FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
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FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this "Amendment"), dated as
of May 8, 2002, among USOL HOLDINGS, INC., a corporation organized and existing
under the laws of the State of Oregon ("Holdings"), USOL, INC., a corporation
organized and existing under the laws of the State of Delaware (the "Borrower"),
the financial institutions from time to time party to the Credit Agreement
referred to below (each, a "Bank" and collectively, the "Banks"), BNP PARIBAS
(f/k/a PARIBAS), as Administrative Agent (in such capacity, the "Administrative
Agent"), BNP PARIBAS (f/k/a PARIBAS), as Syndication Agent (in such capacity,
the "Syndication Agent") and DEUTSCHE BANK AG, NEW YORK BRANCH, as Documentation
Agent (in such capacity, the "Documentation Agent"). All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrower, Holdings, the Banks, the Administrative Agent, the
Syndication Agent and the Documentation Agent are parties to a Credit Agreement,
dated as of December 30, 1999 (as amended, modified and/or supplemented to, but
not including, the date hereof, the "Credit Agreement");
WHEREAS, the Borrower has informed the Banks of its desire to incur
additional Loans pursuant to the Credit Agreement in an aggregate amount of
$1,000,000 on May 13, 2002 (the "Specified Borrowing");
WHEREAS, as of the date hereof, certain Events of Default have occurred and
are continuing as a result of the Borrower's failure to comply with Sections
8.12, 8.21 and 8.22 of the Credit Agreement solely for the fiscal quarter ended
December 31, 2001 (the "Specified Events of Default"); and
WHEREAS, subject to the terms and conditions of this Amendment, the parties
hereto wish to amend the Credit Agreement and waive a certain condition to the
incurrence of Loans set forth in the Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendment and Waiver to Credit Agreement.
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1. Effective as of the Amendment Effective Date, the Banks hereby waive
compliance by the Borrower with the requirements of Section 5.01(i) of the
Credit Agreement solely as a result of the existence of the Specified Events of
Default and solely in connection with the consummation of the Specified
Borrowing; provided, that (x) the aggregate amount of Loans
incurred by the Borrower pursuant to the Specified Borrowing shall not exceed
$1,000,000, (y) other than the Specified Events of Default, at the time of the
Specified Borrowing, there shall not exist and be continuing any other Default
or Event of Default and (z) at the time of the Specified Borrowing, the Borrower
shall have satisfied all of the other conditions precedent set forth in Section
5 of the Credit Agreement (it being understood and agreed by the parties hereto
that (x) the waiver contained in this Section 1 shall apply to the Specified
Borrowing only and shall not constitute a waiver of any conditions precedent
applicable to the incurrence of Loans pursuant to the Credit Agreement (other
than as expressly provided in this Section 1 in connection with the Specified
Borrowing) or create a course of dealing or otherwise obligate the Banks to
execute similar agreements under the same or similar circumstances in the future
or constitute an agreement by the Banks to extend Loans to the Borrower in a
manner other than as expressly provided in the Credit Agreement and (y) at least
two (2) weeks prior to each anticipated incurrence of Loans under the Credit
Agreement, the Borrower shall have provided to the Administrative Agent a
detailed statement of cash flow projections for the twelve-month period
commencing on the date of the relevant anticipated Borrowing of such Loans,
which statement shall set forth comparative figures for the corresponding period
for the prior year and be certified by the chief financial officer or controller
of the Borrower (it being also understood and agreed by the parties hereto that
the delivery of such cash flow projections shall not obligate the Banks to
extend Loans pursuant to the Credit Agreement and that prior to the incurrence
of Loans pursuant to the Credit Agreement (and the obligation of the Banks to
extend Loans to the Borrower pursuant to the Credit Agreement), the Borrower
shall be required to satisfy all of the conditions precedent to said Borrowing
set forth in Section 5 of the Credit Agreement)).
2. Section 7.01 of the Credit Agreement is hereby amended by inserting the
following new clause (m) immediately following clause (l) appearing in said
Section:
"(m) Cash Flow Statements. On or prior to the first calendar day of
each month, (1) a detailed statement of cash flow projections for such
fiscal month and (2) a detailed statement of cash flow projections for the
thirteen-week period commencing on the first day of such fiscal month, in
each case, setting forth comparative figures for the corresponding period
for the prior year and certified by the chief financial officer or
controller of the Borrower.".
II. Miscellaneous Provisions.
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1. In order to induce the Banks to enter into this Amendment, the Borrower
hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Amendment
Effective Date, both immediately before and immediately after giving effect
to this Amendment (other than the Specified Events of Default); and
(b) all of the representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects on the Amendment Effective Date both immediately before
and immediately after giving effect to this Amendment, with the same effect
as though such representations and warranties had been made on and as of
the Amendment Effective Date (it being understood that any representation
or warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or Amendment of, or consent to, any Default or Event of
Default or any other provision of the Credit Agreement or any other Credit
Document.
3. In order to induce the Banks to enter into this Amendment, each Credit
Party hereby remises, releases and forever discharges, and by these presents do
for their Subsidiaries (direct or indirect), and for themselves and their
predecessors, successors, affiliates and assigns (each, a "Releasor"), remise,
release and forever discharge, each Bank, and their predecessors, affiliates,
subsidiaries (direct or indirect), successors, assigns, participants, officers,
directors, shareholders, partners, employees or agents, of and from all manner
of actions at law or equity, all causes of action for damages, costs, debts,
sums of money, accounts, bills, rights of indemnity, breach of contract,
provision of labor or materials, loss of use, loss of services, expenses,
compensation, consequential or punitive damages, equitable subordination,
avoidance of preferential or fraudulent transfers, or any other thing whatever,
arising by virtue of actions taken, actions omitted to be taken or the
occurrence of any other event on or prior to the Amendment Effective Date,
relating in any way to (i) this Amendment, the Credit Agreement, the Obligations
or any other Credit Document, (ii) any claims (including, without limitation,
for contribution or indemnification) which have or could have arisen out of any
of the transactions contemplated by this Amendment or the Credit Documents or
any other proceedings that have been brought or may be brought by any party
hereto or to any Credit Document or any third party relating to the Credit
Documents or the transactions contemplated thereby, (iii) any acts, transactions
or events that are the subject matter of this Amendment or the Credit Documents
or (iv) the prosecution of any claims or any settlement negotiations which such
Releasor ever had, now or which it, its Subsidiaries (direct or indirect), or
its successors or assigns hereafter can, shall or may have against any Bank, and
their predecessors, affiliates, Subsidiaries (direct or indirect), successors,
assigns, participants, officers, directors, shareholders, partners, employees or
agents, by reason of (with respect to each of clauses (i)-(iv) above) any
matter, cause or thing whatsoever on or prior to the Amendment Effective Date
relating to this Amendment or the Credit Documents; provided, however, that
nothing herein shall be construed or deemed to release any covenants or
agreements contained herein or in any Credit Document so long as such Credit
Document shall remain in full force and effect.
4. Each Credit Party hereby acknowledges and agrees that the Obligations
are not subject to avoidance, defense, objection, action, counterclaim or
setoff, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally. The Obligations constitute legal, valid and binding
obligations of each Credit Party, enforceable in accordance with the terms of
the Credit Documents and pursuant to applicable law, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, and subject to the limitations imposed by general equitable
principles (regardless whether such enforceability is considered in a proceeding
at law or in equity). Furthermore, no Credit Party will use any of its cash or
other assets to object to or contest in any manner, or raise any objections,
counterclaims or defenses to, the validity or enforceability of the claims of
the Banks, or to investigate or assert any claims or causes of action arising on
or prior to the Amendment Effective Date against the Banks.
5. Except as expressly set forth in this Amendment, each of the undersigned
hereby acknowledges and agrees that the execution and delivery by the Banks of
this Amendment shall not be deemed (i) to create a course of dealing or
otherwise obligate the Banks to forbear or execute similar agreements under the
same or similar circumstances in the future, (ii) to modify, relinquish or
impair any right of the Banks to receive any indemnity or similar payment from
any Person or entity as a result of any matter arising from or relating to this
Amendment, (iii) to waive any right of the Banks to receive interest at an
increased rate as a result of any Events of Default that may occur under the
Credit Agreement, (iv) to obligate the Banks to make or agree to make any
extension of credit or to provide Loans pursuant to the Credit Agreement at any
time, (v) to obligate the Banks in any way to forbear from individually or
collectively enforcing remedies under the Credit Agreement or any other Credit
Document in any manner or (vi) a commitment from any of the Bank to forbear or
"stand still". Except as expressly set forth in this Amendment, no past or
future forbearance on the part of any of the Banks should be viewed as a
limitation upon or waiver of the absolute right and privilege of the Banks in
exercising rights and remedies that currently exist or may exist after the
Amendment Effective Date.
6. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Borrower and the Administrative Agent.
7. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
8. This Amendment shall become effective on the date (the "Amendment
Effective Date") when each of the following conditions shall have been
satisfied:
(i) the Borrower, Holdings, each Guarantor and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall
have delivered (including by way of facsimile transmission) the same to the
Administrative Agent as its Notice Office; and
(ii) the Borrower shall have paid any and all outstanding legal fees
and expenses due and payable to White & Case LLP, the Administrative
Agent's legal counsel.
9. By executing and delivering a copy hereof, each Credit Party hereby
agrees that all Loans shall be fully guaranteed pursuant to the Guaranties in
accordance with the terms and provisions thereof and shall be fully secured
pursuant to the Pledge Agreements and the Security Agreement.
10. From and after the Amendment Effective Date, all references in the
Credit Agreement and each of the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment as of the date first above
written.
USOL, INC.,
as Borrower
By:
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Name:
Title:
BNP PARIBAS,
as Administrative Agent, Syndication Agent
and individually, as Bank
By:
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Name:
Title:
COAST BUSINESS CREDIT,
as Bank
By:
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Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
as Documentation Agent and individually,
as Bank
By:
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Name:
Title:
By:
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Name:
Title:
Each of the undersigned, each being a Guarantor under, and as defined in, the
Credit Agreement referenced in the foregoing Amendment, hereby consents to the
entering into of the Amendment and agrees to the provisions thereof (including,
without limitation, Sections 3, 4, 5 and 8 of Part II thereof).
USOL HOLDINGS, INC.,
as Guarantor
By:
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Name:
Title:
