds $20,000 to be filed
at the applicable department of motor vehicles, to perfect the security
interests granted to the Administrative Agent in such motor vehicles and other
rolling stock and will take any additional actions with respect to certificate
of title to motor vehicles or rolling stock set forth on Schedule 11 requested
by the Administrative Agent prior to the Effective Date.
Further Actions. (a) At all times after the Effective Date, each
Grantor will, at its own expense, comply with the following:
(i) as to all Receivables, General Intangibles, Equipment,
Inventory, Pledged Securities and Deposit Accounts, it will cause UCC
financing statements and continuation statements to be filed and to be
on file in all applicable jurisdictions (except with respect to goods
in transit) as required to perfect the security interests granted to
the Administrative Agent for the ratable benefit of the Secured Parties
hereunder, to the extent that applicable law permits perfection of a
security interest by filing under the UCC;
(ii) as to all Proceeds, it will cause all UCC financing
statements and continuation statements filed in accordance with clause
(i) above to include a statement or a checked box indicating that
Proceeds of all items of Collateral described therein are covered;
(iii) upon the request of the Administrative Agent, it will
ensure that the provisions of Section 2.06 are complied with;
(iv) as to any Capital Stock owned or hereafter acquired by
any Grantor, the applicable Grantor will promptly pledge and deliver
the corresponding certificates, upon the acquisition or certification
thereof, or other instruments to the Administrative Agent for the
benefit of the Secured Parties as part of the Pledged Interests duly
endorsed in a manner reasonably satisfactory to the Administrative
Agent;
(v) as to any amount payable under or in connection with any
of the Collateral which shall be or shall become evidenced by any
promissory note, chattel paper or other instrument, the applicable
Grantor will promptly pledge and deliver such note or other instrument
to the Administrative Agent for the benefit of the Secured Parties as
part of the Pledged Debt duly endorsed in a manner satisfactory to the
Administrative Agent;
(vi) as to all Real Estate leased by a Grantor after the date
hereof, such Grantor shall use its best efforts to obtain waivers from
the landlords of all such real estate, substantially in the form of
Exhibit C hereto or in such other form as shall be acceptable to the
Agent;
(vii) as to all federally registered Patents, Trademarks,
Copyrights and Licenses hereafter acquired by any Grantor, it will
cause fully executed Assignments of Security Interests, substantially
in the forms of Exhibits A and B hereto, as applicable, to be received
and recorded within 90 days after any such acquisition with respect to
Patents and Trademarks and within 60 days after any such acquisition
with respect to Copyrights by the United States Patent and Trademark
Office and the United States Copyright Office pursuant to 35 U.S.C. ss.
261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205, as applicable, to protect
the validity and first priority of and to perfect a valid first
priority security interest in favor of the Administrative Agent in
respect of such hereafter acquired Patents, Trademarks, Copyrights and
Licenses to the extent that a security interest may be perfected by
filing in the United States and its political subdivisions, territories
and possessions pursuant to applicable federal law;
(viii) as to all Licenses entered into after the date hereof
with any third party licensor, the applicable Grantor will use its
reasonable efforts to obtain all requisite consents or approvals by the
licensor to effect the assignment of all of such Grantor's right, title
and interest thereunder to the Administrative Agent or its designee and
to effect the sub-license contemplated under Section 6.12 upon and
during the continuance of an Event of Default and such Grantor shall
provide prompt written notice to the Administrative Agent upon failure
to obtain such consent or approval; and
(ix) as to any motor vehicles or other rolling stock acquired
by any Grantor after the date hereof, such Grantor shall cause the
security interests granted hereunder to be noted on the certificate of
title thereof and promptly deliver such certificate of title to the
Administrative Agent and take any other actions necessary in order to
perfect the Administrative Agent's security interests in such
certificate of title.
(b) Each Grantor will, from time to time and at its own expense,
execute, deliver, file or record such financing statements pursuant to the UCC,
applications for certificates of title and such other statements, assignments,
instruments, documents, agreements or other papers and take any other action
that may be reasonably necessary or desirable, or that the Administrative Agent
may reasonably request, in order to create, preserve, perfect, confirm or
validate the security interests, to enable the Administrative Agent and the
Secured Parties to obtain the full benefits of this Agreement or to enable the
Administrative Agent to exercise and enforce any of its rights, powers and
remedies hereunder, including, without limitation, its right to take possession
of the Collateral, and will use its reasonable efforts to obtain such waivers
from landlords and mortgagees as the Administrative Agent may request.
(c) To the fullest extent permitted by law, each Grantor authorizes the
Administrative Agent (i) to sign and file financing and continuation statements
and amendments thereto with respect to the Collateral without its signature
thereon and, (ii) to the fullest extent permitted by law, file this Agreement in
any UCC filing jurisdiction as a financing statement with respect to the
Collateral. In furtherance of the foregoing, each Grantor hereby irrevocably
constitutes and appoints the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor, or in its own name, from time to time in the Administrative
Agent's reasonable discretion, to execute, deliver, file or record financing
statements pursuant to the UCC as may be reasonably necessary or desirable, in
order to create, preserve, perfect, confirm or validate the security interests.
Change of Name, Identity or Structure. No Grantor will change its name,
identity or corporate structure in any manner except to the extent expressly
permitted under Section 7.4 of the Credit Agreement. Furthermore, no Grantor
shall change its name, identity or corporate structure unless it shall have
given the Administrative Agent at least 30 days' prior written notice thereof
and shall have taken all action (or made arrangements to take such action
substantially simultaneously with such change if it is impossible to take such
action in advance) necessary or desirable or as may be reasonably requested by
the Administrative Agent, to amend any financing statement or continuation
statement relating to the security interests granted hereby in order to preserve
such security interests and to effectuate or maintain the priority thereof
against all Persons.
Place of Business and Collateral. No Grantor will change the location
of (a) any of its places of business, (b) its chief executive office or (c) any
of the offices or other locations where it keeps or holds any Collateral or any
records relating thereto from the applicable location listed on Schedule 2 or 4
hereto (including the establishment of any new office or facility) unless, prior
to such change, (i) it notifies the Administrative Agent of such change, (ii)
makes all UCC filings required by Section 4.02 and (iii) takes all other action
reasonably necessary or desirable or that the Administrative Agent may
reasonably request, to preserve, perfect, confirm and protect the security
interests granted hereby. No Grantor will change the location of any Collateral
if such change would cause the security interest granted hereby in such
Collateral to lapse or cease to be perfected.
Fixtures. No Grantor will permit any Equipment to become a fixture to
real property unless it shall have given the Administrative Agent at least 20
days' prior written notice thereof and shall have taken all such action and
delivered or caused to be delivered to the Administrative Agent all instruments
and documents, including waivers and subordination agreements by any landlords
and mortgagees, and filed all financing statements necessary or reasonably
requested by the Administrative Agent, to preserve and protect the security
interest granted herein and to effectuate or maintain the priority thereof
against all Persons.
Maintenance of Records. Each Grantor will keep and maintain at its own
cost and expense complete books and records relating to the Collateral which are
satisfactory to the Administrative Agent, including a record of all payments
received and all credits granted with respect to the Collateral and all of its
other dealings with the Collateral. Each Grantor will xxxx its instruments and
chattel paper to evidence this Agreement and the security interests granted
hereby. For the further security of the Administrative Agent and the other
Secured Parties, each Grantor agrees that the Administrative Agent shall have a
special property interest in each Grantor's Documents and chattel paper and,
upon the occurrence and during the continuance of an Event of Default, such
Grantor shall deliver and turn over any Document or chattel paper to the
Administrative Agent or to its representatives at any time on demand of the
Administrative Agent.
Compliance with Laws, etc. Each Grantor will comply with all applicable
statutes, rules, regulations, and orders of, and all applicable restrictions
imposed by, the United States of America, foreign countries, states, provinces
and municipalities, and of or by any Governmental Authority, including any
court, arbitrator or grand jury, in respect of the Collateral (including
Environmental Laws), except such as are being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted so long as
such reserves or other appropriate provisions, if any, as shall be required by
GAAP in respect thereof shall have been made therefor or unless the failure to
so comply could not reasonably be expected to have a Material Adverse Effect.
Payment of Taxes, etc. Each Grantor will pay all taxes, assessments and
other governmental charges or levies imposed upon the Collateral or in respect
of any of its income or profits therefrom when the same become due and payable,
but in any event before any penalty or interest accrues thereon, and all claims
(including claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or might become a Lien upon
any of its properties or assets, and promptly reimburse the Administrative Agent
or any Secured Party for any such taxes, assessments, charges or claims paid by
them; provided that no such tax, assessment, charge or claim need be paid or
reimbursed if being contested in good faith by appropriate proceedings promptly
initiated and diligently conducted so long as such reserves or other appropriate
provision, if any, as shall be required by GAAP in respect thereof shall have
been made therefor and be adequate in the good faith judgment of such Grantor.
Compliance with Terms of Accounts, Contracts and Licenses. Each Grantor
will perform and comply with in all respects all of its obligations under the
terms of all agreements relating to the Collateral to which it is a party or by
which it is bound.
Limitation on Liens on Collateral. No Grantor will create, permit or
suffer to exist, but will defend the Collateral and each Grantor's rights with
respect thereto against and take such other action as is reasonably necessary to
remove, any security interest, encumbrance, claim or other Lien in respect of
the Collateral other than the security interests created under the Collateral
Documents and the Liens permitted under Section 7.2 of the Credit Agreement.
Limitations on Modifications of Receivables and General Intangibles; No
Waivers or Extensions. No Grantor will (a) amend, modify, terminate or waive any
provision of any Receivable or General Intangible in any manner which might have
a material adverse effect on the value of such Receivable or General Intangible,
(b) fail to exercise or pursue promptly and diligently each and every material
right which it may have under each material Receivable and General Intangible or
(c) fail to deliver to the Administrative Agent a copy of each material demand,
notice or document received by it relating in any way to any material Receivable
or General Intangible. No Grantor will, without the prior written consent of the
Administrative Agent, grant any extension of the time of payment of any material
Receivable or amounts due under any material General Intangible, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partly, any Person liable for the payment thereof or allow any credit
or discount whatsoever thereon other than trade discounts granted in the normal
course of business, except such as in the reasonable judgment of such Grantor is
advisable to enhance the collectability thereof.
Maintenance of Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
the Collateral in accordance with Section 6.6 of the Credit Agreement. Each
Grantor irrevocably makes, constitutes and appoints the Administrative Agent
(and all officers, employees or agents designated by the Administrative Agent)
as such Grantor's true and lawful agent (and attorney-in-fact) for the purpose,
during the continuance of an Event of Default, of making, settling and adjusting
claims in respect of Collateral under policies of insurance, endorsing the name
of such Grantor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and
decisions with respect thereto. In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance required
hereby or to pay any premium in whole or part relating thereto, the
Administrative Agent may, without waiving or releasing any obligation or
liability of the Grantors hereunder or any Event of Default, in its sole
discretion, obtain and maintain such policies of insurance and pay such premium
and take any other actions with respect thereto as the Administrative Agent
deems advisable. All sums disbursed by the Administrative Agent in connection
with this Section 4.12, including reasonable and invoiced attorneys' fees, court
costs, out-of-pocket expenses and other charges relating thereto, shall be
payable, upon demand, by the Grantors to the Administrative Agent and shall be
additional Secured Obligations secured hereby.
Limitations on Dispositions of Collateral. No Grantor will directly or
indirectly (through the sale of stock, merger or otherwise) sell, transfer,
lease or otherwise dispose of any of the Collateral, or attempt, offer or
contract to do so, except as permitted under Section 2.05. The inclusion of
Proceeds of the Collateral under the security interests granted under Section
2.01 shall not be deemed a consent by the Administrative Agent to any sale or
disposition of any Collateral other than as permitted by this Section 4.13.
Periodic Certification. Each year, at the time of delivery of annual
financial statements with respect to the preceding fiscal year pursuant to
Section 6.1(a) of the Credit Agreement, each Grantor shall deliver to the
Administrative Agent a certificate executed by a financial officer of such
Grantor (a) setting forth the information required pursuant to Section 2 of the
Perfection Certificate, (b) certifying that all UCC financing statements or
other appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (a) above to the
extent necessary to protect and perfect the security interests created under
Section 2.01 and (c) certifying that such Grantor has complied with all actions
required to be taken by such Grantor under Section 4.02(a).
Notices. Each Grantor will advise the Administrative Agent promptly and
in reasonable detail after it becomes aware of, (a) any security interest,
encumbrance or claim made or other Lien asserted against any of the Collateral,
(b) any material change in the composition of the Collateral and (c) the
occurrence of any other event which would have a material adverse effect on the
aggregate value of the Collateral or on the security interests granted to the
Administrative Agent in this Agreement.
Change of Law. Each Grantor shall promptly notify the Administrative
Agent in writing of any change in law known to it which (a) adversely affects or
will adversely affect the validity, perfection or priority of the security
interests granted hereby, (b) requires or will require a change in the
procedures to be followed in order to maintain and protect such validity,
perfection and priority or (c) could result in the Administrative Agent not
having a perfected security interest in any of the Collateral as provided
herein.
Right of Inspection. Each Grantor will, at such Grantor's cost and
expense, permit any representatives designated by the Administrative Agent or
the Required Lenders to visit and inspect the financial records, the Documents
or any of the other Collateral of such Grantor at reasonable times and as often
as reasonably requested, and to make extracts from and copies of such financial
records or Documents, and permit any representatives designated by the
Administrative Agent or the Required Lenders to discuss the affairs, finances
and condition of such Grantor with the officers thereof and independent
accountants therefor (with representatives of the Borrower present unless an
Event of Default or Default has occurred and is continuing).
Maintenance of Equipment. Each Grantor will, at its reasonable expense,
in all material respects maintain the Equipment in standard industry operating
condition, ordinary wear and tear excepted.
Covenants Regarding Patent, Trademark and Copyright Collateral. (a)
Each Grantor (either itself or through its licensees or its sublicensees) will,
for each Trademark material to the conduct of such Grantor's business, (i)
maintain such Trademark in full force free from any claim of abandonment or
invalidity for non-use, (ii) maintain the quality of products and services
offered under such Trademark, (iii) display such Trademark with notice of
federal registration to the extent required by applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(b) Each Grantor (either itself or through licensees) will, for each
Patent, not intentionally do any act, or omit to do any act, whereby any Patent
which is material to the conduct of such Grantor's business may become
invalidated or dedicated to the public, and shall continue to xxxx any products
covered by a Patent with the relevant patent number as required by the
applicable patent laws.
(c) Each Grantor (either itself or through licensees) will, for each
work covered by a material Copyright, continue to publish, reproduce, display,
adopt and distribute the work with appropriate copyright notice as required
under the applicable copyright laws.
(d) Each Grantor shall notify the Administrative Agent in writing
promptly if it knows that any Patent, Trademark or Copyright material to the
conduct of its business may become abandoned or dedicated to the public, or of
any adverse determination or development (including the institution of, or any
such determination or development in, any proceeding in the United States Patent
and Trademark Office, United States Copyright Office or any court) regarding
such Grantor's ownership of any Patent, Trademark or Copyright, its right to
register the same, or to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright with the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the
United States or in any other country or any political subdivision thereof,
unless it promptly informs the Administrative Agent in writing, and, upon
request of the Administrative Agent, executes and delivers any and all
agreements, instruments, documents and papers as may be required or the
Administrative Agent may reasonably request to evidence the Administrative
Agent's security interest in such Patent, Trademark or Copyright of such Grantor
relating thereto or represented thereby, and each Grantor hereby appoints the
Administrative Agent its attorney-in-fact to execute and file such writings for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power, being coupled with an interest, is irrevocable until the
Secured Obligations are indefeasibly paid in full in cash, the Commitments are
terminated and the cancellation or expiration of all Letters of Credit and the
reimbursement in full of all LOC Obligations.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material application relating
to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each registration of the Patents, Trademarks
and Copyrights which is material to the conduct of such Grantor's business,
including the filing of applications for renewal, affidavits of use, affidavits
of incontestability and maintenance fees, and, if consistent with good business
judgment, to initiate opposition, interference and cancellation proceedings
against third parties.
(g) In the event that any Collateral consisting of a Patent, Trademark
or Copyright material to the conduct of any Grantor's business is believed
infringed, misappropriated or diluted by a third party, such Grantor shall
notify the Administrative Agent immediately after it learns thereof and shall,
if consistent with good business judgment, promptly xxx for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and take such other actions as are
appropriate under the circumstances to protect such Collateral.
Reimbursement Obligation. Should any Grantor fail to comply with the
provisions of this Agreement or any other agreement relating to the Collateral
such that the value of any Collateral or the validity, perfection, rank or value
of any security interest granted to the Administrative Agent hereunder or
thereunder is thereby diminished or potentially diminished or put at risk (as
reasonably determined by the Administrative Agent), the Administrative Agent on
behalf of such Grantor may, but shall not be required to, effect such compliance
on behalf of such Grantor, and such Grantor shall reimburse the Administrative
Agent for the reasonable costs thereof on demand, and interest shall accrue on
any such unpaid reimbursement obligation from the date the relevant costs are
incurred until reimbursement thereof in full at the applicable default rate
provided in Section 3.1 of the Credit Agreement.
Bank Accounts. None of the Grantors will establish after the date
hereof or permit to exist any demand, time, savings, passbook, collection,
operating, investment or other like type of account relating in any way to its
assets or business (except any Deposit Accounts or Prepayment Accounts or other
cash collateral accounts with Administrative Agent required under, and
maintained in accordance with, the Credit Agreement) without promptly causing
such account to be a Permitted Account. Subject to the provisions of Section
2.06 and the rights of the Administrative Agent under Article VI hereof, each
Grantor will cause the cash proceeds from its Receivables to be promptly
deposited into a Permitted Account.
Amendments to Schedules. Each Grantor has a continuing obligation
hereunder to amend, revise and update, as need be, any and all schedules hereto
so that such schedules accurately reflect the information set forth therein.
ARTICLE V
DISTRIBUTIONS ON PLEDGED SECURITIES; VOTING
Right to Receive Distributions on Pledged Collateral; Voting. (a) So
long as no Event of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Interests
or any part thereof for any purpose permitted by the terms of this
Agreement and the Credit Agreement.
(ii) Each Grantor shall be entitled to receive and retain any
and all dividends, interest and principal paid in cash on the Pledged
Securities to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Credit Agreement
and applicable laws. Other than pursuant to the first sentence of this
paragraph (a)(ii), all principal, all noncash dividends, interest and
principal, and all dividends, interest and principal paid or payable in
cash or otherwise in connection with a partial or total liquidation or
dissolution, return of capital, capital surplus or paid-in surplus, and
all other distributions made on or in respect of Pledged Securities,
whether paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding Capital
Stock of the issuer of any Pledged Securities or received in exchange
for Pledged Securities or any part thereof, or in redemption thereof,
or as a result of any merger, consolidation, acquisition or other
exchange of assets to which such issuer may be a party or otherwise,
shall be and become part of the Collateral, and, if received by a
Grantor, shall not be commingled by such Grantor with any of its other
funds or property but shall be held separate and apart therefrom, shall
be held in trust for the benefit of the Administrative Agent and shall
be promptly delivered to the Administrative Agent, as Collateral, in
the form in which received (with any necessary endorsement).
(iii) The Administrative Agent shall execute and deliver (or
cause to be executed and delivered) to each Grantor all such proxies,
powers of attorney, consents, ratifications and waivers and other
instruments as each Grantor may reasonably request for the purpose of
enabling each Grantor to exercise the voting and other rights which it
is entitled to exercise pursuant to paragraph (i) above and to receive
the dividends or interest payments which it is authorized to receive
and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(iv) All rights of any Grantor to receive the dividends and
interest payments which it would otherwise be authorized to receive and
retain pursuant to Section 5.01(a)(ii) shall cease, and all such rights
shall thereupon become vested in the Administrative Agent which shall
thereupon have the sole right to receive and hold as Collateral such
dividends and interest payments.
(v) All dividends and interest payments which are received by
any Grantor contrary to the provisions of paragraph (i) of this Section
5.01(b) shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other funds of such
Grantor and shall be promptly paid over to the Administrative Agent as
Collateral in the same form as so received (with any necessary
endorsement).
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of each Grantor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to Section
5.01(a)(i) shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, which shall thereupon have the sole right to exercise such
voting and other consensual rights.
ARTICLE VI
REMEDIES; RIGHTS UPON DEFAULT
UCC Rights. If any Event of Default shall have occurred and be
continuing, the Administrative Agent may, in addition to all other rights and
remedies granted to it in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Secured Obligations, exercise
all rights and remedies of a secured party under the UCC and all other rights
available to the Administrative Agent at law or in equity.
Payments on Collateral. Without limiting the rights of the
Administrative Agent under any other provision of this Agreement, if an Event of
Default shall occur and be continuing:
(a) The Administrative Agent may, or upon the request of the
Administrative Agent each Grantor shall, notify Account Debtors
obligated to make payments under any or all Receivables or General
Intangibles that the Administrative Agent and the other Secured Parties
have a security interest in such Collateral and that payments shall be
made directly to, or to a Cash Collateral Account designated by, the
Administrative Agent. Each Grantor will use all reasonable efforts to
cause each Account Debtor to comply with the foregoing instruction. In
furtherance of the foregoing, each Grantor authorizes the
Administrative Agent (i) to ask for, demand, collect, receive and give
acquittances and receipts for any and all amounts due and to become due
under any Collateral and, in the name of such Grantor or its own name
or otherwise, (ii) to take possession of, endorse and collect any
checks, drafts, notes, acceptances or other instruments for the payment
of moneys due under any Collateral and (iii) to file any claim or take
any other action in any court of law or equity or otherwise which it
may deem appropriate for the purpose of collecting any amounts due
under any Collateral;
(b) all payments received by any Grantor under or in
connection with any of the Collateral shall be held by such Grantor in
trust for the Administrative Agent, shall be segregated from other
funds of such Grantor and shall forthwith upon receipt by such Grantor
be turned over to the Administrative Agent, in the same form as
received by such Grantor (duly indorsed by each Grantor to the
Administrative Agent, if required to permit collection thereof by the
Administrative Agent); and
(c) all such payments received by the Administrative Agent
(whether from a Grantor or otherwise) may, in the sole discretion of
the Administrative Agent, be held by the Administrative Agent as
collateral security for, and/or then or at any time thereafter be
applied in whole or in part by the Administrative Agent to the payment
of the expenses and Secured Obligations as set forth in Section 6.11.
Possession of Collateral. In furtherance of the foregoing, each Grantor
expressly agrees that, if an Event of Default shall occur and be continuing, the
Administrative Agent may (a) by judicial powers, or without judicial process if
it can be done without breach of the peace, enter any premises where any of such
Collateral is located, and without charge to the Administrative Agent seize and
remove such Collateral from such premises and (b) have access to and use of such
Grantor's Documents.
Sale of Collateral. (a) Each Grantor expressly agrees that if an Event
of Default shall occur and be continuing, the Administrative Agent, without
demand of performance or other demand or notice of any kind (except the notice
specified below of the time and place of any public or private sale) to any
Grantor or any other Person (all of which demands and/or notices are hereby
waived by each Grantor), may forthwith collect, receive, appropriate and realize
upon the Collateral and/or forthwith sell, lease, assign, give an option or
options to purchase or otherwise dispose of and deliver the Collateral (or
contract to do so) or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any office of the
Administrative Agent or elsewhere in such manner as is commercially reasonable
and as the Administrative Agent may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative Agent
or any Secured Party shall have the right upon any such public sale and, to the
extent permitted by law, upon any such private sale, to purchase the whole or
any part of the Collateral so sold. Each Grantor further agrees, at the
Administrative Agent's request, to assemble the Collateral, and to make it
available to the Administrative Agent at places which the Administrative Agent
may reasonably select. To the extent permitted by applicable law, each Grantor
waives all claims, damages and demands against the Administrative Agent or any
Secured Party arising out of the foreclosure, repossession, retention or sale of
the Collateral.
(b) Unless the Collateral threatens to decline quickly in value or is
of a type customarily sold in a recognized market, the Administrative Agent
shall give such Grantor 10 days' written notice of its intention to make any
such public or private sale or sale at a broker's board or on a securities
exchange. Such notice shall (i) in the case of a public sale, state the time and
place fixed for such sale, (ii) in the case of a sale at a broker's board or on
a securities exchange, state the board or exchange at which such sale is to be
made and the day on which the Collateral, or any portion thereof being sold,
will first be offered for sale and (iii) in the case of a private sale, state
the day after which such sale may be consummated. The Administrative Agent shall
not be required or obligated to make any such sale pursuant to any such notice.
The Administrative Agent may adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which the
same may be so adjourned. In the case of any sale of all or any part of the
Collateral for credit or for future delivery, the Collateral so sold may be
retained by the Administrative Agent until the selling price is paid by the
purchaser thereof, but the Administrative Agent shall not incur any liability in
case of failure of such purchaser to pay for the Collateral so sold and, in the
case of such failure, such Collateral may again be sold upon like notice.
Rights of Purchasers. Upon any sale of the Collateral (whether public
or private), the Administrative Agent shall have the right to deliver, assign
and transfer to the purchaser thereof the Collateral so sold. Each purchaser
(including the Administrative Agent and the other Secured Parties) at any such
sale shall hold the Collateral so sold free from any claim or right of whatever
kind, including any equity or right of redemption of any Grantor, and each
Grantor, to the extent permitted by law, hereby specifically waives all rights
of redemption, including the right to redeem the Collateral under ss. 9-506 of
the UCC, and any right to a judicial or other stay or approval which it has or
may have under any law now existing or hereafter adopted.
Additional Rights of the Administrative Agent. Upon the occurrence and
during the continuance of an Event of Default:
(a) The Administrative Agent shall have the right and power to
institute and maintain such suits and proceedings as it may deem
appropriate to protect and enforce the rights vested in it by this
Agreement and may proceed by suit or suits at law or in equity to
enforce such rights and to foreclose upon and sell the Collateral or
any part thereof pursuant to the judgment or decree of a court of
competent jurisdiction.
(b) The Administrative Agent shall, to the extent permitted by
law and without regard to the solvency or insolvency at the time of any
Person then liable for the payment of any of the Secured Obligations or
the then value of the Collateral, and without requiring any bond from
any party to such proceedings, be entitled to the appointment of a
special receiver or receivers (who may be the Administrative Agent or
any other Secured Party) for the Collateral or any part thereof and for
the rents, issues, tolls, profits, royalties, revenues and other income
therefrom, which receiver shall have such powers as the court making
such appointment shall confer, and to the entry of an order directing
that the rents, issues, tolls, profits, royalties, revenues and other
income of the property constituting the whole or any part of the
Collateral be segregated, sequestered and impounded for the benefit of
the Administrative Agent and the other Secured Parties, and each
Grantor irrevocably consents to the appointment of such receiver or
receivers and to the entry of such order.
Securities Act, etc. (a) In view of the position of the applicable
Grantor in relation to its Pledged Securities, or because of other present or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being herein called the "Federal Securities Laws"), with respect to
any disposition of the Pledged Securities permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Administrative Agent if the Administrative
Agent were to attempt to dispose of all or any part of the Pledged Securities,
and might also limit the extent to which or the manner in which any subsequent
transferee of any such Pledged Securities could dispose of the same. Similarly,
there may be other legal restrictions or limitations affecting the
Administrative Agent and the other Secured Parties in any attempt to dispose of
all or part of the Pledged Securities under applicable blue sky or other state
securities laws or similar laws analogous in purpose or effect. Accordingly,
each Grantor expressly agrees that the Administrative Agent is authorized, in
connection with any sale of the Pledged Securities, if the Administrative Agent
deems it advisable so to do, (i) to restrict the prospective bidders on or
purchasers of any of the Pledged Securities to a limited number of sophisticated
investors who will represent and agree that they are purchasing for their own
account for investment and not with a view to the distribution or sale of any of
such Pledged Securities, (ii) to cause to be placed on certificates for any or
all of the Pledged Securities or on any other securities pledged hereunder a
legend to the effect that such security has not been registered under the
Federal Securities Laws and may not be disposed of in violation of the
provisions of the Federal Securities Laws and (iii) to impose such other
limitations or conditions in connection with any such sale as the Administrative
Agent deems necessary or advisable in order to comply with the Federal
Securities Laws or any other law. Each Grantor covenants and agrees that it will
execute and deliver such documents and take such other action as the
Administrative Agent deems reasonably necessary or advisable in order to comply
with the Federal Securities Laws or any other law. Each Grantor acknowledges and
agrees that such limitations may result in prices and other terms less favorable
to the seller than if such limitations were not imposed, and, notwithstanding
such limitations, agrees that any such sale shall be deemed to have been made in
a commercially reasonable manner, it being the agreement of each Grantor, the
Administrative Agent and the other Secured Parties that the provisions of this
Section 6.07(a) will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Administrative Agent sells the Pledged Securities. The
Administrative Agent shall be under no obligation to delay a sale of any Pledged
Securities for a period of time necessary to permit the issuer of any securities
contained therein to register such securities under the Federal Securities Laws,
or under applicable state securities laws, even if the issuer would agree to do
so.
(b) If the Administrative Agent shall determine to exercise its right
to sell all or any of the Pledged Securities and if in the opinion of counsel
for the Administrative Agent it is necessary, or if in the opinion of the
Administrative Agent it is necessary, to have the securities included in the
Pledged Securities or the portion thereof to be sold registered under the
provisions of the Federal Securities Laws, each Grantor agrees, at its own
expense, (i) to execute and deliver, and to use its reasonable efforts to cause
each Consolidated Party and its directors and officers to execute and deliver,
all such instruments and documents, and to do or cause to be done all other such
acts and things, as may be necessary or, in the reasonable opinion of the
Administrative Agent, advisable to register such securities under the provisions
of the Federal Securities Laws and to cause the registration statement relating
thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make or cause to be
made all amendments and supplements thereto and to the related prospectus which,
in the reasonable opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the Federal Securities
Laws and the rules and regulations of the Securities and Exchange Commission
thereunder, (ii) to use its reasonable efforts to cause the Borrower to agree to
prepare, and to make available to its security holders as soon as practicable,
an earnings statement (which need not be audited) covering the period of at
least 12 months beginning with the first month after the effective date of any
such registration statement, which earning statement will satisfy the provisions
of Section 11(a) of the Federal Securities Laws, (iii) to use its reasonable
efforts to qualify such securities under state blue sky or securities laws and
to obtain the approval of any governmental authorities for the sale of such
securities as requested by the Administrative Agent and (iv) at the request of
the Administrative Agent, to indemnify and hold harmless the Administrative
Agent, each other Secured Party and any underwriters (and any person controlling
any of the foregoing) from and against any loss, liability, claim, damage and
expense (and reasonable counsel fees incurred in connection therewith) under the
Federal Securities Laws or otherwise insofar as such loss, liability, claim,
damage or expense arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in such registration statement or
prospectus or any amendment or supplement thereto, or arises out of or is based
upon any omission or alleged omission to state therein a material fact required
to be stated or necessary to make the statements therein not misleading, such
indemnification to remain operative regardless of any investigation made by or
on behalf of the Administrative Agent, any other Secured Party or any
underwriters (or any person controlling any of the foregoing); provided that
such Grantor shall not be liable in any case to the extent that any such loss,
liability, claim, damage or expense arises out of or is based on an untrue
statement or alleged untrue statement or an omission or an alleged omission made
in reliance upon and in conformity with written information furnished to such
person by the Administrative Agent or any underwriter expressly for use in such
registration statement or prospectus.
Remedies Not Exclusive. (a) No remedy conferred upon or reserved to the
Administrative Agent in this Agreement is intended to be exclusive of any other
remedy or remedies, but every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or hereafter existing at
law, in equity or by statute.
(b) If the Administrative Agent shall have proceeded to enforce any
right, remedy or power under this Agreement and the proceeding for the
enforcement thereof shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Administrative Agent, each Grantor
and the Administrative Agent shall, subject to any determination in such
proceeding, severally and respectively be restored to their former positions and
rights under this Agreement, and thereafter all rights, remedies and powers of
the Administrative Agent shall continue as though no such proceedings had been
taken.
(c) All rights of action under this Agreement may be enforced by the
Administrative Agent without the possession of any instrument evidencing any
Secured Obligation or the production thereof at any trial or other proceeding
relative thereto, and any suit or proceeding instituted by the Administrative
Agent shall be brought in its name and any judgment shall be held as part of the
Collateral.
Waiver and Estoppel. (a) Each Grantor, to the extent it may lawfully do
so, agrees that it will not at any time in any manner whatsoever claim or take
the benefit or advantage of any appraisement, valuation, stay, extension,
moratorium, turnover or redemption law, or any law now or hereafter in force
permitting it to direct the order in which the Collateral shall be sold which
may delay, prevent or otherwise affect the performance or enforcement of this
Agreement and each Grantor hereby waives the benefits or advantage of all such
laws, and covenants that it will not hinder, delay or impede the execution of
any power granted to the Administrative Agent in this Agreement but will permit
the execution of every such power as though no such law were in force; provided
that nothing contained in this Section 6.09 shall be construed as a waiver of
any rights of such Grantor under any applicable federal bankruptcy law.
(b) Each Grantor, to the extent it may lawfully do so, on behalf of
itself and all who may claim through or under it, including any and all
subsequent creditors, vendees, assignees and lienors, waives and releases all
rights to demand or to have any marshalling of the Collateral upon any sale,
whether made under any power of sale granted herein or pursuant to judicial
proceedings or upon any foreclosure or any enforcement of this Agreement and
consents and agrees that all of the Collateral may at any such sale be offered
and sold as an entirety.
(c) Each Grantor, to the extent it may lawfully do so, waives
presentment, demand, protest and any notice of any kind (except notices
explicitly required hereunder) in connection with this Agreement and any action
taken by the Administrative Agent with respect to the Collateral.
Power of Attorney. Each Grantor hereby irrevocably constitutes and
appoints the Administrative Agent, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of such Grantor and in the name of such Grantor or in its own
name, from time to time in the Administrative Agent's reasonable discretion for
the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives the
Administrative Agent the power and right, on behalf of such Grantor, without
notice to or assent by such Grantor to do the following:
(a) upon the occurrence and during the continuance of any
Event of Default, to pay or discharge taxes, liens, security interests
or other encumbrances levied or placed on or threatened against the
Collateral;
(b) upon the occurrence and during the continuance of any
Event of Default, to effect any repairs or any insurance called for by
the terms of this Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(c) upon the occurrence and during the continuance of any
Event of Default and otherwise to the extent provided in this
Agreement, (i) to direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due and to come
due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct, (ii) to receive payment of and
receipt for any and all moneys, claims and other amounts due and to
become due at any time in respect of or arising out of any Collateral,
(iii) to sign and indorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts and
other documents relating to the Collateral, (iv) to commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any Collateral,
(v) to defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral, (vi) to settle, compromise and
adjust any suit, action or proceeding described above and, in
connection therewith, to give such discharges or releases as the
Administrative Agent may deem appropriate, (vii) to assign any Patent,
Trademark or Copyright (along with the goodwill of the business to
which such Trademark pertains), for such term or terms, on such
conditions, and in such manner, as the Administrative Agent shall in
its sole discretion determine, (viii) to license or, to the extent
permitted by any applicable law, sub-license, whether general, special
or otherwise, and whether on an exclusive or non-exclusive basis, any
Patent, Trademark or Copyright, throughout the world for such term or
terms, on such conditions, and in such manner, as the Administrative
Agent shall determine and (ix) generally to sell, transfer, pledge,
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Administrative Agent
were the absolute owner thereof for all purposes, and to do, at the
option of the Administrative Agent and each Grantor's expense, at any
time, or from time to time, all acts and things which the
Administrative Agent deems necessary to protect, preserve or realize
upon the Collateral and the Administrative Agent's security interest
therein, in order to effect the intent of this Agreement, all as fully
and effectively as such Grantor might do.
Each Grantor hereby ratifies all that such attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
Except as provided for by law or the UCC or its equivalent, nothing
herein contained shall be construed as requiring or obligating the
Administrative Agent to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by the Administrative Agent, or to
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the
Administrative Agent or omitted to be taken with respect to the Collateral or
any part thereof shall give rise to any defense, counterclaim or offset in favor
of any Grantor or to any claim or action against the Administrative Agent. It is
understood and agreed that the appointment of the Administrative Agent as the
agent of each Grantor for the purposes set forth above in this Section 6.10 is
coupled with an interest and is irrevocable. The provisions of this Section 6.10
shall in no event relieve any Grantor of any of its obligations hereunder with
respect to the Collateral or any part thereof or impose any obligation on the
Administrative Agent to proceed in any particular manner with respect to the
Collateral or any part thereof, or in any way limit the exercise by the
Administrative Agent of any other or further right which it may have on the date
of this Agreement or hereafter, whether hereunder or by law or otherwise.
Application of Proceeds. (a) The Administrative Agent shall apply the
proceeds of any collection or sale of the Collateral, as well as any Collateral
consisting of cash, as provided in Section 3.14(b) of the Credit Agreement. The
Administrative Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Administrative Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the Administrative Agent or of the officer making
the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the
Administrative Agent or such officer or be answerable in any way for the
misapplication thereof.
(b) In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization or sale as aforesaid are insufficient to pay
all amounts to which the Administrative Agent or any or all of the Lenders are
legally entitled, the Borrower will be liable for the deficiency, together with
interest thereon, at the applicable default rate provided in Section 3.1 of the
Credit Agreement, and the reasonable fees of any attorneys employed by the
Administrative Agent or any or all of the Lenders to collect such deficiency,
pursuant to the Credit Agreement.
Grant of License or Sub-License to Use Patent, Trademark, Copyright and
License Collateral. For the purpose of enabling the Administrative Agent to
exercise rights and remedies under this Article VI at such time as the
Administrative Agent shall be lawfully entitled to exercise such rights and
remedies, each Grantor hereby grants to the Administrative Agent an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to such Grantor) to use, license or sub-license any Patent,
Trademark, Copyright or License now owned or licensed or hereafter acquired or
licensed by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license or sub-license by the
Administrative Agent shall be exercised, at the option of the Administrative
Agent, only upon the occurrence and the continuance of an Event of Default;
provided that any license, sub-license or other transaction entered into by the
Administrative Agent in accordance herewith shall be binding upon the applicable
Grantor notwithstanding any subsequent cure of an Event of Default. The
Administrative Agent agrees to apply the net proceeds received from any such
license as provided in Section 6.11 hereof; provided that no such license shall
be conferred hereby with respect to any Patents, Trademarks and Copyrights
licensed by the Grantors from any unaffiliated third party if and to the extent
that the terms of the applicable License to which such Grantor is a party would
prohibit such license to the Administrative Agent.
ARTICLE VII
MISCELLANEOUS
Notices. Except as otherwise expressly provided herein, all notices and
other communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set forth below, (c) on the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service or (d) on the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Borrower, the Parent and
the Administrative Agent, set forth in Section 10.1 of the Credit Agreement,
and, in the case of any other Grantor, on the signature pages hereof, or at such
other address as such party may specify by written notice to the other parties
hereto.
Benefit of Agreement. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that none of the Grantors may assign or transfer
any of its interests and obligations without prior written consent of all the
Lenders (and any such purported assignment or transfer without such consent
shall be void); provided further that the rights of each Lender to transfer,
assign or grant participations in its rights and/or obligations hereunder shall
be limited as set forth in Section 10.3(b) of the Credit Agreement. Upon the
assignment by any Lender of all or any portion of its rights and obligations
under the Credit Agreement (including all or any portion of its Commitments and
the Loans owing to it) to any other Person, such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such
transferor or assignor herein or otherwise.
No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent or any other Secured Party in exercising any right, power
or privilege hereunder and no course of dealing between the Administrative Agent
or any other Secured Party and any of the Credit Parties shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. The rights and
remedies of the Administrative Agent and the other Secured Parties hereunder are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any other Secured Party would otherwise have at law or otherwise. No
notice to or demand on any Credit Party in any case shall entitle the Borrower
or any other Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or the other Secured Parties to any other or further action in any
circumstances without notice or demand.
Amendments, Waivers and Consents. Neither this Agreement nor any of the
terms hereof may be amended, modified or waived, unless such amendment,
modification or waiver is in writing and is entered into in accordance with
Section 10.6 of the Credit Agreement; provided, however, that this Agreement may
be amended, modified or waived with respect to any Grantor, including by
releasing any Grantor hereunder, without the approval of any other Grantor and
without affecting the obligations of any other Grantor hereunder.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile by
any of the parties hereto of an executed counterpart of this Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered,
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Agreement.
Headings. Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
Survival. All indemnities set forth herein shall survive the execution
and delivery of this Agreement, the making of the Loans, the issuance of the
Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents, the termination of the Commitments, and
the termination of this Agreement. All representations and warranties made by
the Grantors herein shall survive delivery of the Notes, the making of the Loans
under the Credit Agreement and the issuance of the Letters of Credit under the
Credit Agreement.
Governing Law; Submission to Jurisdiction; Venue. (a) THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Any legal action or proceeding with respect to this Agreement
may be brought in the courts of the State of New York in New York County, or of
the United States for the Southern District of New York, and, by execution and
delivery of this Agreement, each of the Grantors hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Nothing herein shall affect the right
of the Administrative Agent or any Lender to serve process in any manner
permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(b) Each of the Grantors hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement
brought in the courts referred to in subsection (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE GRANTORS HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Severability. If any provision of this Agreement is determined to be
illegal, invalid or unenforceable with respect to any Grantor, such provision
shall be fully severable as to such Grantor and the remaining provisions (and
such provision as to all other Grantors) shall remain in full force and effect
and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions as to such Grantor. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Entirety. This Agreement, the other Credit Documents and the Lender
Hedging Agreements, if any, represent the entire agreement of the parties hereto
and thereto regarding the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, if any (including any
commitment letters or correspondence) relating to such subject matters. Nothing
in this Agreement, expressed or implied, is intended to confer upon any party
(other than the parties hereto and thereto and the other Secured Parties) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Binding Effect; Termination. (a) This Agreement shall become effective
at such time on or after the Effective Date when it shall have been executed by
any Grantor and the Administrative Agent and thereafter this Agreement shall be
binding upon and inure to the benefit of the Grantors, the Administrative Agent
and their respective permitted successors and assigns.
(b) The term of this Agreement shall be until no Loans, LOC Obligations
or any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, no Letters of Credit shall be outstanding,
all of the Credit Obligations have been irrevocably satisfied in full and all of
the Commitments shall have expired or been terminated. Except as otherwise
expressly provided herein, this Agreement shall terminate when the security
interests granted hereunder have terminated and the Collateral has been released
as provided in Section 2.08(b).
Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of the Credit
Agreement, on the other hand, the Credit Agreement shall control.
Joinder Agreement. Upon execution and delivery by the Administrative
Agent and a Domestic Subsidiary of any Credit Party of a Joinder Agreement
substantially in the form of Exhibit E to the Credit Agreement, such Domestic
Subsidiary shall become a Grantor hereunder with the same force and effect as if
originally named as a Grantor herein. The execution and delivery of any such
instrument shall not require the consent of any other Grantor hereunder. The
rights and obligations of each Grantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Grantor as a party to this
Agreement.
Right of Set-Off. Upon the occurrence and during the continuance of an
Event of Default, each Lender (and each of its Affiliates) is authorized at any
time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or final) and any
other indebtedness at any time held or owing by such Lender (including branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of any Grantor against obligations and liabilities of such Grantor
to such Lender (and its Affiliates) hereunder, under the Notes, under the other
Credit Documents or otherwise, irrespective of whether such Lender (or
Affiliate) shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured. Any such
set-off shall be deemed to have been made immediately upon the occurrence of an
Event of Default even though such charge is made or entered on the books of such
Lender subsequent thereto. Each Lender agrees promptly to notify the applicable
Grantor after any such set-off and application made by such Lender (or any of
its Affiliates); provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. Any Person purchasing a
Participation Interest in the Loans and Commitments pursuant to the applicable
provisions of the Credit Agreement may exercise all rights of setoff with
respect to its Participation Interest as fully as if such Person were a Lender.
The rights of each Lender (and its Affiliates) under this Section 7.14 are in
addition to (and not in limitation of) any other rights and remedies (including
other rights of set-off) that such Lender may have under applicable law or
otherwise.
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: ......... ISG RESOURCES, INC.,
a Utah corporation
By:___________________________
Name:_________________________
Title:________________________
PARENT: ......... INDUSTRIAL SERVICES GROUP, INC.,
a Delaware corporation
By:____________________________
Name:__________________________
Title:_________________________
ADMINISTRATIVE AGENT:...... BANK OF AMERICA, N. A.,
in its capacity as Administrative Agent
By:____________________________
Name:__________________________
Title:_________________________
SUBSIDIARY GRANTORS: ISG CAPITAL CORPORATION,
------------------- a Utah corporation
By:____________________________
Name:__________________________
Title:_________________________
BEST MASONRY &TOOL SUPPLY, INC.
a Texas corporation
By:____________________________
Name:__________________________
Title:_________________________
UNITED TERRAZZO SUPPLY CO., INC.
a California corporation
By:____________________________
Name: _________________________
Title:_________________________
XXXXX X. XXXXXXX, INC.
a California corporation
By:____________________________
Name:__________________________
Title:_________________________
MAGNA WALL, INC.
a Texas corporation
By:_____________________________
Name:___________________________
Title:__________________________
DON'S BUILDING SUPPLY L.L.P.,
a Texas limited liability partnership
By:_____________________________
Name:___________________________
Title:__________________________
ISG MANUFACTURED PRODUCTS, INC.
a Utah corporation
By:_____________________________
Name:___________________________
Title:__________________________
All notices for Subsidiary Grantors:
____________________________________
____________________________________
____________________________________
Schedule 1
SUBSIDIARY GRANTORS
Industrial Services Group, Inc.
ISG Resources, Inc.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.
Xxxxx X. Xxxxxxx, Inc.
United Terrazzo Supply Co., Inc.
Magna Wall, Inc.
ISG Manufactured Products, Inc.
Don's Building Supply, L.L.P.
ISG Capital Corporation
Schedule 1
Schedule 2
CHIEF EXECUTIVE OFFICE AND PRINCIPAL PLACE OF BUSINESS
Industrial Services Group, Inc.
CEO/PPB: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
ISG Resources, Inc.
CEO/PPB: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
United Terrazzo Supply Co., Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
Magna Wall, Inc.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 00000 X-X Xxxx, Xxxxx X
Xxxxxx, XX 00000
ISG Manufactured Products, Inc.:
CEO/PPB: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Don's Building Supply, L.L.P.:
CEO: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
PPB: 0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ISG Capital Corporation:
CEO/PPB: 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
LOCATIONS OF RECORDS OF RECEIVABLES AND GENERAL INTANGIBLES
Industrial Services Group, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
ISG Resources, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
00000 Xxxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Inc.:
00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
United Terrazzo Supply Co., Inc.:
00000 Xxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
Magna Wall, Inc.:
00000 X-X Xxxx, Xxxxx X
Xxxxxx, XX 00000
ISG Manufactured Products, Inc.:
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Don's Building Supply, L.L.P.:
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ISG Capital Corporation:
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Schedule 3
PLEDGED SECURITIES
Part I List of Pledged Interests:
-------------------------
Grantor Issuer Ownership Interests:
------- ------ -------------------
Industrial Services Group, Inc.
ISG Resources, Inc. 100 Shares
ISG Resources, Inc. Best Masonry & Tool
Supply, Inc. 1,000 Shares
Xxxxx X. Xxxxxxx, Inc. 12,296 Shares
United Terrazzo Supply Co.,
Inc. 16 Shares
Magna Wall, Inc. 1,000 Shares
ISG Manufactured Products,
Inc. 1,000 Shares
ISG Capital Corporation 100 Shares
Don's Building Supply,
L.L.P. 1%
ISG Manufactured Products, Inc.
Don's Building Supply, L.L.P. 99%
Part II List of Pledged Debt:
--------------------
Grantor Issuer Date of Issuance Outstanding Balance
NONE
Schedule 4
LOCATIONS OF EQUIPMENT AND INVENTORY
ISG Resources, Inc.
Xxxxx Plant C/O Golden Valley Electric Assn.
3.5 miles Usibelli, Xxxx Xxxx
Xxxxx, XX 00000
ISG Resources, Inc.
Denali Borough Xxxxxx
P. O. Xxx 00, 00000 Xxxxxxx 00
0 Xxxx X of Wilsonville on State Route 25
Wilsonville, XX
Xxxxxx County
ISG Resources, Inc.
Xxxxxx
000 Xxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxxxx, XX 00000
ISG Resources, Inc.
Arkadelphia - Gum Springs
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Hurricane Creek
X.X. Xxx 00
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Independence Steam Electric Power Plant
000 Xxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Independence County
ISG Resources, Inc.
Redfield
Xxxxxxx Road
Redfield, AR 72132
Jefferson County
ISG Resources, Inc.
White Bluff Steam Electric Power Plant
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
Navajo Generating Station
5 Miles East of Page Arizona
Xxxxxxx 00
Xxxx, XX 00000
ISG Resources, Inc.
French Camp Terminal
0000 Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
ISG Resources, Inc.
Fresno Terminal
0000 X. Xxxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Oxnard Terminal - Diversified Minerals Inc.
0000 X. Xxxxxx Xxxx
Xxxxxx, XX 00000
Ventura County
ISG Resources, Inc.
Redwood City Terminal C/O RMC Xxxxxxxx
000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
San Mateo County
ISG Resources, Inc.
Sacramento Terminal c/o RMC Xxxxxxxx
0000 X. Xxxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Yolo County
ISG Resources, Inc.
San Bernadino
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
San Bernadino Terminal
0000 X. 0xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
San Bernadino County
ISG Resources, Inc.
San Francisco Terminal
000 Xxxxx Xxx @ Pier 00 Xxxx Xxxx
Xxx Xxxxxxxxx, XX 00000
ISG Resources, Inc.
Andesite/DuPont
X.X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Craig Plant
ISG Resources c/o Tri-State Generation and
Transmission Associates
0000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Moffat County
ISG Resources, Inc.
Hayden Plant
ISG Resources c/o Public Service Company of Colorado
00000 X. Xxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Thames
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
New London County
ISG Resources, Inc.
CCA
00000 Xxxx Xxxxxx Xx.
Xxxxxxxxx Xxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Jefferson Smurfitt
North 8th Street
Fernandina Beach, FL 32034
Nassau County
ISG Resources, Inc.
Plant Xxxxx
00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Escambia County
ISG Resources, Inc.
Atlanta Terminal
0000 Xxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Gwinett County
ISG Resources, Inc.
Xxxxx
P. O. Box 280
000 Xxxxxxx Xxxxxx Xx., XX
Xxxxxxxxxxxx, XX 00000
Bartow County
ISG Resources, Inc.
Dublin
X.X. Xxx 00000
Xxxx Xxxxxx, XX 00000
Laurens County
ISG Resources, Inc.
Materials Testing & Research Facility
0000 Xxxxxxx 000, XX
Xxxxxxxxxxxx, XX 00000
Bartow County
ISG Resources, Inc.
Stilesboro
000 Xxxxxxx Xxxxxx Xxxx, XX
Xxxxxxxxxxxx, XX 00000
Bartow County
ISG Resources, Inc.
Burlington
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Des Moines County
ISG Resources, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Woodbury County
ISG Resources, Inc.
Mid American Energy
Port Xxxx North 1, 2, 3 & 4
Sioux City, IA 51102
Woodbury County
ISG Resources, Inc.
Mid American Energy
Xxxxxxx Xxxxx 0, 0, & 0
0000 Xxxxx Street
Council Bluff, IA 51501
Pottawattamie County
ISG Resources, Inc.
Mid American Energy
Louisa Generating Station
0000 000xx Xxxxxx
Xxxxxxxxx, XX 00000
Muscatine County
ISG Resources, Inc.
Muscatine
0000 000xx Xxxxxx
Xxxxxxxxx, XX 00000
Muscatine County
ISG Resources, Inc.
Mid American Energy
Riverside Plant
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Prairie Creek
0000 X Xxxxxx, XX
Xxxxx Xxxxxx, XX 00000
Linn County
ISG Resources, Inc.
Boise Terminal
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxxx
ISG Resources, Inc.
Meridian Terminal
Handy Truck Lines
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxxx
ISG Resources, Inc.
Paul Terminal
Handy Truck Lines
000 X. 000 Xxxx
Xxxx, XX 00000
Minidoka County
ISG Resources, Inc.
Twin Falls Terminal
000 Xxxx 000 Xxxxx
Xxxx, XX 00000
ISG Resources, Inc.
X.X. Xxxxxxx Station
P.O. Box 1237
Pekin, IL 61555
Tazewell County
ISG Resources, Inc.
Council Bluffs
0000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Pottawattamie County
ISG Resources, Inc.
Baldwin Plant
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxx County
ISG Resources, Inc.
Duck Creek
P. O. Box 1257
Pekin, IL 61555
Tazewell County
ISG Resources, Inc.
Xxxxxxx Station
0000 x. Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxxx Station
00000 X. Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Wood River Plant
0 Xxxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Bailly Station
000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Cinergy - Noblesville Plant
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxxx County
ISG Resources, Inc.
Xxxxxx Xxxxx
Xxxxxxx 00
Xxxxxxx, XX
Xxxx Xxxxxx
ISG Resources, Inc.
LTV Steel Company
Door 806
0000 Xxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Michigan City
Wasbash Street at the Lake
Michigan City, IN 46360
La Porte County
ISG Resources, Inc.
Xxxxxxxx Generating Xxxxxxx
X.X. Xxx X000
Xxxx, XX 00000
Xxxx Xxxxxx
XXX Resources, Inc.
Petersburg Station
Xxxxx 0,Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, XX 00000
Pike County
ISG Resources, Inc.
Schahfer Station
2723 E. 0000 Xxxxx
Xxxxx, Xxx 000
Xxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Mill Creek
00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Jefferson County
ISG Resources, Inc.
Dolet Hills
P. O. Box 955
963 Power Plant Rd.
Mansfield, LA 71052
DeSoto Parish
ISG Resources, Inc.
Rayville
P. O. Box 477
Rayville, LA 71269
Richland Parish
ISG Resources, Inc.
Xxxx
000 Xxxxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Consumers Power - Xxxx Plant
000 Xxxxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Consumers Power - West Xxxxx - Xxxxxxxx
0000 X. Xxxx Xxxxx
Xxxx Xxxxx, XX 00000
Ottawa County
ISG Resources, Inc.
Consumers Power - Xxxxxxx - Erie
00000/0Xxxx Xxxx
Xxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx
Island Avenue
Lansing, MI 48917
Xxxxxx County
ISG Resources, Inc.
First Energy - Silo Storage Only
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Xxxx
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxx Xxxxxx
ISG Resources, Inc.
Lansing Board Water & Light - Xxxxxxxx
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Lansing Board Water & Light - Xxxxxx
Island Avenue
Lansing, MI 48917
Xxxxxx County
ISG Resources, Inc.
Xxxxxx Park
Island Avenue
Lansing, MI 48917
Xxxxxx County
ISG Resources, Inc.
Sikeston
0000 X. Xxxxxxxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx Xxxx
Route 1, box 87
Xxxxxxx Hill, MO 65244
Xxxxxxxx County
ISG Resources, Inc.
Colstrip
Xxxxxx Xxx. & Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
ISG Resources, Inc.
Xxxxxxxx
000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
ISG Resources, Inc.
Xxxxx & Xxxxx Station
Highway 23, South of Sydney
Xxxxxx, XX 00000
ISG Resources, Inc.
Missoula Terminal
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
ISG Resources, Inc.
Coal Creek
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XxXxxx County
ISG Resources, Inc.
Xxxxxx Station
Xxxxxxxx & Xxx Xxxxxx Avenues
Jersey City, NJ 07306
ISG Resources, Inc.
Albany
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxxx County
Route 1, P. O. Box 177
Bedford, NY 40006
Westchester County
ISG Resources, Inc.
Belews Creek Plant
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Cape Fear
X.X. Xxx 000
Xxxxxx, XX 00000
New Hanover County
ISG Resources, Inc.
Xxxxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Catabba County
ISG Resources, Inc.
Xxxxxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
XxXxxx Xxxxxx
ISG Resources, Inc.
Las Vegas Terminal - Chem Lime
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
ISG Resources, Inc.
Xxxx Xxxxxxx
X.X. Xxx 00
Xxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Fernley Terminal
Nevada Cement Company
00 XX Xxxxxx
Xxxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Las Vegas Terminal
Savage Industries
00 X. Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Xxxx Xxxxxxx Power Plant
Power Plant Road
Moapa, NV 89025
Xxxxx County
ISG Resources, Inc.
Consumers Power - Lakeshore Plant
E. 55th & X. Xxxxxxxx
Cleveland, OH
Cuyahoga County
ISG Resources, Inc.
Dublin
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Franklin County
ISG Resources, Inc.
First Energy
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
First Energy
00000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Lorain County
ISG Resources, Inc.
First Energy
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Ashtabula County
ISG Resources, Inc.
First Energy
00 Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Miami Fort
000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxxxx County
ISG Resources, Inc.
Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
XX Xxxxxxxx Station
0000 Xxxxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
Clermont County
ISG Resources, Inc.
Xxxxxx
0000 XX 00
Xxxxxx, XX 00000
ISG Resources, Inc.
Harrisburg Terminal X/X Xxxxx Xxxxxxxx
Xxxxxxx 00 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Linn County
ISG Resources, Inc.
Xxxxxxxxx
Xxxxxxxx Xxxxx
0000 Xxxxxxxx Xxxxxx
Building 2, Suite 225
Allentown, PA 18104
Lehigh County
ISG Resources, Inc.
Bloomsburg
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Good Spring - Xxxxxx Site
000 Xxxx Xxxx Xxxxxx, Xxx 00
Good Spring, PA 17981
Tremont County
ISG Resources, Inc.
Mansfield
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
XXX Resources, Inc.
Sunbury
Old Trail - General Delivery
Shamokin Dam, PA 17876
Xxxxxx County
ISG Resources, Inc.
Pacolet
000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Lost Ridge (Bull Run)
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Bremond
X.X. Xxx 000
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
ISG Resources, Inc.
Carthage
Xxxxx 0, Xxx 00X
Carthage, TX 75633
Panola County
ISG Resources, Inc.
Limestone Plant
X.X. Xxx 000
Xxxxxx, XX 00000
Xxxx Xxxxxx
ISG Resources, Inc.
Xxxxxx Lake
P.O. Box 647
Tatum, TX 75691
Xxxx County
ISG Resources, Inc.
Xxxxxx
Longview, TX
Xxxxx County
ISG Resources, Inc.
Stafford (Sales/Administration)
00000 XX Xxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Fort Bend County
ISG Resources, Inc.
W.A. Parish Plant
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Fort Bend County
ISG Resources, Inc.
Carbon Plant
ISG Resources x/x XxxxxxXxxx
Xxxxxxx 0, 0 Miles North of Helper
Helper, UT 84526
Carbon County
ISG Resources, Inc.
Hunter Plant/Huntington Plant
ISG Resources c/o PacificCorp
2.5 Miles Xxxxx Xxxx Xxxxxxx
X.X. Xxx 000
Xxxxxx Xxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Intermountain Power Service Corp. - Delta
ISG Resources c/o Intermountain Power
000 X. Xxxxx Xxxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx County
ISG Resources, Inc.
Ogden Terminal
ISG Resources c/o PacifiCorp
0000 Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Carbo Plant
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Birchwood
00000 Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxx Xxx
P.O. Box 64
Xxxx Xxx, VA 24093
Xxxxx County
ISG Resources, Inc.
Richmond
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Bellingham Terminal
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Whatcom County
ISG Resources, Inc.
Centralia Plant X/X XxxxxxXxxx
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Centralia Storage
0000 Xxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx
ISG Resources, Inc.
Holnam Cement
0000 X. Xxxxxxxx Xxx, XX
Xxxxxxx, XX 00000
King County
ISG Resources, Inc.
Spokane Terminal
0000 X. Xxxx
Xxxxxxx, XX 00000
ISG Resources, Inc.
Alma
0000 Xxxx Xxxxxx Xxxxx
Xxxx, XX
Buffalo County
ISG Resources, Inc.
Genoa
S 0000 Xxxxx Xxxx 000
Xxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxx Xxxx Plant
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxx County
ISG Resources, Inc.
Kanawha River Facility
X.X. Xxx 000
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxx
ISG Resources, Inc.
Mountaineer
X.X. Xxx 000
Xxx Xxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Point Pleasant
000 0/0Xxxx Xx.
Xx. Xxxxxxxx, XX 00000
Xxxxx County
ISG Resources, Inc.
Xxxx Xxxxxxxx Plant
ISG Resources x/x XxxxxxXxxx.
0000Xxxx Xxxx Xxxx
Coal Company Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
ISG Resources, Inc.
Laramie River Plant
ISG Resources c/o Basin Electric Power
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
ISG Resources, Inc.
Xxx Xxxxxxx Plant
ISG Resources x/x XxxxxxXxxx.
00 Xxxxx Xxxx xx Xxxx Xxxxxxx
X.X. Xxx 000
Xxxxx xx Xxxxx, XX 00000
Xxxxxxxxxx Xxxxxx
ISG Resources, Inc.
Xxxxxxxx Plant
ISG Resources c/o PacifiCorp.
5 Miles SW of Kemmerer on Hwy 189
P.O. Box 109
Kemmerer, WY 83101
Lincoln County
ISG Resources, Inc.
Wyodak Power Plant
ISG Resources x/x XxxxxxXxxx.
00 Xxxxxx Xxxx
Xxxxxx Lake Route
Gillette, WY 82718
Xxxxxxxx County
ISG Manufactured Products, Inc. &
Best Masonry & Tool Supply, Inc.
00000 Xxxxxxxxxx Xxxx Xxxxx, #000X
Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
00000 X. Xxxxx Xxxx
Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
0000 Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Best Masonry & Tool Supply, Inc.
0000 XX Xxxxxxx 000
Xxxxxx, XX 00000
Best Masonry & Tool Supply, Inc. - Lab
0000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Magna Wall, Inc.
P. O. Box 847
39340 I-H 00 Xxxx Xxxxx X
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Inc.
Xxxxxxx Building Materials
United Terrazzo Supply Co., Inc.
00000 Xxxxxx Xxxxxx
XxXxxxxx, XX 00000
Don's Building Supply, L.L.P.
P. O. Box 224289
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ISG Capital Corporation
000 X. X. Xxxxxx, Xxxxx0000
Xxxx Xxxx Xxxx, XX 00000
Schedule 5
TRADE NAMES, DIVISION NAMES, ETC.
---------------------------------
Grantor Trade Names, Division Names, Etc.
------- ---------------------------------
Industrial Services Group, Inc. ISG
ISG Resources, Inc. ISG
ISG Resources
Best Masonry & Tool Supply, Inc. Best Coat Stucco
Best Masonry
Best Masonry & Tool Supply
Best Stucco
Xxxxx X. Xxxxxxx, Inc. Xxxxxxx Building Supply
Xxxxxxx Building Materials
Xxxxxxx
United Terrazzo Supply Co., Inc. United Terrazzo
Magna Wall, Inc. Magna Wall
Magna Chem
ISG Manufactured Products, Inc. N/A
ISG Capital Corporation N/A
Don's Building Supply, L.L.P. Don's
Don's Building Supply
Schedule 6
REQUIRED FILINGS AND RECORDINGS
UCC Filings & Date of Filing
Grantor Locations (if applicable) Other Filings
[to be completed by MWBB]
Schedule 7
PATENTS AND PATENT APPLICATIONS
Serial No. or Issue or
Grantor Patent No. Inventor Country Filing Date
------- ------------- --------- ------ ------------
ISG Resources, Inc. 5,433,520 Xxxxx USA 7/18/95
Falls International
ISG Resources, Inc. Serial 08,573,043 USA
PCT/US96,204,53 Green
Xxxxxxxxx International 12/13/96
Xxxxxxxxx
Xxxxxx
European part:
96945253.1 European 12/13/96
ISG Resources, Inc. 5,693,137 Xxxxxx USA 12/2/97
US 94/11799 Xxxxxx PCT 4/27/95
ISG Resources, Inc. 5,565,239 Pike USA 10/15/96
ISG Resources, Inc. 5,513,755 Xxxxxxxx USA 5/7/96
Pike
Savage
Styron
ISG Resources, Inc. 5,484,480 Xxxxxx USA 1/16/96
5,391,417 Pike USA 2/21/95
5,299,692 Xxxxxx USA 4/5/94
Xxxxxxxx
Xxxxxx
Xxxxxxxx
ISG Resources, Inc. 5,199,377 Ghermann, III USA 4/6/93
Xxxxxxxx
Xxx
Xxxxx, Jr.
ISG Resources, Inc. 5,196,620 Xxxxxx USA 3/23/93
Xxxxxxxxxxxx
Xxxxxx
ISG Resources, Inc. 5,094,541 Xxxxxx USA 3/10/92
ISG Resources, Inc. 4,373,958 Xxxxx USA 2/15/83
Xxxxx
ISG Resources, Inc. 683101 Xxxxxx Australia 10/30/97
ISG Resources, Inc. 724548 Xxxxxx Europe 8/7/96
ISG Resources, Inc. 2068362 Pike Canada 5/31/94
ISG Resources, Inc. 2,071,139-6 Xxxxxx Canada 12/14/92
Xxxxxxxxxxxx
Xxxxxx
ISG Resources, Inc. 582008 Xxxxxx XX 2/9/94
Xxxxxxxxxxxx
Xxxxxx
ISG Resources, Inc. 6144896 Xxxxxx Japan 5/24/94
Xxxxxxxxxxxx
Xxxxxx
ISG Resources, Inc. 5,040,900 Xxxxx USA 8/20/91
ISG Resources, Inc. 5,840,179 Minkara International 8/18/98
Xxxxxxxx
ISG Resources, Inc. 5,988,396 Minkara USA 11/23/99
ISG Resources, Inc. Serial60/155,861 Xxxxx USA 9/24/99
Xxxxxxxxx
Pike
ISG Resources, Inc. Serial60/188,737 Xxxxx USA 3/13/00
Schedule 8
TRADEMARKS AND TRADEMARK APPLICATIONS
Serial No. or Issue or
Grantor Registration No. Country Filing Date Xxxx
Industrial Services Group, Inc.
None.
ISG Resources, Inc. 1,010,455 USA 5/13/75 POZICON
1,049,269 USA 3/3/00 STA-BLEND
1,152,421 USA 4/28/81 POZZOLANIC
and Design
1,248,044 USA 5/1/89 ORBALOID
1,395,433 USA 6/3/86 POZZALIME
1,402,656 USA 7/22/86 GYPCEM
1,448,523 USA 7/21/87 FLEXCRETE
1,454,791 USA 9/1/87 PEANUT MAKER
1,601,725 USA 6/19/90 POWERLITE
1,623,166 USA 12/20/90 ENVIRA-CEMENT
1,744,157 USA 1/5/93 ALSIL
1,780,954 USA 7/13/93 FERRO FLOW
1,911,817 USA 8/23/95 FLO FIL
1,922,933 USA 9/26/95 FLEXBASE
2,004,062 USA 4/25/95 C-STONE
Serial No. or Issue or
Grantor Registration No. Country Filing Date Xxxx
2,341,611 USA 4/8/96 ALKA PHIX
75,256,274 USA 3/12/97 COAL
BYPRODUCTS
& Design
Applied For USA 5/9/00 FIBERLITE
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.
None.
Xxxxx X. Xxxxxxx, Inc.
None.
United Terrazzo Supply Co., Inc.
None.
Magna Wall, Inc.
Magna Wall 2,160,040 USA 5/26/98 MAGNAWALL
ISG Manufactured Products, Inc.
None.
Don's Building Supply, L.L.P.
None.
ISG Capital Corporation
None.
Schedule 9
COPYRIGHTS AND COPYRIGHT APPLICATIONS
Serial No. or Issue or
Grantor Registration No. Country Filing Date Xxxx
ISG Resources, Inc. TX 1,927,108 USA 9/29/86 The Mobile
Stabilization
Plant
ISG Resources, Inc. TX 1.963,712 USA 12/17/86 JTM Brochure
Schedule 10
LICENSES
Grantor Licenses
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
A) Licensee of various standard office products and computer programs used
in connection with day-to-day operations.
B) ABC Cement, Inc., ABC Cement License Agreement dated March 15, 1999:
Agreement to license technology for the manufacture of quick set
products with fly ash.
C) Dynastone, L.C.., Dynastone License Agreement dated August 6, 1998, to
license technology for the manufacture of acid and salt resistant
products with fly ash.
D) Xxxxxx Pipe & Products, Inc.: Sublicense Agreement dated January 5,
2000to license technology for the manufacture of acid and salt
resistant pipe products with fly ash.
E) Dynastone, L.C., Hydro Conduit Agreement dated December 16, 1998 to
license technology for the manufacture of acid and salt resistant pipe
products with fly ash.
F) Mainland Laboratory, Ltd. Mainland Laboratory Diagnostic Technology
License Agreement dated April 14, 2000, Technology Sublicense Agreement
to license technology for the manufacture of products with fly ash.
Best Masonry & Tool Supply, Inc. f/k/a J. Xxxxxx Xxxxx Interests, Inc.:
None.
Xxxxx X. Xxxxxxx, Inc.:
None.
United Terrazzo Supply Co., Inc.:
None.
Magna Wall, Inc.:
7. Acro Crete, Inc. technology sub-license agreement of April 6, 1999 for
Magna Wall.
ISG Manufactured Products, Inc.:
None.
Don's Building Supply, L.L.P.:
None.
ISG Capital Corporation:
None.
Schedule 11
MOTOR VEHICLES AND OTHER ROLLING STOCK
See Attachments
XXXXXXX/TERRAZZO - TRAILERS
----------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
--- ---- ---- ----- -------- ------
----------------------------------------------------------------------------------------------------------------------------
1UYFF224SPAO233O2 1993 Utility Flatbed
1UYFS1244PAO23202 1993 Utility Flatbed
0X0XX00X0XX000000 1989 Xxxx Dump
0X0XX00X0XX000000 1989 Xxxx Dump
0X00000X0X0000000 1985 Xxxxxxxx Flatbed
0X0000000X0000000 1984 Tomtr Carrier
9020PPAS 1979 J&L Pnematic
9019SPAS 1979 J&L Pnematic
----------------------------------------------------------------------------------------------------------------------------
BEST MASONRY - TRAILERS
----------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
--- ---- ---- ----- -------- ------
----------------------------------------------------------------------------------------------------------------------------
0XXXX0000XX000000 0000 Xxxxx Xxxx Xxxxxxx Xxx Xxxxxxx 0000
0XXX0X0X0X0X00000 1995 Xxxx Tanker San Antonio 9573
0X00X0000X0000000 1995 Lufkin Flat Bed San Antonio 9574
0X00X0000X0000000 1993 Lufkin Flat Bed Frt Houston 9365
0X0X0X0XXX0000000 1991 Hilbilt Dump Trailer Frt San Antonio 9167
1JOP4AT20K2001117 1989 Tank Trailer Frt San Antonio 8984
0X00XXX0XX0000000 1985 Cherokee Dump Trailer Frt San Antonio 8505
0XXXX0X00X0000000 1984 Aztec Platform Trailer San Antonio 8410
FHZ883901 0000 Xxxxx Xxxxxxxx X/X Xxxxx Xxxxxxx 7809
S41717 1978 Pullman Tanker San Antonio 7845
UNN414602 1971 Fruehauf Tanker San Antonio 7164
----------------------------------------------------------------------------------------------------------------------------
XXXXXXX/TERRAZZO - TRACTORS
---------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE XXXXX XXXXXXXX XXXX #
---------------------------------------------------------------------------------------------------------------------------
0XXXX00X0XX000000 1990 Peterbilt
0XX0X00X0XX000000 1988 Peterbilt
0XX0X00X0XX000000 1988 Peterbilt
0XXXX00X0XXX00000 1983 Ford Flatbed
---------------------------------------------------------------------------------------------------------------------------
DON'S BUILDING SUPPLY, INC - TRACTORS
---------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
---------------------------------------------------------------------------------------------------------------------------
0X0XX000XX0000000 1994 Hand Flatbed
0XXXX00X0XXX00000 1992 Ford Flatbed
0XXXXX0X0XXX00000 0000 Xxxxxxxx XX
0XXXXXXX0XX000000 1991 International Flatbed
0XXXX00XXXXX00000 1983 Ford Flatbed
---------------------------------------------------------------------------------------------------------------------------
BEST MASONRY - TRACTORS
---------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
---------------------------------------------------------------------------------------------------------------------------
0XXXXXXXXXX000000 1999 International Tractor San Antonio 9906
0XXXXXXX0XX000000 1999 International Flatbed South Houston 9902
1HTSDAANOWH529250 1998 International Flatbed San Antonio 9801
1HTSDAANOWH599928 1998 International Flatbed San Antonio 9800
0XXXXXXXXXX000000 1998 International Flatbed North Houston 9898
0XXXXXXX0XX000000 1997 International Flatbed Duluth 9790
0XXXX00X0XX000000 1997 Peterbilt Tractor Frt Houston 9791
0XXXXXXX0XX000000 1996 International Flatbed South Houston 9682
0XXXXX0X0XX000000 1993 International Flatbed North Houston 9359
0XXXXX0X0XX000000 1993 International Flatbed North Houston 9360
0XXXXX0X0XX000000 1993 International Flatbed/Dump North Houston 9358
0XXXXX0X0XX000000 1993 International Flatbed San Antonio 9363
0XXXXX0XXXX000000 1993 International Flatbed San Antonio 9361
0XXXXX0X0XX000000 1992 International C&C San Antonio 9256
0XXXXXXXXXX000000 1992 International Flatbed Duluth 9253
0XXXXXXX0XX000000 1992 International Truck North Houston 9254
0XXXXX0X0XX000000 1991 International Truck San Antonio 9152
1HTSDNN8LH281808 1990 International Flatbed South Houston 9038
0XXXXXXX0XX000000 1990 International Tractor Frt Houston 9039
0XXXXXXX0XX000000 1989 International Flatbed Bag San Antonio 8934
---------------------------------------------------------------------------------------------------------------------------
XXXXXXX/TERRAZZO - SERVICE VEHICLES
----------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
--- ---- ---- ----- -------- ------
----------------------------------------------------------------------------------------------------------------------------
0XXXX00X0XXX00000 1988 Ford Pickup
----------------------------------------------------------------------------------------------------------------------------
DON'S BUILDING SUPPLY, INC - SERVICE VEHICLES
----------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
--- ---- ---- ----- -------- ------
----------------------------------------------------------------------------------------------------------------------------
0XXXX00X0XXX00000 1996 Ford Pickup
----------------------------------------------------------------------------------------------------------------------------
BEST MASONRY - SERVICE VEHICLES
----------------------------------------------------------------------------------------------------------------------------
VIN YEAR MAKE MODEL LOCATION UNIT #
--- ---- ---- ----- -------- ------
----------------------------------------------------------------------------------------------------------------------------
XX0XX0000X0000000 1987 Mazda Pickup San Antonio 8651
----------------------------------------------------------------------------------------------------------------------------
Schedule 12
PERMITTED ACCOUNTS
Grantor
Industrial Services Group, Inc.:
None.
ISG Resources, Inc.:
(i) Xxxxx Fargo, Salt Lake City, Utah,
4801908005-Master account (lockbox deposits go here,
disbursement accounts are funded from here).
Lockbox # 200988, Dallas, TX-Lockbox for all of ISG Resources
recievables; payments, excluding manufactured products.
4759613581-ISG Resources AP account, controlled disbursement
through Wachovia in Greenville, SC, Positive Pay service, ZBA.
4801907973-Payroll account-ZBA-payments to ADP flow through
here, actual paychecks are cut from ADP accounts, only ACH
transactions and manual payroll checks go through this
account.
4801907981-Medical Claims account-medical claims
reimbursements, etc., ZBA account.
4801907999-Flexible Spending account, ZBA.
4417889045-Sweep account, excess funds from master account go
into this overnight investment account.
(ii) Bank of America, Charlotte, NC
3750884343-Master account-lockbox deposits go here, payables
fund from here, closure pending redirection of receipts.
3299934093-AP-closed.
3299934085-Payroll-closed.
3299943896-Medical Claims-closure pending as checks clear.
0000000000-Flexible Spending-closure pending as checks clear.
Best Masonry & Tool Supply, Inc.
(ii) Xxxxxxx Xxxxx, Houston, Texas
000-00-000, Xxxxxxx Xxxxx-Master account, cash from the Best
store-level bank accounts are collected here; payables were
paid from here until March, 2000, now paid through the account
below-once the checks that are outstanding clear, the account
will be closed, and all cash will be collected in Xxxxx Fargo
account number 0000000000.
(iii) Xxxxx Fargo, Greenville, South Carolina
4759624976, Xxxxx Fargo-ISG Manufactured Products AP
Disbursement Account; all manufactured products subs will fund
payables from this account, Best is currently doing this,
Magna Wall will follow May 1st, then Xxxxxxx and Don's.
Best Store-Level Cash Collection Accounts, all accounts
electronically transfer funds to the Xxxxxxx Xxxxx master
account, these will be switched over once that account closes
to instead transfer funds to the Xxxxx Fargo cash collection
account 0000000000.
0- Xxxxx Xxxx, Xxxxxxx, Xxxxx
05300008375, Xxxxx Xxxx, Xxxxx & Xxxxx Xxxxxxx Stores
(being closed 4/28, switching over to Xxxxx Fargo
account 0000000000)
2- Premier Bank, Xxxxxxx, Xxxxxxx
0000000, Premier Bank, Atlanta, GA stores
0- Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxxxx
230110551, Norwest Bank, San Antonio store
Magna Wall, Inc.
(i) Broadway Bank, Boerne, Texas, Acct. No. 0344613
Xxxxx X. Xxxxxxx, Inc.
(ii) Cerritos Valley Bank, Norwalk, California, Acct. No.
001-005154
Don's Building Supply, Inc.
(ii) Bank One, Dallas, Texas, Acct. No. 919-103-6490
Schedule 13
REAL ESTATE
Grantor Address Owned/Leased Use
ISG Resources,
Inc.
0000 Xxxx Xxxxx Xxxx.
Xxxxxxxx, XX 00000 Leased Office
000 Xxxx Xxxx Xx. Leased Disposal Facility
Good Xxxxxx, XX 00000 Lab / Office
00000 Xxx Xxxxx Xxxx Lease Rail Terminal /Office
Xxxxxxx, XX 00000
0000 xxxxxxx 000, XX Owned Rail Terminal/Storage
Xxxxxxxxxxxx, XX 00000 Lab / Xxxxxx
0000 Xxxxxxxxx Xxx Xxxxx Xxxx Xxxxxxxx /
Xxxxxxxxx, XX 00000 Storage Facility
0000 Xxxxxxxx Xxxxx XX Owned Disposal Facility
Xxxxxx, XX 00000
30045 General Xxxxxx Hwy. Owned Not Currently in Use
Xxxxxxxx, XX 00000
000 Xxxxxx Xxxx Owned Disposal Facility
Xxxxxxx, XX 00000
0000 X. Xxxx Xxxxx Leased Garage / Maintenance
Xxxx Xxxxx, XX 00000
145 Causeway Leased Garage / Maintenance
Xxxxxxxx, XX 00000
0000 Xxxxxxx Xxx. Leased Garage / Maintenance
Xxxxxxx, XX 00000
2555 Xxxxxxx Leased Garage / Maintenance
Xxxxxxxxxx, XX 00000
0000 0/0 Xxxx Xx. Leased Garage / Maintenance
Xxxx, XX 00000
0000 X. Xxxxxx Xxx. Leased Xxxxxxxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxx Xxx. Owned Residential House
Xxxxx Xxxxx, XX 00000
0000 Xxx Xxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
0000 X. Xxxxxxxx Xxx XX Leased Rail Terminal
Xxxxxxx, XX 00000
Xxx 00 Xxxxxx Xx. Leased Rail Terminal
Xxxxxxxxxx, XX 00000
000 Xxxxxxx Xxxx. Leased Rail Terminal
Xxxxxxx Xxxx, XX 00000
0000 X. Xxxxx Xx. Leased Xxxx Xxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
0000 X. Xxxxxx Xxxxxx Xxxx Xxxxxxxx
Xxxxxx, XX 00000
0000 X. 0xx Xx. Owned Xxxx Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000
0000 X. Xxxxxx Xx. Leased Rail Terminal
Xxxxxx, XX 00000
0000 Xxxx Xxxxxxxxxxxx Xx. Owned Rail Terminal
Xxxxxx, XX 00000
000 X. Xxxx Xx. Leased Rail Terminal
Xxxxxxxx, XX 00000
100 S. 000 X. Xxxxxx Xxxx Xxxxxxxx
Xxxx, XX 00000
00 XX Xxxxxx Xxxxxx Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
00xx Xxxxxxx Xxx. Owned Rail Terminal /
Xxxxx, XX 00000 Storage
0000 Xxxxxx Xx. Leased Operations / Storage
Xxxxxxxxx, XX 00000
0000 XX 00xx Xx. Xxxxx 000 Leased Xxxxxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
00000 XX Xxxxxxx, Xxxxx 00 Leased Xxxxxxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
20991 Power Plant Rd. Owned Shop / Maintenance
Xxxxxxxxxxx, XX 00000
0000 X. Xxxxxxx, Xxxxx 000 Xxxxxx Xxxxxx
Xxxx xxxxxxx, XX 00000
000 Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
0000 Xxxxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
0000 000xx Xxxxxx Owned Shop / Maintenance
Xxxxxxxxx, XX 00000
115 Navajo Owned Shop / Maintenance
Xxxxxxx Xxxxx, XX 00000
EXHIBIT A
to
Amended and Restated
Pledge and Security Agreement
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES PATENTS AND TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which
are hereby acknowledged, [NAME OF GRANTOR], a [Jurisdiction] [entity] (the
"Assignor"), having its chief executive office at [address], hereby assigns and
grants to Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent (in such capacity, the "Administrative Agent"), with
offices at NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, a security interest in (all of which are herein collectively referred to
as the "PTO Collateral") (i) all of the Assignor's right, title and interest in
and to the United States trademarks, trademark registrations and trademark
applications set forth on Schedule A attached hereto (the "Marks"), (ii) all of
the Assignor's right, title and interest in and to the United States patents set
forth on Schedule B attached hereto (the "Patents"), in each case together with
(iii) all Proceeds (as such term is defined in the Security Agreement referred
to below) and products of the Marks and Patents, (iv) the goodwill of the
businesses symbolized by the Marks and (v) all causes of action arising prior to
or after the date hereof for infringement of any of the Marks and Patents or
unfair competition regarding the same.
THIS ASSIGNMENT is made to secure the full and prompt performance and
payment of all the Secured Obligations of the Assignor, as such term is defined
in the Amended and Restated Pledge and Security Agreement, dated as of May 26,
2000, among the Assignor, the Administrative Agent and the other parties thereto
(as amended, restated, modified or supplemented from time to time, the "Security
Agreement"). Upon the satisfaction of the conditions set forth in Section
2.08(b) of the Security Agreement, the Administrative Agent shall execute,
acknowledge, and deliver to the Grantor an instrument in writing releasing the
security interest in the PTO Collateral acquired under this Assignment.
THIS ASSIGNMENT has been granted in conjunction with the security
interest granted to the Administrative Agent for the benefit of the Secured
Parties under the Security Agreement. The rights and remedies of the
Administrative Agent with respect to the security interest granted herein are
without prejudice to, and are in addition to, those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provision of this Assignment is deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the _____ day of __________________, 200__.
[NAME OF GRANTOR], as Assignor
By:---------------------------
Title:
STATE OF
-----------
OF
------------- -------
The foregoing instrument was acknowledged before me this _____ day of
____________________, 200__ by ____________________________________ as [title]
of ____________________________, a _________________________ corporation, on
behalf of the corporation.
My commission expires:
Notarial Seal
Notary Public
Bank of America, N.A.,
as Administrative Agent
By:
------------------------
Title:
SCHEDULE A
TRADEMARKS AND TRADEMARK APPLICATIONS
Serial No. or Issue or
Registration No. Country Filing Date Xxxx
SCHEDULE B
PATENTS AND PATENT APPLICATIONS
Serial No. or Issue or
Patent No. Inventor Country Filing Date Title
--------- -------- ------- ----------- -----
EXHIBIT B
to
Amended and Restated
Pledge and Security Agreement
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which
are hereby acknowledged, [NAME OF GRANTOR], a [Jurisdiction] [entity] (the
"Assignor"), having its chief executive office at [address], hereby assigns and
grants to Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent (in such capacity, the "Administrative Agent"), with
offices at NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, a security interest in (all of which are herein collectively referred to
as the "Copyright Collateral") (i) all of the Assignor's right, title and
interest in and to the United States copyrights and associated United States
copyright registrations and applications for registration set forth in Schedule
A attached hereto (the "Copyrights"), (ii) all Proceeds (as such term is defined
in the Security Agreement referred to below) and products of the Copyrights,
(iii) the goodwill of the businesses symbolized by the Copyrights and (iv) all
causes of action arising prior to or after the date hereof for infringement of
any of the Copyrights.
THIS ASSIGNMENT is made to secure the full and prompt performance and
payment of all of the Secured Obligations of the Assignor, as such term is
defined in the Amended and Restated Pledge and Security Agreement, dated as of
May 26, 2000 among the Assignor, the Administrative Agent and the other parties
thereto (as amended, restated, modified or supplemented from time to time, the
"Security Agreement"). Upon the satisfaction of the conditions set forth in
Section 2.08(b) of the Security Agreement, the Administrative Agent shall
execute, acknowledge, and deliver to the Assignor an instrument in writing
releasing the security interests of the Copyright Collateral acquired under this
Assignment.
THIS ASSIGNMENT has been granted in conjunction with the security
interest granted to the Administrative Agent for the benefit of the Secured
Parties under the Security Agreement. The rights and remedies of the
Administrative Agent with respect to the security interest granted herein are
without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the _____ day of ________________, 200__.
[NAME OF GRANTOR], as Assignor
By:__________________________
Title:
STATE OF
-----------
OF
------------- -------
The foregoing instrument was acknowledged before me this _____ day of
____________________, 200__ by ____________________________________ as [title]
of ____________________________, a _________________________ corporation, on
behalf of the corporation.
My commission expires:
Notarial Seal
Notary Public
Bank of America, N.A.,
as Administrative Agent
By:________________________
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_______________________
Title:
SCHEDULE A
COPYRIGHTS AND COPYRIGHT APPLICATIONS
Serial No. or Copyright
Registration No. Country Publication Date Title
EXHIBIT C
to
Amended and Restated
Pledge and Security Agreement
[COPY TO BE INSERTED]
EXHIBIT K-1
[FORM OF]
TRANCHE A REVOLVING NOTE
$ [DATE]
-----------------
FOR VALUE RECEIVED, the undersigned, ISG RESOURCES, INC., a Utah
corporation (successor to JTM Industries, Inc., a Texas corporation) (the
"Borrower"), hereby promises to pay to the order of (a "Lender"), at the office
of Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent (the "Administrative Agent"), at 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places
as the holder hereof may designate), at the times set forth Amended and Restated
in the Credit Agreement dated as of May [___], 2000, among the Borrower,
Industrial Services Group, Inc., a Delaware corporation, the financial
institutions party thereto as lenders (the "Lenders"), the Administrative Agent,
Bank of America, N.A., as Issuing Lender, and Canadian Imperial Bank of
Commerce, as Documentation Agent (as it may be as amended, modified, restated or
supplemented from time to time, the "Credit Agreement") but in no event later
than the Termination Date, in Dollars and in immediately available funds, in the
aggregate principal amount of ($ ) or, if less than such principal amount, the
aggregate unpaid principal amount of all Tranche A Revolving Loans made by the
Lender to the Borrower pursuant to the Credit Agreement and to pay interest from
the date hereof on the unpaid principal amount hereof, from time to time
outstanding, in like money, at said office, at the rate or rates per annum and
on the dates in accordance with Section 2.2(d) of the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. This promissory note (this "Note") is one of the Tranche A Revolving
Notes referred to in the Credit Agreement. All of the terms, conditions and
covenants of the Credit Agreement are expressly incorporated herein by reference
and made a part of this Note by reference in the same manner and with the same
effect as if set forth in their entirety herein and, subject to Section 9.4 of
the Credit Agreement, any holder of this Note is entitled to the benefits of and
remedies provided to a Lender in the Credit Agreement and the other Credit
Documents.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note
shall become immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
of and interest on this Note, all costs of collection, including reasonable
attorneys' fees and expenses.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on Schedule A attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
This Note and the Tanche A Revolving Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained by or on behalf of the Borrower as provided in Section 10.3
of the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration) and diligence in collecting and bringing suit against any party
hereto, and agree (i) to all extensions and partial payments, with or without
notice, before or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon and (iv) that it will not be
necessary for the Administrative Agent or any Lenders, in order to enforce
payment of this Note, to first institute or exhaust their remedies against the
Borrower or any other party liable therefor or against any security for this
Note. The nonexercise by the holder of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3(a) of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
ISG RESOURCES, INC.,
a Utah corporation
By:______________________________
Name:
Title:
SCHEDULE A TO THE
TRANCHE A REVOLVING NOTE
OF ISG RESOURCES, INC.
DATED ____________________
Tranche A Revolving Loans and Payments
Amount of Type of
Tranche A Tranche A Unpaid
Revolving Revolving Payments Principal Notations
Date Loan Loan Principal Interest Balance Made By
---- -------------- -------------- --------- -------- ------- -------
EXHIBIT K-2
[FORM OF]
TRANCHE B REVOLVING NOTE
$ [DATE]
-----------------
FOR VALUE RECEIVED, the undersigned, ISG RESOURCES, INC., a Utah
corporation (successor to JTM Industries, Inc., a Texas corporation) (the
"Borrower"), hereby promises to pay to the order of (a "Lender"), at the office
of Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent (the "Administrative Agent"), at 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places
as the holder hereof may designate), at the times set forth Amended and Restated
in the Credit Agreement dated as of May [___], 2000, among the Borrower,
Industrial Services Group, Inc., a Delaware corporation, the financial
institutions party thereto as lenders (the "Lenders"), the Administrative Agent,
Bank of America, N.A., as Issuing Lender and Canadian Imperial Bank of Commerce,
as Documentation Agent (as it may be as amended, modified, restated or
supplemented from time to time, the "Credit Agreement") but in no event later
than the Termination Date, in Dollars and in immediately available funds, in the
aggregate principal amount of ($ ) or, if less than such principal amount, the
aggregate unpaid principal amount of all Tranche B Revolving Loans made by the
Lender to the Borrower pursuant to the Credit Agreement and to pay interest from
the date hereof on the unpaid principal amount hereof, from time to time
outstanding, in like money, at said office, at the rate or rates per annum and
on the dates in accordance with Section 2.4(d) of the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. This promissory note (this "Note") is one of the Tranche B Revolving
Notes referred to in the Credit Agreement. All of the terms, conditions and
covenants of the Credit Agreement are expressly incorporated herein by reference
and made a part of this Note by reference in the same manner and with the same
effect as if set forth in their entirety herein and, subject to Section 9.4 of
the Credit Agreement, any holder of this Note is entitled to the benefits of and
remedies provided to a Lender in the Credit Agreement and the other Credit
Documents.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note
shall become immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
of and interest on this Note, all costs of collection, including reasonable
attorneys' fees and expenses.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on Schedule A attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
This Note and the Tranche B Revolving Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained by or on behalf of the Borrower as provided in Section 10.3
of the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration) and diligence in collecting and bringing suit against any party
hereto, and agree (i) to all extensions and partial payments, with or without
notice, before or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon and (iv) that it will not be
necessary for the Administrative Agent or any Lenders, in order to enforce
payment of this Note, to first institute or exhaust their remedies against the
Borrower or any other party liable therefor or against any security for this
Note. The nonexercise by the holder of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3(a) of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
ISG RESOURCES, INC.,
a Utah corporation
By:____________________________
Name:
Title:
SCHEDULE A TO THE
TRANCHE B REVOLVING NOTE
OF ISG RESOURCES, INC.
DATED ____________________
Tranche B Revolving Loans and Payments
Amount of Type of
Tranche B Tranche B Unpaid
Revolving Revolving Payments Principal Notations
Date Loan Loan Principal Interest Balance Made By
---- ------------ ------------ --------- -------- ------- -------
EXHIBIT K-2
[FORM OF]
TRANCHE B REVOLVING NOTE
$ [DATE]
-----------------
FOR VALUE RECEIVED, the undersigned, ISG RESOURCES, INC., a Utah
corporation (successor to JTM Industries, Inc., a Texas corporation) (the
"Borrower"), hereby promises to pay to the order of (a "Lender"), at the office
of Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent (the "Administrative Agent"), at 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places
as the holder hereof may designate), at the times set forth Amended and Restated
in the Credit Agreement dated as of May [___], 2000, among the Borrower,
Industrial Services Group, Inc., a Delaware corporation, the financial
institutions party thereto as lenders (the "Lenders"), the Administrative Agent,
Bank of America, N.A., as Issuing Lender and Canadian Imperial Bank of Commerce,
as Documentation Agent (as it may be as amended, modified, restated or
supplemented from time to time, the "Credit Agreement") but in no event later
than the Termination Date, in Dollars and in immediately available funds, in the
aggregate principal amount of ($ ) or, if less than such principal amount, the
aggregate unpaid principal amount of all Tranche B Revolving Loans made by the
Lender to the Borrower pursuant to the Credit Agreement and to pay interest from
the date hereof on the unpaid principal amount hereof, from time to time
outstanding, in like money, at said office, at the rate or rates per annum and
on the dates in accordance with Section 2.4(d) of the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. This promissory note (this "Note") is one of the Tranche B Revolving
Notes referred to in the Credit Agreement. All of the terms, conditions and
covenants of the Credit Agreement are expressly incorporated herein by reference
and made a part of this Note by reference in the same manner and with the same
effect as if set forth in their entirety herein and, subject to Section 9.4 of
the Credit Agreement, any holder of this Note is entitled to the benefits of and
remedies provided to a Lender in the Credit Agreement and the other Credit
Documents.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note
shall become immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
of and interest on this Note, all costs of collection, including reasonable
attorneys' fees and expenses.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on Schedule A attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
This Note and the Tranche B Revolving Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained by or on behalf of the Borrower as provided in Section 10.3
of the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration) and diligence in collecting and bringing suit against any party
hereto, and agree (i) to all extensions and partial payments, with or without
notice, before or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon and (iv) that it will not be
necessary for the Administrative Agent or any Lenders, in order to enforce
payment of this Note, to first institute or exhaust their remedies against the
Borrower or any other party liable therefor or against any security for this
Note. The nonexercise by the holder of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3(a) of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
ISG RESOURCES, INC.,
a Utah corporation
By:____________________________
Name:
Title:
SCHEDULE A TO THE
TRANCHE B REVOLVING NOTE
OF ISG RESOURCES, INC.
DATED ____________________
Tranche B Revolving Loans and Payments
Amount of Type of
Tranche B Tranche B Unpaid
Revolving Revolving Payments Principal Notations
Date Loan Loan Principal Interest Balance Made By
---- ------------ ------------ --------- -------- ------- -------
EXHIBIT L-1
To Call Writer Direct:
000 000-0000
May 26, 2000
To the Administrative Agent
and each of the Lenders party
to the Credit Agreement from
time to time referred to below
c/o Bank of America, N.A.
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Re: ISG Resources Inc. and Industrial Services Group, Inc.
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as special legal
counsel to ISG Resources, Inc., a Utah corporation (the "Borrower"), and
Industrial Services Group, Inc., a Delaware corporation ("Parent"), in response
to the requirement in Section 4.1(c)(i) of the Amended and Restated Credit
Agreement (the "Credit Agreement"), dated as of the date hereof, by and among
the Borrower, Parent, the institutions from time to time party thereto as
Lenders (the "Lenders"), Bank of America, N.A., as Administrative Agent, and
Canadian Imperial Bank of Commerce, as Documentation Agent (the Lenders, the
Administrative Agent and Documentation Agent herein collectively referred to as
"you"). The term "Loan Agreements" whenever it is used in this letter means the
Credit Agreement and the following additional agreements: Security Agreement,
each Perfection Certificate, the Depositary Bank Agreements, the Notes, the LOC
Documents, each Joinder Agreement, the Parent Guarantee Agreement, the
Subsidiary Guarantee Agreement, the ISG Capital Guarantee, the Indemnity,
Subrogation and Contribution Agreement, the Intercompany Notes, and the Tranche
B Put Agreement. The term "Building Supply" whenever it is used in this letter
means Don's Building Supply, L.L.P., a Texas limited liability partnership.
Terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 2
Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this letter and in the schedules attached to
this letter, we advise you that:
1. The Borrower is a corporation existing and in good standing under the
Business Corporation Act of the State of Utah. Parent is a corporation
existing and in good standing under the General Corporation Law of the
State of Delaware. Each of the Credit Parties (other than the Borrower,
the Parent and Building Supply) is a corporation existing and in good
standing under the General Corporation Law of the State of California,
the Business Corporation Act of the State of Texas, and the Business
Corporation Act of the State of Utah, as the case may be. Building
Supply is a limited liability partnership existing and in good standing
under the laws of the State of Texas.
2. The Borrower has the corporate power to enter into and perform its
obligations under the Loan Agreements to which it is a party. Parent
has the corporate power to enter into and perform its obligations under
the Loan Agreements to which it is a party. Each of the Credit Parties
(other than the Borrower, the Parent and Building Supply) has the
corporate power to enter into and perform its obligations under the
Loan Agreements to which it is a party. Building Supply has the power
to enter into and perform its obligations under the Loan Agreements to
which it is a party.
3. The Board of Directors of the Borrower has adopted by requisite vote
the resolutions necessary to authorize the execution, delivery and
performance by the Borrower of the Loan Agreements to which it is a
party. The Board of Directors of Parent has adopted by requisite vote
the resolutions necessary to authorize the execution, delivery and
performance by Parent of the Loan Agreements to which it is a party.
The Board of Directors of each Credit Party (other than the Borrower,
the Parent and Building Supply) has adopted by requisite vote the
resolutions necessary to authorize the execution, delivery and
performance by such Person of the Loan Agreements to which it is a
party. The execution and delivery by Building Supply of the Loan
Agreements to which it is a party has been duly authorized by all
requisite partnership and, if required, partner action.
4. The Borrower has duly executed and delivered the Loan Agreements to
which it is a party. Parent has duly executed and delivered the Loan
Agreements to which it is a party. Each of the Credit Parties (other
than the Borrower and the Parent) has duly executed and delivered the
Loan Agreements to which it is a party.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 3
5. Each of the Loan Agreements to which the Borrower is a party is a valid
and binding obligation of the Borrower and is enforceable against the
Borrower in accordance with its terms. Each of the Loan Agreements to
which Parent is a party is a valid and binding obligation of Parent and
is enforceable against the Parent in accordance with its terms. Each of
the Loan Agreements to which each Credit Party (other than the Borrower
and the Parent) is a party is a valid and binding obligation of such
Person and is enforceable against such Person in accordance with its
terms.
6. The execution and delivery by each of the Borrower and Parent and each
Credit Party (other than the Borrower and the Parent) of the Loan
Agreements to which it is a party and performance of its obligations
thereunder will not (a) violate any provisions of the Certificate of
Incorporation or by-laws (or the Certificate of Limited Liability
Partnership or regulations, in the case of Bulding Supply) of such
Person or (b) constitute a material violation by such Person of any
applicable provision of statutory law or governmental regulation
covered by this letter or (c) breach, or result in a default under, any
Material Contract, except such breach or default that could not
reasonably be expected to have a Material Adverse Effect, provided that
we express no opinion with respect to violations under cross-default
provisions referring to or based upon agreements that are not included
in such Contracts or with respect to compliance with financial
covenants or tests.
7. Neither the Borrower nor Parent nor any Credit Party (other than the
Borrower and the Parent) was required (i) to obtain any consent,
approval, authorization or order of, or make any filings or
registrations with, any United States federal court or governmental
agency or (ii) to obtain any consent or approval of any third party
pursuant to any Material Contract or any Indebtedness referenced on
Schedule 7.1 of the Credit Agreement, in each case in order to obtain
the right to enter into any of the Loan Agreements to which it is a
party or to take any of the actions taken by it today to consummate the
closing under the Loan Agreements to which it is a party.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 4
8. The Security Agreement creates valid security interests in your favor
in the Collateral therein respectively described which constitutes
property in which a security interest can be granted under the Uniform
Commercial Code as enacted in New York (the "New York UCC"). Such
Collateral is referred to herein as the "Code Collateral."
9. None of the Credit Parties is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
10. None of the Credit Parties is a "holding company," a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
11. The making of the extensions of credit by the Lenders pursuant to the
Credit Agreement as contemplated therein and for the purposes
contemplated thereby does not contravene Regulations G, X or U of the
Board of Governors of the Federal Reserve System as in effect on the
date hereof.
12. The Uniform Commercial Code financing statements (Form UCC-1) which
have been signed by representatives of the Borrower or the other Credit
Parties (as applicable) and delivered on or before the date of this
letter in connection with the transactions specified in the Loan
Agreements (the "Financing Statements"), have been duly executed and
delivered by such Persons. When the Financing Statements executed by
the Borrower or the other Credit Parties (as applicable) are duly filed
or recorded, as appropriate, in the Secretary of State of the State of
New York, the security interests under the Loan Agreements in the Code
Collateral presently located or deemed located in the State of New York
under Section 9-103 of the New York UCC will be perfected to the extent
such security interests in such Code Collateral can be perfected by the
filing of financing statements in the State of New York.
13. Under Section 9-103 of the New York UCC, the perfection and effect of
perfection of your security interests in the remaining Code Collateral
will be governed by laws other than those of the State of New York.
Although we express no opinion as to such laws, we have reviewed the
Commerce Clearing House, Inc. Secured Transactions Guide as
supplemented through April 25, 2000 (the "Guide") and, based solely on
such review, it appears that when the Financing Statements executed by
the Borrower or the other Credit Parties (as applicable) are duly filed
or recorded, as appropriate, in the appropriate filing offices in the
State of Utah, the State of California, or the State of Texas, as
applicable, your security interests under the Loan Agreements in such
remaining Code Collateral will be perfected to the extent such security
interests can be perfected by the filing of financing statements in
such other states.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 5
14. Assuming (in addition to all other assumptions upon which this letter
is based) that the Administrative Agent has taken and is retaining
possession in the State of New York of the certificates representing
the securities (within the meaning of Section 8-102(a)(15) of the New
York UCC) identified on Schedule 3 to the Security Agreement and which
are certificated and pledged pursuant to the Pledge Agreement (the
"Pledged Securities"), duly endorsed to the Administrative Agent or in
blank by an effective endorsement (within the meaning of Section
8-102(a)(11) of the New York UCC), the security interest of the
Administrative Agent for the benefit of the Lenders in such Pledged
Securities (the creation of which is addressed in paragraph 7 above) is
perfected by "control" under the New York UCC; and assuming further (in
addition to all other assumptions upon which this letter is based) that
the Administrative Agent has taken possession of such Pledged
Securities and such accompanying endorsements without notice (actual or
constructive) to the Administrative Agent or any Lender, at or prior to
the time of delivery of such Pledged Securities and endorsements to the
Administrative Agent, of any adverse claim within the meaning of
Section 8-102(a)(1) of the New York UCC, the Administrative Agent has
acquired its security interest in such Pledged Securities, free of any
such adverse claims.
15. No litigation which on the date of this letter is pending against any
of the Credit Parties with a court or being actively threatened against
any such Person to our actual knowledge seeks to enjoin or obtain
damages by reason of such Person's execution or delivery of any of the
Loan Agreements or the performance by such Person of any of its
agreements in the Loan Agreements.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 6
16. Upon the due filing and recordation of the Assignment of Patent and
Trademarks and each Perfection Certificate in the United States Patent
and Trademark Office (the "PTO") and in the United States Copyright
Office (the "Copyright Office"), as appropriate, and the payment of all
filing and recordation fees associated therewith, and assuming the
existence of the security interests purported to be created by each of
the Security Agreement and each Perfection Certificate, such security
interests are or will be perfected security interests in the Collateral
described therein to the extent the same may be perfected by such
filing. We note for your information that filing with the PTO and the
Copyright Office alone may not be sufficient to perfect fully the
security interests in such Collateral, and that under the applicable
Uniform Commercial Code and federal law, appropriate UCC financing
statements may also be required to be filed in order to perfect fully
such security interests.
In preparing this letter, we have relied without any independent
verification upon the assumptions recited in Schedule B to this letter and upon:
(i) those opinions of counsel to each Credit Party (other than Parent), which
opinions are attached hereto as Exhibit I (collectively, the "Local Counsel
Opinions"), (ii) information contained in certificates obtained from
governmental authorities; (iii) factual information represented to be true in
the Credit Agreement and the other Loan Agreements; (iv) factual information
provided to us in a support certificate signed by the Borrower; and (v) factual
information we have obtained from such other sources as we have deemed
reasonable. We have assumed without investigation that there has been no
relevant change or development between the dates as of which the information
cited in the preceding sentence was given and the date of this letter and that
the information upon which we have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading. For
purposes of each opinion in paragraph 1, we have relied exclusively upon a
certificate issued by a governmental authority in each relevant jurisdiction,
and such opinion is not intended to provide any conclusion or assurance beyond
that conveyed by that certificate.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this letter advises you, we confirm that we do not have any actual knowledge
which has caused us to conclude that our reliance and assumptions cited in the
preceding paragraph are unwarranted or that any information supplied in this
letter is wrong. The term "actual knowledge" whenever it is used in this letter
with respect to our firm means conscious awareness at the time this letter is
delivered on the date it bears by the following Xxxxxxxx & Xxxxx lawyer who has
had significant involvement with negotiation or preparation of the Credit
Agreement (herein called "our Designated Transaction Lawyer"): J. Xxxxxx
Xxxxxxxx.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 7
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of New York or the federal law of the United
States except that: (i) the opinions in paragraphs 1 through 4 with respect to
the Parent are based on the Delaware General Corporation Law; (ii) the opinion
in the first sentence of paragraph 1 is based on the Business Corporation Act of
the State of Utah and the opinion in the third sentence of paragraph 1 is based
on the Business Corporation Act of the State of Utah, the General Corporation
Law of the State of California, the Business Corporation Act of the State of
Texas and the Texas Uniform Partnership Act, as applicable; (iiii) our advice in
paragraph 13 is based on the laws as summarized in the Guide to the extent
indicated in that paragraph. We advise you that we are neither Utah nor
California nor Texas lawyers and our knowledge of the Business Corporation Act
of the State of Utah, the General Corporation Law of the State of California,
the Business Corporation Act of the State of Texas and the Texas Uniform
Partnership Act, respectively, for purposes of this Opinion is limited to our
reliance on the Local Counsel Opinions. We advise you that issues addressed by
this letter may be governed in whole or in part by other laws, but we express no
opinion as to whether any relevant difference exists between the laws upon which
our opinions are based and any other laws which may actually govern. Our
opinions are subject to all qualifications in Schedule A and do not cover or
otherwise address any law or legal issue which is identified in the attached
Schedule C or any provision in the Credit Agreement or any of the other Loan
Agreements of any type identified in Schedule D attached hereto. Provisions in
the Loan Agreements which are not excluded by Schedule D or any other part of
this letter or its attachments are called the "Relevant Agreement Terms."
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law our opinion on that issue is
based. The manner in which any particular issue would be treated in any actual
court case would depend in part on facts and circumstances particular to the
case, and this letter is not intended to guarantee the outcome of any legal
dispute which may arise in the future. It is possible that some Relevant
Agreement Terms may not prove enforceable for reasons other than those cited in
this letter should an actual enforcement action be brought, but (subject to all
the exceptions, qualifications, exclusions and other limitations contained in
this letter) such unenforceability would not in our opinion prevent you from
realizing the principal benefits purported to be provided by the Relevant
Agreement Terms.
To the Administrative Agent and each of the
Lenders party to the Credit Agreement from time to
time referred to below
May 26, 2000
Page 8
This letter speaks as of the time of its delivery on the date it bears.
We do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which our Designated Transaction Lawyers did
not have actual knowledge at that time, by reason of any change subsequent to
that time in any law covered by any of our opinions, or for any other reason.
The attached schedules are an integral part of this letter, and any term defined
in this letter or any schedule has that defined meaning wherever it is used in
this letter or in any schedule to this letter.
You may rely upon this letter only for the purpose served by the
provision in the Credit Agreement cited in the initial paragraph of this letter
in response to which it has been delivered. Without our written consent: (i) no
person other than you may rely on this letter for any purpose; (ii) this letter
may not be cited or quoted in any financial statement, prospectus, private
placement memorandum or other similar document; (iii) this letter may not be
cited or quoted in any other document or communication which might encourage
reliance upon this letter by any person or for any purpose excluded by the
restrictions in this paragraph; and (iv) copies of this letter may not be
furnished to anyone for purposes of encouraging such reliance, provided that
copies of this letter may be furnished to prospective Eligible Assignees
pursuant to Section 10.3(b) of the Credit Agreement for purposes of disclosure
only and may be relied upon by such Person upon such Person becoming a Lender
pursuant to the terms and conditions of the Credit Agreement.
Sincerely,
Xxxxxxxx & Xxxxx
Schedule A
General Qualifications
All of our opinions ("our opinions") in the letter to which this
Schedule is attached ("our letter") are subject to each of the qualifications
set forth in this Schedule.
1. Bankruptcy and Insolvency Exception. Each of the opinions ("our
opinions") in our letter is subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar
laws. This exception includes:
(a) the Federal Bankruptcy Code and thus comprehends, among
others, matters of turn-over, automatic stay, avoiding powers,
fraudulent transfer, preference, discharge, conversion of a
non-recourse obligation into a recourse claim, limitations on
ipso facto and anti-assignment clauses and the coverage of
pre-petition security agreements applicable to property
acquired after a petition is filed;
(b) all other Federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and
assignment for the benefit of creditors laws that affect the
rights of creditors generally or that have reference to or
affect only creditors of specific types of debtors;
(c) state fraudulent transfer and conveyance laws; and
(d) judicially developed doctrines in this area, such as
substantive consolidation of entities and equitable
subordination.
2. Equitable Principles Limitation. Each of our opinions is subject to the
effect of general principles of equity, whether applied by a court of
law or equity. This limitation includes principles:
(a) governing the availability of specific performance, injunctive
relief or other equitable remedies, which generally place the
award of such remedies, subject to certain guidelines, in the
discretion of the court to which application for such relief
is made;
(b) affording equitable defenses (e.g., waiver, laches and
estoppel) against a party seeking enforcement;
Schedule A-2
(c) requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its
enforcement;
(d) requiring reasonableness in the performance and enforcement of
an agreement by the party seeking enforcement of the contract;
(e) requiring consideration of the materiality of (i) a breach and
(ii) the consequences of the breach to the party seeking
enforcement;
(f) requiring consideration of the impracticability or
impossibility of performance at the time of attempted
enforcement; and
(g) affording defenses based upon the unconscionability of the
enforcing party's conduct after the parties have entered into
the contract.
3. Other Common Qualifications. Each of our opinions is subject to the
effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract
that purport to waive, or to require waiver of, the
obligations of good faith, fair dealing, diligence and
reasonableness;
(b) provide that forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum selected;
(c) limit the availability of a remedy under certain circumstances
where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be
enforced;
(e) limit the right of a creditor to use force or cause a breach
of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral or the
requirements of a commercially reasonable sale;
Schedule A-3
(g) limit the enforceability of provisions releasing, exculpating
or exempting a party from, or requiring indemnification of a
party for, liability for its own action or inaction, to the
extent the action or inaction involves negligence,
recklessness, willful misconduct, unlawful conduct, violation
of public policy or litigation against another party
determined adversely to such party;
(h) may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an
essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees
and other costs;
(j) may permit a party that has materially failed to render or
offer performance required by the contract to cure that
failure unless (i) permitting a cure would unreasonably hinder
the aggrieved party from making substitute arrangements for
performance, or (ii) it was important in the circumstances to
the aggrieved party that performance occur by the date stated
in the contract.
(k) may render guarantees unenforceable under circumstances where
your actions, failures to act or waivers, amendments or
replacement of the Loan Agreements so radically change the
essential nature of the terms and conditions of the guaranteed
obligations and the related transactions that, in effect, a
new relationship has arisen between you and Borrower or those
parties signatory to each of the Parent Guarantee Agreement
and the Subsidiaries Guarantee Agreement (collectively,
"Guarantors") which is substantially and materially different
from that presently contemplated by the Loan Agreements.
4. Referenced Provision Qualification. In addition, our opinions, insofar
as they relate to the validity, binding effect or enforceability of a
provision in any of the Loan Agreements requiring the Borrower to
perform its obligations under, or to cause any other person to perform
its obligations under, any provision (a "Referenced Provision") of such
Loan Agreement or of any of the other Loan Agreements or stating that
any action will be taken as provided in or in accordance with any
provision (also a "Referenced Provision") of any other Loan Agreement,
are subject to the same qualifications as the corresponding opinion in
this letter relating to the validity, binding effect and enforceability
of such Referenced Provision. Requirements in the Loan Agreements that
provisions therein may only be waived or amended in writing may not be
enforceable to the extent that an oral agreement or an implied
agreement by trade practice or course of conduct has been created
modifying any such provision.
Schedule A-4
5. Collateral Qualifications. The opinions and advice contained in our
letter are subject to the following advice:
(a) certain rights of debtors and duties of secured parties
referred to in Sections 1-102(3) and 9-501(3) of the New York
UCC may not be waived, released, varied or disclaimed by
agreement prior to a default;
(b) the effect of (i) the limitations on the existence and
perfection of security interests in proceeds resulting from
the operation of Section 9-306, Section 9-115 or Section
8-321(1) (1994 version) of any applicable Uniform Commercial
Code; (ii) the limitations in favor of buyers imposed by
Sections 9-307 and 9-308 of any applicable Uniform Commercial
Code; (iii) the limitations with respect to documents,
instruments and securities imposed by Section 9-309 and 8-302
(1994 version) or 8-303 (1994 version) of any applicable
Uniform Commercial Code; (iv) other rights of persons in
possession of money, instruments and proceeds constituting
certificated or uncertificated securities; and (v) section 547
of the Bankruptcy Code with respect to preferential transfers
and section 552 of the Bankruptcy Code with respect to any
Collateral acquired by the Borrower or any Guarantor
subsequent to the commencement of a case against or by the
Borrower or any Guarantor under the Bankruptcy Code;
(c) Article 9 of each applicable Uniform Commercial Code requires
the filing of continuation statements within specified periods
in order to maintain the effectiveness of the filings referred
to in our letter;
(d) Additional filings may be necessary if the Borrower changes
its name, identity or corporate structure or the jurisdiction
in which any of its places of business, its chief executive
office or any Collateral is located;
(e) your security interest in certain of the Code Collateral may
not be perfected by the filing of financing statements under
the Uniform Commercial Code;
(f) we express no opinion regarding the perfection of any security
interest except as specifically set forth in our letter or
regarding the continued perfection of any security interest in
any Collateral upon or following the removal of such
Collateral to another jurisdiction;
Schedule A-5
(g) the assignment of any contract, lease, license, or permit may
require the approval of the issuer thereof or the other
parties thereto;
(h) we express no opinion with respect to any self-help remedies
to the extent they vary from those available under the UCC or
with respect to any remedies otherwise inconsistent with the
UCC to the extent that the UCC is applicable thereto;
(i) a substantial body of case law treats guarantors as "debtors"
under the New York UCC, thereby according guarantors rights
and remedies of debtors established by the New York UCC; and
(j) we express no opinion with respect to the adequacy of the
waivers set forth in any guaranty insofar as they might not be
broad enough for all situations which might arise for which
you would find a waiver desirable, and we express no opinion
as to whether the guarantee would remain enforceable if you
release the primary obligor either directly or by electing a
remedy which precludes you from proceeding directly against
the primary obligor.
Schedule A-6
Schedule B
Assumptions
For purposes of our letter, we have relied, without investigation, upon
each of the following assumptions:
1. Each Credit Party (i) has the requisite title and rights to any
property involved in the transactions effected under the Loan
Agreements (herein called the "Transactions") including, without
limiting the generality of the foregoing, each item of Collateral
existing on the date hereof and (ii) will have the requisite title and
rights to each item of Collateral arising after the date hereof.
2. You are existing and in good standing in your jurisdiction of
organization.
3. You have full power and authority (including without limitation under
the laws of your jurisdiction of organization) to execute, deliver and
to perform your obligations under each of the Loan Agreements and each
of the Loan Agreements has been duly authorized by all necessary action
on your part and has been duly executed and duly delivered by you.
4. The Loan Agreements constitute valid and binding obligations of yours
and are enforceable against you in accordance with their terms (subject
to qualifications, exclusions and other limitations similar to those
applicable to our letter).
5. You have satisfied those legal requirements that are applicable to you
to the extent necessary to make the Loan Agreements enforceable against
you.
6. You have complied with all legal requirements pertaining to your status
as such status relates to your rights to enforce the Loan Agreements
against each Credit Party.
7. Each document submitted to us for review is accurate and complete, each
such document that is an original is authentic, each such document that
is a copy conforms to an authentic original, and all signatures (other
than those of or on behalf of the Borrower or Parent) on each such
document are genuine.
8. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress or undue influence.
Schedule B-1
9. The conduct of the parties to the Loan Agreements has complied with any
requirement of good faith, fair dealing and conscionability.
10. You have acted in good faith and without notice of any defense against
the enforcement of any rights created by, or adverse claim to any
property or security interest transferred or created as part of, the
Transactions.
11. The descriptions of collateral in the Loan Agreements and the Financing
Statements reasonably describe the property intended to be described as
Collateral and the legal descriptions of real estate described in the
Financing Statements to be filed as fixture filings are accurate.
12. There are no agreements or understandings among the parties, written or
oral, and there is no usage of trade or course or prior dealing among
the parties that would, in either case, define, supplement or qualify
the terms of the Credit Agreement or any of the other Loan Agreements.
13. The constitutionality or validity of a relevant statute, rule,
regulation or agency action is not in issue.
14. All parties to the Transactions will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and
conditions of the Loan Agreements.
15. Value (as defined in Section 1-201(44) of the New York UCC) has been
given by you to the Borrower and Guarantors for the security interests
and other rights in and assignments of Collateral described in or
contemplated by the Loan Agreements.
16. All agreements other than the Loan Agreements (if any) with respect to
which we have provided advice in our letter or reviewed in connection
with our letter would be enforced as written.
17. None of the Credit Parties will in the future take any discretionary
action (including a decision not to act) permitted under the Loan
Agreements that would result in a violation of law or constitute a
breach or default under any other agreements or court orders to which
such Person may be subject.
Schedule B-2
18. All information required to be disclosed in connection with any consent
or approval by the Board of Directors or stockholders (or equivalent
governing group) of each Credit Party and all other information
required to be disclosed in connection with any issue relevant to our
opinions has in fact been fully and fairly disclosed to all persons to
whom it is required to be disclosed.
19. The certificates of incorporation (or equivalent governing instrument)
of each Credit Party, all amendments to that certificate, all
resolutions adopted establishing classes or series of stock under that
certificate, the bylaws of each Credit Party and all amendments to such
bylaws have been adopted in accordance with all applicable legal
requirements.
20. Each person who has taken any action relevant to any of our opinions in
the capacity of director or officer was duly elected to that director
or officer position and held that position when such action was taken.
Schedule B-3
Schedule C
Excluded Law and Legal Issues
None of the opinions or advice contained in our letter covers or
otherwise addresses any of the following laws, regulations or other governmental
requirements or legal issues:
1. Federal securities laws and regulations (including the Investment
Company Act of 1940 and all other laws and regulations administered by
the United States Securities and Exchange Commission), state "Blue Sky"
laws and regulations, and laws and regulations relating to commodity
(and other) futures and indices and other similar instruments;
2. Federal Reserve Board margin regulations;
3. pension and employee benefit laws and regulations (e.g., ERISA);
4. Federal and state antitrust and unfair competition laws and
regulations;
5. Federal and state laws and regulations concerning filing and notice
requirements other than requirements applicable to charter-related
documents such as a certificate of merger;
6. compliance with fiduciary duty requirements;
7. the statues and ordinances, the administrative decisions and the rules
and regulations of counties, towns, municipalities and special
political subdivisions (whether created or enabled through legislative
action at the Federal, state or regional level -- e.g., water agencies,
joint power districts, turnpike and tollroad authorities, rapid transit
districts or authorities, and port authorities) and judicial decisions
to the extent that they deal with any of the foregoing;
8. the characterization of a transaction as one involving the creation of
a lien on real property, the characterization of a contract as one in a
form sufficient to create a lien or a security interest in real
property, the creation, perfection, priority or enforcement of a lien
on real property or matters involving ownership or title to any real
property;
9. the priority of any security interest or, to the extent that the
enforceability of any security interest is dependent upon the priority
thereof, the enforceability of such security interest;
Schedule C-1
10. the creation, perfection or enforceability of security interests in
property in which it is illegal or violative of governmental rules or
regulations to grant a security interest, general intangibles which
terminate or become terminable if a security interest is granted
therein, property subject to negative pledge clauses of which you have
knowledge, vehicles, ships, vessels, barges, boats, railroad cars,
locomotives or other rolling stock, aircraft, aircraft engines,
propellers and related parts, or other property for which a state or
federal statute or treaty provides for registration or certification of
title or which specifies a place a filing different than that specified
in Section 9-401 of any applicable Uniform Commercial Code, cash which
is not in your possession, uncertificated securities, crops, timber to
be cut, fixtures, accounts subject to subsection (5) of Section 9-103
of any applicable Uniform Commercial Code, consumer goods, farm
products, equipment used in farming operations, accounts or general
intangibles arising from or relating to the sale of farm products by a
xxxxxx, property identified to a contract with, or in the possession
of, the United States of America or any state, county, city,
municipality or other governmental body or agency, goods for which a
negotiable document of title has been issued, and copyrights, other
literary property rights, service marks, know-how, processes, trade
secrets, undocumented computer software, unrecorded and unwritten data
and information, and rights and licenses thereunder;
11. the enforceability of any security interest in any accounts, chattel
paper, documents, instruments or general intangibles with respect to
which the account debtor or obligor is the United States of America,
any state, county, city, municipality or other governmental body, or
any department, agency or instrumentality thereof;
12. fraudulent transfer and fraudulent conveyance laws;
13. Federal and state environmental laws and regulations;
14. Federal and state land use and subdivision laws and regulations;
15. Federal and state tax laws and regulations;
16. Federal patent, trademark and copyright, state trademark, and other
Federal and state intellectual property laws and regulations;
17. Federal and state racketeering laws and regulations (e.g., RICO);
Schedule C-2
18. Federal and state health and safety laws and regulations (e.g., OSHA);
19. Federal and state labor laws and regulations;
20. Federal and state laws, regulations and policies concerning (i)
national and local emergency, (ii) possible judicial deference to acts
of sovereign states, and (iii) criminal and civil forfeiture laws;
21. other Federal and state statutes of general application to the extent
they provide for criminal prosecution (e.g., mail fraud and wire fraud
statutes);
22. any laws, regulations, directives and executive orders that prohibit or
limit the enforceability of obligations based on attributes of the
party seeking enforcement (e.g., the Trading with the Enemy Act and the
International Emergency Economic Powers Act); and
23. the effect of any law, regulation or order which hereafter becomes
effective.
We have not undertaken any research for purposes of determining
whether any Credit Party or any of the Transactions which may occur in
connection with the Credit Agreement or any of the other Loan Agreements is
subject to any law or other governmental requirement other than to those laws
and requirements which in our experience would generally be recognized as
applicable in the absence of research by lawyers in New York, and none of our
opinions covers any such law or other requirement unless (i) our Designated
Transaction Lawyer had actual knowledge of its applicability at the time our
letter was delivered on the date it bears and (ii) it is not excluded from
coverage by other provisions in our letter or in any Schedule to our letter.
Schedule C-3
Schedule D
Excluded Provisions
None of the opinions in the letter to which this Schedule is attached
covers or otherwise addresses any of the following types of provisions which may
be contained in the Loan Agreements:
1. Indemnification for negligence, willful misconduct or other wrongdoing
or strict product liability or any indemnification for liabilities
arising under securities laws.
2. Provisions mandating contribution towards judgments or settlements
among various parties.
3. Waivers of (i) legal or equitable defenses, (ii) rights to damages,
(iii ) rights to counter claim or set off, (iv) statutes of
limitations, (v) rights to notice, (vi) the benefits of statutory,
regulatory, or constitutional rights, unless and to the extent the
statute, regulation, or constitution explicitly allows waiver, (vii)
broadly or vaguely stated rights, and (viii) other benefits to the
extent they cannot be waived under applicable law.
4. Provisions providing for forfeitures or the recovery of amounts deemed
to constitute penalties, or for liquidated damages, acceleration of
future amounts due (other than principal) without appropriate discount
to present value, late charges, prepayment charges, interest upon
interest, and increased interest rates upon default.
5. Time-is-of-the-essence clauses.
6. Provisions which provide a time limitation after which a remedy may not
be enforced.
7. Confession of judgment clauses.
8. Agreements to submit to the jurisdiction of any particular court or
other governmental authority (either as to personal jurisdiction and
subject matter jurisdiction); provisions restricting access to courts;
waiver of the right to jury trial; waiver of service of process
requirements which would otherwise be applicable; and provisions
otherwise purporting to affect the jurisdiction and venue of courts.
Schedule D-1
9. Provisions that attempt to change or waive rules of evidence or fix the
method or quantum of proof to be applied in litigation or similar
proceedings.
10. Waivers of the right to trial by jury.
11. Provisions appointing one party as an attorney-in-fact for an adverse
party or providing that the decision of any particular person will be
conclusive or binding on others.
12. Provisions purporting to limit rights of third parties who have not
consented thereto or purporting to grant rights to third parties.
13. Provisions which purport to award attorneys' fees solely to one party.
14. Arbitration agreements.
15. Provisions purporting to create a trust or constructive trust without
compliance with applicable trust law.
16. Provisions relating to (i) insurance coverage requirements and (ii) the
application of insurance proceeds and condemnation awards.
17. Provisions that provide for the appointment of a receiver.
18. Provisions in any of the Loan Agreements requiring a Credit Party to
perform its obligations under, or to cause any other person to perform
its obligations under, or stating that any action will be taken as
provided in or in accordance with, any agreement or other document that
is not a Loan Agreement.
19. Provisions, if any, which are contrary to the public policy of any
jurisdiction.
20. The enforceability of any provision of any Loan Agreement which
purports to authorize you to sign or file financing statements or other
documents without the signature of the debtor (except to the extent a
secured party may execute and file financing statements without the
signature of the debtor under Section 9-402(2) of the applicable
Uniform Commercial Code).
21. The enforceability of any provision of any Loan Agreement which
purports to authorize you to purchase at a private sale Collateral
which is not subject to widely distributed standard price quotations or
sold on a recognized market.
Schedule X-0
XXXXXXX X-0
Xxx 00, 0000
To the Agents and Lenders
Listed on Schedule 1
Attached Hereto
Dear Sirs:
We have acted as Utah counsel to ISG Resources, Inc. and Industrial
Services Group, Inc. (sometimes hereafter collectively the "Companies") in
connection with the execution and delivery of each of the Credit Documents (as
defined in the Amended and Restated Credit Agreement dated as of May 26, 2000
(the "Credit Agreement") among ISG Resources, Inc. (successor in interest to JTM
Industries, Inc.), Industrial Services Group, Inc., the several lenders from
time to time party thereto, Bank of America, N.A. (formerly known as
NationsBank, N.A.), as Administrative Agent and Issuing Lender and Canadian
Imperial Bank of Commerce, as Documentation Agent) to which it is party. All
capitalized terms used herein and not otherwise defined herein have the meanings
assigned to them in the Credit Agreement.
We have examined executed copies of such Credit Documents and originals
or copies, certified or otherwise identified to our satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments we have deemed necessary or advisable for purposes of this opinion.
We have also examined and relied upon representations and warranties as to
factual matters contained in or made pursuant to the Credit Agreement and the
other Credit Documents.
In such examinations, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to us
as certified, conformed or photostatic copies. We have also assumed that all
parties to the Credit Documents, other than the Companies, have properly
executed and delivered the Credit Documents and that such execution and delivery
have been properly authorized as to each of said parties and that such parties
have the power fully to perform their respective obligations under the Credit
Documents.
Based upon the foregoing, we are of the opinion that:
1. ISG Resources, Inc. is duly organized, validly existing and in good
standing under the laws of the State of Utah and Industrial Services Group, Inc.
is duly organized, validly existing and in good standing under the laws of the
State of Delaware, and each is qualified to do business in every jurisdiction
where such qualification is required, except where the failure to be so
qualified would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
2. The Credit Documents have been duly authorized, executed,
acknowledged and delivered by the Companies and are enforceable against the
Companies in accordance with its terms.
3. The Companies have all requisite corporate power and authority to
own and operate their Properties, to lease the Properties they operate as lessee
and to conduct the business in which they are currently engaged. The Companies
have all requisite power to execute, deliver and perform their obligations under
each of the Credit Documents to which they are or will be a party.
4. The execution and delivery by the Companies of the Credit Documents
to which they are a party, the performance by the Companies of their obligations
thereunder, including foreclosure by the Administrative Agent against any of the
Collateral (a) based upon our review of appropriate resolutions, officers'
certificates and relevant bylaws and articles of incorporation, the corporate
action and authorizations undertaken by the Companies have been duly authorized
by all requisite corporate and, if required, stockholder action, and (b) will
not violate (i) any provision of law, statute, rule, regulation or order of any
Governmental Authority in the State of Utah or (ii) any provision of the
certificate of incorporation or by-laws of the Companies.
5. No consent or authorization of, filing with, notice to or other
similar act by or in respect of any Governmental Authority in the State of Utah
is required to be obtained or made in connection with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which the
Companies are a party, by or on behalf of the Companies.
6. To the best of our knowledge after due inquiry, the Companies have
obtained and maintained all material licenses, permits and authorizations issued
or granted by Governmental Authorities in the State of Utah which are necessary
or desirable for the conduct of the Companies business as conducted as of the
date of this opinion letter.
Our opinions set forth above are subject to the following exceptions,
qualifications and limitations:
a. We are only licensed to practice in Utah, and the opinions
herein given are based upon the assumption that Utah law does not materially
differ from New York law with respect to the matters as to which we are opining.
b. The effect of any bankruptcy, insolvency, reorganization,
moratorium, arrangement or similar laws affecting the enforcement of creditors'
rights generally, including, without limitation, the effect of statutory or
other laws regarding fraudulent or preferential transfers.
c. General principles of equity, regardless of whether
enforceability is considered, in proceedings in equity or at law, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the ability to obtain the remedy of specific performance of an
obligation or injunctive relief, to assert setoff rights and the doctrines of
subrogation and estoppel.
d. We express no opinion as to whether a court will enforce
the rights of Lender to exercise remedies upon the happening of a nonmaterial
breach of the Credit Documents (including material breaches of nonmaterial
provisions thereof).
e. We express no opinion as to the enforceability of any term
of the Credit Documents relating to, statutes of limitation, choice of law, the
jurisdiction of, or venue in, any court, the waivers of substantive rights under
statute or applicable law, including but not limited to the waiver of jury
trials, defenses, or other remedies, or establishing evidentiary standards,
except as to the matters addressed in paragraph 6 of that other certain opinion
letter of even date and signed by the undersigned, pertaining to the decision of
the Utah Supreme Court in Xxxxx v. Pinpoint Retail Systems, Inc., 868 P.2d 809
(Utah 1993).
f. We express no opinion as to any provision of the Credit
Documents which provides for the payment of interest on interest, increased
rates of interest or any so-called "premium" in the event of a default and/or
late charges upon delinquency in payments or in the event of a default,
liquidated damages, or prepayment premiums, if any, to the extent they are
deemed to be penalties or forfeitures.
g. We express no opinion as to (a) compliance with, or the
absence of any violation of, any state or federal securities laws or the rules
and regulations pertaining thereto or (b) any law other than the United States
Federal Law and the law of Utah.
h. We express no opinion as to the language of any of the
Guarantee Agreements purporting to compel payment of Guaranteed Obligations
regardless of any law, regulation or order affecting the terms of such
obligations, or regardless of the invalidity, illegality or unenforceability of
the Guaranteed Obligations or the fact that such obligations cease to exist by
operation of law.
i. Our opinion is based only upon current Utah law and we
disclaim any obligation - to advise you as to subsequent changes in the law.
This opinion is solely for the benefit of the Agents and Lenders listed
on Schedule 1 and their successors and assigns and may not be relied upon or
used by, circulated, quoted or referred to, or copies hereof delivered to, any
other person without our prior written approval. We understand that you and any
lender will exclusively rely on this opinion letter in connection with the due
authorization, execution and delivery of the documents referred to herein. The
opinions expressed in this letter are rendered as of the date hereof and we
disclaim any obligation to update this opinion letter for events occurring or
coming to our attention after the date hereof.
Sincerely,
XXXXXXX XXXXX & XXXXXXX
WJF/rls
To the Agents and Lenders Listed on Schedule 1 Attached
Hereto
August 11, 2000
Page Five
338461.4
338461.4
SCHEDULE 1
LENDERS
Bank of America, N.A., as Lender, Administrative Agent
and Issuing Lender
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Canadian Imperial Bank of Commerce
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Zions First National Bank
0 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
XXXXXX X. CUBA
ATTORNEYS AND COUNSELORS AT LAW
Xxxxx Xxxxx Xxxx Xxxxxxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Voice (000) 000-0000
Fax (000) 000-0000
August 11, 2000
Bank of America, N.A., as Lender, Administrative Agent
and Issuing Lender
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
I have acted as Texas counsel to BEST MASONRY & TOOL SUPPLY, INC. in
connection with the negotiation, preparation, execution and delivery of each of
the Credit Documents (as defined in the Amended and Restated Credit Agreement
dated as of May [ ], 2000 (the "Credit Agreement") among ISG Resources, Inc.
(successor in interest to JTM Industries, Inc.), Industrial Services Group,
Inc., the several lenders from time to time party thereto, Bank of America, N.A.
(formerly known as NationsBank, N.A.), as Administrative Agent and Issuing
Lender and Canadian Imperial Bank of Commerce, as Documentation Agent) to which
it is party. All capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Credit Agreement.
I have examined executed copies of such Credit Documents and originals
or copies, certified or otherwise identified to my satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments I have deemed necessary or advisable for purposes of this opinion. I
have also examined and relied upon representations and warranties as to factual
matters contained in or made pursuant to the Credit Agreement and the other
Credit Documents.
In such examinations, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me as
certified, conformed or photostatic copies. I have also assumed that all parties
to the Credit Documents, other than BEST MASONRY & TOOL SUPPLY, INC. have
properly executed and delivered the Credit Documents and that such execution and
delivery have been properly authorized as to each of said parties and that such
parties have the power fully to perform their respective obligations under the
Credit Documents.
Based upon the foregoing, I am of the opinion that:
1. BEST MASONRY & TOOL SUPPLY, INC. is duly organized, validly existing
and in good standing under the laws of the State of Texas and is qualified to do
business in every jurisdiction where such qualification is required, except
where the failure to be so qualified would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
2. BEST MASONRY & TOOL SUPPLY, INC. has all requisite corporate power
and authority to own and operate its Property, to lease the Property it operates
as lessee and to conduct the business in which it is currently engaged. BEST
MASONRY & TOOL SUPPLY, INC. has all requisite power to execute, deliver and
perform its obligations under each of the Credit Documents to which it is or
will be a party.
3. The execution and delivery by BEST MASONRY & TOOL SUPPLY, INC. of
the Credit Documents to which it is a party, the performance by BEST MASONRY &
TOOL SUPPLY, INC. of its obligations thereunder, including foreclosure by the
Administrative Agent against any of the Collateral (a) have been duly authorized
by all requisite corporate and, if required, stockholder action, and (b) will
not violate (i) any provision of law, statute, rule, regulation or order of any
Governmental Authority in the State of Texas or (ii) any provision of the
Certificate of Incorporation or By-laws of BEST MASONRY & TOOL SUPPLY, INC.
4. No consent or authorization of, filing with, notice to or other
similar act by or in respect of any Governmental Authority in the State of Texas
is required to be obtained or made in connection with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which BEST
MASONRY & TOOL SUPPLY, INC. is a party, by or on behalf of BEST MASONRY & TOOL
SUPPLY, INC., except consent, authorizations, notices and filings disclosed in
Schedule 5.4 to the Credit Agreement, all of which have been obtained or made.
5. To the best of my knowledge after due inquiry, BEST MASONRY & TOOL
SUPPLY, INC. has obtained and maintained all material licenses, permits and
authorizations issued or granted by Governmental Authorities in the State of
Texas which are necessary or desirable for the conduct of BEST MASONRY & TOOL
SUPPLY, INC. business as conducted as of the date of this opinion letter.
Very truly yours,
Xxxxxx X. Cuba
XXXXXX X. CUBA
ATTORNEYS AND COUNSELORS AT LAW
Xxxxx Xxxxx Xxxx Xxxxxxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Voice (000) 000-0000
Fax (000) 000-0000
August 11, 2000
Bank of America, N.A., as Lender, Administrative Agent
and Issuing Lender
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
I have acted as Texas counsel to MAGNA WALL, INC. in connection with
the negotiation, preparation, execution and delivery of each of the Credit
Documents (as defined in the Amended and Restated Credit Agreement dated as of
May [ ], 2000 (the "Credit Agreement") among ISG Resources, Inc. (successor in
interest to JTM Industries, Inc.), Industrial Services Group, Inc., the several
lenders from time to time party thereto, Bank of America, N.A. (formerly known
as NationsBank, N.A.), as Administrative Agent and Issuing Lender and Canadian
Imperial Bank of Commerce, as Documentation Agent) to which it is party. All
capitalized terms used herein and not otherwise defined herein have the meanings
assigned to them in the Credit Agreement.
I have examined executed copies of such Credit Documents and originals
or copies, certified or otherwise identified to my satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments I have deemed necessary or advisable for purposes of this opinion. I
have also examined and relied upon representations and warranties as to factual
matters contained in or made pursuant to the Credit Agreement and the other
Credit Documents.
In such examinations, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me as
certified, conformed or photostatic copies. I have also assumed that all parties
to the Credit Documents, other than MAGNA WALL, INC. have properly executed and
delivered the Credit Documents and that such execution and delivery have been
properly authorized as to each of said parties and that such parties have the
power fully to perform their respective obligations under the Credit Documents.
Based upon the foregoing, I am of the opinion that:
1. MAGNA WALL, INC. is duly organized, validly existing and in good
standing under the laws of the State of Texas and is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure to be so qualified would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
2. MAGNA WALL, INC. has all requisite corporate power and authority to
own and operate its Property, to lease the Property it operates as lessee and to
conduct the business in which it is currently engaged. MAGNA WALL, INC. has all
requisite power to execute, deliver and perform its obligations under each of
the Credit Documents to which it is or will be a party.
3. The execution and delivery by MAGNA WALL, INC. of the Credit
Documents to which it is a party, the performance by MAGNA WALL, INC. of its
obligations thereunder, including foreclosure by the Administrative Agent
against any of the Collateral (a) have been duly authorized by all requisite
corporate and, if required, stockholder action, and (b) will not violate (i) any
provision of law, statute, rule, regulation or order of any Governmental
Authority in the State of Texas or (ii) any provision of the Certificate of
Incorporation or By-laws of MAGNA WALL, INC.
4. No consent or authorization of, filing with, notice to or other
similar act by or in respect of any Governmental Authority in the State of Texas
is required to be obtained or made in connection with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which MAGNA
WALL, INC. is a party, by or on behalf of MAGNA WALL, INC., except consent,
authorizations, notices and filings disclosed in Schedule 5.4 to the Credit
Agreement, all of which have been obtained or made.
5. To the best of my knowledge after due inquiry, MAGNA WALL, INC. has
obtained and maintained all material licenses, permits and authorizations issued
or granted by Governmental Authorities in the State of Texas which are necessary
or desirable for the conduct of MAGNA WALL, INC. business as conducted as of the
date of this opinion letter.
Very truly yours,
Xxxxxx X. Cuba
XXXXXX X. CUBA
ATTORNEYS AND COUNSELORS AT LAW
Xxxxx Xxxxx Xxxx Xxxxxxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Voice (000) 000-0000
Fax (000) 000-0000
August 11, 2000
Bank of America, N.A., as Lender, Administrative Agent
and Issuing Lender
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
I have acted as Texas counsel to DON'S BUILDING SUPPLY L.L.P. in
connection with the negotiation, preparation, execution and delivery of each of
the Credit Documents (as defined in the Amended and Restated Credit Agreement
dated as of May [ ], 2000 (the "Credit Agreement") among ISG Resources, Inc.
(successor in interest to JTM Industries, Inc.), Industrial Services Group,
Inc., the several lenders from time to time party thereto, Bank of America, N.A.
(formerly known as NationsBank, N.A.), as Administrative Agent and Issuing
Lender and Canadian Imperial Bank of Commerce, as Documentation Agent) to which
it is party. All capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Credit Agreement.
I have examined executed copies of such Credit Documents and originals
or copies, certified or otherwise identified to my satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments I have deemed necessary or advisable for purposes of this opinion. I
have also examined and relied upon representations and warranties as to factual
matters contained in or made pursuant to the Credit Agreement and the other
Credit Documents.
In such examinations, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me as
certified, conformed or photostatic copies. I have also assumed that all parties
to the Credit Documents, other than DON'S BUILDING SUPPLY L.L.P. have properly
executed and delivered the Credit Documents and that such execution and delivery
have been properly authorized as to each of said parties and that such parties
have the power fully to perform their respective obligations under the Credit
Documents.
Based upon the foregoing, I am of the opinion that:
1. DON'S BUILDING SUPPLY L.L.P. is duly organized, validly existing and
in good standing under the laws of the State of Texas and is qualified to do
business in every jurisdiction where such qualification is required, except
where the failure to be so qualified would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
2. DON'S BUILDING SUPPLY L.L.P. has all requisite authority to own and
operate its Property, to lease the Property it operates as lessee and to conduct
the business in which it is currently engaged. DON'S BUILDING SUPPLY L.L.P. has
all requisite power to execute, deliver and perform its obligations under each
of the Credit Documents to which it is or will be a party.
3. The execution and delivery by DON'S BUILDING SUPPLY L.L.P. of the
Credit Documents to which it is a party, the performance by DON'S BUILDING
SUPPLY L.L.P. of its obligations thereunder, including foreclosure by the
Administrative Agent against any of the Collateral (a) have been duly authorized
by all requisite partnership and, if required, partner action, and (b) will not
violate (i) any provision of law, statute, rule, regulation or order of any
Governmental Authority in the State of Texas or (ii) any provision of the
Certificate of Limited Liability Partnership or Regulations of DON'S BUILDING
SUPPLY L.L.P.
4. No consent or authorization of, filing with, notice to or other
similar act by or in respect of any Governmental Authority in the State of Texas
is required to be obtained or made in connection with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which DON'S
BUILDING SUPPLY L.L.P. is a party, by or on behalf of DON'S BUILDING SUPPLY
L.L.P., except consent, authorizations, notices and filings disclosed in
Schedule 5.4 to the Credit Agreement, all of which have been obtained or made.
5. To the best of my knowledge after due inquiry, DON'S BUILDING SUPPLY
L.L.P. has obtained and maintained all material licenses, permits and
authorizations issued or granted by Governmental Authorities in the State of
Texas which are necessary or desirable for the conduct of DON'S BUILDING SUPPLY
L.L.P. business as conducted as of the date of this opinion letter.
Very truly yours,
Xxxxxx X. Cuba
FERRUZZO & XXXXXXXX
XXXXXX X. XXXXXXXX* ATTORNEYS AT LAW
XXXXX X. XXXXXXXX* A PARTNERSHIP, INCLUDING PROFESSIONAL CORPORATIONS
XXXXX X. XXXXX* 0000 XXXXX XXXXXXXX
XXXX X. XXXXX XXXXX XXX, XXXXXXXXXX 00000
XXXX X. XXXXXXX May ___, 2000
XXXXXXX X. XXXXXXXX
M. XXXXX WATSON1
XXXXXX X. GRAYBEHL2
XXXXX X. XXXXXXXXX
XXXXXX X. XXXXX
XXXXXXX X. XXXXXXX TELEPHONE (000) 000-0000
XXXXX X. XXXX FAX (000) 000-0000
--------------
*A PROFESSIONAL CORPORATION
1 CERTIFIED TAXATION LAW
SPECIALIST
2 CERTIFIED FAMILY LAW
SPECIALIST
I056-001\83454
To the Agents and Lenders
Listed on Schedule 1
Attached Hereto
Dear Sirs:
We have acted in the limited role as California counsel to UNITED TERRAZZO
SUPPLY CO., INC., A CALIFORNIA CORPORATION in connection with the execution and
delivery of each of the Credit Documents (as defined in the Amended and Restated
Credit Agreement dated as of May ___, 2000 (the "Credit Agreement") among ISG
Resources, Inc., (successor in interest to JTM Industries, Inc.), Industrial
Services Group, Inc., the several lenders from time to time party thereto, Bank
of America, N.A. (formerly known as NationsBank, N.A.), as Administrative Agent
and Issuing Lender and Canadian Imperial Bank of Commerce, as Documentation
Agent) to which it has executed as a party. All capitalized terms used herein
and not otherwise defined herein have the meanings assigned to them in the
Credit Agreement.
We have examined executed copies of such Credit Documents (executed by UNITED
TERRAZZO SUPPLY CO., INC., A CALIFORNIA CORPORATION) and originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
corporate records, certificates of public officials and other instruments we
have deemed necessary or advisable for purposes of this opinion. We have also
examined and relied upon representations and warranties as to factual matters
contained in or made pursuant to the Credit Agreement and the other Credit
Documents.
In such examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
authentic original documents of all documents submitted to us as certified,
conformed or photostatic copies. We have also assumed that all parties to the
Credit Documents, other than UNITED TERRAZZO SUPPLY CO., INC., A CALIFORNIA
CORPORATION, have properly executed and delivered the Credit Documents and that
such execution and delivery have been properly authorized as to each of said
parties and that such parties have the power to fully perform their respective
obligations under the Credit Documents.
The phrase "to the best of our knowledge" as used herein, means that the opinion
or statement is based on the current actual knowledge of attorneys presently
with this firm who have performed services for UNITED TERRAZZO SUPPLY CO., INC.,
A CALIFORNIA CORPORATION in connection with the transactions covered by the
Credit Documents.
Although we have requested and received officer's certificates from UNITED
TERRAZZO SUPPLY CO., INC., A CALIFORNIA CORPORATION as to certain matters, we
have not undertaken any independent investigation to determine the existence or
absence of facts (such as covered by opinion items 4 and 5 below) and no
inference as to our knowledge of the existence or absence of such facts should
be drawn from the fact of our limited representation of UNITED TERRAZZO SUPPLY
CO., INC., A CALIFORNIA CORPORATION.
Based upon the foregoing and subject to such other qualifications, assumptions,
and limitations as might be set forth herein, we are of the opinion that:
1. UNITED TERRAZZO SUPPLY CO., INC., A CALIFORNIA CORPORATION has been
duly incorporated and is validly existing in good standing under the
laws of the State of California and is qualified to do business in the
State of California and is not qualified to do business in any other
State.
2. UNITED TERRAZZO SUPPLY CO., INC., A CALIFORNIA CORPORATION has all
requisite corporate power and authority to own and operate its
Property, to lease the Property it operates as lessee and to conduct
the business in which it is currently engaged. UNITED TERRAZZO SUPPLY
CO., INC., A CALIFORNIA CORPORATION has all requisite power to
execute, deliver and perform its obligations under each of the Credit
Documents to which it has executed as a party.
3. The execution and delivery by UNITED TERRAZZO SUPPLY CO., INC., A
CALIFORNIA CORPORATION of the Credit Documents to which it is a party,
the performance by UNITED TERRAZZO SUPPLY CO., INC., A CALIFORNIA
CORPORATION of its obligations thereunder, including foreclosure by
the Administrative Agent against any of the Collateral (a) have been
duly authorized by all requisite corporate and, if required,
stockholder action, and (b) will not violate (i) any provision of law,
statute, rule, regulation or order of any Governmental Authority in
the State of California, or (ii) any provision of the certificate of
incorporation or by-laws of UNITED TERRAZZO SUPPLY CO., INC., A
CALIFORNIA CORPORATION. This does not mean that each and every
provision of the Credit Documents is effective or that all remedies in
each Credit Document will be available. Nevertheless, such
ineffectiveness or unavailability will not result in the
Administrative Agent being denied the practical realization of the
general rights and benefits provided in the Credit Documents.
4. To the best of our knowledge after due inquiry no consent or
authorization of, filing with, notice to or other similar act by or in
respect of any Governmental Authority in the State of California is
required to be obtained or made in connection with the execution,
delivery, performance, validity or enforceability of the Credit
Documents to which UNITED TERRAZZO SUPPLY CO., INC., A CALIFORNIA
CORPORATION is a party, by or on behalf of UNITED TERRAZZO SUPPLY CO.,
INC., A CALIFORNIA CORPORATION, except consent, authorizations,
notices and filings disclosed in Schedule 5.4 to the Credit Agreement.
5. To the best of our knowledge after due inquiry UNITED TERRAZZO SUPPLY
CO., INC., A CALIFORNIA CORPORATION has obtained and maintained all
material licenses, permits and authorizations issued or granted by
Governmental Authorities in the State of California which are
necessary or desirable for the conduct of UNITED TERRAZZO SUPPLY CO.,
INC., A CALIFORNIA CORPORATION business as conducted as of the date of
this opinion letter.
The foregoing opinions apply only insofar as the substantive laws of the State
of California and the federal laws of the United States of America may be
concerned.
The opinion set forth above are subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent transfer, and other similar
laws and legal and equitable principals, relating to, limiting, or affecting the
enforcement of, creditors' rights of remedy.
We acknowledge that the Agents and the Lenders and any of their successors or
assigns as of the date hereof are relying on the opinions expressed herein in
extending credit under the terms of the Credit Agreement and the other Loan
Documents and hereby consent to such reliance by the Agents and the Lenders now
or hereafter parties to the Credit Agreement on the opinions expressed herein.
This opinion letter is limited to the matters expressly stated herein and no
opinion or other statement may be inferred or implied beyond the matters
expressly stated herein. This opinion letter may not be relied on by any other
person or entity, nor may copies be delivered to any other person or entity
(other than your legal counsel and other than as required by law) without our
prior written consent.
Very truly yours,
By:
XXXXXX X. XXXXXXXX, on behalf of
FERRUZZO & FERRUZZO
TGF:dla
FERRUZZO & XXXXXXXX
XXXXXX X. XXXXXXXX* ATTORNEYS AT LAW
XXXXX X. XXXXXXXX* A PARTNERSHIP, INCLUDING PROFESSIONAL CORPORATIONS
XXXXX X. XXXXX* 0000 XXXXX XXXXXXXX
XXXX X. XXXXX XXXXX XXX, XXXXXXXXXX 00000
XXXX X. XXXXXXX May ___, 2000
XXXXXXX X. XXXXXXXX
M. XXXXX WATSON1
XXXXXX X. GRAYBEHL2
XXXXX X. XXXXXXXXX
XXXXXX X. XXXXX TELEPHONE (000) 000-0000
XXXXXXX X. XXXXXXX FAX (000) 000-0000
XXXXX X. XXXX XXX.XXXXXXXX.XXX
-------------------
*A PROFESSIONAL CORPORATION
1 CERTIFIED TAXATION LAW
SPECIALIST
2 CERTIFIED FAMILY LAW
SPECIALIST
I056-001\83457
To the Agents and Lenders
Listed on Schedule 1
Attached Hereto
Dear Sirs:
We have acted in the limited role as California counsel to XXXXX X. XXXXXXX,
INC., A CALIFORNIA CORPORATION in connection with the execution and delivery of
each of the Credit Documents (as defined in the Amended and Restated Credit
Agreement dated as of May ___, 2000 (the "Credit Agreement") among ISG
Resources, Inc., (successor in interest to JTM Industries, Inc.), Industrial
Services Group, Inc., the several lenders from time to time party thereto, Bank
of America, N.A. (formerly known as NationsBank, N.A.), as Administrative Agent
and Issuing Lender and Canadian Imperial Bank of Commerce, as Documentation
Agent) to which it has executed as a party. All capitalized terms used herein
and not otherwise defined herein have the meanings assigned to them in the
Credit Agreement.
We have examined executed copies of such Credit Documents (executed by XXXXX X.
XXXXXXX, INC., A CALIFORNIA CORPORATION) and originals or copies, certified or
otherwise identified to our satisfaction, of such other documents, corporate
records, certificates of public officials and other instruments we have deemed
necessary or advisable for purposes of this opinion. We have also examined and
relied upon representations and warranties as to factual matters contained in or
made pursuant to the Credit Agreement and the other Credit Documents.
In such examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
authentic original documents of all documents submitted to us as certified,
conformed or photostatic copies. We have also assumed that all parties to the
Credit Documents, other than XXXXX X. XXXXXXX, INC., A CALIFORNIA CORPORATION,
have properly executed and delivered the Credit Documents and that such
execution and delivery have been properly authorized as to each of said parties
and that such parties have the power to fully perform their respective
obligations under the Credit Documents.
The phrase "to the best of our knowledge" as used herein, means that the opinion
or statement is based on the current actual knowledge of attorneys presently
with this firm who have performed services for XXXXX X. XXXXXXX, INC., A
CALIFORNIA CORPORATION in connection with the transactions covered by the Credit
Documents.
Although we have requested and received officer's certificates from XXXXX X.
XXXXXXX, INC., A CALIFORNIA CORPORATION as to certain matters, we have not
undertaken any independent investigation to determine the existence or absence
of facts (such as covered by opinion items 4 and 5 below) and no inference as to
our knowledge of the existence or absence of such facts should be drawn from the
fact of our limited representation of XXXXX X. XXXXXXX, INC., A CALIFORNIA
CORPORATION.
Based upon the foregoing and subject to such other qualifications, assumptions,
and limitations as might be set forth herein, we are of the opinion that:
1. XXXXX X. XXXXXXX, INC., A CALIFORNIA CORPORATION has been duly
incorporated and is validly existing in good standing under the laws
of the State of California and is qualified to do business in the
State of California and is not qualified to do business in any other
State.
2. XXXXX X. XXXXXXX, INC., A CALIFORNIA CORPORATION has all requisite
corporate power and authority to own and operate its Property, to
lease the Property it operates as lessee and to conduct the business
in which it is currently engaged. XXXXX X. XXXXXXX, INC., A CALIFORNIA
CORPORATION has all requisite power to execute, deliver and perform
its obligations under each of the Credit Documents to which it has
executed as a party.
3. The execution and delivery by XXXXX X. XXXXXXX, INC., A CALIFORNIA
CORPORATION of the Credit Documents to which it is a party, the
performance by XXXXX X. XXXXXXX, INC., A CALIFORNIA CORPORATION of its
obligations thereunder, including foreclosure by the Administrative
Agent against any of the Collateral (a) have been duly authorized by
all requisite corporate and, if required, stockholder action, and (b)
will not violate (i) any provision of law, statute, rule, regulation
or order of any Governmental Authority in the State of California, or
(ii) any provision of the certificate of incorporation or by-laws of
XXXXX X. XXXXXXX, INC., A CALIFORNIA CORPORATION.
<
This does not mean that each and every provision of the Credit
Documents is effective or that all remedies in each Credit Document
will be available. Nevertheless, such ineffectiveness or unavailability
will not result in the Administrative Agent being denied the practical
realization of the general rights and benefits provided in the Credit
Documents.
4. To the best of our knowledge after due inquiry no consent or
authorization of, filing with, notice to or other similar act by or in
respect of any Governmental Authority in the State of California is
required to be obtained or made in connection with the execution,
delivery, performance, validity or enforceability of the Credit
Documents to which XXXXX X. XXXXXXX, INC., A CALIFORNIA CORPORATION is
a party, by or on behalf of XXXXX X. XXXXXXX, INC., A CALIFORNIA
CORPORATION, except consent, authorizations, notices and filings
disclosed in Schedule 5.4 to the Credit Agreement.
5. To the best of our knowledge after due inquiry XXXXX X. XXXXXXX, INC.,
A CALIFORNIA CORPORATION has obtained and maintained all material
licenses, permits and authorizations issued or granted by Governmental
Authorities in the State of California which are necessary or
desirable for the conduct of XXXXX X. XXXXXXX, INC., A CALIFORNIA
CORPORATION business as conducted as of the date of this opinion
letter.
The foregoing opinions apply only insofar as the substantive laws of the State
of California and the federal laws of the United States of America may be
concerned.
The opinion set forth above are subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent transfer, and other similar
laws and legal and equitable principals, relating to, limiting, or affecting the
enforcement of, creditors' rights of remedy.
We acknowledge that the Agents and the Lenders and any of their successors or
assigns as of the date hereof are relying on the opinions expressed herein in
extending credit under the terms of the Credit Agreement and the other Loan
Documents and hereby consent to such reliance by the Agents and the Lenders now
or hereafter parties to the Credit Agreement on the opinions expressed herein.
This opinion letter is limited to the matters expressly stated herein and no
opinion or other statement may be inferred or implied beyond the matters
expressly stated herein. This opinion letter may not be relied on by any other
person or entity, nor may copies be delivered to any other person or entity
(other than your legal counsel and other than as required by law) without our
prior written consent.
Very truly yours,
By:_________________________________
XXXXXX X. XXXXXXXX, on behalf of
FERRUZZO & FERRUZZO
EXHIBIT L-3
W. Xxxxxxx Xxxxxxxx
Direct Dial
000 000-0000
E-Mail
XXxxxxxxx@xxxxxxx.xxx
June 7, 2000
To the Agents and Lenders Listed
on Schedule 1 Attached Hereto
Dear Sirs:
We have acted as Utah counsel to ISG Resources, Inc. (successor in
interest to JTM Industries, Inc.) (the "Borrower"), Industrial Services Group,
Inc. (the "Parent"), ISG Capital Corporation and all Subsidiary Grantors
(collectively, the Borrower, the Parent, ISG Capital Corporation and the
Subsidiary Grantors are referred to herein as the "Grantors") in connection with
the execution and delivery of the Credit Documents (as defined in the Amended
and Restated Credit Agreement dated as of May 26, 2000 (the "Credit Agreement")
among the Borrower, the Parent, the several lenders from time to time party
thereto, Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent and Issuing Lender, and Canadian Imperial Bank of Commerce,
as Documentation Agent) to which it is party. All capitalized terms used herein
and not otherwise defined herein have the meanings assigned to them in the
Credit Agreement or the Security Agreement, as referenced in the Credit
Agreement.
We have examined executed copies of such Credit Documents and originals
or copies, certified or otherwise identified to our satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments we have deemed necessary or advisable for purposes of this opinion.
We have also examined and relied upon representations and warranties as to
factual matters contained in or made pursuant to the Credit Agreement and the
other Credit Documents.
In such examinations, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to us
as certified, conformed or photostatic copies. We have also assumed that all
parties to the Credit Documents, other than the Grantors have properly executed
and delivered the Credit Documents and that such execution and delivery have
been properly authorized as to each of said parties and that such parties have
the power fully to perform their respective obligations under the Credit
Documents.
Based upon the foregoing, we are of the opinion that:
1. The execution and delivery by the Grantors of the Credit Documents
to which each is a party and the performance by the Grantors of their respective
obligations thereunder will not (a) violate any provision of law, statute, rule,
regulation or order of any Governmental Authority in the State of Utah or (b)
except for the Liens of the Collateral Documents, result in the creation or
imposition of any Liens upon or with respect to any property or assets now owned
or hereafter acquired by the Grantors located in Utah.
2. No consent or authorization of or filing with, notice to or other
similar act by or in respect of any Governmental Authority in the State of Utah
is required to be obtained or made in connection with (a) the execution,
delivery, performance, validity or enforceability of the Credit Document to
which any Grantor is a party by or on behalf of any such Grantor, or (b) the
exercise by the Administrative Agent of the rights and remedies under the
Security Agreement, including foreclosure by the Administrative Agent against
any of the Collateral, except (i) for the recording of the filing of financing
statements in the forms attached hereto as Exhibits A, B, C, D and E (the
"Financing Statements") in the appropriate state and county offices in the State
of Utah to perfect the liens created by the Collateral Documents and (ii) the
recording of any trust deed lien or mortgage in the appropriate county offices
in the State of Utah with respect to the portion of the Collateral constituting
real estate.
3. So long as the Secured Parties (a) file, in the appropriate
location, the Financing Statements, (b) retain possession of Pledged Securities,
(c) obtain, with respect to Deposit Accounts, the execution by the appropriate
parties of the Depository Bank Agreements and effect a blockage of such accounts
pursuant to the terms of such agreements, and (d) obtain, on the appropriate
Financing Statements, the signature, as debtor, of the particular Grantor having
rights in such Collateral as is described in the applicable Financing Statement,
the provisions of the Security Agreement are effective both with respect to
Collateral which is the subject of Financing Statements referenced below and
with respect to such financing statements as have been signed by certain
Grantors and previously filed in the State of Utah bearing filing numbers
98-598234, 99-630614, 00-673367, 00-673368 and 00-674445, to grant to the
Administrative Agent for the benefit of the Secured Parties, as security for the
payment and performance of the obligations, (i) a legal, valid, binding and
perfected security interest, enforceable in accordance with the terms of the
Security Agreement, in all Collateral (other than real estate) described in the
Financing Statements or described in clauses (b) and (c) above and handled as
provided therein, located in the State of Utah as of the date hereof and (ii)
when the Grantors shall have acquired rights therein, legal, valid, binding and
perfected security interests, enforceable in accordance with the terms of the
Security Agreement, in all such Collateral, hereafter acquired by the Grantors,
except as provided in Utah Code Xxx. 70A-9-108 with respect to after acquired
collateral and Utah Code Xxx. 70A-9-204 with respect to consumer goods.
4. The Financing Statements relating to the Collateral (as defined in
the Security Agreement) are in proper form for filing with the Division of
Corporations and Commercial Code of the Department of Commerce of the State of
Utah (the "Division") or the office of County Recorder of Salt Lake County,
Utah, as applicable, and assuming the debtors listed therein have rights in the
Collateral described therein, the filing of the Financing Statements with the
Division or the County Recorder, as applicable, will perfect the security
interests created under the Security Agreement in such Collateral owned on the
date hereof and hereafter acquired (except, in connection with Collateral
hereafter acquired, with respect to (a) any Collateral constituting consumer
goods and (b) as otherwise provided in Utah Code Xxx. 70A-9-108), and located in
the State of Utah to the extent that such security interests can be perfected by
the filing of financing statements; and no further filing or refiling or any
other action is necessary in the State of Utah in order to perfect or maintain
such security interests, except that continuation statements must be filed in
the period of six months prior to the expiration of five years from the date of
the original filings in order to maintain the effectiveness of the filings
referred to above.
5. Other than nominal recording or filing fees, no fees, taxes or other
charges are due or payable in the State of Utah in connection with the
execution, delivery, filing and recording of the Collateral Documents or the
Financing Statements.
6. The question of whether, in the Credit Documents (a) the New York
choice of law provision and (b) the choice of New York for jurisdiction and
venue purposes, is enforceable, is uncertain as a consequence of a decision
issued by the Utah Supreme Court in Xxxxx v. Pinpoint Retail Systems, Inc., 868
P.2d 809 (Utah 1993). The opinion appears to establish that a contract provision
which selects the law, jurisdiction and venue of a particular state will be
enforced only if that state has some interest in the determination of the case.
A reasonable explanation for the choice may be sufficient to justify selection
of a particular state even in the absence of the state having a substantial
relationship to the parties.
In Xxxxx, a Utah company filed a lawsuit in the State of Utah against a
Canadian company for breach of contract. The Utah plaintiff also named, as a
defendant, one of its Utah customers on tort theories that were founded on
substantially the same facts of the case, but not in the form of a breach of
contract with the plaintiff. The claims against the Utah customer were for
interference of contract and prospective economic advantage arising out of the
contract with the Canadian company. The contract at issue with the Canadian
company had a New York choice of law and choice of forum provision. The Canadian
company sought to dismiss the lawsuit for improper venue. The Canadian company
argued that New York law, as selected by the contract, would enforce the
accompanying choice of forum provision. The Utah Supreme Court relied heavily on
the Second Restatement of Conflict of Laws, which provides in material part as
follows:
... (2) The law of the state chosen by the parties to govern their
contractual rights and duties will be applied, even if the particular issue is
one which the parties could not have resolved by an explicit provision in their
agreement directed to that issue, unless...
(a) the chosen state has no substantial relationship to the
parties or the transaction and there is no other reasonable basis for the
parties [sic] choice.
Although not applicable to the facts before the court, the Utah Supreme
Court went on to state that the parties' agreement as to the place of the action
would be given effect unless it is unfair or unreasonable.
The Court then concluded that it was not bound by New York law because
New York had no interest in the determination of a case between a Utah company
and a Canadian company and because the plaintiff has established that New York
was so inconvenient a forum that it would be unjust to compel it to bring suit
there. With respect to the choice of law, jurisdiction and venue provisions in
the Credit Documents, if it can be shown that New York has an interest in the
outcome of the matter because of the location in New York of offices of one or
more of the Secured Parties or, even if the parties have no substantial
relationship to New York, if there is a reasonable basis for the parties
selection of New York, as provided in the Second Restatement, it is likely that
the referenced provisions would, under the guidelines of the Xxxxx case, be
enforceable, although this conclusion is not entirely free from doubt.
7. It is not necessary for the Agents, the Issuing Lender or any of the
Lenders to obtain any governmental certification of authority, license, permit,
consent or qualification in the State of Utah in order to carry out the
transactions contemplated in the Credit Documents, assuming that such
transactions are such parties' only transactions in Utah.
8. Payment by ISG Capital Corporation of the interest, fees and other
charges provided for in the Credit Documents will not violate any usury laws
currently in effect in the State of Utah.
9. Except with respect to (a) that portion of any Collateral
constituting consumer goods and (b) goods hereafter acquired, as provided in
Utah Code Xxx. 70A-9-108, the priority of the interests created by the Security
Agreement which have attached will not be affected by advances made under the
Credit Agreement after the dates on which the Financing Statements are filed
(each a "Filing Date") or by a series of repayments and reborrowings after the
respective Filing Dates and any such advances and reborrowings shall be secured
by the Security Agreement as of the respective Filing Dates and shall have the
same priority over any liens and encumbrances against the Collateral as
borrowings and advances made under the Credit Agreement, as of the respective
Filing Dates.
Our opinions set forth above are subject to the following exceptions,
qualifications and limitations:
A. We are only licensed to practice in Utah, and the opinions herein
given are based upon the assumption that Utah law does not materially differ
from New York law with respect to the matters as to which we are opining.
B. The effect of any bankruptcy, insolvency, reorganization,
moratorium, arrangement or similar laws affecting the enforcement of creditors'
rights generally, including without limitation the effect of statutory or other
laws regarding fraudulent or preferential transfers.
C. General principles of equity, regardless of whether enforceability
is considered, in proceedings at equity or at law including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, the
ability to obtain the remedy of specific performance of an obligation or
injunctive relief, to assert setoff rights and the doctrines of subrogation and
estoppel.
D. We express no opinion as to whether a court will enforce the rights
of Lender to exercise remedies upon the happening of a nonmaterial breach of the
Credit Documents.
E. We express no opinion as to the enforceability of any term of the
Credit Documents relating to the jurisdiction of or venue in any court, the
waivers of substantive rights under statute or applicable law, including but not
limited to the waiver of jury trials, defenses or other remedies or establishing
evidentiary standards.
F. We express no opinion as to the sufficiency of the description of
Collateral or as to the relative priority of liens on any of the Collateral.
G. We express no opinion as to whether or not Lender has a security
interest in money or instruments or in patents, patent applications, trademarks,
trademark applications, copyrights or copyright applications.
H. We express no opinion as to whether Lender has a security interest
in goods covered by a certificate of title or mobile goods of a type normally
used in more than one jurisdiction if the goods are equipment or inventory
leased or held for lease by the debtor and are not covered by a certificate of
title.
I. We express no opinion as to the rights of Lender as secured party,
vis-a-vis the rights of a buyer described in Utah Code Xxx. 70A-9-307,
pertaining to the protection of buyers of goods, a purchaser described in Utah
Code Xxx. 70A-9-308, pertaining to purchases of chattel paper and instruments,
the rights of the persons identified in Utah Code Xxx. 70A-9-309, pertaining to
purchases of instruments, documents and securities, or of a person who, in the
ordinary course of his business furnishes services or materials with respect to
goods subject to a security interest, as provided in Utah Code Xxx. 70A-9-310,
pertaining to priorities of liens arising by operation of law.
J. The opinions given above as to the perfection of a security interest
in personal property do not cover transactions excluded from the coverage of the
Utah Uniform Commercial Code pursuant to Section 9-102 and Section 9-104 except
as otherwise specifically indicated with respect to Deposit Accounts. We express
no opinion as to the perfection and effect of perfection or non-perfection of a
security interest in any Collateral governed by any laws other than the laws of
the State of Utah as set forth in the Uniform Commercial Codes of such states.
The opinions given above do not apply to personal property subject to perfection
procedures other than the filing of financing statements in Utah pursuant to the
Utah Uniform Commercial Code, except as specifically indicated with respect to
Deposit Accounts and Pledged Securities. Part 5 of Article 9 of the Utah Uniform
Commercial Code may limit or otherwise affect the exercise of remedies by a
Secured Party. Furthermore, perfection of a security interest in proceeds may be
limited or otherwise affected by provisions of Section 9-306 of Utah Uniform
Commercial Code. A security interest perfected by the filing of financing
statements may become unperfected if Collateral located in one state is removed
from that state, if a debtor's chief executive office is moved to another state
and appropriate steps are not taken in that other state to maintain the
perfected security interest, or if the financing statements become seriously
misleading.
K. Our opinion with respect to the perfection of a security interest in
Deposit Accounts assumes that in addition to the execution of appropriate
Depository Bank Agreements, a blockage of such accounts (e.g. the implementation
of a prohibition on the ability of the account holder to draw funds on the
account) will be effected. To our knowledge, after due inquiry, no Utah court
has opined as to whether a blockage must be effectuated in order to perfect a
security interest in such accounts, or whether even a blockage is sufficient to
perfect a security interest in such an account. The courts of other states are
split on the issue of how a secured party perfects a security interest in
Deposit Accounts. Accordingly, it may not be necessary under Utah law to effect
a blockage in order to perfect a security interest in Deposit Accounts. On the
other hand, the issuance of a blockage notice may not be sufficient under Utah
law to perfect a security interest in such an account. Nonetheless, we believe
it to be more probable than not that at least upon issuance of a blockage notice
by the Administrative Agent pursuant to the terms of the Depository Bank
Agreements and the implementation of the blockage by the Depository Bank, a Utah
court would rule that Lender would thereafter hold a perfected security interest
in such an account.
L. Our opinion is based only upon current Utah law and we disclaim any
obligation to advise you as to subsequent changes in the law.
We acknowledge that the Agents and the Lender as of the date hereof are
relying on the opinions expressed herein in extending credit under the terms of
the Credit Agreement and the other Loan Documents and hereby consent to such
reliance by the Agents and the Lenders now or hereafter parties to the Credit
Agreement on the opinions expressed herein. This opinion is solely for the
benefit of the Agents and Lenders listed on Schedule 1 and their successors and
assigns and may not be relied upon or used by, circulated, quoted or referred
to, or copies hereof delivered to, any other person without our prior written
approval. We understand that you and any lender will exclusively rely on this
opinion letter in connection with the due authorization, execution and delivery
of the documents referred to herein. The opinions expressed in this letter are
rendered as of the date hereof and we disclaim any obligation to update this
opinion letter for events occurring or coming to our attention after the date
hereof.
Very truly yours,
XXXXXXX XXXXX & XXXXXXX
SCHEDULE 1
LENDERS
Bank of America, N.A., as Tranche A Lender, Tranche B Lender,
Administrative Agent and Issuing Lender
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Canadian Imperial Bank of Commerce, as Tranche A Lender and Documentation Agent
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Zions First National Bank, as Tranche A Lender and Tranche B Lender
0 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
TELEPHONE (000) 000-0000
FAX (000) 000-0000
XXX.XXXXXXXX.XXX
FERRUZZO & XXXXXXXX
XXXXXX X. XXXXXXXX* ATTORNEYS AT LAW
XXXXX X. XXXXXXXX* A PARTNERSHIP, INCLUDING PROFESSIONAL CORPORATIONS
XXXXX X. XXXXX* 0000 XXXXX XXXXXXXX
XXXX X. XXXXX XXXXX XXX, XXXXXXXXXX 00000
XXXX X. XXXXXXX June 6, 2000
XXXXXXX X. XXXXXXXX
M. XXXXX WATSON1
XXXXXX X. GRAYBEHL2
XXXXX X. XXXXXXXXX
XXXXXX X. XXXXX
XXXXXXX X. XXXXXXX
XXXXX X. XXXX
-------------------------
*A PROFESSIONAL CORPORATION
1 CERTIFIED TAXATION LAW
SPECIALIST
2 CERTIFIED FAMILY LAW
SPECIALIST
I056-001\83784
To the Agents and Lenders
Listed on Schedule 1
Attached Hereto
Dear Sirs:
We have acted in the limited role as California counsel to XXXXX X. XXXXXXX,
INC., A CALIFORNIA CORPORATION and UNITED TERRAZZO SUPPLY CO., A CALIFORNIA
CORPORATION (collectively referred to as the "California Subsidiaries") in
connection with the execution and delivery of each of the Credit Documents (as
defined in the Amended and Restated Credit Agreement dated as of May ___, 2000
(the "Credit Agreement") among ISG Resources, Inc., (successor in interest to
JTM Industries, Inc.), Industrial Services Group, Inc., the several lenders from
time to time party thereto, Bank of America, N.A. (formerly known as
NationsBank, N.A.), as Administrative Agent and Issuing Lender and Canadian
Imperial Bank of Commerce, as Documentation Agent) to which the California
Subsidiaries have executed as parties. All capitalized terms used herein and not
otherwise defined herein have the meanings assigned to them in the Credit
Agreement or the Security Agreement as referenced in the Credit Agreement.
We have examined executed copies of such Credit Documents (executed by the
California Subsidiaries) and originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, corporate records,
certificates of public officials and other instruments we have deemed necessary
or advisable for purposes of this opinion. We have also examined and relied upon
representations and warranties as to factual matters contained in or made
pursuant to the Credit Agreement and the other Credit Documents.
In such examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
authentic original documents of all documents submitted to us as certified,
conformed or photostatic copies. We have also assumed that all parties to the
Credit Documents, other than the California Subsidiaries, have properly executed
and delivered the Credit Documents and that such execution and delivery have
been properly authorized as to each of said parties and that such parties have
the power to fully perform their respective obligations under the Credit
Documents.
Based upon the foregoing and subject to such other qualifications, assumptions,
and limitations as might be set forth herein, we are of the opinion that:
1. The execution and delivery by the California Subsidiaries of the
Credit Documents to which each is a party and the performance by the
California Subsidiaries of their respective obligations thereunder
will not constitute a material violation by the California
Subsidiaries of any applicable provision of statutory law or
governmental regulation covered by this letter.
2. No consent or authorization of a filing with, notice to or other
similar act by or in respect of any governmental authority in the
State of California was required to be obtained or made in connection
with (a) the execution, delivery, performance, validity or
enforceability of the Credit Documents to which the California
Subsidiaries are a party by or on behalf of the California
Subsidiaries, except consents, authorizations, notices and filings
disclosed in Schedule 5.4 to the Credit Agreement or (b) the exercise
by the Administrative Agent of the rights and remedies under the
Security Agreement, including foreclosure by the Administrative Agent
against any of the Collateral, except (i) for the recording and the
filing of financing statements in the proper forms in the appropriate
state and county offices in the State of California to reflect the
liens created by the Collateral Documents and (ii) the recording of
any trust deed lien or mortgage in the appropriate county offices of
the State of California with respect to the portion of the Collateral
constituting real property.
3. The provisions of the Security Agreement are effective to grant to the
Administrative Agent for the benefit of the Secured Parties, as
security for the payment and performance of the obligations, except
for Cash Collateral, proceeds from the sale of the Collateral, real
property, property requiring control or possession to perfect a
security interest except those items of Collateral excluded by the
California Commercial Code, and after acquired property (a) a legal,
valid, binding and perfected security interest, enforceable in
accordance with the terms of the Security Agreement, in all Collateral
described therein located in the State of California as of the date
hereof except those items of Collateral excluded by the California
Commercial Code, and (b) when the California Subsidiaries shall have
acquired rights therein, legal, valid, binding and perfected security
interests, enforceable in accordance with the terms of the Security
Agreement, in all such Collateral hereafter acquired by the Grantors
except for after acquired Collateral excluded by the California
Commercial Code and real property; provided, however, the priority of
any security interests has not been considered.
4. The Financing Statements attached hereto as Exhibits "A" through "D"
relating to the Collateral (as defined in the Security Agreement) are
in proper form for filing with the Secretary of the State of
California and the filing thereof in the offices of the Secretary of
the State of California and the County Clerk of the County wherein the
Collateral exists, respectively, will perfect the security interests
created under the Security Agreement in such Collateral owned on the
date hereof and hereafter acquired and located in the State of
California to the extent that such security interests can be perfected
by the filing of financing statements; and no further filing or
refiling or any other action is necessary in the State of California
in order to perfect or maintain such security interests, except that
continuation statements must be filed prior to the expiration of five
(5) years from the date of the original filings in order to maintain
the effectiveness of the filings referred to above.
5. Other than nominal recording or filing fees, no fees, taxes, or other
charges are due or payable in the State of California in connection
with the execution, delivery, filing and recording of the Collateral
Documents or the Financing Statements.
6. A California court will apply New York law to govern the parties'
contractual rights and duties in the Credit Documents unless either
(a) the State of New York has no substantial relationship to the
parties or to the transaction, and there is no other reasonable basis
for the parties choice of New York law, or (b) California or (some
other state) has a materially greater interest in the determination of
the particular issue before the court, and application of New York law
would be contrary to a fundamental policy of California (or some other
state).
7. Assuming the Agents and Lenders are exempt financial institutions
under California law, the payment by the California Subsidiaries of
the interest, fees, and other charges provided for in the Credit
Documents will not violate any usury laws currently in effect in the
State of California.
8. Except with respect to (a) that portion of the Collateral constituting
consumer goods and (b) goods hereafter acquired as provided under
California Commercial Code Section 9108, the priority of the interests
created by the Security Agreement which have attached, will not be
affected by advances made under the Credit Agreement after the dates
on which the Financing Statements are filed (each a "Filing Date") or
by a series of repayments and reborrowings after the respective Filing
Dates and any such advances and reborrowings shall be secured by the
Security Agreement as of the respective Filing Dates and shall have
the same priority over any liens and encumbrances against the
Collateral as borrowings and advances made under the Credit Agreement,
as of the respective Filing Dates.
Our opinions set forth above are subject to the following exceptions,
qualifications and limitations:
A. We are only licensed to practice in California and the opinions herein
given are based upon the assumption that California law does not
materially differ from New York law with respect to the matters as to
which we are opining.
B., The effect of any bankruptcy, insolvency, representation, moratorium
arrangement or similar laws affecting the enforcement of creditors'
rights generally, including without limitation the effect of statutory
or other laws regarding fraudulent or preferential transfers.
C. General principals of equity, regardless of whether enforceability is
considered in proceedings at equity or at law including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, the ability to obtain the remedy of specific performance
of an obligation or injunctive relief, to assert setoff rights and the
doctrines of subrogation and estoppel.
D. We express no opinion as to whether a court will enforce the rights of
a Lender to exercise remedies upon the happening of a nonmaterial
breach of the Credit Documents.
E. We express no opinion as to the enforceability of any term of the
Credit Documents relating to the jurisdiction of or venue in any
court, the waivers of substantive rights under statute or applicable
law, including but not limited to the waiver of jury trials, defenses
or other remedies or establishing evidentiary standards.
F. We express no opinion as to the sufficiency of the description of
Collateral or as to the relative priority of liens on any of the
Collateral.
G. We express no opinion as to whether or not Lender has a security
interest in money or instruments or in patents, patent applications,
trademarks, trademark applications, copyrights or copyright
applications.
H. We express no opinions as to whether Lender has a security interest in
goods covered by a certificate of title or mobile goods of a type
normally used in more than one jurisdiction if the goods are equipment
or inventory leased or held for lease by the debtor and are not
covered by a certificate of title.
I. The opinions given above as to the perfection of a security interest
in personal property do not cover transactions excluded from the
coverage of the California Commercial Code. We express no opinion as
to the perfection and effect of perfection or non-perfection of a
security interest in any Collateral governed by any laws other than
the laws of the State of California as set forth in the Uniform
Commercial Codes of such states. The opinions given above do not apply
to personal property subject to perfection procedures other than the
filing of financing statements in California pursuant to the
California Commercial Code, Deposit, Part 5 or Article 9 of the
California Commercial Code may limit or otherwise affect the exercise
of remedies by a Secured Party. Furthermore, perfection of a security
interest in proceeds may be limited or otherwise affected by
provisions of Section 9306 of the California Commercial Code. A
security interest perfected by the filing of financing statements may
become unperfected if Collateral located in one state is removed from
that state, if a debtor's chief executive office is moved to another
state and appropriate steps are not taken in that other state to
maintain the perfected security interest, or if the financing
statements become seriously misleading.
J. Our opinion is based only upon current California law and we disclaim
any obligation to advise you as to subsequent changes in the law.
We acknowledge that the Agents and the Lenders as of the date hereof are relying
on the opinions expressed herein in extending credit under the terms of the
Credit Agreement and the other Loan Documents and hereby consent to such
reliance by the Agents and the Lenders now or hereafter parties to the Credit
Agreement on the opinions expressed herein. This opinion is solely for the
benefit of the Agents and Lenders listed on Schedule 1 and their successors and
assigns and may not be relied upon or used by, circulated, quoted or referred
to, or copies hereof delivered to any other persons without our prior written
approval. We understand that you and any lender will exclusively rely on this
opinion letter in connection with the due authorization, execution and delivery
of the documents referred to herein. The opinions expressed in this letter are
rendered as of the date hereof and we disclaim any obligation to update this
opinion letter for events occurring or coming to our attention after the date
hereof.
Very truly yours,
By:_________________________________
THOMAS G. FERRUZZO, on behalf of
FERRUZZO & FERRUZZO
TFG:dla
DONALD L. CUBA
ATTORNEYS AND COUNSELORS AT LAW
Wells Fargo Bank Building, Suite 105
8700 Crownhill Boulevard
San Antonio, Texas 78209
Voice (210) 828-5888
Fax (210) 828-9557
May 26, 2000
To the Administrative Agent
and each of the Lenders party
to the Credit Agreement,
from time to time, referred to below:
Dear Sirs:
I have acted as Texas counsel to MAGNA WALL, INC., DON'S BUILDING
SUPPLY, L.L.P., and BEST MASONRY & TOOL SUPPY, INC. (collectively, the
"Grantors") in connection with the negotiation, preparation, execution and
delivery of the Credit Documents (as defined in the Amended and Restated Credit
Agreement dated as of May 26, 2000 (the "Credit Agreement") among ISG Resources,
Inc. (successor in interest to JTM Industries, Inc.), Industrial Services Group,
Inc., the several lenders from time to time party thereto, Bank of America, N.A.
(formerly known as NationsBank, N.A.), as Administrative Agent and Issuing
Lender, and Canadian Imperial Bank of Commerce, as Documentation Agent) to which
it is party. All capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Credit Agreement. All opinions
rendered hereunder are made only insofar as the laws of the State of Texas would
apply.
I have examined executed copies of such Credit Documents and originals
or copies, certified or otherwise identified to my satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments I have deemed necessary or advisable for purposes of this opinion. I
have also examined and relied upon representations and warranties as to factual
matters contained in or made pursuant to the Credit Agreement and the other
Credit Documents.
In such examinations, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me as
certified, conformed or photostatic copies. I have also assumed that all parties
to the Credit Documents, other than the Grantors have properly executed and
delivered the Credit Documents and that such execution and delivery have been
properly authorized as to each of said parties and that such parties have the
power fully to perform their respective obligations under the Credit Documents.
Based upon the foregoing, I am of the opinion that:
1. The execution and delivery by each of the Grantors of the Credit
Documents to which it is a party and the performance by each of the Grantors of
its obligations thereunder will not (a) violate any provision of law, statute,
rule, regulation or order of any Governmental Authority in the State of Texas or
(b) except for the Liens of the Collateral Documents, result in the creation or
imposition of any Liens upon or with respect to any property or assets now owned
or hereafter acquired by the Grantors or any of them located in Texas.
2. No consent or authorization of or filing with, notice to or other
similar act by or in respect of any Governmental Authority in the State of Texas
is required to be obtained or made in connection with (a) the execution,
delivery, performance, validity or enforceability of the Credit Document to
which any Grantor is a party by or on behalf of any Grantor, except consents,
authorization notices and filings disclosed in Schedule 5.4 to the Credit
Agreement, all of which have been obtained or made or (b) the exercise by the
Administrative Agent of the rights and remedies under the Security Agreement,
including foreclosure by the Administrative Agent against any of the Collateral,
except for the recording or the filing of financing statements in the forms
attached hereto as Exhibits "A" through "C" (the "Financing Statements") in the
appropriate state and county offices in the State of Texas to perfect the liens
created by the Collateral Documents.
3. The provisions of the Security Agreement are effective to grant to
the Administrative Agent for the benefit of the Secured Parties, as security for
the payment and performance of the obligations, except for Cash Collateral,
proceeds from the sale of the Collateral, property requiring control or
possession to perfect a security interest, and after acquired property (a) a
legal, valid, binding and perfected security interest, enforceable in accordance
with the terms of the Security Agreement, in all Collateral described therein
located in the State of Texas as of the date hereof and (b) when the Grantors
shall have acquired rights therein, legal, valid, binding and perfected security
interests, enforceable in accordance with the terms of the Security Agreement,
in all such Collateral hereafter acquired by the Grantors; provided, however,
the priority of any security interest has not been considered.
4. The Financing Statements relating to the Collateral (as defined in
the Security Agreement) are in proper form for filing with the Secretary of
State of the State of Texas and the filing thereof in the offices of the
Secretary of the State of Texas and the County Clerk of Bexar County, Texas,
respectively, will perfect the security interests created under the Security
Agreement in such Collateral owned on the date hereof and hereafter acquired and
located in the State of Texas to the extent that such security interests can be
perfected by the filing of financing statements; and no further filing or
refiling or any other action is necessary in the State of Texas in order to
perfect or maintain such security interests, except that continuation statements
must be filed in the period of six months prior to the expiration of five years
from the date of the original filings in order to maintain the effectiveness of
the filings referred to above.
5. Other than nominal recording or filing fees, no fees, taxes or other
charges are due or payable in the State of Texas in connection with the
execution, delivery, filing and recording of the Collateral Documents or the
Financing Statements.
6. The choice of New York law included in the Credit Documents is valid
and binding under the laws of the State of Texas and any political subdivision
thereof.
7. Payment by the Grantors of the interest, fees and other charges
provided for in the Credit Documents will not violate any usury laws currently
in effect in the State of Texas.
8. The priority of the liens and security interests created by the
Security Agreement will not be affected by advances made under the Credit
Agreement after the dates on which the Financing Statements are filed (each a
"Filing Date") or by a series of repayments and reborrowings after the
respective Filing Dates and any such advances and reborrowings shall be secured
by the Security Agreement as of the respective Filing Dates and shall have the
same priority over any liens and encumbrances against the Collateral as
borrowings and advances made under the Credit Agreement, as of the respective
Filing Dates.
I acknowledge that the Agents and the Lenders as of the date hereof are
relying on the opinions expressed herein in extending credit under the terms of
the Credit Agreement and the other Loan Documents and hereby consent to such
reliance by the Agents and the Lenders now or hereafter parties to the Credit
Agreement on the opinions expressed herein.
Very truly yours,
Xxxxxx X. Cuba
EXHIBIT L-4
To Call Writer Direct:
000 000-0000
May 26, 2000
To the Administrative Agent and each of the Tranche B Lenders
party to the Credit Agreement from time to time referred to below
c/o Bank of America, N.A.
Independence Center, 15th Floor
NCI-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Re: Citicorp Venture Capital, Ltd.
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as special legal
counsel to Citicorp Venture Capital, Ltd., a New York corporation ("CVC"), in
response to the requirement in Section 4.1(c)(iv) of the Amended and Credit
Agreement (the "Credit Agreement"), dated as of May 26, 2000, by and among ISG
Resources, Inc., Industrial Services Group, Inc., the several Lenders from time
to time party thereto, Bank of America, N.A., as Administrative Agent and
Issuing Lender, and Canadian Imperial Bank of Commerce, as Documentation Agent
(the Tranche B Lenders are herein collectively referred to as "you"). Terms used
and not defined herein shall have the meanings assigned to such terms in the
Tranche B Put Agreement (the "Put Agreement").
Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this letter and in the schedules attached to
this letter, we advise you that:
1. CVC is a corporation existing and in good standing under the Business
Corporation Law of the State of New York.
2. CVC has the corporate power to enter into and perform its obligations under
the Put Agreement.
3. The Board of Directors of CVC has adopted by requisite vote the resolutions
necessary to authorize execution, delivery and performance by CVC of the
Put Agreement.
4. CVC has duly executed and delivered the Put Agreement.
5. The Put Agreement is a valid and binding obligation of CVC and is
enforceable against CVC in accordance with its terms.
6. The execution and delivery by CVC of the Put Agreement to which it is a
party and performance of its obligations thereunder will not (a) violate
any provisions of the Certificate of Incorporation or by-laws of such
Person, or (b) constitute a material violation by such Person of any
applicable provision of statutory law or governmental regulation covered by
this letter, or (c) breach, or result in a default under, any Material
Contract, except such breach or default that could not reasonably be
expected to have a Material Adverse Effect, provided that we express no
opinion with respect to violations under cross-default provisions referring
to or based upon agreements that are not included in such contracts or with
respect to compliance with financial covenants or tests.
In preparing this letter, we have relied without any independent
verification upon the assumptions recited in Schedule B to this letter and upon:
(i) information contained in certificates obtained from governmental
authorities; (ii) factual information represented to be true in the Put
Agreement; (iii) factual information provided to us in a support certificate
signed by CVC; and (iv) factual information we have obtained from such other
sources as we have deemed reasonable. We have assumed without investigation that
there has been no relevant change or development between the dates as of which
the information cited in the preceding sentence was given and the date of this
letter and that the information upon which we have relied is accurate and does
not omit disclosures necessary to prevent such information from being
misleading. For purposes of each opinion in paragraph 1, we have relied
exclusively upon a certificate issued by a governmental authority in each
relevant jurisdiction, and such opinion is not intended to provide any
conclusion or assurance beyond that conveyed by that certificate.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this letter advises you, we confirm that we do not have any actual knowledge
which has caused us to conclude that our reliance and assumptions cited in the
preceding paragraph are unwarranted or that any information supplied in this
letter is wrong. The term "actual knowledge" whenever it is used in this letter
with respect to our firm means conscious awareness at the time this letter is
delivered on the date it bears by the following Xxxxxxxx & Xxxxx lawyers who
have had significant involvement with negotiation or preparation of the Put
Agreement (herein called "our Designated Transaction Lawyers"): J. Xxxxxx
Xxxxxxxx.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of New York or the federal law of the United
States. Issues addressed by this letter may be governed in whole or in part by
other laws, but we express no opinion as to whether any relevant difference
exists between the laws upon which our opinions are based and the laws of New
York or any other laws which may actually govern. Our opinions are subject to
all qualifications in Schedule A attached hereto and do not cover or otherwise
address any law or legal issue which is identified in the attached Schedule C or
any provision in the Put Agreement of any type identified in Schedule D.
Provisions in the Put Agreement which are not excluded by Schedule D or any
other part of this letter or its attachments are called the "Relevant Agreement
Terms."
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law our opinion on that issue is
based. The manner in which any particular issue would be treated in any actual
court case would depend in part on facts and circumstances particular to the
case, and this letter is not intended to guarantee the outcome of any legal
dispute which may arise in the future. It is possible that some Relevant
Agreement Terms may not prove enforceable for reasons other than those cited in
this letter should an actual enforcement action be brought, but (subject to all
the exceptions, qualifications, exclusions and other limitations contained in
this letter) such unenforceability would not in our opinion prevent you from
realizing the principal benefits purported to be provided by the Relevant
Agreement Terms.
This letter speaks as of the time of its delivery on the date it bears.
We do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which our Designated Transaction Lawyers did
not have actual knowledge at that time, by reason of any change subsequent to
that time in any law covered by any of our opinions, or for any other reason.
The attached schedules are an integral part of this letter, and any term defined
in this letter or any schedule has that defined meaning wherever it is used in
this letter or in any schedule to this letter.
You may rely upon this letter only for the purpose served by the
provision in the Merger Agreement cited in the initial paragraph of this letter
in response to which it has been delivered. Without our written consent: (i) no
person other than you may rely on this letter for any purpose; (ii) this letter
may not be cited or quoted in any financial statement, prospectus, private
placement memorandum or other similar document; (iii) this letter may not be
cited or quoted in any other document or communication which might encourage
reliance upon this letter by any person or for any purpose excluded by the
restrictions in this paragraph; and (iv) copies of this letter may not be
furnished to anyone for purposes of encouraging such reliance, provided that
copies of this letter may be furnished to prospective Eligible Assignees
pursuant to Section 10.3(b) of the Credit Agreement for purposes of disclosure
only and may be relied upon by such Person upon such Person becoming a Lender
pursuant to the terms and conditions of the Credit Agreement.
Sincerely,
Xxxxxxxx & Xxxxx
Schedule A
General Qualifications
All of our opinions ("our opinions") in the letter to which this
Schedule is attached ("our letter") are subject to each of the qualifications
set forth in this Schedule.
1. Bankruptcy and Insolvency Exception. Each of our opinions is subject to the
effect of bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar laws. This exception includes:
a. the Federal Bankruptcy Code and thus comprehends, among others,
matters of turn-over, automatic stay, avoiding powers, fraudulent
transfer, preference, discharge, conversion of a non-recourse
obligation into a recourse claim, limitations on ipso facto and
anti-assignment clauses and the coverage of pre-petition security
agreements applicable to property acquired after a petition is
filed;
b. all other Federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and
assignment for the benefit of creditors laws that affect the
rights of creditors generally or that have reference to or affect
only creditors of specific types of debtors;
c. state fraudulent transfer and conveyance laws; and
d. judicially developed doctrines in this area, such as substantive
consolidation of entities and equitable subordination.
2. Equitable Principles Limitation. Each of our opinions is subject to the
effect of general principles of equity, whether applied by a court of law
or equity. This limitation includes principles:
a. governing the availability of specific performance, injunctive
relief or other equitable remedies, which generally place the
award of such remedies, subject to certain guidelines, in the
discretion of the court to which application for such relief is
made;
b. affording equitable defenses (e.g., waiver, laches and estoppel)
against a party seeking enforcement;
c. requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its enforcement;
d. requiring reasonableness in the performance and enforcement of an
agreement by the party seeking enforcement of the contract;
e. requiring consideration of the materiality of (i) a breach and
(ii) the consequences of the breach to the party seeking
enforcement;
f. requiring consideration of the impracticability or impossibility
of performance at the time of attempted enforcement; and
g. affording defenses based upon the unconscionability of the
enforcing party's conduct after the
parties have entered into the contract.
3. Other Common Qualifications. Each of our opinions is subject to the effect
of rules of law that:
a. limit or affect the enforcement of provisions of a contract that
purport to waive, or to require waiver of, the obligations of
good faith, fair dealing, diligence and reasonableness;
b. provide that forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum selected;
c. limit the availability of a remedy under certain circumstances
where another remedy has been elected;
d. provide a time limitation after which a remedy may not be
enforced;
e. limit the enforceability of provisions releasing, exculpating or
exempting a party from, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent the
action or inaction involves negligence, recklessness, willful
misconduct, unlawful conduct, violation of public policy or
litigation against another party determined adversely to such
party;
f. may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an
essential part of the agreed exchange;
g. govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys' fees and other costs;
and
h. may permit a party that has materially failed to render or offer
performance required by the contract to cure that failure unless
(i) permitting a cure would unreasonably hinder the aggrieved
party from making substitute arrangements for performance, or
(ii) it was important in the circumstances to the aggrieved party
that performance occur by the date stated in the contract.
4. Referenced Provision Qualification. In addition, our opinions, insofar as
they relate to the validity, binding effect or enforceability of a
provision in the Put Agreement requiring CVC to perform its obligations
under, or to cause any other person to perform its obligations under, any
provision (a "Referenced Provision") of such Put Agreement are subject to
the same qualifications as the corresponding opinion in this letter
relating to the validity, binding effect and enforceability of such
Referenced Provision. Requirements in the Put Agreement that provisions
therein may only be waived or amended in writing may not be enforceable to
the extent that an oral agreement or an implied agreement by trade practice
or course of conduct has been created modifying any such provision.
Schedule B
Assumptions
For purposes of our letter, we have relied, without investigation, upon
each of the following assumptions:
1. You are existing and in good standing in your jurisdiction of organization.
2. The Put Agreement constitutes valid and binding obligation of yours and are
enforceable against you in accordance with its terms (subject to
qualifications, exclusions and other limitations similar to those
applicable to our letter).
3. You have satisfied those legal requirements that are applicable to you to
the extent necessary to entitle you to enforce the Put Agreement against
CVC.
4. Each document submitted to us for review is accurate and complete, each
such document that is an original is authentic, each such document that is
a copy conforms to an authentic original, and all signatures (other than
those of or on behalf of CVC) on each such document are genuine.
5. There has not been any mutual mistake of fact or misunderstanding, fraud,
duress or undue influence.
6. The conduct of the parties to the Put Agreement has complied with any
requirement of good faith, fair
dealing and conscionability.
7. You have acted in good faith and without notice of any defense against the
enforcement of any rights created by, or adverse claim to any property or
security interest transferred or created as part of, the Transactions.
8. There are no agreements or understandings among the parties, written or
oral, and there is no usage of trade or course or prior dealing among the
parties that would, in either case, define, supplement or qualify the terms
of the Put Agreement.
9. The constitutionality or validity of a relevant statute, rule, regulation
or agency action is not in issue.
10. All parties to the Transactions will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and
conditions of the Put Agreement.
11. CVC will not in the future take any discretionary action (including a
decision not to act) permitted under the Put Agreement that would result in
a violation of law or constitute a breach or default under any other
agreements or court orders to which CVC may be subject.
12. CVC has obtained (and will in the future obtain) all permits and
governmental approvals required, and has taken (and will in the future
take) all actions required, relevant to the consummation of the
Transactions or performance of the Put Agreement.
13. All information required to be disclosed in connection with any consent or
approval by CVC's Board of Directors or stockholders (or equivalent
governing group) and all other information required to be disclosed in
connection with any issue relevant to our opinions has in fact been fully
and fairly disclosed to all persons to whom it is required to be disclosed.
14. CVC's certificate of incorporation (or equivalent governing instrument),
all amendments to that certificate, all resolutions adopted establishing
classes or series of stock under that certificate, CVC's bylaws and all
amendments to its bylaws have been adopted in accordance with all
applicable legal requirements.
15. Each person who has taken any action relevant to any of our opinions in the
capacity of director or officer was duly elected to that director or
officer position and held that position when such action was taken.
Schedule C
Excluded Law and Legal Issues
None of the opinions or advice contained in our letter covers or
otherwise addresses any of the following laws, regulations or other governmental
requirements or legal issues:
1. Federal securities laws and regulations (including the Investment Company
Act of 1940 and all other laws and regulations administered by the United
States Securities and Exchange Commission), state "Blue Sky" laws and
regulations, and laws and regulations relating to commodity (and other)
futures and indices and other similar instruments;
2. Federal Reserve Board margin regulations;
3. pension and employee benefit laws and regulations (e.g., ERISA);
4. Federal and state antitrust and unfair competition laws and regulations;
5. Federal and state laws and regulations concerning filing and notice
requirements other than requirements applicable to charter-related
documents such as a certificate of merger;
6. compliance with fiduciary duty requirements;
7. the statues and ordinances, the administrative decisions and the rules and
regulations of counties, towns, municipalities and special political
subdivisions (whether created or enabled through legislative action at the
Federal, state or regional level -- e.g., water agencies, joint power
districts, turnpike and tollroad authorities, rapid transit districts or
authorities, and port authorities) and judicial decisions to the extent
that they deal with any of the foregoing;
8. the characterization of a transaction as one involving the creation of a
lien on real property or a security interest in personal property, the
characterization of a contract as one in a form sufficient to create a lien
or a security interest, the creation, attachment, perfection, priority or
enforcement of a lien on real property or a security interest in personal
property or matters involving ownership or title to any real or personal
property;
9. fraudulent transfer and fraudulent conveyance laws;
10. Federal and state environmental laws and regulations;
11. Federal and state land use and subdivision laws and regulations;
12. Federal and state tax laws and regulations;
13. Federal patent, trademark and copyright, state trademark, and other Federal
and state intellectual property laws and regulations;
14. Federal and state racketeering laws and regulations (e.g., RICO);
15. Federal and state health and safety laws and regulations (e.g., OSHA);
16. Federal and state labor laws and regulations;
17. Federal and state laws, regulations and policies concerning (i) national
and local emergency, (ii) possible judicial deference to acts of sovereign
states, and (iii) criminal and civil forfeiture laws;
18. other Federal and state statutes of general application to the extent they
provide for criminal prosecution (e.g., mail fraud and wire fraud
statutes);
19. any laws, regulations, directives and executive orders that prohibit or
limit the enforceability of obligations based on attributes of the party
seeking enforcement (e.g., the Trading with the Enemy Act and the
International Emergency Economic Powers Act); and
20. the effect of any law, regulation or order which hereafter becomes
effective.
We have not undertaken any research for purposes of determining whether
CVC or any of the Transactions which may occur in connection with the Put
Agreement is subject to any law or other governmental requirement other than to
those laws and requirements which in our experience would generally be
recognized as applicable in the absence of research by lawyers in New York, and
none of our opinions covers any such law or other requirement unless (i) one of
our Designated Transaction Lawyers had actual knowledge of its applicability at
the time our letter was delivered on the date it bears and (ii) it is not
excluded from coverage by other provisions in our letter or in any Schedule to
our letter.
Schedule D
Excluded Provisions
None of the opinions in the letter to which this Schedule D is attached
covers or otherwise addresses any of the following types of provisions which may
be contained in the Put Agreement:
1. Choice-of-law provisions.
2. Indemnification for negligence, willful misconduct or other wrongdoing or
strict product liability or any indemnification for liabilities arising
under securities laws.
3. Waivers of (i) legal or equitable defenses, (ii) the benefits of statutory,
regulatory, or constitutional rights, unless and to the extent the statute,
regulation, or constitution explicitly allows waiver, (iii) other benefits
to the extent they cannot be waived under applicable law.
4. Time-is-of-the-essence clauses.
5. Provisions which provide a time limitation after which a remedy may not be
enforced.
6. Agreements to submit to the jurisdiction of any particular court or other
governmental authority (either as to personal jurisdiction and subject
matter jurisdiction); provisions restricting access to courts; waiver of
the right to jury trial; waiver of service of process requirements which
would otherwise be applicable; and provisions otherwise purporting to
affect the jurisdiction and venue of courts.
7. Provisions appointing one party as an attorney-in-fact for an adverse party
or providing that the decision of any particular person will be conclusive
or binding on others.
8. Provisions purporting to limit rights of third parties who have not
consented thereto or purporting to grant rights to third parties.
9. Provisions which purport to award attorneys' fees solely to one party.
10. Provisions in the Put Agreement requiring CVC to perform its obligations
under, or to cause any other person to perform its obligations under, or
stating that any action will be taken as provided in or in accordance with,
any agreement or other document that is not the Put Agreement.
11. Provisions, if any, which are contrary to the public policy of any
jurisdiction.
EXHIBIT M
[FORM OF]
OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended (the "Financial Statement Date").
I,___________, _____________________ of ISG Resources, Inc., a Utah
corporation (successor to JTM Industries, Inc., a Texas corporation) (the
"Borrower"), hereby certify on behalf of the Borrower, in connection with the
Amended and Restated Credit Agreement dated as of May [___], 2000 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement";
all of the defined terms in the Credit Agreement are incorporated herein by
reference) among the Borrower, Industrial Services Group, Inc., a Delaware
corporation, the financial institutions party thereto as lenders (the
"Lenders"), Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent and Issuing Lender, and Canadian Imperial Bank of Commerce,
as Documentation Agent, that:
a. No Default or Event of Default has occurred and is continuing
[or, if any Event of Default does exist, specify the nature
and extent thereof and what action Borrower proposes to take
with respect thereto];
b. Since [insert date of the most recent financial statements
delivered under the Credit Agreement], there has been no
material change in the generally accepted accounting
principles applied in the preparation of the financial
statements of the Borrower and its Consolidated Subsidiaries
[or, if any such change, a description of such change];
c. Delivered herewith are detailed calculations demonstrating
compliance with the financial covenants contained in Section
7.19 of the Credit Agreement as of the Financial Statement
Date.
This day of , .
----- ---------- ------
ISG RESOURCES, INC.,
a Utah corporation
By:_________________________________
Name:
Title:
Attachment of Officer's Certificate
Computation of Financial Covenants
TRANCHE B PUT AGREEMENT
Dated as of May 26, 2000
among
CITICORP VENTURE CAPITAL, LTD.,
THE SEVERAL TRANCHE B LENDERS
FROM TIME TO TIME PARTY HERETO,
ISG RESOURCES, INC.,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
TABLE OF CONTENTS
Section Page
Section 1. Put Option...................................................1
Section 2. Waivers......................................................2
Section 3. Representations, Warranties and Covenants....................4
Section 4. Amendments, Etc..............................................7
Section 5. Notices, Etc.................................................7
Section 6. No Waiver; Remedies..........................................7
Section 7. Continuing Obligation........................................7
Section 8. Assignments..................................................8
Section 9. Counterparts.................................................8
Section 10. Savings Clause...............................................8
Section 11. Survival of Agreement........................................8
Section 12. Entire Agreement.............................................9
Section 13. Headings.....................................................9
Section 14. Governing Law................................................9
Section 15. Jurisdiction; Consent to Service of Process..................9
TRANCHE B PUT AGREEMENT (this "Put Agreement") dated as of May 26, 2000
among CITCORP VENTURE CAPITAL, LTD., a New York Corporation (the "Sponsor"), the
Lenders with respect to Tranche B Revolving Loans from time to time party to the
Credit Agreement referred to below (the "Tranche B Lenders"), ISG RESOURCES,
INC. (successor to JTM Industries, Inc.), a Utah corporation (the "Borrower"),
and BANK OF AMERICA, N.A. (formerly known as NationsBank, N.A.), as
Administrative Agent under the Credit Agreement.
WHEREAS, the Sponsor is the direct owner of 100% of the Capital Stock
of Industrial Services Group, Inc. (the "Parent") and the Parent is the direct
owner of 100% of the Capital Stock of the Borrower.
WHEREAS, the Borrower is party to that certain Amended and Restated
Credit Agreement dated as of May 26, 2000 (as amended, restated, supplemented or
modified from time to time, the "Credit Agreement") among the Parent, the
Borrower, the Lenders, Bank of America, N.A. (formerly known as NationsBank,
N.A.), as Issuing Lender and Administrative Agent, and Canadian Imperial Bank of
Commerce, as Documentation Agent. Capitalized terms used but not defined herein
have the meanings assigned thereto in the Credit Agreement.
WHEREAS, the Tranche B Lenders have respectively agreed to extend
credit to the Borrower, evidenced by the Tranche B Revolving Loans and pursuant
to and upon the terms and subject to the conditions precedent set forth in the
Credit Agreement.
WHEREAS, the obligations of the Tranche B Lenders to extend credit to
the Borrower evidenced by the Tranche B Revolving Loans and pursuant to the
Credit Agreement are conditioned on, among other things, the execution and
delivery by the Sponsor of an agreement in the form hereof, pursuant to which
the parties hereto wish to provide for a put option whereby any Tranche B Lender
may require the Sponsor to purchase all or a portion of such Tranche B Lender's
Tranche B Revolving Loans upon the occurrence and continuance of an Event of
Default.
NOW, THEREFORE, in consideration of the foregoing and the
representations, covenants and agreements contained herein, and certain other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Put Option. (a) At any time upon the occurrence and continuance of an
Event of Default, on at least fourteen Business Days written notice in
substantially the form of Exhibit A attached hereto to the Sponsor (the "Put
Notice"), each Tranche B Lender shall have the option and right to sell to the
Sponsor, without recourse to any such Tranche B Lender after any such
assignment, and the Sponsor hereby agrees to purchase, at par, all or any
portion of the Tranche B Revolving Loans of any such Tranche B Lender
outstanding on the date (the "Effective Date") of the effectiveness of a related
Assignment and Acceptance (pursuant to which Assignment and Acceptance, the
Sponsor shall be assigned, any such Tranche B Lender's rights and obligations
under the Credit Agreement, including, without limitation, the interests in the
Commitments with respect to the Tranche B Revolving Loans of any such Tranche B
Lender, together with unpaid Fees accrued in respect of the assigned Commitments
to the Effective Date and unpaid interest accrued on the assigned Tranche B
Revolving Loans to the Effective Date), in accordance with the terms and subject
to the conditions of the Credit Agreement and the Assignment and Acceptance (any
such purchase pursuant to this Section 1(a) being a "Put").
(b) The Sponsor, the Borrower, the Administrative Agent and
any such Tranche B Lender delivering a Put Notice to the Sponsor
pursuant to Section 1(a) of this Put Agreement each hereby agree to
execute an Assignment and Acceptance within three Business Days of
receipt by the Sponsor of the Put Notice.
Waivers. The Sponsor hereby waives presentment to, demand of payment
from and protest to the Borrower of any of the Credit Obligations, and also
waives promptness, diligence, notice of acceptance of its obligations hereunder,
any other notice with respect to any of the Credit Obligations and this Put
Agreement and any requirement that the Administrative Agent or any other Secured
Party protect, secure, perfect or insure any Lien or any property subject
thereto. The Sponsor further waives any right to require that resort be had by
the Administrative Agent or any other Secured Party to any security held for
payment of the Credit Obligations or to any balance of any deposit, account or
credit on the books of the Administrative Agent or any other Secured Party in
favor of the Borrower or any other person. The Sponsor hereby consents and
agrees to each of the following to the fullest extent permitted by law, and
agrees that the Sponsor's obligations under this Put Agreement shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any rights (including rights to notice) which the Sponsor
might otherwise have as a result of or in connection with any of the following:
(b) any extension, modification, decrease, alteration or
rearrangement of all or any part of the Credit Obligations or any
instrument executed in connection therewith, or any contract or
understanding with the Borrower, the Administrative Agent, the other
Secured Parties, or any other person, pertaining to the Credit
Obligations;
(c) any adjustment, indulgence, forbearance or compromise that
might be granted or given by the Administrative Agent or any other
Secured Party to the Borrower or any person liable on the Credit
Obligations; or the failure of the Administrative Agent or any other
Secured Party to assert any claim or demand or to exercise any right or
remedy against the Borrower under the provisions of any Credit Document
or otherwise; or any rescission, waiver, amendment or modification of,
or any release from any of the terms or provisions of, any Credit
Document, any guarantee or any other agreement;
(d) the insolvency, bankruptcy arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of
the Borrower or any other person at any time liable for the payment of
all or part of the Credit Obligations; or any dissolution of the
Borrower, or any change, restructuring or termination of the existence
of the Borrower, or any sale, lease or transfer of any or all of the
assets of the Borrower, or any change in the partners or members of the
Borrower; or any default, failure or delay, willful or otherwise, in
the performance of the Credit Obligations;
(e) the invalidity, illegality or unenforceability of all or
any part of the Credit Obligations, or any document or agreement
executed in connection with the Credit Obligations, for any reason
whatsoever, including the fact that the Credit Obligations, or any part
thereof, exceed the amount permitted by law, the act of creating the
Credit Obligations or any part thereof is ultra xxxxx, the officers or
representatives executing the documents or otherwise creating the
Credit Obligations acted in excess of their authority, the Credit
Obligations violate applicable usury laws, the Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement)
which render the Credit Obligations wholly or partially uncollectible
from the Borrower, the creation, performance or repayment of the Credit
Obligations (or the execution, delivery and performance of any document
or instrument representing part of the Credit Obligations or executed
in connection with the Credit Obligations or given to secure the
repayment of the Credit Obligations) is illegal, uncollectible, legally
impossible or unenforceable, or the documents or instruments pertaining
to the Credit Obligations have been forged or otherwise are irregular
or not genuine or authentic;
(f) any full or partial release of the liability of the
Borrower on the Credit Obligations or any part thereof, or of any other
person now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Credit Obligations or any part
thereof, it being recognized, acknowledged and agreed by the Sponsor
that the Sponsor may be required to pay the portions of the Tranche B
Revolving Loans it has agreed to purchase pursuant to the Put hereunder
in full without assistance or support of any other person or reliance
on the Collateral or any Guarantor, and the Sponsor has not been
induced to enter into this Put Agreement on the basis of a
contemplation, belief, understanding or agreement that other parties
other than the Borrower will be liable to perform the Credit
Obligations, or the Secured Parties will look to other parties to
perform the Credit Obligations;
(g) the taking or accepting of any other security, collateral
or guaranty, or other assurance of payment, for all or any part of the
Credit Obligations;
(h) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including negligent, willful,
unreasonable or unjustifiable impairment) of any Letter of Credit,
collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the Credit
Obligations;
(i) the failure of the Administrative Agent, any other Secured
Party or any other person to exercise diligence or reasonable care in
the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;
(j) the fact that any collateral, security, security interest
or lien contemplated or intended to be given, created or granted as
security for the repayment of the Credit Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized
and agreed by the Sponsor that the Sponsor is not entering into this
Put Agreement in reliance on, or in contemplation of the benefits of,
the validity, enforceability, collectibility or value of any such
collateral, security, security interest or lien;
(k) any payment by the Borrower to the Administrative Agent or
any other Secured Party being held to constitute a preference under
Title 11 of the United States Code or any similar Federal or state law,
or for any reason the Administrative Agent or any other Secured Party
being required to refund such payment or pay such amount to the
Borrower or someone else;
(l) any other action taken or omitted to be taken with respect
to the Credit Obligations, or the security and collateral therefor,
whether or not such action or omission prejudices the Sponsor or
increases the likelihood that the Sponsor will be required to purchase
any portion of the Tranche B Revolving Loans it has agreed to purchase
pursuant to Put hereunder, it being the unambiguous and unequivocal
intention of the Sponsor that the Sponsor shall be obligated to
purchase any portion of the Tranche B Revolving Loans it has agreed to
purchase pursuant to the terms and conditions of the Put hereunder;
(m) the fact that all or any of the Credit Obligations cease
to exist by operation of law, including by way of a discharge,
limitation or tolling thereof under applicable bankruptcy laws; or
(n) any other circumstance (including any statute of
limitations) that might in any manner or to any extent otherwise
constitute a defense available to, vary the risk of, or operate as a
discharge of, the Borrower or the Sponsor as a matter of law or equity.
It is understood and agreed that the Tranche B Lenders and the Borrower will not
(i) increase the stated principal amount or the rate of interest of the Tranche
B Revolving Loans or (ii) change, amend, modify, or alter the provisions of
Section 8.1(a) of the Credit Agreement, in each case without the prior written
consent of the Sponsor. All waivers herein contained shall be without prejudice
to the Tranche B Lenders at their respective option to proceed against the
Sponsor or any other person, whether by separate action or by joinder.
Representations, Warranties and Covenants. The Sponsor hereby
represents, warrants and covenants as follows:
(b) The Sponsor (i) is a corporation duly organized, validly
existing and good standing under the laws of the State of New York,
(ii) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to
be conducted, (iii) is qualified to do business in every jurisdiction
where qualification is required except where the failure to qualify
would not result in a material adverse effect on (a) the financial
condition, operations, business, assets, liabilities (actual or
contingent), historical cash flows or prospects of the Sponsor, (b) the
ability of the Sponsor to perform its obligations hereunder or (c) the
material rights and remedies of the Tranche B Lenders hereunder and
(iv) has the corporate power and authority to execute, deliver and
perform its obligations hereunder.
(c) The execution, delivery and performance by the Sponsor of
this Put Agreement (i) has been duly authorized by all requisite
corporate action, and (ii) will not (A) violate (1) any provision of
law, statute, rule or regulation, or the articles of incorporation,
by-laws, or other constitutive documents of the Sponsor, (2) any order
of any Governmental Authority applicable to the Sponsor, or (3) any
provisions of any indenture, agreement or other instrument to which the
Sponsor is a party or by which any of its property may be bound, or (B)
be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default or give rise to increased,
additional, accelerated or guaranteed rights of any person under any
such indenture, agreement or other instrument.
(d) This Put Agreement has been duly executed and delivered by
the Sponsor and constitutes the legal, valid and binding obligation of
the Sponsor enforceable against the Sponsor in accordance with its
terms.
(e) No consent or approval of, registration or filing with or
any other action by (i) any Governmental Authority, (ii) any creditor,
partner, member or shareholder of the Sponsor or (iii) any other person
is or will be required in connection with the performance by the
Sponsor of this Put Agreement except such as have been made or obtained
and in full force and effect.
(f) The unaudited consolidated balance sheets of the Sponsor
as of, and the related statements of earnings and statements of cash
flows of the Sponsor for the quarterly period ended March 31, 2000,
have heretofore been furnished to the Administrative Agent. Such
financial statements (including the notes thereto) present fairly in
all material respects (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial condition, results of
operations and cash flows of the Sponsor as of such date and for such
period. During the period from March 31, 2000 to and including the date
hereof, there has been no material change in the financial condition of
the Sponsor which is not reflected in the foregoing financial
statements or in the notes thereto. The foregoing financial statements
disclose all material liabilities, actual or contingent, of the Sponsor
as of the date thereof.
(g) In the event any (i) default occurs in the due observance
or performance by the Sponsor of any covenant, condition or agreement
contained herein, or (ii) representation or warranty made herein or any
representation, warranty, statement or information contained in any
certificate or financial statement furnished pursuant hereto, shall
prove to have been false or misleading in any material respect when so
made, deemed made or furnished, then the same shall constitute an Event
of Default as provided in Article VIII of the Credit Agreement.
(h) There are no conditions precedent to the effectiveness of
this Put Agreement that have not been satisfied or waived by the
Sponsor.
(i) The Sponsor has, independently and without reliance upon
the Administrative Agent or any other Secured Party and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Put Agreement. The
Sponsor has investigated fully the benefits and advantages which will
be derived by it from execution of this Put Agreement, and the Sponsor
has decided that a direct or an indirect benefit will accrue to the
Sponsor by reason of the execution of this Put Agreement.
(j) (a) This Put Agreement is not given with actual intent to
hinder, delay or defraud any person to which the Sponsor is or will
become, on or after the date hereof, indebted; (b) the Sponsor has
received at least a reasonably equivalent value in exchange for the
giving of this Put Agreement; (c) the Sponsor is not insolvent on the
date hereof and will not become insolvent as a result of the execution,
delivery or performance of this Put Agreement; (d) the Sponsor is not
engaged in a business or transaction, nor is about to engage in a
business or transaction, for which any property remaining with the
Sponsor constitutes an unreasonably small amount of capital; and (e)
the Sponsor does not intend to incur debts that will be beyond the
Sponsor's ability to pay as such debts mature.
(k) The Sponsor will ensure at any time and from time to time
until all of the Credit Obligations with respect to the Tranche B
Revolving Loans have been paid in full and the Tranche B Revolving
Committed Amount has been permanently terminated that the aggregate
fair market value of the Sponsor's assets (including non-restricted
marketable securities and restricted securities readily salable
pursuant to Rule 144 under the Securities Act of 1933, as amended) that
are readily available to purchase the Tranche B Revolving Loans
pursuant to the exercise by the Tranche B Lenders of the Put hereunder
is sufficient to purchase the Tranche B Revolving Loans pursuant to the
exercise by the Tranche B Lenders of the Put hereunder in full together
with any of the other indebtedness or contingent liabilities of the
Sponsor, and forthwith upon any amount becoming due and payable
hereunder will take all steps necessary to liquidate or otherwise apply
such assets in an amount sufficient, and use the proceeds thereof, to
purchase the Tranche B Revolving Loans pursuant to the exercise by the
Tranche B Lenders of the Put hereunder.
(l) As soon as available but in any event not later than 45
days after the end of each fiscal quarter of the Sponsor, the Sponsor
shall deliver to the Administrative Agent copies of an unaudited
balance sheet, as at and for the quarter then ended for the Sponsor,
certified by a Responsible Officer as true and correct.
Amendments, Etc. No amendment, modification or waiver of any provision
of this Put Agreement and no consent to any departure by the Sponsor therefrom
shall in any event be effective unless the same shall be in writing and shall be
executed and delivered by the Sponsor, the Required Lenders with respect to the
Tranche B Revolving Loans, the Borrower and the Administrative Agent, and then
such amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Notices, Etc. Unless otherwise specified herein, all notices, requests
or other communications to any party hereunder shall be in writing, shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, and shall be given to such party at its
address or telecopy number set forth on the signature pages hereof or at any
other address or telecopy number which such party shall have specified for the
purpose of communications hereunder by notice to the other parties hereunder.
All notices and other communications given to any party hereto in accordance
with the provisions of this Put Agreement shall be deemed to have been given on
the date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date three (3) Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 5 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section
5.
No Waiver; Remedies. No failure on the part of the Administrative Agent
or any other Secured Party to exercise, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy by the
Administrative Agent or any other Secured Party preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder and under the other Credit Documents are cumulative and are
not exclusive of any other remedies provided by law.
Continuing Obligation. This Put Agreement is a continuing obligation of
the Sponsor and shall survive and remain in full force and effect until the
Credit Obligations with respect to the Tranche B Revolving Loans have been
indefeasibly paid in full in cash and the Commitments with respect to the
Tranche B Revolving Loans have been terminated.
Assignments. This Put Agreement and the terms, covenants and conditions
hereof shall be binding upon the Sponsor and the Borrower and their respective
successors and shall inure to the benefit of the Administrative Agent, the
Tranche B Lenders and their respective successors and assigns. Upon the
assignment by any Tranche B Lender of all or any portion of its rights and
obligations under the Credit Agreement (including all or any portion of its
Commitment with respect to the Tranche B Revolving Loans, the Tranche B
Revolving Loans owing to it and the Note held by it) to any other person, such
other person shall thereupon become vested with the benefits in respect thereof
granted to such Tranche B Lender herein or otherwise, but only to the extent of
such assignment. The Sponsor shall not be permitted to assign, transfer or
delegate any of its rights or obligations under this Put Agreement without the
prior written consent of the Required Lenders (which consent shall not be
unreasonably withheld) with respect to the Tranche B Revolving Loans, the
Borrower and the Administrative Agent (and any such purported assignment,
transfer or delegation without such consent shall be void); provided, that the
Sponsor may assign or transfer all of its rights and obligations under this Put
Agreement to a U.S. Affiliate of the Sponsor which has at least the same
financial condition as the Sponsor as evidenced in the Sponsor's balance sheet
dated March 31, 2000.
Counterparts. This Put Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Put Agreement shall be
effective with respect to the Sponsor when a counterpart hereof which bears the
signature of each Tranche B Lender, Sponsor, the Borrower and the Administrative
Agent shall have been delivered to the Administrative Agent. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this Put
Agreement shall be as effective as an original executed counterpart hereof.
Savings Clause. In the event any one or more of the provisions
contained in this Put Agreement should be held invalid, illegal or unenforceable
in any respect with respect to the Sponsor, no party hereto shall be required to
comply with such provision with respect to the Sponsor for so long as such
provision is held to be invalid, illegal or unenforceable, and the validity,
legality and enforceability of the remaining provisions contained herein, and of
such invalid, illegal or unenforceable provision with respect to the Sponsor,
shall not in any way be affected or impaired. The parties shall endeavor in
good-faith negotiations to replace any invalid, illegal or unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Survival of Agreement. All covenants, agreements, representations and
warranties made by the Sponsor herein shall be considered to have been relied
upon by the Administrative Agent and the other Tranche B Lenders and shall
survive the making by the Tranche B Lenders of the Tranche B Revolving Loans and
the execution and delivery to the Tranche B Lenders of the Notes evidencing such
Tranche B Revolving Loans, regardless of any investigation made by the Tranche B
Lenders or the Administrative Agent or on their behalf, and shall continue in
full force and effect until the Credit Obligations with respect to the Tranche B
Revolving Loans and any other amounts payable under or any other Credit Document
with respect to the Tranche B Revolving Loans have been indefeasibly paid in
full in cash and the Commitments with respect to the Tranche B Revolving Loans
has been terminated, or for such longer time as herein expressly contemplated.
Entire Agreement. This Put Agreement constitutes the entire contract
between the parties hereto relative to the subject matter hereof. Any agreement
previously entered into among the parties with respect to the subject matter
hereof is superseded by this Put Agreement and the other Credit Documents.
Nothing in this Put Agreement, expressed or implied, is intended to confer upon
any party, other than the parties hereto, any rights, remedies, obligations or
liabilities under or by reason of this Put Agreement.
Headings. Section headings used herein are for convenience of reference
only, are not part of this Put Agreement and are not to affect the construction
of, or to be taken into consideration in interpreting, this Put Agreement.
Governing Law. THIS PUT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
Section 15. Jurisdiction; Consent to Service of Process.
-------------------------------------------
(b) The Sponsor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any New York State court or Federal court of the United States of
America sitting in New York, New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Put Agreement or the other Credit Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Put Agreement shall affect any right that any
Tranche B Lender may otherwise have to bring any action or proceeding
relating to this Put Agreement against the Sponsor or its properties in
the courts of any jurisdiction.
(c) The Sponsor hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Put
Agreement or the other Credit Documents in any New York State court or
Federal court of the United States of America sitting in New York, New
York. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(d) Each party to this Put Agreement irrevocably consents to
service of process in the manner provided for notices in Section 5.
Nothing in this Put Agreement will affect the right of any party to
this Put Agreement to serve process in any other manner permitted by
law.
[remainder of this page left intentionally blank]
IN WITNESS WHEREOF, each party hereto has caused this Put Agreement to
be duly executed, attested and delivered by its officers thereunto duly
authorized as of the date first above written.
SPONSOR CITICORP VENTURE CAPITAL, LTD.
By: ______________________________
Name:
Title:
Address:
TRANCHE B LENDERS BANK OF AMERICA, N.A.
By: ______________________________
Name:
Title:
Address:
ZIONS FIRST NATIONAL BANK
By: ______________________________
Name:
Title:
Address:
BORROWER ISG RESOURCES, INC.
By: ______________________________
Name:
Title:
Address:
ADMINISTRATIVE AGENT BANK OF AMERICA, N.A.
By: ______________________________
Name:
Title:
Address:
Exhibit A
FORM OF PUT NOTICE
[Date]
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
14th Floor, Zone 4
New York, New York 10022
Attention: Xxxxxx X. Xxxxxxxxx
Re: Tranche B Put Agreement dated as of May [__], 2000 among
Citicorp Venture Capital, Ltd., the several Tranche B Lenders
from time to time party thereto, ISG Resources, Inc. and Bank
of America, N.A., as Administrative Agent (the "Tranche B Put
Agreement")
Ladies and Gentlemen:
1. We refer to the Tranche B Put Agreement. Terms defined in the Tranche B
Put Agreement have the same meanings herein.
2. As set forth in Section 1(a) of the Tranche B Put Agreement, we hereby
exercise our Put to sell to Citicorp Venture Capital, Ltd. or its
permitted assignee on the Effective Date [all] [___%] of the
outstanding Tranche B Revolving Loans of the Tranche B Lender listed
below for the purchase price set forth in such Section.
3. As set forth in Section 1(a) of the Tranche B Put Agreement, we hereby
demand that Citicorp Venture Capital, Ltd. or its permitted assignee
execute and deliver the Assignment and Acceptance and take all actions
required by the Tranche B Put Agreement and the Assignment and
Acceptance on the Effective Date.
[Tranche B Lender]
By:________________________
Name:
Title:
