EXHIBIT 4.25
FINANCING AGREEMENT
Dated as of September 6, 2002
by and among
CLEAN HARBORS, INC.,
CERTAIN OF ITS SUBSIDIARIES SIGNATORY HERETO,
as Borrowers,
CERTAIN OF ITS SUBSIDIARIES SIGNATORY HERETO,
as Guarantors,
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Lenders
and
ABLECO FINANCE LLC,
as Agent
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CERTAIN TERMS ......................................................... 1
Section 1.01 Definitions .............................................................. 1
Section 1.02 Terms Generally .......................................................... 24
Section 1.03 Accounting and Other Terms ............................................... 25
Section 1.04 Time References .......................................................... 25
ARTICLE II THE LOANS ......................................................................... 25
Section 2.01 Commitments .............................................................. 25
Section 2.02 Making the Loans ......................................................... 27
Section 2.03 Repayment of Loans; Evidence of Debt ..................................... 27
Section 2.04 Interest ................................................................. 28
Section 2.05 Term Loan Commitments; Prepayment of Loans ............................... 29
Section 2.06 Fees ..................................................................... 31
Section 2.07 Securitization ........................................................... 31
Section 2.08 Taxes .................................................................... 31
Section 2.09 LIBOR Not Determinable; Illegality or Impropriety ........................ 33
Section 2.10 Indemnity ................................................................ 34
Section 2.11 Continuation and Conversion of Loans ..................................... 34
ARTICLE III [RESERVED] ....................................................................... 35
ARTICLE IV FEES, PAYMENTS AND OTHER COMPENSATION ............................................. 35
Section 4.01 Audit and Collateral Monitoring Fees ..................................... 35
Section 4.02 Payments; Computations and Statements 35
Section 4.03 Sharing of Payments, Etc ................................................. 36
Section 4.04 Apportionment of Payments ................................................ 36
Section 4.05 Increased Costs and Reduced Return ....................................... 37
Section 4.06 Joint and Several Liability of the Borrowers ............................. 38
ARTICLE V CONDITIONS TO LOANS ................................................................ 39
Section 5.01 Conditions Precedent to Effectiveness .................................... 39
Section 5.02 Conditions Precedent to All Loans ........................................ 45
Section 5.03 Conditions Subsequent to All Loans ....................................... 46
ARTICLE VI REPRESENTATIONS AND WARRANTIES .................................................... 47
Section 6.01 Representations and Warranties ........................................... 47
ARTICLE VII COVENANTS OF THE LOAN PARTIES .................................................... 59
Section 7.01 Affirmative Covenants .................................................... 59
Section 7.02 Negative Covenants ....................................................... 69
Section 7.03 Financial Covenants ...................................................... 75
ARTICLE VIII MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS RECEIVABLE AND OTHER COLLATERAL ... 77
Section 8.01 Management of Collateral ................................................. 77
Section 8.02 Accounts Receivable Documentation ........................................ 78
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Section 8.03 Status of Accounts Receivable and Other Collateral .............. 78
Section 8.04 Collateral Custodian ............................................ 79
ARTICLE IX EVENTS OF DEFAULT ........................................................ 79
Section 9.01 Events of Default ............................................... 79
ARTICLE X AGENT ..................................................................... 83
Section 10.01 Appointment ..................................................... 83
Section 10.02 Nature of Duties ................................................ 84
Section 10.03 Rights, Exculpation, Etc ........................................ 84
Section 10.04 Reliance ........................................................ 85
Section 10.05 Indemnification ................................................. 85
Section 10.06 Agent Individually .............................................. 86
Section 10.07 Successor Agent ................................................. 86
Section 10.08 Collateral Matters .............................................. 86
Section 10.09 Agency for Perfection ........................................... 88
ARTICLE XI GUARANTY ................................................................. 88
Section 11.01 Guaranty ........................................................ 88
Section 11.02 Guaranty Absolute ............................................... 88
Section 11.03 Waiver .......................................................... 89
Section 11.04 Continuing Guaranty; Assignments ................................ 89
Section 11.05 Subrogation ..................................................... 89
Section 11.06 Judgment Currency ............................................... 90
ARTICLE XII MISCELLANEOUS ........................................................... 91
Section 12.01 Notices, Etc .................................................... 91
Section 12.02 Amendments, Etc ................................................. 92
Section 12.03 No Waiver; Remedies, Etc ........................................ 92
Section 12.04 Expenses; Taxes; Attorneys' Fees ................................ 92
Section 12.05 Right of Set-off ................................................ 93
Section 12.06 Severability .................................................... 94
Section 12.07 Assignments and Participations .................................. 94
Section 12.08 Counterparts .................................................... 96
Section 12.09 GOVERNING LAW ................................................... 97
Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE ........... 97
Section 12.11 WAIVER OF JURY TRIAL, ETC ....................................... 97
Section 12.12 Consent by the Agent and Lenders ................................ 98
Section 12.13 No Party Deemed Drafter ......................................... 98
Section 12.14 Reinstatement; Certain Payments ................................. 98
Section 12.15 Indemnification ................................................. 98
Section 12.16 Agent for Borrowers ............................................. 99
Section 12.17 Records ......................................................... 100
Section 12.18 Binding Effect .................................................. 100
Section 12.19 Interest ........................................................ 100
Section 12.20 Confidentiality ................................................. 101
Section 12.21 Integration ..................................................... 102
TABLE OF CONTENTS ................................................................... i
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SCHEDULE AND EXHIBITS
Schedule 1.01(A) Lenders and Lenders' Commitments
Schedule 1.01(B) Facilities
Schedule 1.01(C) Canadian Security Agreements
Schedule 1.01(D) Inactive Subsidiaries
Schedule 1.01(E) Closing Costs
Schedule 5.01(d)(xxiv) CK Rolling Stock
Schedule 5.03(a) SK Rolling Stock
Schedule 5.03(b) Post-Closing Real Estate Obligations
Schedule 5.03(e) Canadian Secured Creditor Waivers
Schedule 6.01(e) Subsidiaries
Schedule 6.01(f) Litigation; Commercial Tort Claims
Schedule 6.01(i) ERISA
Schedule 6.01(o) Real Property
Schedule 6.01(r) Environmental Matters; Permits
Schedule 6.01(s) Insurance
Schedule 6.01(v) Bank Accounts
Schedule 6.01(w) Intellectual Property
Schedule 6.01(x) Material Contracts
Schedule 6.01(dd) Name; Jurisdiction of Organization; Organizational ID
Number; Chief Place of Business; Chief Executive Office;
FEIN
Schedule 6.01(ee) Tradenames
Schedule 6.01(ff) Collateral Locations
Schedule 6.01(ii) Assumed Liabilities
Schedule 7.02(a) Existing Liens
Schedule 7.02(b) Existing Indebtedness
Schedule 7.02(e) Existing Investments
Schedule 7.02(k) Limitations on Dividends and Other Payment Restrictions
Exhibit A Form of Guaranty
Exhibit B Form of Security Agreement
Exhibit C Form of Pledge Agreement
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Intercreditor Agreement
Exhibit F Form of Opinion of Counsel
Exhibit G Form of Joinder Agreement
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Contribution Agreement
Exhibit J Form of Custody Agreement
Exhibit K Form of Intercompany Subordination Agreement
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FINANCING AGREEMENT
Financing Agreement, dated as of September 6, 2002, by and among Clean
Harbors, Inc., a Massachusetts corporation (the "Parent"), each subsidiary of
the Parent listed as a "Borrower" on the signature pages hereto (together with
the Parent, each a "Borrower" and collectively, the "Borrowers"), each
subsidiary of the Parent listed as a "Guarantor" on the signature pages hereto
(each a "Guarantor" and collectively, the "Guarantors"), the financial
institutions from time to time party hereto (each a "Lender" and collectively,
the "Lenders"), and Ableco Finance LLC, a Delaware limited liability company
("Ableco"), as agent for the Lenders (in such capacity, the "Agent").
RECITALS
The Borrowers have asked the Lenders to extend credit to the Borrowers
consisting of (a) a term loan A in the aggregate principal amount of
$100,000,000 and (b) a term loan B in the aggregate principal amount of
$35,000,000, provided that the principal amount of each term loan may be
increased in accordance with the terms hereof. The proceeds of the term loans
shall be used (i) to facilitate the Acquisition (as hereinafter defined), (ii)
to refinance existing indebtedness of the Borrowers and pay the prepayment and
defeasance costs in connection therewith, (iii) to provide cash collateral for
letters of credit issued for the account of the Borrowers and the Guarantors,
(iv) for general working capital requirements and other general corporate
purposes of the Borrowers and (v) to pay fees and expenses related to the
Acquisition and this Agreement. The Lenders are severally, and not jointly,
willing to extend such credit to the Borrowers subject to the terms and
conditions hereinafter set forth.
In consideration of the premises and the covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN TERMS
Section 1.01 Definitions. As used in this Agreement, the following
terms shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of such terms:
"Ableco" has the meaning specified therefor in the preamble hereto.
"Account Debtor" means each debtor, customer or obligor in any way
obligated on or in connection with any Account Receivable.
"Account Receivable" means, with respect to any Person, any and all
rights of such Person to payment for goods sold and/or services rendered,
including accounts, general intangibles and any and all such rights evidenced by
chattel paper, instruments or documents, whether due or to become due and
whether or not earned by performance, and whether now or hereafter acquired or
arising in the future, and any proceeds arising therefrom or relating thereto.
"Acquisition" means the purchase by the Parent and certain of the
Borrowers of the Acquisition Assets and the assumption by the Parent and certain
of the Borrowers of certain of the liabilities relating thereto, pursuant to the
Acquisition Agreement.
"Acquisition Agreement" means the Acquisition Agreement, dated as of
February 22, 2002, as amended as of March 8, April 30 and September 6, 2002, by
and between Safety-Kleen Services, Inc. and the Parent, as in effect on the date
hereof.
"Acquisition Assets" means all of the property and assets (tangible and
intangible) sold, assigned or otherwise transferred to, or assumed or otherwise
acquired by, the Parent and certain of the Borrowers pursuant to the Sale Order
and the Acquisition Agreement.
"Acquisition Documents" means the Acquisition Agreement, each bill of
sale, each assignment agreement, each assumption agreement and all other
agreements, instruments and documents entered into or delivered in connection
with the Acquisition.
"Action" has the meaning specified therefor in Section 12.12.
"Additional Lender" has the meaning specified therefor in Section
2.01(c)(i).
"Adjusted Excess Availability" means the difference between (a) the sum
of (i) Excess Availability (as defined in the Revolving Credit Agreement as in
effect on the date hereof) of the Loan Parties under the Revolving Credit
Agreement after giving effect to the making of the Loans hereunder and (ii) the
aggregate amount of all unrestricted Cash and Cash Equivalents (exclusive of the
aggregate amount of all cash pledged to the L/C Issuer) and (b) the sum of (i)
the aggregate amount of the fees, costs, charges and expenses incurred by the
Loan Parties in connection with the Acquisition and the financing transactions
contemplated hereunder that are set forth in the flow of funds agreement dated
as of the date hereof among the Loan Parties, the Agent, the Lenders, the
Revolving Agent and the Revolving Lenders and (ii) $41,500,000 in respect of the
cash needed to collateralize the letters of credit to be issued by the L/C
Issuer on or before February 28, 2003.
"Administrative Borrower" has the meaning specified therefor in Section
12.16.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" of a Person means the power, directly or indirectly,
either to (i) vote 10% or more of the Capital Stock having ordinary voting power
for the election of directors of such Person or (ii) direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise. Notwithstanding anything herein to the contrary, in no event shall
the Agent or any Lender be considered an "Affiliate" of any Loan Party.
"Agent" has the meaning specified therefor in the preamble hereto.
"Agent Advances" has the meaning specified therefor in Section
10.08(a).
"Agent's Account" means an account at a bank designated by the Agent
from time to time as the account into which the Loan Parties shall make all
payments to the Agent for the benefit of the Agent and the Lenders under this
Agreement and the other Loan Documents.
"Agreement" means this Financing Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any of the
foregoing, and shall refer to the Agreement as the same may be in effect at the
time such reference becomes operative.
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"Assignment and Acceptance" means an assignment and acceptance entered
into by an assigning Lender and an assignee, and accepted by the Agent, in
accordance with Section 12.07 hereof and substantially in the form of Exhibit H
hereto or such other form acceptable to the Agent.
"Authorized Officer" means, with respect to any Person, the chief
executive officer, chief financial officer, president or executive vice
president of such Person.
"Bank" means JPMorgan Chase Bank, its successors or any other bank
designated by the Administrative Agent to the Administrative Borrower from time
to time.
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.ss.
101, et seq.), as amended, and any successor statute.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Board of Directors" means, with respect to any Person, the board of
directors (or comparable managers) of such Person or any committee thereof duly
authorized to act on behalf of the board.
"Borrower" has the meaning specified therefor in the preamble hereto.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required to close,
provided, that with respect to the borrowing, payment or continuation of, or
determination of interest rate on LIBOR Loans, Business Day shall mean any
Business Day on which dealings in Dollars may be carried on in the interbank
eurodollar markets in New York City and London.
"Canadian Loan Party" means each of Clean Harbors Canada, Inc., Clean
Harbors Mercier, Inc., Clean Harbors Quebec, Inc., 510127 N.B. Inc., and each
other Subsidiary of the Parent organized in Canada that is a Loan Party.
"Canadian Mortgage" means each Mortgage made by a Loan Party with
respect to a Facility located in Canada.
"Canadian Security Agreements" means each of the agreements, documents
and instruments set forth in Schedule 1.01(C).
"Canadian Security Documents" means each Canadian Security Agreement
and each Canadian Mortgage.
"Capital Expenditures" means, with respect to any Person for any
period, the sum of (i) the aggregate of all expenditures by such Person and its
Subsidiaries during such period that in accordance with GAAP are or should be
included in "property, plant and equipment" or in a similar fixed asset account
on its balance sheet, whether such expenditures are paid in cash or financed and
including all Capitalized Lease Obligations paid or payable during such period,
and (ii) to the extent not covered by clause (i) above, the aggregate of all
expenditures by such Person and its Subsidiaries during such period to acquire
by purchase or otherwise the business or fixed assets of, or the Capital Stock
of, any other Person.
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"Capital Guideline" means any law, rule, regulation, policy, guideline
or directive (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) of any central bank or
Governmental Authority (i) regarding capital adequacy, capital ratios, capital
requirements, the calculation of a bank's capital or similar matters, or (ii)
affecting the amount of capital required to be obtained or maintained by any
Lender or any Person controlling any Lender or the manner in which any Lender or
any Person controlling any Lender allocates capital to any of its contingent
liabilities (including letters of credit), advances, acceptances, commitments,
assets or liabilities.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, and (ii) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.
"Capitalized Lease" means, with respect to any Person, any lease of
real or personal property by such Person as lessee which is (i) required under
GAAP to be capitalized on the balance sheet of such Person or (ii) a transaction
(other than an operating lease of Rolling Stock) of a type commonly known as a
"synthetic lease" (i.e. a lease transaction that is treated as an operating
lease for accounting purposes but with respect to which payments of rent are
intended to be treated as payments of principal and interest on a loan for
Federal income tax purposes).
"Capitalized Lease Obligations" means, with respect to any Person,
obligations of such Person and its Subsidiaries under Capitalized Leases, and,
for purposes hereof, the amount of any such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"Cash and Cash Equivalents" means all cash and any presently existing
or hereafter arising deposit account balances, certificates of deposit or other
financial instruments properly classified as cash equivalents under GAAP.
"Cash Collateral Control Agreement" means the deposit account control
agreement, in form and substance satisfactory to the Agent, by and between the
Agent and the L/C Issuer and acknowledged by the Loan Parties.
"CH Facilities" has the meaning specified therefor in Section 6.01(r).
"CH Rolling Stock " has the meaning specified therefor in Section
5.01(d)(xxiv).
"Change of Control" means each occurrence of any of the following:
(a) the acquisition, directly or indirectly, by any person or group
(within the meaning of Section 13(d)(3) of the Exchange Act), other than a
Permitted Holder, of beneficial ownership of more than 33% of the aggregate
outstanding voting power of the Capital Stock of the Parent;
(b) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Parent
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Parent was approved by
a vote of at least a majority the directors of the Parent then still in office
who were either directors at the beginning of such period, or whose
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election or nomination for election was previously approved) cease for any
reason (other than death or cessation of legal capacity) to constitute a
majority of the Board of Directors of the Parent;
(c) any Loan Party shall cease to have beneficial ownership (as defined
in Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting power of
the Capital Stock of each of its Subsidiaries (other than Inactive Subsidiaries)
extant as of the Effective Date, free and clear of all Liens (other than any
Liens granted hereunder and Permitted Liens) except pursuant to a transaction
permitted under Section 7.02(c); or
(d) (i) any Loan Party consolidates with or merges into another entity
or conveys, transfers or leases all or substantially all of its property and
assets to another Person, or (ii) any entity consolidates with or merges into
any Loan Party in a transaction pursuant to which the outstanding voting Capital
Stock of such Loan Party is reclassified or changed into or exchanged for cash,
securities or other property, other than any such transaction described in this
clause (ii) in which either (A) in the case of any such transaction involving
the Parent, no person or group (within the meaning of Section 13(d)(3) of the
Exchange Act) [other than a Permitted Holder] has, directly or indirectly,
acquired beneficial ownership of more than 33% of the aggregate outstanding
voting Capital Stock of the Parent or (B) in the case of any such transaction
involving a Loan Party other than the Parent, another Loan Party has beneficial
ownership of 100% of the aggregate voting power of all Capital Stock of the
resulting, surviving or transferee entity.
"Collateral" means all of the property and assets and all interests
therein and proceeds thereof now owned or hereafter acquired by any Person upon
which a Lien is granted or purported to be granted by such Person as security
for all or any part of the Obligations.
"Commitment Increase" shall have the meaning specified therefor in
Section 2.01(c).
"Commitments" means, with respect to each Lender, such Lender's Term
Loan A Commitment and Term Loan B Commitment.
"Consolidated Annualized EBITDA" means, as of any date of
determination, the product of (i) the aggregate amount of Consolidated EBITDA
for those fiscal quarters commencing on or after October 1, 2002 and ending on
or prior to such date of determination, multiplied by (ii) a fraction, the
numerator of which shall be the number 12 and the denominator of which shall
equal the total number of calendar months that have elapsed since October 1,
2002.
"Consolidated EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person and its Subsidiaries for such period,
plus (i) without duplication, the sum of the following amounts of such Person
and its Subsidiaries for such period, in each case to the extent deducted in
determining Consolidated Net Income of such Person for such period: (A)
Consolidated Net Interest Expense, (B) income tax expense determined on a
consolidated basis in accordance with GAAP, (C) depreciation expense determined
on a consolidated basis in accordance with GAAP, and (D) amortization expense
determined on a consolidated basis in accordance with GAAP.
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"Consolidated Funded Indebtedness" means, with respect to any Person at
any date, all Indebtedness of such Person, determined on a consolidated basis in
accordance with GAAP, which is either an Obligation or by its terms matures more
than one year after the date of calculation, and any such Indebtedness maturing
within one year from such date which is renewable or extendable at the option of
such Person to a date more than one year from such date, including, in any
event, with respect to the Parent and its Subsidiaries, the Revolving Credit
Indebtedness, but excluding, for the avoidance of doubt, all Contingent
Obligations with respect to undrawn letters of credit, surety bonds and other
performance bonds issued for the account of such Person to the extent such
letters of credit, surety bonds and other performance bonds constitute Permitted
Indebtedness.
"Consolidated Net Income" means, with respect to any Person for any
period, the net, after tax income (loss) of such Person and its Subsidiaries for
such period, determined on a consolidated basis and in accordance with GAAP, but
excluding from the determination of Consolidated Net Income (without
duplication) (a) any extraordinary or non recurring gains or losses or gains or
losses from Dispositions, (b) restructuring charges, (c) effects of discontinued
operations, (d) interest income and (e) extraordinary or non recurring costs
otherwise included in the calculation of Consolidated Net Income that were
incurred during 2002 in connection with the Acquisition and the related
financing transactions.
"Consolidated Net Interest Expense" means, with respect to any Person
for any period, gross interest expense of such Person and its Subsidiaries for
such period determined on a consolidated basis and in accordance with GAAP
(including, without limitation, interest expense paid to Affiliates of such
Person), less (i) the sum of (A) interest income for such period, (B) gains for
such period on Hedging Agreements (to the extent not included in interest income
above and to the extent not deducted in the calculation of gross interest
expense) and (C) amortization of extraordinary or non recurring costs otherwise
included in gross interest expense that were incurred during 2002 in connection
with the Acquisition and the related financing transactions (but only to the
extent such costs would be deducted in the determination of Consolidated Net
Income without regard to the exclusion set forth in clause (e) of the definition
of "Consolidated Net Income"), plus (ii) the sum of (A) losses for such period
on Hedging Agreements (to the extent not included in gross interest expense) and
(B) the upfront costs or fees for such period associated with Hedging Agreements
(to the extent not included in gross interest expense), in each case, determined
on a consolidated basis and in accordance with GAAP.
"Contingent Obligation" means, with respect to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, (i) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of a primary obligor, (ii) the obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement, (iii) any obligation of such Person,
whether or not contingent, (A) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (B) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (C) to
purchase property, assets, securities or services primarily for the purpose of
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assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (D) otherwise to assure or
hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term "Contingent Obligation" shall not
include any product warranties extended in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation with respect to which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability with respect thereto
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith.
"Contribution Agreement" means the Contribution Agreement, dated as of
the Effective Date, duly executed by each Loan Party, substantially in the form
of Exhibit I.
"Control Agreement" means a control agreement, in form and substance
reasonably satisfactory to the Agent, executed and delivered by the applicable
Loan Party, the Agent, and the applicable securities intermediary with respect
to a securities account or a bank with respect to a deposit account.
"Custodian Agreement" means the Custodian Agreement, dated as of the
Effective Date, duly executed by each Loan Party, the Rolling Stock Collateral
Custodian and the Collateral Agent, substantially in the form of Exhibit J.
"Default" means an event which, with the giving of notice or the lapse
of time or both, would constitute an Event of Default.
"Deferred Facilities" has the meaning specified therefor in Section
5.01(d)(iii).
"Disposition" means any transaction, or series of related transactions,
pursuant to which any Person or any of its Subsidiaries sells, assigns,
transfers or otherwise disposes of any property or assets (whether now owned or
hereafter acquired) to any other Person, in each case, whether or not the
consideration therefor consists of cash, securities or other assets owned by the
acquiring Person, excluding any sales of Inventory in the ordinary course of
business on ordinary business terms.
"Dollar," "Dollars" and the symbol "$" each means lawful money of the
United States of America.
"Early Termination Fee" means:
(a) with respect to the prepayment of the Term Loan A pursuant to
Section 2.05(b)(i), a fee equal to (i) the aggregate principal amount of the
Term Loan A then outstanding, multiplied by (ii) (A) 2.0%, if the Term Loan A is
prepaid at any time from the Effective Date until and including the first
anniversary of the Effective Date, (B) 1.0%, if the Term Loan A is prepaid at
any time after the first anniversary of the Effective Date until and including
the second anniversary of the Effective Date, and (C) 0.5%, if the Term Loan A
is prepaid at any time after the second anniversary of the Effective Date; and
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(b) with respect to the prepayment of the Term Loan B pursuant to
Section 2.05(b)(ii), a fee equal to (i) the original aggregate principal amount
of the Term Loan B, multiplied by (ii) (A) 3.0%, if the Term Loan B is prepaid
at any time from the Effective Date until and including the third anniversary of
the Effective Date, and (B) 1.5%, if the Term Loan B is prepaid at any time
after the third anniversary of the Effective Date.
"Effective Date" means the date, on or before September 10, 2002, on
which all of the conditions precedent set forth in Section 5.01 are satisfied or
waived and the initial Loans are made.
"Employee Plan" means an employee benefit plan (other than a
Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was
maintained at any time during the six (6) calendar years preceding the date of
any borrowing hereunder) for employees of any Loan Party or any of its ERISA
Affiliates.
"Environmental Claims" means any written complaint, summons, citation,
notice, directive, order, claim, litigation, investigation, notice of violation,
judicial or administrative proceeding, judgment, letter or other communication
from any governmental agency, department, bureau, office or other authority,
Person or any third party involving violations of Environmental Laws, Handling
of Hazardous Materials or Releases of Hazardous Materials from or relating to
(i) any assets, Facilities, properties or businesses of any Loan Party or any
predecessor in interest; (ii) the Acquisition Assets; (iii) from or onto any
facilities receiving or Handling Hazardous Materials Handled by any Loan Party,
its Subsidiaries or any predecessor in interest; or (iv) from adjoining
properties or businesses.
"Environmental Indemnity Agreement" means an Environmental Indemnity
Agreement, in form and substance satisfactory to the Agent, made by a Loan Party
and/or one of its Subsidiaries in favor of the Agent.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as amended;
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 et seq., as
amended; the Clean Air Act ("CAA"), 42 U.S.C. 7401 et seq., as amended; the
Clean Water Act ("CWA"), 33 U.S.C. 1251 et seq., as amended; the Occupational
Safety and Health Act ("OSHA"), 29 U.S.C. 655 et seq., as amended; Toxic
Substances Control Act ("TOSCA"), 15 U.S.C. 2601 et seq., as amended; Hazardous
Materials Transportation Act, 49 U.S.C. 5101 et seq., as amended; the Federal
Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. 136-136y et
seq., as amended; the Emergency Planning and Community Right-to-Know Act of 1986
(Title III of SARA or "EPCRA"); 42 U.S.C. 11001, et seq., as amended, and any
other foreign, federal, state, local or municipal laws, statutes, regulations,
guidance documents, rules having the force of law or ordinances imposing
liability or establishing standards of conduct for Handling of Hazardous
Materials and the protection of the health, safety and the environment.
"Environmental Liabilities" means any monetary obligations, losses,
liabilities (including strict liability), damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable out-of-pocket fees, disbursements and expenses of counsel,
out-of-pocket expert and consulting fees and out-of-pocket costs for
environmental site assessments, remedial investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any
Environmental Claim filed by any Governmental Authority, Person or any third
party which relate to the Acquisition Assets or any violations of
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Environmental Laws, Handling of Hazardous Materials, Remedial Actions, Releases
or threatened Releases of Hazardous Materials from or onto (i) any property
presently or formerly owned by any Loan Party or any of its Subsidiaries or a
predecessor in interest, or (ii) any facility that received Hazardous Materials
that were generated or Handled by any Loan Party or any of its Subsidiaries or a
predecessor in interest.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities.
"Environmental Permits" means any permits, licenses, certificates,
exemptions, authorizations, registrations or approvals required by any
Governmental Authority or under Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case, as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a member of a group of which
such Person is a member and which would be deemed to be a "controlled group"
within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue
Code.
"Event of Default" means any of the events set forth in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Credit Facility" means the Amended and Restated Loan
Agreement dated as of April 12, 2001 by and among the Parent and certain of the
Parent's Subsidiaries, as borrowers, and Congress Financial Corporation (New
England), as lender, as amended, modified and supplemented prior to the
Effective Date.
"Existing Lender" means the lender party to the Existing Credit
Facility.
"Extraordinary Receipts" means any cash received by the Parent or any
of its Subsidiaries not in the ordinary course of business (and not consisting
of proceeds described in Section 2.05(c)(i) or (ii) hereof), including, without
limitation, (i) foreign, United States, state or local tax refunds, (ii) pension
plan reversions, (iii) proceeds of insurance, (iv) judgments, proceeds of
settlements or other consideration of any kind in connection with any cause of
action, (v) condemnation awards (and payments in lieu thereof), and (vi)
indemnity payments.
"Facility" means each parcel of real property listed on Schedule
1.01(B) hereto, including, without limitation, the land on which such facility
is located, all buildings and other improvements thereon, all fixtures located
at or used in connection with such facility, all whether now or hereafter
existing.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal to, for each day during such period, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
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quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Statements" means (i) the audited consolidated balance
sheets of the Parent and its Subsidiaries as of December 31, 2001, and the
related consolidated statements of operations, cash flows and stockholders'
equity for the two Fiscal Years then ended, (ii) the audited consolidated
balance sheets of the Chemical Services Division of Safety-Kleen Corp. (which
consists primarily of the Sellers and the Canadian Subsidiaries of Safety-Kleen
Services, Inc.) as of August 31, 1999, 2000 and 2001; and (iii) the unaudited
consolidated balance sheet of the Parent and its Subsidiaries as of June 30,
2002, and the related consolidated statements of operations, cash flows and
stockholders' equity for the six months then ended.
"Fiscal Year" means the fiscal year of the Parent and its Subsidiaries
ending on December 31 of each year.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
period, the ratio of (i) Consolidated EBITDA of such Person and its Subsidiaries
for such period, to (ii) the sum of (A) all principal of Indebtedness of such
Person and its Subsidiaries scheduled to be paid or prepaid (excluding any
prepayment of the Loans) during such period (and in the case of Revolving Credit
Indebtedness, to the extent there is an equivalent permanent reduction in the
commitments thereunder), plus (B) Consolidated Net Interest Expense of such
Person and its Subsidiaries for such period, plus (C) income taxes paid or
payable by such Person and its Subsidiaries during such period, plus (D) cash
dividends or distributions paid by such Person and its Subsidiaries (other than,
in the case of any Loan Party, dividends or distributions paid by such Loan
Party to any other Loan Party) during such period, plus (E) Capital Expenditures
made by such Person and its Subsidiaries during such period. In determining the
Fixed Charge Coverage Ratio for a particular period (w) pro forma effect will be
given to: (1) the incurrence, repayment or retirement of any Indebtedness by
such Person and its Subsidiaries since the first day of such period as if such
Indebtedness was incurred, repaid or retired on the first day of such period and
(2) the acquisition (whether by purchase, merger or otherwise) or disposition
(whether by sale, merger or otherwise) of any property or assets acquired or
disposed of by such Person and its Subsidiaries since the first day of such
period, as if such acquisition or disposition occurred on the first day of such
period; (x) interest on Indebtedness bearing a floating interest rate will be
computed as if the rate at the time of computation had been the applicable rate
for the entire period; (y) if such Indebtedness bears, at the option of such
Person and its Subsidiaries, a fixed or floating rate of interest, interest
thereon will be computed by applying, at the option of such Person, either the
fixed or floating rate; and (z) the amount of Indebtedness under a revolving
credit facility will be computed based upon the average daily balance of such
Indebtedness during such period.
"Funding Fee" has the meaning specified therefor in Section 2.06(d).
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States, applied on a consistent basis, provided that
for the purpose of Section 7.03 hereof and the definitions used therein, "GAAP"
shall mean generally accepted accounting principles in effect on the date hereof
and consistent with those used in the preparation of the Financial Statements,
provided, further, that if there occurs after the date of this Agreement any
change in GAAP that affects in any respect the calculation of any covenant
contained in Section 7.03 hereof, the Agent and the Administrative Borrower
shall negotiate in good faith amendments to the provisions of this Agreement
that relate to the calculation of such
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covenant with the intent of having the respective positions of the Lenders and
the Borrowers after such change in GAAP conform as nearly as possible to their
respective positions as of the date of this Agreement and, until any such
amendments have been agreed upon, the covenants in Section 7.03 hereof shall be
calculated as if no such change in GAAP has occurred.
"Governmental Authority" means any nation or government, any foreign,
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guaranteed Obligations" has the meaning specified therefor in Section
11.01.
"Guarantor" means (i) each Subsidiary of the Parent listed as a
"Guarantor" on the signature pages hereto, and (ii) each other Person which
guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the
Obligations.
"Guaranty" means (i) the guaranty of each Guarantor party hereto
contained in Article XI hereof, and (ii) each guaranty substantially in the form
of Exhibit A, made by any other Guarantor in favor of the Agent for the benefit
of the Lenders pursuant to Section 7.01(b) or otherwise.
"Handle" means any manner of generating, accumulating, storing,
treating, disposing of, transporting, transferring, labeling, handling,
manufacturing or using, as any of such terms may further be defined in any
Environmental Law, of any Hazardous Materials.
"Hazardous Material" shall include, without regard to amount and/or
concentration (i) any element, compound, or chemical that is defined, listed or
otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or
hazardous substances, extremely hazardous substance or chemical under
Environmental Laws; (ii) any wastes regulated, defined, listed or otherwise
classified by Environmental Laws, including but not limited to hazardous waste,
agricultural wastes, biological waste, medical waste, biohazardous or infectious
waste, special waste, recyclable materials, sludge, used oils, construction and
demolition debris and solid waste; (iii) petroleum, petroleum-based or
petroleum-derived products; (iv) polychlorinated biphenyls; (v) any substance
exhibiting a hazardous waste characteristic including but not limited to
corrosivity, ignitibility, toxicity or reactivity as well as any radioactive or
explosive materials; and (vi) any raw materials, building components, including
but not limited to asbestos-containing materials and manufactured products
containing Hazardous Materials.
"Hedging Agreement" means any interest rate, foreign currency,
commodity or equity swap, collar, cap, floor or forward rate agreement, or other
agreement or arrangement designed to protect against fluctuations in interest
rates or currency, commodity or equity values (including, without limitation,
any option with respect to any of the foregoing and any combination of the
foregoing agreements or arrangements), and any confirmation executed in
connection with any such agreement or arrangement.
"Highest Lawful Rate" means, with respect to the Agent or any Lender,
the maximum non-usurious interest rate, if any, that at any time or from time to
time may be contracted for, taken, reserved, charged or received on the
Obligations under laws applicable to the Agent or such Lender which are
currently in effect or, to the extent allowed by law, under
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such applicable laws which may hereafter be in effect and which allow a higher
maximum non-usurious interest rate than applicable laws now allow.
"Inactive Subsidiaries" means the Subsidiaries of the Parent listed on
Schedule 1.01(D).
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money; (ii) all obligations of
such Person for the deferred purchase price of property or services (other than
trade payables or other accounts payable incurred in the ordinary course of such
Person's business and not outstanding for more than 90 days after the date such
payable was created); (iii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments or upon which interest payments
are customarily made; (iv) all reimbursement, payment or other obligations and
liabilities of such Person created or arising under any conditional sales or
other title retention agreement with respect to property used and/or acquired by
such Person, even though the rights and remedies of the lessor, seller and/or
lender thereunder may be limited to repossession or sale of such property; (v)
all Capitalized Lease Obligations of such Person; (vi) all obligations and
liabilities, contingent or otherwise, of such Person, in respect of letters of
credit, acceptances and similar facilities; (vii) all obligations and
liabilities, calculated on a basis satisfactory to the Agent and in accordance
with accepted practice, of such Person under Hedging Agreements; (viii) all
Contingent Obligations; (ix) liabilities incurred under Title IV of ERISA with
respect to any plan (other than a Multiemployer Plan) covered by Title IV of
ERISA and maintained for employees of such Person or any of its ERISA
Affiliates; (x) withdrawal liability incurred under ERISA by such Person or any
of its ERISA Affiliates with respect to any Multiemployer Plan; and (xi) all
obligations referred to in clauses (i) through (x) of this definition of another
Person secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) a Lien upon property owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness. The Indebtedness of any Person shall include the
Indebtedness of any partnership of or joint venture in which such Person is a
general partner or a joint venturer.
"Indemnified Matters" has the meaning specified therefor in Section
12.15.
"Indemnitees" has the meaning specified therefor in Section 12.15.
"Insolvency Proceeding" means any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other
bankruptcy or insolvency law, assignments for the benefit of creditors, formal
or informal moratoria, compositions, or extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar relief.
"Intellectual Property" means all foreign and domestic (i) trademarks,
service marks, brand names, certification marks, collective marks, d/b/a's,
Internet domain names, logos, symbols, trade dress, assumed names, fictitious
names, trade names, and other indicia of origin, all applications and
registrations for all of the foregoing, and all goodwill associated therewith
and symbolized thereby, including without limitation all extensions,
modifications and renewals of same; (ii) inventions, discoveries and ideas,
whether patentable or not, and all patents, registrations, and applications
therefor, including without limitation divisions, continuations,
continuations-in-part and renewal applications, and including without limitation
renewals, extensions and reissues; (iii) confidential and proprietary
information, trade secrets and know-
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how, including without limitation processes, schematics, databases, formulae,
drawings, prototypes, models, designs and customer lists (collectively, "Trade
Secrets"); (iv) published and unpublished works of authorship, whether
copyrightable or not, copyrights therein and thereto, and registrations and
applications therefor, and all renewals, extensions, restorations and reversions
thereof; and (v) all other intellectual property or proprietary rights and
claims or causes of action arising out of or related to any infringement,
misappropriation or other violation of any of the foregoing, including without
limitation rights to recover for past, present and future violations thereof.
"Intercompany Subordination Agreement" means an Intercompany
Subordination Agreement made by a Loan Party in favor of the Agent for the
benefit of the Lenders, substantially in the form of Exhibit K.
"Intercreditor Agreement" means the Intercreditor and Lien
Subordination Agreement, substantially in the form of Exhibit E, by and between
the Agent and the Revolving Credit Agent and acknowledged by the Loan Parties.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the borrowing date or the date of any continuation of such LIBOR
Loan, as the case may be, and ending three months thereafter, provided that (i)
each Interest Period shall begin on the first day of a month and end on the last
day of a month, provided that the initial Interest Period shall commence on the
Effective Date and end on the last day of the third month immediately succeeding
the Effective Date, (ii) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding Business
Day, unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (iii) no
Interest Period for any LIBOR Loan shall end after the Term A Maturity Date, and
(iv) no more than one (1) Interest Period for the Borrowers may exist at any one
time.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended (or any successor statute thereto) and the regulations thereunder.
"Inventory" means, with respect to any Person, all goods and
merchandise of such Person, including, without limitation, all raw materials,
work-in-process, packaging, supplies, materials and finished goods of every
nature used or usable in connection with the shipping, storing, advertising or
sale of such goods and merchandise, whether now owned or hereafter acquired, and
all such other property the sale or other disposition of which would give rise
to an Account Receivable or cash.
"Joinder Agreement" shall have the meaning specified therefor in
Section 2.01(c).
"Judgment Currency" has the meaning specified therefor in Section
11.06.
"L/C Issuer" means Fleet National Bank.
"Lease" means any lease of real property to which any Loan Party or any
of its Subsidiaries is a party as lessor or lessee.
"Lender" has the meaning specified therefor in the preamble hereto.
"Liabilities" has the meaning specified therefor in Section 2.07.
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"LIBOR" means, with respect to each day during each Interest Period
pertaining to a LIBOR Loan, the rate of interest quoted by the British Bankers'
Association as set forth on Bloomberg page BBAM (or such other display page on
the Bloomberg system as may replace display page BBAM), two Business Days prior
to such Interest Period as the "London Interbank Offered Rate" applicable to
three months. In the event that the Bloomberg system is not operative or is
otherwise not accessible by the Agent or the "London Interbank Offered Rate" is
no longer quoted therein, LIBOR shall be the rate determined by the Agent to be
the rate at which deposits in Dollars are offered by the Reference Bank to first
class banks in the interbank eurodollar market where the eurodollar and foreign
currency and exchange operations in respect of its eurodollar loans are then
being conducted at approximately 11:00 a.m. (New York City time), two Business
Days prior to the beginning of such Interest Period, in an amount approximately
equal to the principal amount of the LIBOR Loan to which such Interest Period is
to apply and for a period of time comparable to such Interest Period.
"LIBOR Rate" means, for each Interest Period for each LIBOR Loan, the
rate per annum determined by the Agent (rounded upwards if necessary, to the
next 1/16%) by dividing (a) LIBOR for such Interest Period by (b) 100% minus the
Reserve Percentage. The LIBOR Rate shall be adjusted on and as of the effective
day of any change in the Reserve Percentage.
"LIBOR Loan" means a Term Loan A bearing interest based upon LIBOR.
"Lien" means any mortgage, deed of trust, pledge, lien (statutory or
otherwise), security interest, charge or other encumbrance or security or
preferential arrangement of any nature, including, without limitation, any
conditional sale or title retention arrangement, any Capitalized Lease and any
assignment, deposit arrangement or financing lease intended as, or having the
effect of, security.
"Loan Account" means an account maintained hereunder by the Agent on
its books of account at the Payment Office and, with respect to the Borrowers,
in which the Borrowers will be charged with all Loans made to, and all other
Obligations incurred by, the Borrowers.
"Loan Document" means this Agreement, any Guaranty, any Security
Agreement, any Pledge Agreement, any Control Agreement, any Mortgage, any
Environmental Indemnity Agreement, the Canadian Security Documents, any UCC
Filing Authorization Letter, the Contribution Agreement, the Intercompany
Subordination Agreement, the Intercreditor Agreement, the Cash Collateral
Control Agreement, the Custodian Agreement and any other agreement, instrument,
and other document executed and delivered pursuant hereto or thereto or
otherwise evidencing or securing any Loan or any other Obligation.
"Loan Party" means any Borrower and any Guarantor.
"Loans" means the Term Loan A and the Term Loan B made by the Lenders
to the Borrowers pursuant to Article II hereof.
"Material Adverse Effect" means a material adverse effect on any of (i)
the operations, business, assets, properties, condition (financial or otherwise)
or prospects of any Loan Party or the Loan Parties taken as a whole, (ii) the
ability of any Loan Party to perform any of its obligations under any Loan
Document to which it is a party, (iii) the legality, validity or enforceability
of this Agreement or any other Loan Document, (iv) the rights and remedies of
the
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Agent or any Lender under any Loan Document, or (v) the validity, perfection or
priority of a Lien in favor of the Agent for the benefit of the Lenders on any
of the Collateral.
"Material Contract" means, with respect to any Person, (i) each
Acquisition Document, (ii) each contract or agreement to which such Person or
any of its Subsidiaries is a party involving aggregate consideration payable to
or by such Person or such Subsidiary of $2,000,000 or more (other than purchase
orders in the ordinary course of the business of such Person or such Subsidiary
and other than contracts that by their terms may be terminated by such Person or
Subsidiary in the ordinary course of its business upon less than 60 days' notice
without penalty or premium) and (iii) each other contract or agreement material
to the business, operations, condition (financial or otherwise), performance,
prospects or properties of such Person or such Subsidiary.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Mortgage" means a mortgage (including, without limitation, a leasehold
mortgage), deed of trust or deed to secure debt, in recordable form and
otherwise in form and substance satisfactory to the Agent, made by a Loan Party
in favor of the Agent for the benefit of the Lenders, securing the Obligations
and delivered to the Agent pursuant to Section 5.01(d), Section 7.01(b), Section
7.01(o) or otherwise.
"Motor Vehicle Laws" shall mean all Federal (including, the federal
government of Canada), state, provincial and local laws, regulations, rules and
judicial or agency determinations and orders applicable to the ownership and/or
operation of vehicles (including, without limitation, the Rolling Stock), or the
business of the transportation of goods by motor vehicle, including, without
limitation, laws, regulations, rules and judicial or agency determinations and
orders promulgated or administered by the Federal Highway Administration, the
Federal Motor Carrier Safety Administration, the National Highway Traffic Safety
Administration, the Surface Transportation Board and other state, provincial and
local Governmental Authorities with respect to vehicle safety and registration
and motor carrier insurance, financial assurance, credit extension, contract
carriage, tariff and reporting requirements.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which any Loan Party or any of its ERISA Affiliates has
contributed to, or has been obligated to contribute, at any time during the
preceding six (6) years.
"Net Book Value" means, with respect to any Rolling Stock, the value of
such Rolling Stock (as reflected in the general ledger of such Person after
customary depreciation and reserves established by such Person in good faith and
in accordance with GAAP).
"Net Cash Proceeds" means (i) with respect to any Disposition by any
Person or any of its Subsidiaries, the amount of cash received (directly or
indirectly) from time to time (whether as initial consideration or through the
payment or disposition of deferred consideration) by or on behalf of such Person
or such Subsidiary, in connection therewith after deducting therefrom only (A)
the amount of any Indebtedness secured by any Lien permitted by Section 7.02(a)
on any asset (other than Indebtedness assumed by the purchaser of such asset)
which is required to be, and is, repaid in connection with such Disposition
(other than Indebtedness under this Agreement), (B) reasonable expenses related
thereto incurred by such Person or such Subsidiary in connection therewith and
(C) transfer taxes paid to any taxing
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authorities by such Person or such Subsidiary in connection therewith and (ii)
with respect to the issuance or incurrence of any Indebtedness by any Person or
any of its Subsidiaries, or the sale or issuance by any Person or any of its
Subsidiaries of any shares of its Capital Stock, the aggregate amount of cash
received (directly or indirectly) from time to time (whether as initial
consideration or through the payment or disposition of deferred consideration)
by or on behalf of such Person or such Subsidiary in connection therewith, after
deducting therefrom only (A) reasonable expenses related thereto incurred by
such Person or such Subsidiary in connection therewith and (B) transfer taxes
paid by such Person or such Subsidiary in connection therewith; in each case of
clause (i) and (ii) to the extent, but only to the extent, that the amounts so
deducted are (x) actually paid to a Person that, except in the case of
reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of
its Subsidiaries and (y) properly attributable to such transaction or to the
asset that is the subject thereof.
"Notice of Borrowing" has the meaning specified therefor in Section
2.02(a).
"Oak Hill" means Oak Hill Advisors, L.P., a Delaware limited
partnership.
"Obligations" means all present and future indebtedness, obligations,
and liabilities of each Loan Party to the Agent and the Lenders under the Loan
Documents, whether or not the right of payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured, unsecured, and whether or not
such claim is discharged, stayed or otherwise affected by any proceeding
referred to in Section 9.01. Without limiting the generality of the foregoing,
the Obligations of each Loan Party under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by such Person under
the Loan Documents, and (b) the obligation of such Person to reimburse any
amount in respect of any of the foregoing that the Agent or any Lender (in its
sole discretion) may elect to pay or advance on behalf of such Person.
"Operating Lease Obligations" means all obligations for the payment of
rent for any real or personal property under leases or agreements to lease,
other than Capitalized Lease Obligations.
"Owned Intellectual Property" has the meaning specified therefor in
Section 6.01(w).
"Parent" has the meaning specified therefor in the preamble hereto.
"Participant Register" has the meaning specified therefor in Section
12.07(b)(v).
"Payment Office" means the Agent's office located at 450 Park Avenue,
28/th/ Floor, New York, New York 10022, or at such other office or offices of
the Agent as may be designated in writing from time to time by the Agent to the
Administrative Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Permitted Holder" means (i) Alan S. McKim and his heirs, legal
representatives and legatees, (ii) the trustees of a trust for the benefit of
Mr. McKim, which trust is revocable solely by Mr. McKim, (iii) Mr. McKim's
spouse or children, (iv) a trust created for the exclusive
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benefit of Mr. McKim's spouse or children or for the exclusive benefit of Mr.
McKim and such persons, (v) any charitable trust or foundation qualified under
Section 501(c)(3) of the Internal Revenue Code established by Mr. McKim and for
which he serves as a trustee or director, and (vi) Ableco, Oak Hill and their
respective Affiliates.
"Permitted Indebtedness" means:
(a) any Indebtedness owing to the Agent and any Lender under this
Agreement and the other Loan Documents;
(b) any other Indebtedness listed on Schedule 7.02(b), and the
extension of maturity, refinancing or modification of the terms thereof;
provided, however, that (i) such extension, refinancing or modification is
pursuant to terms that are not less favorable to the Loan Parties and the
Lenders than the terms of the Indebtedness being extended, refinanced or
modified and (ii) after giving effect to such extension, refinancing or
modification, the amount of such Indebtedness is not greater than the amount of
Indebtedness outstanding immediately prior to such extension, refinancing or
modification;
(c) Indebtedness evidenced by Capitalized Lease Obligations entered
into in order to finance Capital Expenditures made by the Loan Parties in
accordance with the provisions of Section 7.02(g), which Indebtedness, when
aggregated with the principal amount of all Indebtedness incurred under this
clause (c) and clause (d) of this definition, does not exceed $10,000,000 in the
aggregate for all such Indebtedness incurred after the Effective Date;
(d) Indebtedness permitted by clause (e) of the definition of
"Permitted Liens";
(e) Indebtedness permitted under Section 7.02(e);
(f) Subordinated Indebtedness;
(g) Revolving Credit Indebtedness in an aggregate principal amount not
to exceed at any time outstanding the lower of (i) $100,000,000, and (ii) the
aggregate amount available to the Loan Parties under each Borrowing Base (as
defined in the Revolving Credit Agreements as in effect on the date hereof) and
the lending sublimits set forth in Sections 2.1 and 2.2 of the Revolving Credit
Agreement plus ten percent (10%) of such amount available under this clause
(ii), provided that the Revolving Credit Agent and the Loan Parties shall have
executed and delivered to the Agent the Intercreditor Agreement; and the
extension of maturity, replacement, refinancing or modification of the terms
thereof, provided that such extension, replacement, refinancing or modification
(x) is pursuant to terms that are not less favorable (as determined in the
Agent's discretion) to the Loan Parties and the Lenders than the terms of the
Revolving Credit Indebtedness being so extended, replaced, refinanced or
modified, (y) is subject to the Intercreditor Agreement or a similar
intercreditor agreement having substantially the same terms and conditions as
the Intercreditor Agreement and (z) shall not provide for the incurrence of
Indebtedness thereunder in excess of $100,000,000 at any time outstanding;
(h) Indebtedness of any Loan Party incurred in connection with the
issuance of litigation, environmental, ERISA-related, surety, reclamation, or
other performance bonds, in an aggregate principal amount at any one time
outstanding for all the Loan Parties not to exceed $50,000,000; and
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(i) Indebtedness of any Loan Party incurred in connection with the
issuance of letters of credit on behalf of such Loan Party in the ordinary
course of business (other than letters of credit issued under the Revolving
Credit Agreement the obligations for which constitute Revolving Credit
Indebtedness permitted under paragraph (g) above), provided that (i) the
aggregate amount of such letters of credit shall not exceed $100,000,000 at any
time, (ii) the obligations of the Loan Parties in respect of each letter of
credit are fully secured by cash deposited with the issuer of such letter of
credit (which cash shall constitute proceeds of the Term Loan A), (iii) the
issuer of each letter of credit and the Agent have entered into a deposit
account control agreement (including the Cash Collateral Control Agreement), in
form and substance satisfactory to the Agent, pertaining to the Agent's Lien on
the cash collateralizing such letter of credit, which Lien shall be subject only
to the prior Lien of such issuer, and (iv) all interest, dividends and other
earnings, income and distributions in respect of the cash collateralizing each
such letter of credit shall, in the absence of a continuing Event of Default, be
freely withdrawable by the applicable Loan Party.
"Permitted Investments" means (i) marketable direct obligations issued
or unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case, maturing within six months from the date of acquisition thereof; (ii)
commercial paper, maturing not more than 270 days after the date of issue rated
P-1 by Moody's or A-1 by Standard & Poor's; (iii) certificates of deposit
maturing not more than 270 days after the date of issue, issued by commercial
banking institutions and money market or demand deposit accounts maintained at
commercial banking institutions, each of which is a member of the Federal
Reserve System and has a combined capital and surplus and undivided profits of
not less than $500,000,000; (iv) repurchase agreements having maturities of not
more than 90 days from the date of acquisition which are entered into with major
money center banks included in the commercial banking institutions described in
clause (iii) above and which are secured by readily marketable direct
obligations of the United States Government or any agency thereof, (v) money
market accounts maintained with mutual funds having assets in excess of
$2,500,000,000; (vi) tax exempt securities rated A or better by Moody's or A+ or
better by Standard & Poor's and (vii) other investments in an aggregate amount
at any time outstanding not exceeding $2,000,000 so long as the Agent has a
perfected, first priority Lien thereon.
"Permitted Liens" means:
(a) Liens securing the Obligations;
(b) Liens for taxes, assessments and governmental charges the payment
of which is not required under Section 7.01(c);
(c) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's and other similar Liens arising (provided they are
subordinate to the Agent's Liens on Collateral) in the ordinary course of
business and securing obligations (other than Indebtedness for borrowed money)
that are not overdue by more than 30 days or are being contested in good faith
and by appropriate proceedings promptly initiated and diligently conducted, and
a reserve or other appropriate provision, if any, as shall be required by GAAP
shall have been made therefor;
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(d) Liens described on Schedule 7.02(a), but not the extension of
coverage thereof to other property or the extension of maturity, refinancing or
other modification of the terms thereof or the increase of the Indebtedness
secured thereby;
(e) (i) purchase money Liens on equipment acquired or held by any Loan
Party or any of its Subsidiaries in the ordinary course of its business to
secure the purchase price of such equipment or Indebtedness incurred solely for
the purpose of financing the acquisition of such equipment or (ii) Liens
existing on such equipment at the time of its acquisition; provided, however,
that (A) no such Lien shall extend to or cover any other property of any Loan
Party or any of its Subsidiaries, (B) the principal amount of the Indebtedness
secured by any such Lien shall not exceed the lesser of 80% of the fair market
value or the cost of the property so held or acquired and (C) the aggregate
principal amount of Indebtedness incurred after the Effective Date that is
secured by any or all such Liens shall not exceed $10,000,000;
(f) deposits and pledges of cash securing (i) obligations incurred in
respect of workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, (ii) the performance of bids, tenders,
leases, contracts (other than for the payment of money) and statutory
obligations or (iii) obligations on surety or appeal bonds, but only to the
extent such deposits or pledges are incurred or otherwise arise in the ordinary
course of business and secure obligations not past due;
(g) easements, zoning restrictions and similar encumbrances on real
property and minor irregularities in the title thereto that do not (i) secure
obligations for the payment of money or (ii) materially impair the value of such
property or its use by any Loan Party or any of its Subsidiaries in the normal
conduct of such Person's business;
(h) Liens granted under the Revolving Credit Documents (as in effect
on the date hereof) to secure the Revolving Credit Indebtedness permitted
pursuant to subsection (g) of the definition of "Permitted Indebtedness",
provided that the Revolving Credit Agent and the Loan Parties shall have
executed and delivered to the Agent the Intercreditor Agreement; and
(i) Liens in favor of the issuers of the letters of credit permitted
by subsection (i) of the definition of "Permitted Indebtedness" so long as (i)
such Liens attach solely to the cash collateralizing such letters of credit and
(ii) the issuer of each letter of credit and the Agent have entered into a
deposit account control agreement (including the Cash Collateral Control
Agreement), in form and substance satisfactory to the Agent, pertaining to the
Agent's Lien on such cash, which Lien shall be subject only to the prior Lien of
such issuer.
"Person" means an individual, corporation, limited liability company,
partnership, association, joint-stock company, trust, unincorporated
organization, joint venture or other enterprise or entity or Governmental
Authority.
"Plan" means any Employee Plan or Multiemployer Plan.
"Pledge Agreement" means a Pledge and Security Agreement made by a Loan
Party in favor of the Agent for the benefit of the Lenders, substantially in the
form of Exhibit C, securing the Obligations and delivered to the Agent.
"Post-Default Rate" means a rate of interest per annum equal to the
rate of interest otherwise in effect from time to time pursuant to the terms of
this Agreement plus 3.25%, or, if a
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rate of interest is not otherwise in effect, the greater of (i) the Reference
Rate plus 7.75% and (ii) 12.50%.
"Pro Rata Share" means:
(a) with respect to a Lender's obligation to make the Term Loan A and
receive payments of interest, fees, and principal with respect thereto, the
percentage obtained by dividing (i) such Lender's Term Loan A Commitment, by
(ii) the Total Term Loan A Commitment,
(b) with respect to a Lender's obligation to make the Term Loan B and
receive payments of interest, fees, and principal with respect thereto, the
percentage obtained by dividing (i) such Lender's Term Loan B Commitment, by
(ii) the Total Term Loan B Commitment, and
(c) with respect to all other matters (including, without limitation,
the indemnification obligations arising under Section 10.05), the percentage
obtained by dividing (i) the unpaid principal amount of such Lender's portion of
the Loans, by (ii) the aggregate unpaid principal amount of all Loans.
"Rating Agencies" has the meaning specified therefor in Section 2.07.
"Reference Bank" means JPMorgan Chase Bank, its successors or any other
commercial bank designated by the Agent to the Administrative Borrower from time
to time.
"Reference Rate" means the rate of interest publicly announced by the
Reference Bank in New York, New York from time to time as its reference rate,
base rate or prime rate. The reference rate, base rate or prime rate is
determined from time to time by the Reference Bank as a means of pricing some
loans to its borrowers and neither is tied to any external rate of interest or
index nor necessarily reflects the lowest rate of interest actually charged by
the Reference Bank to any particular class or category of customers. Each change
in the Reference Rate shall be effective from and including the date such change
is publicly announced as being effective.
"Reference Rate Loan" means a Term Loan A bearing interest based upon
the Reference Rate.
"Register" has the meaning specified therefor in Section 12.07(b)(ii).
"Registered" means, with respect to any Intellectual Property, issued,
registered, renewed or the subject of a pending application.
"Registered Loan" has the meaning specified therefore in Section
12.07(b)(ii).
"Regulation T", "Regulation U" and "Regulation X" mean, respectively,
Regulations T, U and X of the Board or any successor, as the same may be amended
or supplemented from time to time.
"Release" means any spilling, leaking, pumping, emitting, emptying,
discharging, injecting, escaping, leaching, migrating, dumping, or disposing of
Hazardous Materials (including the abandonment or discarding of barrels,
containers or other closed receptacles containing Hazardous Materials) into the
environment.
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"Related Fund" means, with respect to any Lender or Oak Hill, any
Affiliate (other than individuals) of such Person, including, without
limitation, a fund or account managed by such Person or an Affiliate of such
Person or its investment manager.
"Remedial Action" means all actions taken to (i) clean up, remove,
remediate, contain, treat, monitor, assess, evaluate or in any other way address
Hazardous Materials in the indoor or outdoor environment; (ii) prevent or
minimize a Release or threatened Release of Hazardous Materials so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; (iii) perform pre-remedial studies and
investigations and post-remedial operation and maintenance activities; or (iv)
any other actions authorized by 42 U.S.C. 9601.
"Reportable Event" means an event described in Section 4043 of ERISA
(other than an event not subject to the provision for 30-day notice to the PBGC
under the regulations promulgated under such Section).
"Required Lenders" means Lenders whose Pro Rata Share of the Loans
aggregate at least 51%.
"Reserve Percentage" means, on any day, for any Lender, the maximum
percentage prescribed by the Board of Governors of the Federal Reserve System
(or any successor Governmental Authority) for determining the reserve
requirements (including any basic, supplemental, marginal, or emergency
reserves) that are in effect on such date with respect to eurocurrency funding
(currently referred to as "eurocurrency liabilities") of that Lender, but so
long as such Lender is not required or directed under applicable regulations to
maintain such reserves, the Reserve Percentage shall be zero.
"Revolving Credit Agent" means Congress Financial Corporation (New
England).
"Revolving Credit Agreement" means the Loan and Security Agreement,
dated as of September 6, 2002, by and among the Borrowers, the Guarantors, the
Revolving Credit Lenders and the Revolving Credit Agent, as the same may be
replaced, renewed or refinanced from time to time in accordance with Section
7.02(m) hereof.
"Revolving Credit Documents" means, collectively, (i) the Revolving
Credit Agreement, and (ii) all other agreements, instruments, and other
documents executed and delivered pursuant to the foregoing.
"Revolving Credit Indebtedness" means the Indebtedness of the Loan
Parties owing to the Revolving Credit Agent and the Revolving Credit Lenders
under the Revolving Credit Agreement.
"Revolving Loan Lenders" means the lenders party to the Revolving
Credit Agreement.
"Rolling Stock" means all trucks, trailers, tractors, service vehicles,
automobiles and other registered mobile equipment.
"Rolling Stock Collateral Custodian" has the meaning specified therefor
in Section 8.04(a).
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"Sale Order" means the order by the Bankruptcy Court entered into on
June 18, 2002 authorizing the Sellers to sell the Acquisition Assets to the
Parent and certain of the Borrowers free and clear of all Liens other than the
"Permitted Exceptions" (as defined in the Acquisition Agreement).
"SEC" means the Securities and Exchange Commission or any other similar
or successor agency of the Federal government administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect from time to time.
"Securitization" has the meaning specified therefor in Section 2.07.
"Securitization Parties" has the meaning specified therefor in Section
2.07.
"Security Agreement" means a Security Agreement made by a Loan Party in
favor of the Agent for the benefit of the Lenders, substantially in the form of
Exhibit B, securing the Obligations and delivered to the Agent.
"Sellers" means Safety-Kleen Services, Inc., a Delaware corporation,
and certain of its domestic Subsidiaries, each as a debtor-in-possession.
"SK Facilities" has the meaning specified therefor in Section 6.01(r).
"SK Rolling Stock " has the meaning specified therefor in Section
5.03(a).
"Solvent" means, with respect to any Person on a particular date, that
on such date (i) the fair value of the property of such Person is not less than
the total amount of the liabilities of such Person, (ii) 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 existing debts
as they become absolute and matured, (iii) 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, (iv) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (v) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc. and any successor thereto.
"Subordinated Indebtedness" means Indebtedness of any Loan Party the
terms of which are satisfactory to the Agent and the Required Lenders and which
has been expressly subordinated in right of payment to all Indebtedness of such
Loan Party under the Loan Documents (i) by the execution and delivery of a
subordination agreement, in form and substance satisfactory to the Agent and the
Required Lenders, or (ii) otherwise on terms and conditions (including, without
limitation, subordination provisions, payment terms, interest rates, covenants,
remedies, defaults and other material terms) satisfactory to the Agent and the
Required Lenders.
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"Subsidiary" means, with respect to any Person at any date, any
corporation, limited or general partnership, limited liability company, trust,
estate, association, joint venture or other business entity (i) the accounts of
which would be consolidated with those of such Person in such Person's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP or (ii) of which more than 50% of (A) the outstanding
Capital Stock having (in the absence of contingencies) ordinary voting power to
elect a majority of the board of directors or other managing body of such
Person, (B) in the case of a partnership or limited liability company, the
interest in the capital or profits of such partnership or limited liability
company or (C) in the case of a trust, estate, association, joint venture or
other entity, the beneficial interest in such trust, estate, association or
other entity business is, at the time of determination, owned or controlled
directly or indirectly through one or more intermediaries, by such Person.
"Technology Systems" means the electronic data processing, business
management, information, recordkeeping, communications and telecommunications
systems (including all computer programs, software, databases, firmware,
hardware and related documentation) which are used by the Loan Parties in their
respective businesses.
"Term A Maturity Date" means September 10, 2005, or such earlier date
on which the Term Loan A shall become due and payable in accordance with the
terms of this Agreement and the other Loan Documents.
"Term B Maturity Date" means September 10, 2007, or such earlier date
on which the Term Loan B shall become due and payable in accordance with the
terms of this Agreement and the other Loan Documents.
"Term Loan A" means, collectively, the loans made by the Lenders to the
Borrowers on the Effective Date pursuant to Section 2.01(a)(i) and the loans (if
any) made by the Additional Lenders to the Borrowers after the Effective Date
pursuant to Section 2.01(c)(iii).
"Term Loan A Commitment" means, with respect to each Lender, the
commitment of such Lender to make the Term Loan A to the Borrowers in the amount
set forth in Schedule 1.01(A) hereto, as the same may be terminated, increased
or reduced from time to time in accordance with the terms of this Agreement,
including, without limitation, Section 2.01(c).
"Term Loan B" means, collectively, the loans made by the Lenders to the
Borrowers on the Term Loan B Effective Date pursuant to Section 2.01(a)(ii) and
the loans (if any) made by the Lenders to the Borrowers after the Effective Date
pursuant to Section 2.01(c)(iv).
"Term Loan B Commitment" means, with respect to each Lender, the
commitment of such Lender to make the Term Loan B to the Borrowers in the amount
set forth in Schedule 1.01(A) hereto, as the same may be terminated, increased
or reduced from time to time in accordance with the terms of this Agreement,
including, without limitation, Section 2.01(c).
"Termination Date" means the date on which all Obligations shall become
due and payable in accordance with the terms of this Agreement and the other
Loan Documents.
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"Termination Event" means (i) a Reportable Event with respect to any
Employee Plan, (ii) any event that causes any Loan Party or any of its ERISA
Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the
Internal Revenue Code, (iii) the filing of a notice of intent to terminate an
Employee Plan or the treatment of an Employee Plan amendment as a termination
under Section 4041 of ERISA, (iv) the institution of proceedings by the PBGC to
terminate an Employee Plan, or (v) any other 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 Employee Plan.
"Title Insurance Policy" means a mortgagee's loan policy of title
insurance, on forms and otherwise in form and substance satisfactory to the
Agent, together with all endorsements made from time to time thereto, issued by
or on behalf of a title insurance company satisfactory to the Agent, insuring
the Lien created by a Mortgage in an amount and subject only to such exceptions
and otherwise on terms satisfactory to the Agent, delivered to the Agent.
"Total Commitment" means the sum of the Term Loan A Commitments and the
Term Loan B Commitments.
"Total Term Loan A Commitment" means the sum of the Term Loan A
Commitments.
"Total Term Loan B Commitment" means the sum of the Term Loan B
Commitments.
"Transaction Documents" means the Loan Documents and the Acquisition
Documents.
"UCC Filing Authorization Letter" means a letter duly executed by each
Loan Party authorizing the Agent to file appropriate financing statements on
Form UCC-1 without the signature of such Loan Party in such office or offices as
may be necessary or, in the opinion of the Agent, desirable to perfect the
security interests purported to be created by each Security Agreement, each
Pledge Agreement and each Mortgage.
"Uniform Commercial Code" has the meaning specified therefor in Section
1.03.
"WARN" has the meaning specified therefor in Section 6.01(z).
Section 1.02 Terms Generally. The definitions of terms herein shall
apply equally to 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". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder",
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and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words "asset" and "property" shall be construed to have the same meaning
and effect and to refer to any right or interest in or to assets and properties
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible. References in this Agreement to "determination" by the Agent include
good faith estimates by the Agent (in the case of quantitative determinations)
and good faith beliefs by the Agent (in the case of qualitative determinations).
Section 1.03 Accounting and Other Terms. Unless otherwise expressly
provided herein, each accounting term used herein shall have the meaning given
it under GAAP applied on a basis consistent with those used in preparing the
Financial Statements. All terms used in this Agreement which are defined in
Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York (the "Uniform Commercial Code") and which are not
otherwise defined herein shall have the same meanings herein as set forth
therein, provided that terms used herein which are defined in the Uniform
Commercial Code as in effect in the State of New York on the date hereof shall
continue to have the same meaning notwithstanding any replacement or amendment
of such statute except as the Agent may otherwise determine.
Section 1.04 Time References. Unless otherwise indicated herein, all
references to time of day refer to Eastern Standard Time or Eastern daylight
saving time, as in effect in New York City on such day. For purposes of the
computation of a period of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to and including"; provided, however, that with respect to a computation
of fees or interest payable to the Agent or any Lender, such period shall in any
event consist of at least one full day.
ARTICLE II
THE LOANS
Section 2.01 Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth:
(i) each Lender with a Term Loan A Commitment severally
agrees to make its portion of the Term Loan A to the Borrowers on the Effective
Date, in the principal amount not to exceed the amount of such Lender's Term
Loan A Commitment; and
(ii) each Lender with a Term Loan B Commitment severally
agrees to make its portion of the Term Loan B to the Borrowers on the Effective
Date, in the principal amount not to exceed the amount of such Lender's Term
Loan B Commitment.
(b) Notwithstanding the foregoing, (i) the aggregate
principal amount of the Term Loan A made on the Effective Date shall not exceed
the Total Term Loan A Commitment and (ii) the aggregate principal amount of the
Term Loan B made on the Effective Date shall not exceed the Total Term Loan B
Commitment. Any principal amount of the Loans which is repaid or prepaid may not
be reborrowed.
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(c) (i) Notwithstanding anything to the contrary
contained in this Agreement, the Borrowers may request that the Term Loan A be
increased (the "Commitment Increase") by up to $25,000,000 in the aggregate.
Such Commitment Increase shall be effected as follows: the Borrowers may arrange
for one or more banks or financial institutions not a party hereto (an
"Additional Lender") to become parties to and Lenders under this Agreement,
provided that (A) the Agent shall have consented to such Additional Lender, such
consent not to be unreasonably withheld, (B) if the aggregate amount of such
Commitment Increase equals or is less than $20,000,000, the Borrowers shall, on
the effective date of such Commitment Increase, repay no less than $5,000,000 of
the outstanding principal amount of the Term Loan A held by Ableco, Oak Hill and
their respective Related Funds (which repayment (x) shall be allocated among
Ableco, Oak Hill and their respective Related Funds in accordance with their Pro
Rata Shares of the Term Loan A and (y) may be effected by applying the proceeds
of the additional Term Loan B referenced in Section 2.01(c)(iv)) and (C) if the
aggregate amount of such Commitment Increase exceeds $20,000,000, then
immediately prior to the effective date of such Commitment Increase, the
aggregate outstanding principal amount of the Term Loan A owing to Ableco, Oak
Hill and their respective Related Funds shall not exceed $50,000,000.
Notwithstanding anything contained in this Agreement to the contrary, no Lender
shall have any obligation whatsoever to increase the amount of its Term Loan A
Commitment.
(ii) Any Additional Lender that is willing to
become a party hereto and a Lender hereunder and that has been approved by the
Agent shall enter into a joinder agreement with the Loan Parties and the Agent,
substantially in the form of Exhibit G hereto (a "Joinder Agreement"), which
agreement shall specify, among other things, the Term Loan A Commitment of such
Additional Lender hereunder. When such Additional Lender becomes a Lender
hereunder as set forth in the Joinder Agreement, Schedule 1.01(A) shall, without
further action, be deemed to have been amended as appropriate to reflect the
Term Loan A Commitment of such Additional Lender. Upon the execution by the
Agent, the Loan Parties and such Additional Lender of such Joinder Agreement,
such Additional Lender shall become and be deemed a Lender for all purposes of
this Agreement and the other Loan Documents and shall enjoy all rights and
assume all obligations of the Lenders set forth in this Agreement and the other
Loan Documents, and its Term Loan A Commitment shall be the amount specified in
its Joinder Agreement.
(iii) In no event shall the Term Loan A Commitment
of an Additional Lender become effective until the Agent shall have received
such agreements, instruments, approvals, legal opinions and other documents as
the Agent shall reasonably request. On the effective date set forth in the
Joinder Agreement, the Additional Lender will, subject to the terms of this
Agreement, make a Term Loan A to the Borrowers in the principal amount of its
Term Loan A Commitment and such Term Loan A shall constitute a Loan for all
purposes of this Agreement and the other Loan Documents.
(iv) In connection with any Commitment Increase,
each of Ableco, Oak Hill and their respective Affiliates (including any funds or
accounts managed by the same investment advisor as Ableco or Oak Hill, as
applicable) shall have the option to increase the principal amount of the Term
Loan B by up to $5,000,000 in the aggregate. On the effective date of the
Commitment Increase, if Ableco, Oak Hill or any of their respective Affiliates
(including any funds or accounts managed by the same investment advisor as
Ableco or Oak Hill, as applicable) elect to make an additional Term Loan B to
the Borrowers in accordance with the immediately preceding sentence, (A)
Schedule 1.01(A) shall, without further action, be
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deemed to have been amended as appropriate to reflect the increase of such
Lender's Term Loan B Commitment and (B) such Lender will, subject to the terms
of this Agreement, make an additional Term Loan B to the Borrowers in the
principal amount equal to the increase in its Term Loan B Commitment and such
additional Term Loan B shall constitute a Loan for all purposes of this
Agreement and the other Loan Documents.
Section 2.02 Making the Loans. (a) The Administrative Borrower shall
give the Agent prior telephonic notice (immediately confirmed in writing, in
substantially the form of Exhibit D hereto (a "Notice of Borrowing")), not later
than 12:00 noon (New York City time) on the date which is five (5) Business Days
prior to the date of the proposed Loan (or such shorter period as the Agent is
willing to accommodate from time to time, but in no event later than 12:00 noon
(New York City time) on the borrowing date of the proposed Loan). Such Notice of
Borrowing shall be irrevocable and shall specify (i) the principal amount of the
proposed Loan, (ii) the use of the proceeds of such proposed Loan, and (iii) the
proposed borrowing date, which must be a Business Day, and, with respect to the
Loans (other than the Loans made pursuant to Section 2.01(c)), must be the
Effective Date. The Agent and the Lenders may act without liability upon the
basis of written, telecopied or telephonic notice believed by the Agent in good
faith to be from the Administrative Borrower (or from any Authorized Officer
thereof designated in writing purportedly from the Administrative Borrower to
the Agent). Each Borrower hereby waives the right to dispute the Agent's record
of the terms of any such telephonic Notice of Borrowing. The Agent and each
Lender shall be entitled to rely conclusively on any Authorized Officer's
authority to request a Loan on behalf of the Borrowers until the Agent receives
written notice to the contrary. The Agent and the Lenders shall have no duty to
verify the authenticity of the signature appearing on any written Notice of
Borrowing.
(b) Each Notice of Borrowing pursuant to this Section 2.02
shall be irrevocable and the Borrowers shall be bound to make a borrowing in
accordance therewith.
(c) Subject to Section 2.01(c), all Loans under this
Agreement shall be made by the Lenders simultaneously and proportionately to
their Pro Rata Shares of the Total Term Loan A Commitment and the Total Term
Loan B Commitment, as the case may be, it being understood that no Lender shall
be responsible for any default by any other Lender in that other Lender's
obligations to make a Loan requested hereunder, nor shall the Commitment of any
Lender be increased or decreased as a result of the default by any other Lender
in that other Lender's obligation to make a Loan requested hereunder, and each
Lender shall be obligated to make the Loans required to be made by it by the
terms of this Agreement regardless of the failure by any other Lender.
Section 2.03 Repayment of Loans; Evidence of Debt. (a) The
outstanding principal of the Term Loan A shall be due and payable on the Term A
Maturity Date. The outstanding principal of the Term Loan B shall be due and
payable on the Term B Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrowers to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) the
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amount of any sum received by the Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrowers shall execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) in
a form furnished by the Agent and reasonably acceptable to the Administrative
Borrower. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
12.07) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
Section 2.04 Interest. (a) Term Loan A. The Term Loan A shall be a
LIBOR Loan, except as otherwise provided in Section 2.09. The portion of the
Term Loan A that is a LIBOR Loan shall bear interest on the principal amount
thereof from time to time outstanding, from the date of the Term Loan A until
such principal amount becomes due, at a rate per annum equal to the LIBOR Rate
for the Interest Period in effect for such portion of the Term Loan A plus
7.25%. The portion of the Term Loan A that is a Reference Rate Loan shall bear
interest on the principal amount thereof from time to time outstanding, from the
date of the Term Loan A until such principal amount becomes due, at a rate per
annum equal to the Reference Rate plus 4.50%.
(b) Term Loan B. The Term Loan B shall bear interest on the
principal amount thereof from time to time outstanding, from the date of the
Term Loan B until such principal amount becomes due, at a rate per annum equal
to 22%; provided, however, that, so long as no Event of Default has occurred and
is continuing, interest on the outstanding principal amount of the Term Loan B
at a per annum rate equal to 11% shall, in the absence of an election by the
Administrative Borrower to pay such interest in cash, be paid by capitalizing
such interest and adding such capitalized interest to the then outstanding
principal amount of the Term Loan B. Any interest to be capitalized shall be
capitalized on the date such interest is to be paid pursuant to Section 2.04(d)
and added to the then outstanding principal amount of the Term Loan B and
thereafter shall bear interest as provided hereunder as if it had originally
been part of the outstanding principal of the Term Loan B.
(c) Default Interest. To the extent permitted by law, upon
the occurrence and during the continuance of an Event of Default, the principal
of, and all accrued and unpaid interest on, all Loans, fees, indemnities, any
other Obligations of the Loan Parties under this Agreement and the other Loan
Documents, shall bear interest, from the date such Event of Default occurred
until the date such Event of Default is cured or waived in writing in accordance
herewith, at a rate per annum equal at all times to the Post-Default Rate.
(d) Interest Payment. Interest on each Loan (other than
capitalized interest) shall accrue and be payable (in the manner described in
Section 4.02) monthly, in
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arrears, on the first day of each month, commencing on the first day of the
month following the month in which such Loan is made and at maturity (whether
upon demand, by acceleration or otherwise). Interest at the Post-Default Rate
shall be payable on demand. Each Borrower hereby authorizes the Agent to, and
the Agent may, from time to time, charge the Loan Account pursuant to Section
4.02 with the amount of any interest payment due hereunder.
(e) General. All interest shall be computed on the basis of
a year of 360 days for the actual number of days, including the first day but
excluding the last day, elapsed.
Section 2.05 Term Loan Commitments; Prepayment of Loans.
(a) Commitment Increase. The amount of the Total Term Loan
A Commitment and the Total Term Loan B Commitment shall increase solely in
accordance with the terms of Section 2.01(c).
(b) Optional Prepayment.
(i) Term Loan A. The Borrowers may, upon at least
five (5) Business Days' prior written notice to the Agent, prepay the principal
of the Term Loan A, in whole but not in part. Any prepayment made pursuant to
this clause (b)(i) shall be accompanied by the payment of accrued interest to
the date of such payment on the amount prepaid together with the payment of the
applicable Early Termination Fee.
(ii) Term Loan B. The Borrowers may, upon at least
five (5) Business Days' prior written notice to the Agent, prepay the principal
of the Term Loan B, in whole but not in part. Any prepayment made pursuant to
this clause (b)(ii) shall be accompanied by the payment of accrued interest to
the date of such payment on the amount prepaid together with the payment of the
applicable Early Termination Fee.
(c) Mandatory Prepayment.
(i) Immediately upon any Disposition by any Loan
Party or its Subsidiaries pursuant to Section 7.02(c)(ii), the Borrowers shall
prepay the outstanding principal amount of the Term Loan A (or, if the Term Loan
A has been paid in full, the Term Loan B) in an amount equal to 100% of the Net
Cash Proceeds received by such Person in connection with such Disposition to the
extent that the aggregate amount of Net Cash Proceeds received by all Loan
Parties and their Subsidiaries (and not paid to the Agent as a prepayment of the
Loans) shall exceed, for all such Dispositions since the Effective Date,
$500,000. Nothing contained in this subsection (ii) shall permit any Loan Party
or any of its Subsidiaries to make a Disposition of any property other than in
accordance with Section 7.02(c)(ii).
(ii) Upon the issuance or incurrence by any Loan
Party or any of its Subsidiaries of any Indebtedness referred to in clause (f)
of the definition of "Permitted Indebtedness", or the sale or issuance by any
Loan Party or any of its Subsidiaries of any shares of its Capital Stock (other
than the issuance or sale of such shares permitted under Section 7.02(l)), the
Borrowers shall prepay the outstanding amount of the Term Loan A (or if the Term
Loan A has been paid in full, the Term Loan B) in an amount equal to 100% of the
Net Cash Proceeds received by such Person in connection therewith. The
provisions of this subsection (iii)
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shall not be deemed to be implied consent to any such issuance, incurrence or
sale otherwise prohibited by the terms and conditions of this Agreement.
(iii) Upon the receipt by any Loan Party or any of
its Subsidiaries of any Extraordinary Receipts (other than Extraordinary
Receipts comprising insurance proceeds) in an aggregate amount greater than
$100,000 or Extraordinary Receipts comprising insurance proceeds, in each case
since the Effective Date, the Borrowers shall prepay the outstanding principal
of the Term Loan A (or, if the Term Loan A has been repaid in full, the Term
Loan B) in an amount equal to 100% of such Extraordinary Receipts, net of any
reasonable expenses incurred in collecting such Extraordinary Receipts, provided
that:
(A) in the case of Extraordinary
Receipts comprising proceeds of business interruption insurance or foreign,
United States, state or local tax refunds, such Extraordinary Receipts
shall be applied to prepay the Loans in accordance with this Section
2.05(c)(iii) only in the event a Default or Event of Default has occurred
and is continuing on the date such Extraordinary Receipts are received by
such Loan Party; and
(B) except during the continuance of
a Default or Event of Default, Extraordinary Receipts comprising insurance
proceeds that are not otherwise subject to clause (A) above shall not be
required to be so prepaid on the date such proceeds are received by such
Loan Party to the extent (I) such proceeds are used to replace or restore
the properties or assets used in such Person's business in respect of which
such proceeds were paid if the Administrative Borrower delivers a
certificate to the Agent within 30 days of such event stating that such
proceeds shall be used to replace or restore any such properties or assets
to be used in such Person's business within a period specified in such
certificate not to exceed 180 days after the receipt of such proceeds
(which certificate shall set forth estimates of the proceeds to be so
expended) and (II) such proceeds are deposited in a deposit account subject
to a Control Agreement. If all or any portion of such proceeds not so
applied to the prepayment of the Term Loans are not so used within the
period specified in the relevant certificate furnished pursuant hereto (not
to exceed 180 days), such remaining portion shall prepay the outstanding
principal of the Loans on the last day of such specified period. In
addition, upon the occurrence and during the continuance of an Event of
Default, the Agent may apply such proceeds to the prepayment of the Loans.
(iv) Upon the occurrence of a Change of Control
under paragraph (a) of the definition of the term "Change of Control", the
Borrowers shall, upon demand from the Agent, prepay the outstanding principal of
the Term Loan A and the Term Loan B. Any prepayment made pursuant to this clause
(c)(iv) shall be accompanied by the payment of accrued interest to the date of
such payment on the amount prepaid together with the payment of a prepayment fee
equal to 1% of the principal amount of the Term Loan B so prepaid, and each
Lender holding a Term Loan B shall be entitled to receive its ratable portion of
such prepayment fee pursuant to Section 4.02.
(d) Application of Payments. Each prepayment pursuant to
subsections (c)(i), (c)(ii) and (c)(iii) above shall be applied, first, to the
Term Loan A, and second, to the Term Loan B.
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(e) Interest and Fees. Any prepayment made pursuant to this
Section 2.05 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment, and if such prepayment would reduce the
amount of the outstanding Loans to zero, such prepayment shall be accompanied by
the payment of all fees accrued to such date pursuant to Section 2.06.
(f) Cumulative Prepayments. Except as otherwise expressly
provided in this Section 2.05, payments with respect to any subsection of this
Section 2.05 are in addition to payments made or required to be made under any
other subsection of this Section 2.05.
Section 2.06 Fees.
(a) Funding Fee. The Borrowers shall pay to the Agent for
the account of the Lenders, in accordance with their Pro Rata Shares of any
additional Term Loan B made after the Effective Date in accordance with Section
2.01(c)(iv), a non-refundable funding fee (the "Funding Fee") equal to 2% of the
aggregate original principal amount of such additional Term Loan B, which shall
be deemed fully earned when paid and shall be payable on the date of the making
of such additional Term Loan B.
Section 2.07 Securitization. The Loan Parties hereby acknowledge
that the Lenders and their Affiliates may sell or securitize the Loans (a
"Securitization") through the pledge of the Loans as collateral security for
loans to the Lenders or their Affiliates or through the sale of the Loans or the
issuance of direct or indirect interests in the Loans, which loans to the
Lenders or their Affiliates or direct or indirect interests will be rated by
Moody's, Standard & Poor's or one or more other rating agencies (the "Rating
Agencies"). The Loan Parties shall cooperate with the Lenders and their
Affiliates to effect the Securitization including, without limitation, by (a)
amending this Agreement and the other Loan Documents, and executing such
additional documents, as reasonably requested by the Lenders in connection with
the Securitization, provided that (i) any such amendment or additional
documentation does not impose material additional costs on the Loan Parties and
(ii) any such amendment or additional documentation does not materially
adversely affect the rights, or materially increase the obligations, of the Loan
Parties under the Loan Documents or change or affect in a manner adverse to the
Loan Parties the financial terms of the Loans, (b) providing such information as
may be reasonably requested by the Lenders in connection with the rating of the
Loans or the Securitization, and (c) providing in connection with any rating of
the Loans a certificate (i) agreeing to indemnify the Lenders and their
Affiliates, any of the Rating Agencies, or any party providing credit support or
otherwise participating in the Securitization (collectively, the "Securitization
Parties") for any losses, claims, damages or liabilities (the "Liabilities") to
which the Lenders, their Affiliates or such Securitization Parties may become
subject insofar as the Liabilities arise out of or are based upon any untrue
statement of any material fact contained in any Loan Document or in any writing
delivered by or on behalf of any Loan Party to the Lenders in connection with
any Loan Document or arise out of or are based upon the omission to state
therein a material fact required to be stated therein, or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and such indemnity shall survive any transfer by the
Lenders or their successors or assigns of the Loans and (ii) agreeing to
reimburse the Lenders and their Affiliates for any legal or other expenses
reasonably incurred by such Persons in connection with defending the
Liabilities.
Section 2.08 Taxes. (a) All payments made by any Loan Party
hereunder or under any other Loan Document shall be made without set-off,
counterclaim, deduction or other
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defense. All such payments shall be made free and clear of and without deduction
for any present or future income, franchise, sales, use, excise, stamp or other
taxes, levies, imposts, deductions, charges, fees, withholdings, restrictions or
conditions of any nature now or hereafter imposed, levied, collected, withheld
or assessed by any jurisdiction (whether pursuant to Federal, state, local or
foreign law) or by any political subdivision or taxing authority thereof or
therein, and all interest, penalties or additional amounts, excluding taxes on
the net income of any Lender or the Agent imposed by the jurisdiction in which
such Lender or the Agent is organized or any political subdivision thereof or
taxing authority thereof or any jurisdiction in which such Person's principal
office is located or any political subdivision thereof or taxing authority
thereof (such nonexcluded taxes, levies, imposts, deductions, charges, fees,
withholdings, restrictions, conditions, interest, penalties and additional
amounts being hereinafter collectively referred to as "Taxes"). If any Loan
Party shall be required to deduct or to withhold any Taxes from or in respect of
any amount payable hereunder or under any other Loan Document,
(i) the amount so payable shall be increased so
that after making all required deductions and withholdings (including Taxes on
amounts payable pursuant to this sentence) the Lenders or the Agent, as the case
may be, receive an amount equal to the sum they would have received had no such
deduction or withholding been made,
(ii) such Loan Party shall make such deduction or
withholding,
(iii) such Loan Party shall pay the full amount
deducted or withheld to the relevant taxation authority in accordance with
applicable law, and
(iv) as promptly as possible thereafter, such Loan
Party shall send the Lenders and the Agent an official receipt (or, if an
official receipt is not available, such other documentation as shall be
satisfactory to the Lenders or the Agent, as the case may be) evidencing payment
of the amount or amounts so deducted or withheld. In addition, each Loan Party
agrees to pay any present or future taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery, performance,
recordation or filing of, or otherwise with respect to, this Agreement or any
other Loan Document other than the foregoing excluded taxes (hereinafter
referred to as "Other Taxes").
(b) The Loan Parties hereby jointly and severally indemnify
and agree to hold the Lenders and the Agent harmless from and against Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 2.08) paid by any Lender
or the Agent and any liability (including penalties, interest and expenses for
nonpayment, late payment or otherwise) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Such indemnification shall be paid within 10 days from the date on
which any such Lender or the Agent makes written demand therefor, which demand
shall identify in reasonable detail the nature and amount of such Taxes or Other
Taxes.
(c) Each Lender that is organized in a jurisdiction outside
the United States hereby agrees that it shall, no later than the Effective Date
or, in the case of a Lender which becomes a party hereto pursuant to Section
12.07 hereof after the Effective Date, the date upon which such Lender becomes a
party hereto (and from time to time thereafter upon the reasonable request of
the Administrative Borrower or the Agent, but only if such Lender is legally
able to do so), deliver to the Administrative Borrower and the Agent either (i)
two accurate, complete and signed copies of either (x) U.S. Internal Revenue
Service Form W-8ECI
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or successor form, or (y) U.S. Internal Revenue Service Form W-8BEN or successor
form, in each case, indicating that such Lender is on the date of delivery
thereof entitled to receive payments of interest hereunder free from, or subject
to a reduced rate of, withholding of United States Federal income tax or (ii) in
the case of such a Lender that is entitled to claim exemption from withholding
of United States Federal income tax under Section 871(h) or Section 881(c) of
the Internal Revenue Code, (x) a certificate to the effect that such Lender is
(A) not a "bank" within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (B) not a "10 percent shareholder" of the Parent within the
meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (C) not a
controller foreign corporation receiving interest from a related person within
the meaning of Section 881(c)(3)(C) of the Internal Revenue Code and (y) two
accurate, complete and signed copies of U.S. Internal Revenue Service Form
W-8BEN or successor form.
(d) If any Loan Party fails to perform any of its
obligations under this Section 2.08, the Loan Parties shall indemnify the
Lenders and the Agent for any taxes, interest or penalties that may become
payable as a result of any such failure. The obligations of the Loan Parties
under this Section 2.08 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
Section 2.09 LIBOR Not Determinable; Illegality or Impropriety. (a)
In the event, and on each occasion, that on or before the day on which LIBOR is
to be determined in connection with the continuation of a LIBOR Loan as such or
a conversion of a Reference Rate Loan into a LIBOR Loan pursuant to Section 2.11
hereof, the Agent has determined in good faith that, or has been advised by the
Required Lenders that, (i) LIBOR cannot be reasonably determined for any reason,
(ii) LIBOR will not adequately and fairly reflect the cost of maintaining LIBOR
Loans or (iii) Dollar deposits in the principal amount of the applicable LIBOR
Loans are not available in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations in respect of the Lenders' LIBOR
Loans are then being conducted, the Agent shall, as soon as practicable
thereafter, give written notice of such determination to the Administrative
Borrower and the other Lenders. In the event of any such determination, any
request by the Administrative Borrower to continue a LIBOR Loan or to convert a
Reference Rate Loan into a LIBOR Loan pursuant to Section 2.11 shall, until, (i)
in the case of such a determination by the Required Lenders, the Agent has been
advised by the Required Lenders and the Agent has so advised the Administrative
Borrower that, or (ii) in the case of a determination by the Agent, the Agent
has advised the Administrative Borrower and the other Lenders that, the
circumstances giving rise to such notice no longer exist, be deemed to be a
request for a Reference Rate Loan. Each determination by the Agent and/or the
Required Lenders hereunder shall be conclusive and binding absent manifest
error.
(b) In the event that it shall be unlawful or improper for
any Lender to make, maintain or fund any LIBOR Loan as contemplated by this
Agreement, then such Lender shall forthwith give notice thereof to the Agent and
the Administrative Borrower describing such illegality or impropriety in
reasonable detail. Effective immediately upon the giving of such notice, the
obligation of such Lender to continue to make LIBOR Loans shall be suspended for
the duration of such illegality or impropriety and, if and when such illegality
or impropriety ceases to exist, such suspension shall cease, and such Lender
shall notify the Agent and the Administrative Borrower. If any such change shall
make it unlawful or improper for any Lender to maintain any outstanding LIBOR
Loan as a LIBOR Loan, such Lender shall, upon the happening of such event,
notify the Agent and the Administrative Borrower, and the Administrative
Borrower shall immediately, or if permitted by applicable law, rule, regulation,
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order, decree, interpretation, request or directive, at the end of the then
current Interest Period for such LIBOR Loan, convert each such LIBOR Loan into a
Reference Rate Loan.
Section 2.10 Indemnity. (a) The Borrowers hereby jointly and
severally indemnify each Lender against any loss or expense that such Lender
actually sustains or incurs (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain any LIBOR Loan, and including loss
of anticipated profits) as a consequence of (i) any failure by the Borrowers to
fulfill on the date of any borrowing hereunder the applicable conditions set
forth in Article V or in any Joinder Agreement, (ii) any failure by the
Borrowers to borrow any LIBOR Loan hereunder, to convert any Reference Rate Loan
into a LIBOR Loan or to continue a LIBOR Loan as such after notice of such
borrowing, conversion or continuation has been given pursuant to Section 2.02 or
2.11 hereof, (iii) any payment, prepayment (mandatory or optional) or conversion
of a LIBOR Loan required by any provision of this Agreement or otherwise made on
a date other than the last day of the Interest Period applicable thereto, (iv)
any default in payment or prepayment of the principal amount of any LIBOR Loan
or any part thereof or interest accrued thereon, as and when due and payable (at
the due date thereof, by notice of prepayment or otherwise), or (v) the
occurrence of any Event of Default, including, in each such case, any loss
(including, without limitation, loss of anticipated profits) or reasonable
expense sustained or incurred in liquidating or employing deposits from third
parties acquired to effect or maintain such Loan or any part thereof as a LIBOR
Loan. Such loss or reasonable expense shall include but not be limited to an
amount equal to the excess, if any, as reasonably determined by such Lender, of
(i) its cost of obtaining the funds for the Loan being paid or prepaid or
converted or continued or not borrowed or converted or continued (based on LIBOR
applicable thereto) for the period from the date of such payment, prepayment,
conversion, continuation or failure to borrow, convert or continue on the last
day of the Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the last day of the Interest Period for such Loan
that would have commenced on the date of such failure to borrow, convert or
continue) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in re-employing the funds so paid,
prepaid, converted or continued or not borrowed, converted or continued for such
Interest Period. A certificate of any Lender setting forth in reasonable detail
any amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.10 and the basis for the determination of such amount or amounts shall
be delivered to the Borrower and shall be conclusive and binding absent manifest
error.
(b) Notwithstanding paragraph (a) of this Section 2.10, the
Agent will use reasonable efforts to minimize or reduce any such loss or expense
resulting from the mandatory prepayments required by Section 2.05 of this
Agreement by applying all payments and prepayments to Reference Rate Loans prior
to any application of payments to LIBOR Loans.
Section 2.11 Continuation and Conversion of Loans. Subject to
Section 2.09 hereof, the Administrative Borrower shall have the right, at any
time, on three (3) Business Days' prior irrevocable written or telecopy notice
to the Agent, to continue any LIBOR Loan, or any portion thereof, into a
subsequent Interest Period or to convert any Reference Rate Loan or portion
thereof into a LIBOR Loan, subject to the following:
(a) no LIBOR Loan may be continued as such and no Reference
Rate Loan may be converted into a LIBOR Loan, when any Event of Default or
Default shall have occurred and be continuing at such time,
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(b) in the case of a continuation of a LIBOR Loan as such
or a conversion of a Reference Rate Loan into a LIBOR Loan, the aggregate
principal amount of such LIBOR Loan shall not be less than $1,000,000 and in
multiples of $500,000 if in excess thereof;
(c) any portion of a Loan maturing or required to be repaid
in less than one month may not be converted into or continued as a LIBOR Loan;
and
(d) if any conversion of a LIBOR Loan shall be effected on
a day other than the last day of an Interest Period, the Borrowers shall
reimburse each Lender on demand for any loss incurred or to be incurred or to be
incurred by it in the reemployment of the funds released by such conversion as
provided in Section 2.10 hereof.
In the event that the Administrative Borrower shall not give notice to continue
any LIBOR Loan into a subsequent Interest Period, such Loan shall automatically
become a Reference Rate Loan at the expiration of the then current Interest
Period.
ARTICLE III
[RESERVED]
ARTICLE IV
FEES, PAYMENTS AND OTHER COMPENSATION
Section 4.01 Audit and Collateral Monitoring Fees. The Borrowers
acknowledge that pursuant to Section 7.01(f), representatives of the Agent may
visit any or all of the Loan Parties and/or conduct audits, inspections,
valuations and/or field examinations of any or all of the Loan Parties at any
time and from time to time in a manner so as to not unduly disrupt the business
of the Loan Parties. The Borrower agrees to pay (i) $1,500 per day per examiner
plus the examiner's out-of-pocket costs and reasonable expenses incurred in
connection with all such visits, audits, inspections, valuations and field
examinations and (ii) the cost of all visits, audits, inspections, valuations
and field examinations conducted by a third party on behalf of the Agent.
Section 4.02 Payments; Computations and Statements. (a) The
Borrowers will make each payment under this Agreement not later than 12:00 noon
(New York City time) on the day when due, in lawful money of the United States
of America and in immediately available funds, to the Agent's Account. All
payments received by the Agent after 12:00 noon (New York City time) on any
Business Day will be credited to the Loan Account on the next succeeding
Business Day. All payments shall be made by the Borrowers without set-off,
counterclaim, deduction or other defense to the Agents and the Lenders. Except
as provided in Section 2.02, after receipt, the Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal ratably
to the Lenders in accordance with their Pro Rata Shares and like funds relating
to the payment of any other amount payable to any Lender to such Lender, in each
case to be applied in accordance with the terms of this Agreement, provided that
the Agent will cause to be distributed all interest and fees received from or
for the account of the Borrowers not less than once each month and in any event
promptly after receipt thereof. The Lenders and the Borrowers hereby authorize
the Agent to, and the Agent may, from time to time, charge the Loan Account of
the Borrowers with any amount due and payable by the Borrowers under any Loan
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Document. Each of the Lenders and the Borrowers agrees that the Agent shall have
the right to make such charges whether or not any Default or Event of Default
shall have occurred and be continuing. Any amount charged to the Loan Account of
the Borrowers shall be deemed a Loan hereunder made by the Lenders to the
Borrowers, funded by the Agent on behalf of the Lenders and shall be added to
the then outstanding principal amount of the Loans and thereafter shall bear
interest as provided hereunder as if it had originally been part of the
outstanding principal of the Term Loan B. Whenever any payment to be made under
any such Loan Document shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be. All computations of fees shall be made by the Agent
on the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
fees are payable. Each determination by the Agent of an interest rate or fees
hereunder shall be conclusive and binding for all purposes in the absence of
manifest error.
(b) The Agent shall provide the Administrative Borrower,
promptly after the end of each calendar month, a summary statement (in the form
from time to time used by the Agent) of the opening and closing daily balances
in the Loan Account of the Borrowers during such month, the amounts and dates of
all Loans made to the Borrowers, the amounts and dates of all payments on
account of the Loans during such month and the Loans to which such payments were
applied, the amount of interest accrued on the Loans during such month,
specifying the face amount thereof, and the amount and nature of any charges to
the Loan Account made during such month on account of fees, commissions,
expenses and other Obligations. All entries on any such statement shall be
presumed to be correct and, thirty (30) days after the same is sent, shall be
final and conclusive absent manifest error.
Section 4.03 Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of any Obligation in excess of its ratable
share of payments on account of similar obligations obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations
in such similar obligations held by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender of any interest or other amount paid by the purchasing Lender
in respect of the total amount so recovered). The Borrowers agree that any
Lender so purchasing a participation from another Lender pursuant to this
Section 4.03 may, to the fullest extent permitted by law, exercise all of its
rights (including the Lender's right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation.
Section 4.04 Apportionment of Payments. Subject to Section 2.02
hereof:
(a) all payments of principal and interest in respect of
outstanding Loans, all payments of fees (other than the fees set forth in
Section 2.06 hereof and the audit and collateral monitoring fee provided for in
Section 4.01) and all other payments in respect of any other Obligations, shall
be allocated by the Agent among such of the Lenders as are entitled thereto, in
proportion to their respective Pro Rata Shares or otherwise as provided herein
or, in
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respect of payments not made on account of Loans, as designated by the Person
making payment when the payment is made.
(b) After the occurrence and during the continuance of an
Event of Default, the Agent shall apply all payments in respect of any
Obligations and all proceeds of the Collateral, subject to the provisions of
this Agreement, (i) first, ratably to pay the Obligations in respect of any
fees, expense reimbursements, indemnities and other amounts then due to the
Agent until paid in full; (ii) second, ratably to pay the Obligations in respect
of any fees and indemnities then due to the Lenders until paid in full; (iii)
third, ratably to pay interest due in respect of the Term Loan A until paid in
full; (iv) fourth, ratably to pay principal of the Term Loan A until paid in
full; (v) fifth, ratably to pay interest due in respect of the Term Loan B until
paid in full; (vi) sixth, ratably to pay principal of the Term Loan B until paid
in full, and (vii) seventh, to the ratable payment of all other Obligations then
due and payable.
(c) In each instance, so long as no Event of Default has
occurred and is continuing, Section 4.04(b) shall not be deemed to apply to any
payment by the Borrowers specified by the Administrative Borrower to the Agent
to be for the payment of Obligations then due and payable under any provision of
this Agreement or the prepayment of all or part of the principal of any Loan in
accordance with the terms and conditions of Section 2.05.
(d) For purposes of Section 4.04(b), "paid in full" with
respect to interest shall include interest accrued after the commencement of any
Insolvency Proceeding irrespective of whether a claim for such interest is
allowable in such Insolvency Proceeding.
(e) In the event of a direct conflict between the priority
provisions of this Section 4.04 and other provisions contained in any other Loan
Document, it is the intention of the parties hereto that both such priority
provisions in such documents shall be read together and construed, to the
fullest extent possible, to be in concert with each other. In the event of any
actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms
and provisions of this Section 4.04 shall control and govern.
Section 4.05 Increased Costs and Reduced Return. (a) If any Lender or
the Agent shall have determined that the adoption or implementation of, or any
change in, any law, rule, treaty or regulation, or any policy, guideline or
directive of, or any change in, the interpretation or administration thereof by,
any court, central bank or other administrative or Governmental Authority, or
compliance by any Lender or the Agent or any Person controlling any such Lender
or the Agent with any directive of, or guideline from, any central bank or other
Governmental Authority or the introduction of, or change in, any accounting
principles applicable to any Lender or the Agent or any Person controlling any
such Lender or the Agent (in each case, whether or not having the force of law),
shall (i) subject any Lender or the Agent, or any Person controlling any such
Lender or the Agent to any tax, duty or other charge with respect to this
Agreement or any Loan made by such Lender or the Agent, or change the basis of
taxation of payments to any Lender or the Agent or any Person controlling any
such Lender or the Agent of any amounts payable hereunder (except for taxes on
the overall net income of any Lender or the Agent or any Person controlling any
such Lender or the Agent), (ii) impose, modify or deem applicable any reserve,
special deposit or similar requirement against any Loan or against assets of or
held by, or deposits with or for the account of, or credit extended by, any
Lender or the Agent or any Person controlling any such Lender or the Agent or
(iii) impose on any Lender or the Agent or any Person controlling any such
Lender or the Agent any other condition regarding this Agreement or any Loan,
and the result of any event referred to in
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clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or
the Agent of making any Loan, or agreeing to make any Loan, or to reduce any
amount received or receivable by any Lender or the Agent hereunder, then, upon
demand by any such Lender or the Agent, the Borrowers shall pay to such Lender
or the Agent such additional amounts as will compensate such Lender or the Agent
for such increased costs or reductions in amount.
(b) If any Lender or the Agent shall have determined that any
Capital Guideline or the adoption or implementation of, or any change in, any
Capital Guideline by the Governmental Authority charged with the interpretation
or administration thereof, or compliance by any Lender or the Agent or any
Person controlling such Lender or the Agent with any Capital Guideline or with
any request or directive of any such Governmental Authority with respect to any
Capital Guideline, or the implementation of, or any change in, any applicable
accounting principles (in each case, whether or not having the force of law),
either (i) affects or would affect the amount of capital required or expected to
be maintained by any Lender or the Agent or any Person controlling such Lender
or the Agent, and any Lender or the Agent determines that the amount of such
capital is increased as a direct or indirect consequence of any Loans made or
maintained or any Lender's or the Agent's or any such other controlling Person's
other obligations hereunder, or (ii) has or would have the effect of reducing
the rate of return on any Lender's or the Agent's any such other controlling
Person's capital to a level below that which such Lender or the Agent or such
controlling Person could have achieved but for such circumstances as a
consequence of any Loans made or maintained, or any agreement to make Loans, or
such Lender's, the Agent's or such other controlling Person's other obligations
hereunder (in each case, taking into consideration, such Lender's, the Agent's
or such other controlling Person's policies with respect to capital adequacy),
then, upon demand by any Lender or the Agent, the Borrowers shall pay to such
Lender or the Agent from time to time such additional amounts as will compensate
such Lender or the Agent for such cost of maintaining such increased capital or
such reduction in the rate of return on such Lender's or the Agent's or such
other controlling Person's capital.
(c) All amounts payable under this Section 4.05 shall bear
interest from the date that is ten (10) days after the date of demand by any
Lender or the Agent until payment in full to such Lender or the Agent at the
Reference Rate. A certificate of such Lender or the Agent claiming compensation
under this Section 4.05, specifying the event herein above described and the
nature of such event shall be submitted by such Lender or the Agent to the
Administrative Borrower, setting forth the additional amount due and an
explanation of the calculation thereof, and such Lender's or the Agent's reasons
for invoking the provisions of this Section 4.05, and shall be final and
conclusive absent manifest error.
Section 4.06 Joint and Several Liability of the Borrowers. (a)
Notwithstanding anything in this Agreement or any other Loan Document to the
contrary, each of the Borrowers hereby accepts joint and several liability
hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Agent and the Lenders under this Agreement
and the other Loan Documents, for the mutual benefit, directly and indirectly,
of each of the Borrowers and in consideration of the undertakings of the other
Borrowers to accept joint and several liability for the Obligations. Each of the
Borrowers, jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrowers, with respect to the payment and performance
of all of the Obligations (including, without limitation, any Obligations
arising under this Section 4.06), it being the intention of the parties hereto
that all of the Obligations
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shall be the joint and several obligations of each of the Borrowers without
preferences or distinction among them. If and to the extent that any of the
Borrowers shall fail to make any payment with respect to any of the Obligations
as and when due or to perform any of the Obligations in accordance with the
terms thereof, then in each such event, the other Borrowers will make such
payment with respect to, or perform, such Obligation. Subject to the terms and
conditions hereof, the Obligations of each of the Borrowers under the provisions
of this Section 4.06 constitute the absolute and unconditional, full recourse
Obligations of each of the Borrowers, enforceable against each such Person to
the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement, the other Loan Documents or any
other circumstances whatsoever.
(b) The provisions of this Section 4.06 are made for the
benefit of the Agent, the Lenders and their successors and assigns, and may be
enforced by them from time to time against any or all of the Borrowers as often
as occasion therefor may arise and without requirement on the part of the Agent,
the Lenders or such successors or assigns first to marshal any of its or their
claims or to exercise any of its or their rights against any of the other
Borrowers or to exhaust any remedies available to it or them against any of the
other Borrowers or to resort to any other source or means of obtaining payment
of any of the Obligations hereunder or to elect any other remedy. The provisions
of this Section 4.06 shall remain in effect until all of the Obligations shall
have been paid in full or otherwise fully satisfied.
(c) Each of the Borrowers hereby agrees that it will not
enforce any of its rights of contribution or subrogation against the other
Borrowers with respect to any liability incurred by it hereunder or under any of
the other Loan Documents, any payments made by it to the Agent or the Lenders
with respect to any of the Obligations or any Collateral, until such time as all
of the Obligations have been paid in full in cash. Any claim which any Borrower
may have against any other Borrower with respect to any payments to the Agent or
the Lenders hereunder or under any other Loan Documents are hereby expressly
made subordinate and junior in right of payment, without limitation as to any
increases in the Obligations arising hereunder or thereunder, to the prior
payment in full in cash of the Obligations.
ARTICLE V
CONDITIONS TO LOANS
Section 5.01 Conditions Precedent to Effectiveness. This Agreement
shall become effective as of the Business Day (the "Effective Date") when each
of the following conditions precedent shall have been satisfied in a manner
satisfactory to the Agent:
(a) Payment of Fees, Etc. The Borrowers shall have paid on or
before the date of this Agreement all fees, costs, expenses and taxes then
payable pursuant to Sections 2.06 and 12.04.
(b) Representations and Warranties; No Event of Default. The
following statements shall be true and correct: (i) the representations and
warranties contained in Article VI and in each other Loan Document, certificate
or other writing delivered to the Agent or any Lender pursuant hereto or thereto
on or prior to the Effective Date are true and correct on and as of the
Effective Date as though made on and as of such date and (ii) no Default or
Event of Default shall have occurred and be continuing on the Effective Date or
would result from this
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Agreement or the other Loan Documents becoming effective in accordance with
its or their respective terms.
(c) Legality. The making of the initial Loans shall not
contravene any law, rule or regulation applicable to the Agent or any Lender.
(d) Delivery of Documents. The Agent shall have received on or
before the Effective Date the following, each in form and substance satisfactory
to the Agent and, unless indicated otherwise, dated the Effective Date:
(i) a Security Agreement, duly executed by each Loan
Party;
(ii) a Pledge Agreement, duly executed by each Loan
Party, together with the original stock certificates representing all of the
common stock of such Loan Party's Subsidiaries and all intercompany promissory
notes of such Loan Parties, accompanied by undated stock powers executed in
blank and other proper instruments of transfer;
(iii) a Mortgage, duly executed by the applicable Loan
Party, with respect to each Facility, except for the Facilities identified in
Schedule 5.03(b) (the "Deferred Facilities");
(iv) evidence satisfactory to the Agent and the title
insurance company issuing the relevant Title Insurance Policy of the suitability
for recording of each Mortgage (other than Mortgages for the Deferred
Facilities) in such office or offices as may be necessary or, in the opinion of
the Agent, desirable to perfect the Lien purported to be created thereby or to
otherwise protect the rights of the Agent and the Lenders thereunder;
(v) a Title Insurance Policy (or marked commitments to
issue the same) or, if acceptable to the Agent in its sole discretion, a
bring-down of the existing Title Insurance Policy, with respect to each Mortgage
(other than Mortgages for the Deferred Facilities), dated as of the Effective
Date;
(vi) an ALTA survey of each Facility (other than those
Facilities indicated on Schedule 1.01(B) as either not requiring an ALTA survey
or as being Deferred Facilities), in form and substance satisfactory to the
Agent, and certified to the Agent and to the issuer of the Title Insurance
Policy covering such Facility using a form of certification satisfactory to such
parties;
(vii) a copy of each letter issued by the applicable
State Governmental Authority, or other evidence satisfactory to the Agent,
evidencing compliance by each Facility (other than those Facilities indicated on
Schedule 1.01(B) as either not requiring such evidence or as being Deferred
Facilities) with all applicable building codes, fire codes, other health and
safety rules and regulations, parking, density and height requirements and other
building, subdivision and zoning laws, orders, rules, regulations and
requirements of all governmental or quasi-governmental authorities having
jurisdiction (including, without limitation, copies of all applicable
certificates of occupancy);
(viii) the Canadian Security Documents, duly executed by
the Canadian Loan Parties;
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(ix) a UCC Filing Authorization Letter, duly executed by
each Loan Party, together with appropriate financing statements on Form UCC-1
duly filed in such office or offices as may be necessary or, in the opinion of
the Agent, desirable to perfect the security interests purported to be created
by each Security Agreement, each Pledge Agreement and each Mortgage and
appropriate PPSA financing statements duly filed in such office or offices as
may be necessary or, in the opinion of the Agent, desirable to perfect the
security interest purported to be created by each Canadian Mortgage and each
Canadian Security Agreement;
(x) certified copies of request for copies of
information on Form UCC-11, listing all effective financing statements which
name as debtor any Loan Party and which are filed in the offices referred to in
paragraph (ix) above, together with copies of such financing statements, none of
which, except as otherwise agreed in writing by the Agent, shall cover any of
the Collateral and the results of searches for any tax Lien and judgment Lien
filed against such Person or its property, which results, except as otherwise
agreed to in writing by the Agent, shall not show any such Liens, and certified
copies of PPSA search results from the applicable Canadian jurisdiction listing
all security interests against any Loan Party and which are filed in the
applicable personal property security office of such Canadian jurisdiction and
which do not disclose, except as otherwise agreed in writing by the Agent,
security interests affecting any of the Collateral;
(xi) a copy of the resolutions of each Loan Party,
certified as of the Effective Date by an Authorized Officer thereof, authorizing
(A) the borrowings hereunder and the transactions contemplated by the Loan
Documents to which such Loan Party is or will be a party, (B) the execution,
delivery and performance by such Loan Party of each Loan Document to which such
Loan Party is or will be a party and the execution and delivery of the other
documents to be delivered by such Person in connection herewith and therewith
and (C) the execution, delivery and performance by such Loan Party (to the
extent applicable) of each Acquisition Document to which such Loan Party is or
will be a party and the execution and delivery of the other documents to be
delivered by such Loan Party in connection therewith;
(xii) a certificate of an Authorized Officer of each Loan
Party, certifying the names and true signatures of the representatives of such
Loan Party authorized to sign each Loan Document to which such Loan Party is or
will be a party and the other documents to be executed and delivered by such
Loan Party in connection herewith and therewith, together with evidence of the
incumbency of such authorized officers;
(xiii) a certificate of the appropriate official(s) of the
state of organization and each state of foreign qualification of each Loan Party
certifying as to the subsistence in good standing of, and (to the extent
available in the applicable jurisdiction) the payment of taxes by, such Loan
Party in such states, which certificates shall be certified as of a recent date
not more than 30 days prior to the Effective Date;
(xiv) a certificate as of a recent date not more than 30
days prior to the Effective Date by an appropriate official of the state of
organization of such Loan Party which shall set forth the same complete name of
such Loan Party as is set forth herein and the organizational number of such
Loan Party, if an organized number is issued in such jurisdiction, and a list of
the charter, certificate of formation, certificate of limited partnership or
other publicly filed organizational documents of such Loan Party, together with
a copy of each such
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document certified (but not necessarily within 30 days prior to the Effective
Date) by such official;
(xv) a copy of the charter and by-laws, limited
liability company agreement, operating agreement, agreement of limited
partnership or other organizational document of each Loan Party, together with
all amendments thereto, certified as of the Effective Date by an Authorized
Officer of such Loan Party;
(xvi) (A) an opinion of Davis Malm & D'Agostine, P.C.,
Massachusetts counsel to the Loan Parties, substantially in the form of Exhibit
F-1 and as to such other matters as the Agent may reasonably request, and (B) an
opinion of McCarthy Tetrault LLP, Canadian counsel to the Loan Parties,
substantially in the form of Exhibit F-2 and as to such other matters as the
Agent may reasonably request, and (C) a copy of the opinion of Blaney McMurty
LLP, Canadian counsel to the Sellers' Canadian Subsidiaries subject to the
Acquisition, delivered to the Loan Parties pursuant to the Acquisition
Documents, which shall expressly provide that the Agent and the Lenders may rely
thereon;
(xvii) a certificate of an Authorized Officer of each
Loan Party, certifying as to the matters set forth in subsection (b) of this
Section 5.01;
(xviii) a copy of the Financial Statements and the
financial projections described in Section 6.01(g)(ii) hereof, certified (in the
case of those Financial Statements and financial projections of the Parent and
its Subsidiaries) as of the Effective Date as true and correct by an Authorized
Officer of the Parent;
(xix) a certificate of the chief financial officer of
the Parent, setting forth in reasonable detail the calculations required to
establish compliance, on a pro forma basis after giving effect to the Loans,
with each of the financial covenants contained in Section 7.03;
(xx) a certificate of the chief financial officer of
each Loan Party, certifying as to the solvency of such Loan Party, which
certificate shall be satisfactory in form and substance to the Agent;
(xxi) evidence of the insurance coverage required by
Section 7.01 and the terms of each Security Agreement and each Mortgage and such
other insurance coverage with respect to the business and operations of the Loan
Parties as the Agent may reasonably request, in each case, where requested by
the Agent, with such endorsements as to the named insureds or loss payees
thereunder as the Agent may request and providing that such policy may be
terminated or canceled (by the insurer or the insured thereunder) only upon 30
days' prior written notice to the Agent and each such named insured or loss
payee, together with evidence of the payment of all premiums due in respect
thereof for such period as the Agent may request;
(xxii) a certificate of an Authorized Officer of the
Administrative Borrower, certifying the names and true signatures of the persons
that are authorized to provide Notices of Borrowing and all other notices under
this Agreement and the other Loan Documents;
(xxiii) a landlord waiver, in form and substance
satisfactory to the Agent and which may be included as a provision contained in
the relevant Lease, executed by
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each landlord with respect to the Parent's headquarters located in Braintree,
Massachusetts and the property located in Columbia, South Carolina where the
financial books and records relating to the Acquired Assets are located;
(xxiv) all documents or other instruments duly executed
by the applicable Loan Party, in form and substance satisfactory to the Agent,
that is necessary to enable the Agent to perfect its security interest in the
Rolling Stock described in Schedule 5.01(d)(xxiv) (the "CH Rolling Stock"),
which Schedule shall include for each piece of CH Rolling Stock information with
respect to the manufacturer, the year made, the model, the vehicle
identification number, the state in which it is licensed, the license number,
the owner, state in which it is titled and the certificate of title or ownership
identification number;
(xxv) copies of the Acquisition Documents, the
Revolving Credit Documents and the other Material Contracts as in effect on the
Effective Date (exclusive of any financing documents which are being prepaid or
defeased as of the Effective Date), certified as true and correct copies thereof
by an Authorized Officer of the Administrative Borrower, together with a
certificate of an Authorized Officer of the Administrative Borrower stating that
such agreements remain in full force and effect and that none of the Loan
Parties has breached or defaulted in any of its obligations under such
agreements;
(xxvi) (A) a termination and release agreement with
respect to the Existing Credit Facility and all related documents, duly executed
by the Loan Parties and the Existing Lender, together with a satisfaction of
mortgage for each mortgage filed by the Existing Lender on the Existing Credit
Facility, satisfactory arrangements with respect to the release of Lien by the
Existing Lender on each certificate of title with respect to the CH Rolling
Stock and UCC-3 termination statements for all UCC-1 financing statements filed
by the Existing Lender and covering any portion of the Collateral, and (B)
similar instruments of release, discharge and satisfaction, in form and
substance satisfactory to the Agent, with respect to (I) the Liens of
Toronto-Dominion Bank on any personal property constituting a portion of the
Acquisition Assets and (II) each other financing or similar arrangement
encumbering any Facility;
(xxvii) a satisfactory ASTM 1527-00 Phase I Environmental
Site Assessment ("Phase I ESA") and Limited Compliance Assessment, provided by
the Loan Parties to the Agent, and, if requested by the Agent based upon the
results of such Phase I ESA, a Phase II Environmental Site Assessment of each
Facility, in form and substance and by an independent firm satisfactory to the
Agent;
(xxviii) the Contribution Agreement, duly executed by each
Loan Party;
(xxix) the Intercompany Subordination Agreement, duly
executed by each Loan Party;
(xxx) the Intercreditor Agreement, duly executed by the
Agent, the Revolving Credit Agent and the Loan Parties;
(xxxi) the Cash Collateral Control Agreement, duly
executed by the Agent, the L/C Issuer and the Loan Parties;
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(xxxii) the Custodian Agreement, duly executed by the
Loan Parties and the Rolling Stock Collateral Custodian; and
(xxxiii) such other agreements, instruments, approvals,
opinions and other documents, each satisfactory to the Agent in form and
substance, as the Agent may reasonably request.
(e) The Sale Order. The Sale Order shall have been signed and
entered by the Bankruptcy Court and the Agent shall have received a certified
copy of the same and such order shall be in full force and effect and shall not
have been reversed, stayed, modified or amended absent the consent of the Agent
and the Required Lenders. The Sale Order shall provide that, upon payment to the
Sellers of the consideration specified in the Acquisition Agreement, good and
marketable title to the Acquisition Assets shall be transferred to the Loan
Parties free and clear of all Liens, except the Liens constituting "Permitted
Exceptions" (as defined in the Acquisition Agreement), and shall otherwise be in
form and substance satisfactory to the Agent and the Required Lenders. The Sale
Order shall have been entered by the Bankruptcy Court and (x) no appeals shall
have been filed within the time period specified by Rule 8002(a) of the Federal
Rules of Bankruptcy Procedure, (y) in the event a timely appeal has been filed,
the effectiveness of such order has not been stayed in accordance with Rule 8005
of the Federal Rules of Bankruptcy Procedure or (z) in the event such order was
stayed pending appeal, such stay has been terminated by a subsequent court
order.
(f) The Acquisition. On or prior to the Effective Date, the
Agent and the Lenders shall have received true and correct copies of all
Acquisition Documents as in effect on the Effective Date, and the Acquisition
Documents as in effect on the Effective Date shall be in form and substance
satisfactory to the Agent and the Required Lenders and shall not have been
amended or otherwise modified without the prior written consent of the Agent and
the Required Lenders. The Acquisition, including all of the terms and conditions
thereof, shall have been duly authorized and all Acquisition Documents shall
have been duly executed and delivered by all parties thereto and shall be in
full force and effect. The Acquisition shall have been consummated in accordance
with all applicable law (including, without limitation, the Bankruptcy Code),
the Acquisition Documents and the Sale Order. At the time of consummation
thereof, all consents and approvals of, and filings and registrations with, and
all other actions in respect of, any Governmental Authorities and any other
Person required in order to consummate the Acquisition shall have been obtained
and shall be in full force and effect.
(g) Convertible Preferred Stock. The Parent shall have
received no less than $25,000,000 of cash proceeds from the sale of its Series C
convertible preferred stock to certain investors affiliated with Ableco and Oak
Hill. The terms and conditions of such equity shall be satisfactory to the Agent
and the Required Lenders in their sole discretion. On or prior to the Effective
Date, there shall have been delivered to the Agent true and correct copies of
all documents evidencing the equity described above, as in effect on the
Effective Date, and all terms and provisions of such documents as in effect on
the Effective Date shall be in form and substance satisfactory to the Agent and
the Required Lenders and shall not have been amended, modified or otherwise
changed without the prior written consent of the Agent and the Required Lenders.
(h) Revolving Credit Documents; Adjusted Excess Availability.
On or prior to the Effective Date, there shall have been delivered to the Agent
true and correct copies of all Revolving Credit Documents as in effect on the
Effective Date, and all terms and provisions
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of the Revolving Credit Documents as in effect on the Effective Date shall be in
form and substance satisfactory to the Agent and the Required Lenders and shall
not have been amended, modified or otherwise changed without the prior written
consent of the Agent and the Required Lenders. After giving effect to all Loans
to be made on the Effective Date and after giving effect to the Acquisition, (i)
the Adjusted Excess Availability of the Loan Parties shall not be less than
$25,000,000 and (ii) all liabilities of the Loan Parties (other than
intercompany liabilities) shall not be past due unless such liabilities are the
subject of a bona fide dispute for which adequate reserves have been set aside
for the payment thereof in accordance with GAAP. The Parent shall deliver to the
Agent a certificate of the chief financial officer of the Parent certifying as
to the matters set forth in clauses (i) and (ii) above and containing the
calculation of Adjusted Excess Availability.
(i) Material Adverse Effect. The Agent shall have determined,
in its sole judgment, that no event or development shall have occurred since
June 30, 2002 which could have a Material Adverse Effect.
(j) Approvals. All consents, authorizations and approvals of,
and filings and registrations with, and all other actions in respect of, any
Governmental Authority or other Person required in connection with the making of
the Loans or the conduct of the Loan Parties' business shall have been obtained
and shall be in full force and effect.
(k) Proceedings; Receipt of Documents. All proceedings in
connection with the making of the initial Loans and the other transactions
contemplated by this Agreement and the other Loan Documents, and all documents
incidental hereto and thereto, shall be satisfactory to the Agent and its
counsel, and the Agent and such counsel shall have received all such information
and such counterpart originals or certified or other copies of such documents as
the Agent or such counsel may reasonably request.
(l) Ratings. The Agent shall have received a letter from each
Rating Agency setting forth such Rating Agency's rating of the Term Loan A.
(m) Rolling Stock Collateral Custodian. The Agent shall be
satisfied with the Rolling Stock Collateral Custodian's application filings of
the certificates of title or ownership of the CH Rolling Stock of the Loan
Parties to note the Lien of the Agent thereon and administration, management,
processing and custodianship of the certificates of title or ownership of such
Rolling Stock on and after the Effective Date.
Section 5.02 Conditions Precedent to All Loans. The obligation of the
Agent or any Lender to make any Loan in accordance with Section 2.01(c) is
subject to the fulfillment, in a manner satisfactory to the Agent, of each of
the following conditions precedent:
(a) Payment of Fees, Etc. The Borrowers shall have paid all
fees, costs, expenses and taxes then payable by the Borrowers pursuant to this
Agreement and the other Loan Documents, including, without limitation, Sections
2.06 and 12.04 hereof.
(b) Representations and Warranties; No Event of Default. The
following statements shall be true and correct, and the submission by the
Administrative Borrower to the Agent of a Notice of Borrowing with respect to
each such Loan, and the Borrowers' acceptance of the proceeds of such Loan,
shall each be deemed to be a representation and warranty by each Loan Party on
the date of such Loan that: (i) the representations and
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warranties contained in Article VI and in each other Loan Document, certificate
or other writing delivered the Agent or any Lender pursuant hereto or thereto on
or prior to the date of such Loan are true and correct on and as of such date as
though made on and as of such date, (ii) at the time of and after giving effect
to the making of such Loan and the application of the proceeds thereof, no
Default or Event of Default has occurred and is continuing or would result from
the making of the Loan to be made on such date and (iii) the conditions set
forth in this Section 5.02 have been satisfied as of the date of such request.
(c) Legality. The making of such Loan shall not contravene any
law, rule or regulation applicable to the Agent or any Lender.
(d) Notices. The Agent shall have received a Notice of
Borrowing pursuant to Section 2.02 hereof.
(e) Delivery of Documents. The Agent shall have received a
Joinder Agreement, duly executed by the applicable Additional Lender, and such
other agreements, instruments, approvals, opinions and other documents, each in
form and substance satisfactory to the Agent, as the Agent may reasonably
request.
(f) Proceedings; Receipt of Documents. All proceedings in
connection with the making of such Loan and the other transactions contemplated
by this Agreement and the other Loan Documents, and all documents incidental
hereto and thereto, shall be satisfactory to the Agent and its counsel, and the
Agent and such counsel shall have received all such information and such
counterpart originals or certified or other copies of such documents, in form
and substance satisfactory to the Agent, as the Agent or such counsel may
reasonably request.
Section 5.03 Conditions Subsequent to All Loans. The obligation of the
Agent or any Lender to make additional Loans or continue to maintain the Loans
after the Effective Date is subject to the fulfillment, on or before the date
applicable thereto, of each of the conditions subsequent set forth below (the
failure by Borrowers to so perform or cause to be performed constituting an
Event of Default):
(a) Within 60 days of the Effective Date, deliver to the Agent
(or, at the direction of the Agent, to the Rolling Stock Collateral Agent) all
documents or other instruments duly executed by the applicable Loan Party, in
form and substance satisfactory to the Agent, that are necessary to enable the
Agent to perfect its security interest in the Rolling Stock described in
Schedule 5.03(a) (the "SK Rolling Stock"), which Schedule shall include for each
piece of SK Rolling Stock information with respect to the manufacturer, the year
made, the model, the vehicle identification number, the state in which it is
licensed, the license number, the owner, state in which it is titled and the
certificate of title or ownership identification number; provided that the Loan
Parties shall not be deemed to be in default under this Section 5.03(a) if they
are unable, despite their reasonable best efforts, to deliver to the Agent (or
the Rolling Stock Collateral Agent, as the case may be) such documents in
respect of all of the SK Rolling Stock so long as (i) the documents so delivered
represent no less than eighty percent (80%) of all of the SK Rolling Stock and
(ii) the orderly liquidation value of the SK Rolling Stock for which such
documents are so delivered, determined by a third party appraiser reasonably
acceptable to the Agent, shall equal or exceed ninety percent (90%) of the
orderly liquidation value of all of the SK Rolling Stock;
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(b) On or before each deadline set forth in Schedule 5.03(b)
pertaining to certain real estate matters not completed by the Effective Date,
satisfy the post-closing obligation corresponding to such deadline as set forth
in such Schedule, in each case to the reasonable satisfaction of the Agent;
(c) Within 14 days of the Effective Date, deliver evidence to
the Agent of the transfer by the applicable Governmental Authorities to the
applicable Loan Parties of all of the material Environmental Permits set forth
on Schedule 6.01(r)(ii);
(d) Within 30 days of the Effective Date, deliver evidence to
the Agent of the filing with the United States Patent and Trademark Office,
United States Copyright Office and other official offices, of all documentation
necessary to confirm each Loan Party's ownership of the Owned Intellectual
Property;
(e) Within 30 days of the Effective Date, deliver to the Agent
(i) waivers or discharges from those certain creditors as set forth in Schedule
5.03(e), as to the Liens registered against one or more of the Canadian Loan
Parties as set forth in Schedule 5.03(e), or (ii) other evidence satisfactory to
the Agent that such Liens do not attach to any assets of the Canadian Loan
Parties except to the extent such Liens are Permitted Liens, in each case in
form and substance satisfactory to the Agent; and
(f) Within 5 days of the Effective Date, deliver to the Agent
(i) a fully executed copy of the defeasance escrow agreement among the City of
Kimball, Nebraska, the Parent, Clean Harbors Environmental Services, Inc. and
State Street Bank and Trust Company, as trustee (the "Trustee") for those
certain Economic Development Revenue Bonds (Clean Harbors, Inc.) Series 1996
(the "Bonds") in the original principal amount of $10,000,000 issued pursuant to
the Indenture of Trust dated as of September 1, 1996 (as amended to date, the
"Indenture"), certified as true and correct by the Parent, (ii) the Verification
Report of The Arbitrage Group, Inc. with respect to the governmental securities
purchased by the Parent and deposited with the Trustee to effect the defeasance
of the Bonds in accordance with the Indenture, (iii) the opinion of Davis Malm &
D'Agostine, P.C. with respect to the defeasance of the Bonds and (iv) a letter
from Standard & Poor's rating the Bonds, as defeased pursuant to the defeasance
escrow agreement, no less than AAA.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties. Each Loan Party hereby
represents and warrants to the Agent and the Lenders as follows:
(a) Organization, Good Standing, Etc. Each Loan Party (i) is a
corporation, limited liability company or limited partnership duly organized,
validly existing and in good standing under the laws of the state or
jurisdiction of its organization, (ii) has all requisite power and authority to
conduct its business as now conducted and as presently contemplated (both before
and after giving effect to the Acquisition) and, in the case of the Borrowers,
to make the borrowings hereunder, and to execute and deliver each Transaction
Document to which it is a party, and to consummate the transactions contemplated
thereby, and (iii) before and after giving effect to the Acquisition, is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the properties owned or leased by it
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or in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified and in good standing could not
reasonably be expected to have a Material Adverse Effect.
(b) Authorization, Etc. The execution, delivery and
performance by each Loan Party of each Transaction Document to which it is or
will be a party (including, without limitation, the notation of the Lien in
favor of the Agent on the certificates of title or ownership of the Rolling
Stock of the Parent and its Subsidiaries), (i) have been duly authorized by all
necessary action, (ii) do not and will not contravene its charter or by-laws,
its limited liability company or operating agreement or its certificate of
partnership or partnership agreement, as applicable, or any applicable law or
any Transaction Document, any Material Contract or any other contractual
restriction binding on or otherwise affecting it or any of its properties, (iii)
do not and will not result in or require the creation of any Lien (other than
pursuant to any Loan Document) upon or with respect to any of its properties,
and (iv) do not and will not result in any default, noncompliance, suspension,
revocation, impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to its operations or any of its properties.
(c) Governmental Approvals. Before and after giving effect to
the Acquisition, no authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority is required in connection with the
due execution, delivery and performance by any Loan Party of any Loan Document
or any other Transaction Document to which it is or will be a party, except for
authorizations or approvals which have been obtained and notices and filings
which have been made on or before the Effective Date.
(d) Enforceability of Loan Documents. This Agreement is, and
each other Loan Document and Transaction Document to which any Loan Party is or
will be a party, when delivered hereunder, will be, a legal, valid and binding
obligation of such Person, enforceable against such Person in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws.
(e) Subsidiaries. (i) Schedule 6.01(e) is a complete and
correct description of the name, jurisdiction of incorporation and ownership of
the outstanding Capital Stock of the Subsidiaries of the Parent in existence on
the date hereof after giving effect to the Acquisition. After giving effect to
the Acquisition, all of the issued and outstanding shares of Capital Stock of
such Subsidiaries have been validly issued and are fully paid and nonassessable,
and the holders thereof are not entitled to any preemptive, first refusal or
other similar rights. Except as indicated on such Schedule, all such Capital
Stock is owned by the Parent or one or more of its wholly-owned Subsidiaries,
free and clear of all Liens. There are no (A) outstanding debt or equity
securities of the Parent or any of its Subsidiaries, (B) outstanding obligations
of the Parent or any of its Subsidiaries convertible into or exchangeable for,
or warrants, options or other rights for the purchase or acquisition from the
Parent or any of its Subsidiaries, or (C) other obligations of any Subsidiary
which, in the case of items described in clauses (A), (B) or (C), result in any
obligation to issue, directly or indirectly, any shares of Capital Stock of any
Subsidiary of the Parent.
(ii) The Inactive Subsidiaries (A) have no business
operations and conduct no business and (B) own no assets except for assets with
a fair market value of less than $25,000 in the aggregate.
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(f) Litigation; Commercial Tort Claims. Except as set forth in
Schedule 6.01(f), (i) there is no pending or, to the best knowledge of any Loan
Party, threatened action, suit or proceeding affecting any Loan Party before any
court or other Governmental Authority or any arbitrator that (A) if adversely
determined, could have a Material Adverse Effect or (B) relates to this
Agreement or any other Loan Document or any transaction contemplated hereby or
thereby and (ii) as of the Effective Date, none of the Loan Parties holds any
commercial tort claims in respect of which a claim has been filed in a court of
law or a written notice by an attorney has been given to a potential defendant.
(g) Financial Condition.
(i) The Financial Statements, copies of which have been
delivered to the Agent and each Lender, fairly present the consolidated
financial condition of the Parent and its Subsidiaries or the Chemical Services
Division of Safety-Kleen Corp. (which consists primarily of the Sellers and the
Canadian Subsidiaries of Safety-Kleen Services, Inc.), as the case may be, as at
the respective dates thereof and the consolidated results of operations of the
Parent and its Subsidiaries for the fiscal periods ended on such respective
dates, all in accordance with GAAP, and since June 30, 2002, no event or
development has occurred that has had or could have a Material Adverse Effect.
(ii) The Parent has heretofore furnished to the Agent and
each Lender (A) projected quarterly balance sheets and statements of operations
and cash flows of the Parent and its Subsidiaries for the period from October 1,
2002, through December 31, 2004, and (B) projected annual balance sheets,
statements of operations and cash flows of the Parent and its Subsidiaries for
the Fiscal Years ending in 2002 through 2007, which projected financial
statements shall be updated from time to time pursuant to Section 7.01(a)(vii).
Such projections, as so updated, shall be believed by the Parent at the time
furnished to be reasonable, shall have been prepared on a reasonable basis and
in good faith by the Parent, and shall have been based on assumptions believed
by the Parent to be reasonable at the time made and upon the best information
then reasonably available to the Parent, and the Parent shall not be aware of
any facts or information that would lead it to believe that such projections, as
so updated, are incorrect or misleading in any material respect.
(h) Compliance with Law, Etc. No Loan Party is in violation of
its organizational documents, any law, rule, regulation, judgment or order of
any Governmental Authority (including, without limitation, any Motor Vehicle
Law) applicable to it or any of its property or assets, or any material term of
any agreement or instrument (including, without limitation, any Revolving Credit
Document, any Acquisition Document or any other Material Contract) binding on or
otherwise affecting it or any of its properties, and no Default or Event of
Default has occurred and is continuing.
(i) ERISA. Except as set forth on Schedule 6.01(i), (i) each
Employee Plan is in substantial compliance with ERISA and the Internal Revenue
Code, (ii) no Termination Event has occurred nor is reasonably expected to occur
with respect to any Employee Plan, (iii) the most recent annual report (Form
5500 Series) with respect to each Employee Plan, including any required Schedule
B (Actuarial Information) thereto, copies of which have been filed with the
Internal Revenue Service and delivered to the Agent, is complete and correct and
fairly presents the funding status of such Employee Plan, and since the date of
such report there has been no material adverse change in such funding status,
(iv) copies of each agreement entered into with the PBGC, the U.S. Department of
Labor or the Internal Revenue
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Service with respect to any Employee Plan have been delivered to the Agent, (v)
no Employee Plan had an accumulated or waived funding deficiency or permitted
decrease which would create a deficiency in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Internal Revenue Code at any time during the previous 60
months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists
or is likely to arise on account of any Employee Plan within the meaning of
Section 412 of the Internal Revenue Code. Except as set forth on Schedule
6.01(i), no Loan Party or any of its ERISA Affiliates has incurred any
withdrawal liability under ERISA with respect to any Multiemployer Plan, or is
aware of any facts indicating that it or any of its ERISA Affiliates may in the
future incur any such withdrawal liability. No Loan Party or any of its ERISA
Affiliates nor any fiduciary of any Employee Plan has (i) engaged in a nonexempt
prohibited transaction described in Sections 406 of ERISA or 4975 of the
Internal Revenue Code, (ii) failed to pay any required installment or other
payment required under Section 412 of the Internal Revenue Code on or before the
due date for such required installment or payment, (iii) engaged in a
transaction within the meaning of Section 4069 of ERISA or (iv) incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid. There are no pending or, to the best knowledge of any Loan Party,
threatened claims, actions, proceedings or lawsuits (other than claims for
benefits in the normal course) asserted or instituted against (i) any Employee
Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or
(iii) any Loan Party or any of its ERISA Affiliates with respect to any Employee
Plan. Except as required by Section 4980B of the Internal Revenue Code, no Loan
Party or any of its ERISA Affiliates maintains an employee welfare benefit plan
(as defined in Section 3(1) of ERISA) which provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of any Loan Party or any of its ERISA Affiliates or coverage after a
participant's termination of employment.
(j) Taxes, Etc. All Federal, state and local tax returns and
other reports required by applicable law to be filed by any Loan Party have been
filed, or extensions have been obtained, and all taxes, assessments and other
governmental charges imposed upon any Loan Party or any property of any Loan
Party and which have become due and payable on or prior to the date hereof have
been paid, except to the extent contested in good faith by proper proceedings
which stay the imposition of any penalty, fine or Lien resulting from the
non-payment thereof and with respect to which adequate reserves have been set
aside for the payment thereof on the Financial Statements of the Parent and its
Subsidiaries in accordance with GAAP.
(k) Regulations T, U and X. Before and after giving effect to
the Acquisition, no Loan Party is or will be engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation T, U or X), and no proceeds of any Loan will be used
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(l) Nature of Business. After giving effect to the
Acquisition, no Loan Party is engaged in any business other than the ownership,
leasing, management and/or operation of waste facilities, and the provision of
environmental, industrial maintenance and related services.
(m) Adverse Agreements, Etc. After giving effect to the
Acquisition, no Loan Party is a party to any agreement or instrument, or subject
to any charter, limited liability company agreement, partnership agreement or
other corporate, partnership or limited
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liability company restriction or any judgment, order, regulation, ruling or
other requirement of a court or other Governmental Authority, which has, or in
the future could have, a Material Adverse Effect.
(n) Permits, Etc. Before and after giving effect to the
Acquisition, each Loan Party has, and is in compliance with, all permits,
licenses, authorizations, approvals, entitlements and accreditations required
for such Person lawfully to own, lease, manage or operate, or to acquire, each
business currently owned, leased, managed or operated, or to be acquired, by
such Person, except for certain Environmental Permits relating to the SK
Facilities for which applications have been filed on or prior the Effective Date
but which are not yet effective as described in Section 6.01(r). Before and
after giving effect to the Acquisition, except as set forth in Schedule 6.01(r),
no condition exists or event has occurred which, in itself or with the giving of
notice or lapse of time or both, would result in the suspension, revocation,
impairment, forfeiture or non-renewal of any such existing permit, license,
authorization, approval, entitlement or accreditation, and there is no claim
that any thereof is not in full force and effect.
(o) Properties. (i) After giving effect to the Acquisition,
each Loan Party has good and marketable title to, valid leasehold interests in,
or valid licenses to use, all property and assets material to its business, free
and clear of all Liens, except, with respect to all Facilities subject to a
Mortgage, those exceptions set forth in the applicable Title Insurance Policy
and, with respect to all other property and assets, any Permitted Lien. All such
properties and assets are in good working order and condition, ordinary wear and
tear excepted.
(ii) Schedule 6.01(o) sets forth a complete and accurate
list, as of the Effective Date (after giving effect to the Acquisition), of the
location, by state and street address, of all real property owned, leased or
licensed by each Loan Party (other than an Inactive Subsidiary) and identifies
the interest (fee, leasehold or license) of such Loan Party therein. No Person
has any right of first refusal, option or other preferential right to purchase
any such owned real property. As of the Effective Date, each Loan Party has
valid leasehold interests in the Leases described on Schedule 6.01(o) to which
it is a party. True, complete and correct copies of each such Lease have been
delivered to the Agent prior to the date hereof. Schedule 6.01(o) sets forth
with respect to each such Lease, the commencement date, termination date,
renewal options (if any) and annual base rents. Each such Lease is valid and
enforceable in accordance with its terms in all material respects and is in full
force and effect. No consent or approval of any landlord or other third party in
connection with any such Lease is necessary for any Loan Party to enter into and
execute the Loan Documents or the Acquisition Documents to which it is a party,
except as set forth on Schedule 6.01(o). To the best knowledge of any Loan
Party, no other party to any such Lease is in default of its obligations
thereunder, and no Loan Party (or any other party to any such Lease) has at any
time delivered or received any notice of default which remains uncured under any
such Lease and, as of the Effective Date (after giving effect to the
Acquisition), no event has occurred which, with the giving of notice or the
passage of time or both, would constitute a default under any such Lease.
(iii) All Rolling Stock of the Loan Parties which, under
applicable law (including, without limitation, any Motor Vehicle Law), is
required to be registered is (in the case of the CH Rolling Stock) or will
within 60 days following the Effective Date (in the case of the SK Rolling Stock
described in Section 5.03(a)) be properly registered in the name of a Loan
Party, and all Rolling Stock of the Loan Parties, the ownership of which, under
applicable law (including, without limitation, any Motor Vehicle Law), is
evidenced by a
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certificate of title or ownership, is (or will be, as appropriate) properly
titled in the name of a Loan Party. The Rolling Stock listed on Schedule
5.01(d)(xxiv) and Schedule 5.03(a) constitute all of the Rolling Stock owned by
the Loan Parties on the Effective Date and the Rolling Stock not subject to a
certificate of title or ownership under applicable law (including, without
limitation, any Motor Vehicle Law) is noted therein.
(p) Full Disclosure. Each Loan Party has disclosed to the
Agent all agreements, instruments and corporate or other restrictions to which
it is subject, and all other matters known to it, that, individually or in the
aggregate, could result in a Material Adverse Effect. None of the other reports,
financial statements, certificates or other information furnished by or on
behalf of any Loan Party to the Agent in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which it was made, not misleading; provided that,
with respect to projected financial information, each Loan Party represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time. There is no contingent liability or fact that may
have a Material Adverse Effect which has not been set forth in a footnote
included in the Financial Statements or a Schedule hereto.
(q) [Intentionally Omitted].
(r) Environmental Matters; Permits. Except as set forth on
Schedule 6.01(r)(i):
(i) the Loan Parties' businesses, Facilities (including
both the Facilities operated prior to the Effective Date by Subsidiaries of the
Parent (the "CH Facilities") and those Facilities which are included in the
Acquisition Assets (the "SK Facilities")), operations, properties and assets are
in material compliance with Environmental Laws;
(ii) the Loan Parties have obtained and are in material
compliance with all material Environmental Permits necessary to operate, use or
occupy all of the Loan Parties' businesses, Facilities, operations, properties
and assets, except for Environmental Permits relating to the SK Facilities which
are not yet effective but for which requisite applications have been filed.
Schedule 6.01(r)(ii) sets forth those SK Facilities where the Loan Parties have
filed all requisite applications for transfer of such material Environmental
Permits with the appropriate Governmental Authorities, but as of the Effective
Date the Governmental Authorities have not transferred such material
Environmental Permits, and all of the material Environmental Permits set forth
on Schedule 6.01(r)(ii) will be transferred by the Governmental Authorities
within fourteen (14) days of the Effective Date;
(iii) the Loan Parties have obtained and are in full
compliance with all financial assurance requirements under RCRA and any similar
Environmental Law, as specifically set forth but not limited to 40 C.F.R. 264
and 265, necessary to operate, use or occupy all of the Loan Parties'
businesses, Facilities, operations, properties and assets, except that in the
case of the SK Facilities, the Loan Parties have made the appropriate
arrangements to obtain and be in full compliance with all such financial
assurance requirements within seven (7) days following the Effective Date
through application of a portion of the proceeds of the Term Loan A as security
for letters of credit required in connection with obtaining such financial
assurance;
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(iv) the Loan Parties are in material compliance with
all applicable writs, orders, consent decrees, judgments, and injunctions by any
Governmental Authority, decrees, informational requests or demands issued
pursuant to, or arising under, any Environmental Laws;
(v) the Loan Parties reasonably anticipate that they
will not be required to spend more than $1,000,000 for any Facility or
$5,000,000 in the aggregate for all Facilities to comply with any Environmental
Laws that have been promulgated and enacted by a Governmental Authority, but
will not be effective until some time after the Effective Date, except to the
extent those expenditures are already specifically included within the aggregate
amounts described in clause (x) or (xi) below or in the Capital Expenditures set
forth in Section 7.02(g);
(vi) except for Releases for which the related
Environmental Liabilities are specifically included within the aggregate amounts
described in clauses (x) through (xii) below, there has been no Release relating
to any of the Acquisition Assets or any of the facilities, assets or properties
owned or operated by any Loan Party, its Subsidiaries or, to the best knowledge
of the Loan Parties, a predecessor in interest, which could reasonably be
expected to result in any Environmental Liabilities in excess of $1,000,000 for
any Facility or $5,000,000 in the aggregate for all Facilities;
(vii) [intentionally omitted]
(viii) except for Environmental Claims specifically
included within the aggregate amount described in clauses (x) through (xii)
below, to the best knowledge of the Loan Parties, no Environmental Claims have
been asserted against any treatment, storage or disposal facility that received
or Handled Hazardous Materials Handled by any Loan Party, its Subsidiaries or
any predecessor in interest which could reasonably be expected to result in any
Environmental Liabilities in excess of $1,000,000 individually or $5,000,000 in
the aggregate;
(ix) except for Environmental Claims specifically
included within the aggregate amounts described in clauses (x) through (xii)
below, no Environmental Claims have been asserted against any Loan Party, its
Subsidiaries or, to the best knowledge of the Loan Parties, any predecessor in
interest nor does any Loan Party have knowledge or notice of any threatened or
pending Environmental Claims against any Loan Party, its Subsidiaries or any
predecessor in interest which could reasonably be expected to result in any
Environmental Liabilities in excess of $1,000,000 individually or $5,000,000 in
the aggregate;
(x) the Loan Parties will not assume any
Environmental Liabilities related to the Acquisition that are more than ten
(10%) percent above $265,000,000, calculated in accordance with GAAP;
(xi) excluding any Environmental Liabilities related
to the Acquisition Assets, the Loan Parties will not spend more than ten percent
(10%) above $29,250,000 for closure, post closure and post closure care of the
CH Facilities, as those terms are used in RCRA and any similar Environmental
Law, as specifically set forth but not limited to 40 C.F.R. 264 and 265;
(xii) excluding any Environmental Liabilities related
to the Acquisition Assets, to the best knowledge of the Loan Parties, there are
no Remedial Actions that will cost, in the aggregate, more than $1,000,000 per
calendar year for the foreseeable future;
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(xiii) all representations, including without limitation
applications, warranty statements and accompanying materials provided in support
of such representations, provided by the Loan Parties to obtain insurance, are
truthful and complete in all respects, and the Loan Parties have done nothing to
prejudice their rights to obtain the benefits of their insurance by failing to
comply with any of the provisions, conditions or requirements of its policies of
insurance;
(xiv) there are no Environmental Liens associated or,
to the best knowledge of the Loan Parties, threatened to be associated with any
of the Acquisition Assets or Loan Parties' businesses, Facilities, operations,
properties and assets; and
(xv) except for work, repairs, contributions and
Capital Expenditures specifically included in the aggregate amounts set forth in
clauses (x) through (xii) above or Section 7.02(g), to the best knowledge of the
Loan Parties, (A) no work, repairs, construction or Capital Expenditures are
required to be made as a condition of continued compliance of the Facilities or
the Loan Parties' business with any Environmental Laws, or any license,
Environmental Permit or approval issued pursuant thereto or (B) no license,
Environmental Permit or approval referred to above is about to be reviewed,
made, subject to limitations or conditions, revoked, withdrawn or terminated.
Schedule 6.01(r)(ii) sets forth each material license, permit and regulatory
approval required under any Environmental Law in connection with the operation
of each waste disposal, waste treatment or waste transfer facility operated by
each Loan Party, the expiration date of such license, permit or approval, and
the dollar amount of any financial assurance bond or other similar surety
instrument issued on behalf of such Loan Party in connection with its operation
of any such Facility.
(s) Insurance. Each Loan Party keeps its property adequately
insured and maintains (i) insurance to such extent and against such risks,
including fire, as is customary with companies in the same or similar
businesses, (ii) workmen's compensation insurance in the amount required by
applicable law, (iii) public liability insurance, which shall include product
liability insurance, in the amount customary with companies in the same or
similar business against claims for personal injury or death on properties
owned, occupied or controlled by it, (iv) insurance with respect to liability
for bodily injury and property damage resulting from the operation of the
Rolling Stock by each Loan Party in amounts customary with companies in the same
or similar business and in accordance with applicable law and (v) such other
insurance as may be required by law or as may be reasonably required by the
Agent (including, without limitation, against larceny, embezzlement or other
criminal misappropriation). Schedule 6.01(s) sets forth a list of all insurance
maintained by each Loan Party on the Effective Date (after giving effect to the
Acquisition).
(t) Use of Proceeds. The proceeds of the Loans shall be used
to (i) to facilitate the Acquisition, (ii) refinance existing indebtedness of
the Borrowers and pay the prepayment and defeasance cost in connection
therewith, (iii) provide cash collateral for letters of credit issued for the
account of the Loan Parties the reimbursement obligations for which constitute
Permitted Indebtedness, (iv) pay fees and expenses in connection with the
Acquisition and the transactions contemplated hereby and (v) fund working
capital of the Borrowers.
(u) Solvency. After giving effect to the transactions
contemplated by this Agreement, the Revolving Credit Agreements, the Sale Order
and the Acquisition Documents
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and before and after giving effect to each Loan, each Loan Party is, and the
Loan Parties on a consolidated basis are, Solvent.
(v) Location of Bank Accounts. Schedule 6.01(v) sets forth a
complete and accurate list as of the Effective Date (after giving effect to the
Acquisition) of all deposit, checking and other bank accounts, all securities
and other accounts maintained with any broker dealer and all other similar
accounts maintained by each Loan Party, together with a description thereof
(i.e., the bank or broker dealer at which such deposit or other account is
maintained and the account number and the purpose thereof).
(w) Intellectual Property. Except as set forth on Schedule
6.01(w) and after giving effect to the Acquisition, each Loan Party owns or
licenses or otherwise has the valid right to use all Intellectual Property and
Technology Systems that are necessary for the operation of its business as
currently conducted or contemplated, without infringement upon or conflict with
the rights of any other Person with respect thereto. Set forth on Schedule
6.01(w) is a complete and accurate list as of the Effective Date (after giving
effect to the Acquisition) of all material or Registered Intellectual Property
(other than confidential and proprietary information, Trade Secrets and
know-how) that is owned by a Loan Party (the "Owned Intellectual Property") and
all Material Contracts relating to Intellectual Property licensed from third
parties, including with respect to Technology Systems (the "Licensed
Intellectual Property"). Except as set forth on Schedule 6.01(w), no licensed
Intellectual Property is required in order to conduct the business of each Loan
Party as currently conducted or contemplated as of the Effective Date (after
giving effect to the Acquisition) other than the Licensed Intellectual Property.
No party to any Material Contract relating to Licensed Intellectual Property has
given any Loan Party notice of its intention to cancel, terminate or fail to
renew any such Material Contract. After giving effect to the Acquisition,
neither the business of each Loan Party as currently conducted or contemplated,
nor any slogan or other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be employed, by any
Loan Party, infringes upon or conflicts with any rights owned by any other
Person, none of the Loan Parties has received notice of any claim or litigation
regarding any of the foregoing, nor is any such claim or litigation pending or
threatened. All Owned Intellectual Property is valid, subsisting and
enforceable, and no material Registered Owned Intellectual Property has been
abandoned, canceled or adjudicated invalid (excepting any expirations in the
ordinary course), or is subject to any outstanding order, judgment or decree
restricting its use or adversely affecting or reflecting a Loan Party's rights
thereto, or is the subject of any suit, action, reissue, reexamination, public
protest, interference, arbitration, mediation, opposition, cancellation or other
proceeding. The Loan Parties have timely made all filings and payments with the
appropriate foreign and domestic agencies required to maintain in subsistence
all Registered Owned Intellectual Property. Except as indicated on Schedule
6.01(w), no due dates for filings or payments concerning the material Owned
Intellectual Property (including without limitation office action responses,
affidavits of use, affidavits of continuing use, renewals, requests for
extension of time, maintenance fees, application fees and foreign convention
priority filings) fall due within ninety (90) days of the Effective Date,
whether or not such due dates are extendable. All documentation necessary to
confirm and effect each Loan Party's ownership of Owned Intellectual Property,
if acquired from other Persons, has been recorded in the United States Patent
and Trademark Office, the United States Copyright Office and other official
offices, except for those recordations referenced in Section 5.03(d). Each Loan
Party has taken all reasonable measures to protect the secrecy, confidentiality
and value of all Trade Secrets used in its business (collectively, "Business
Trade Secrets") (including without limitation entering into
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appropriate confidentiality agreements with all officers, directors, employees,
and other Persons with access to the Business Trade Secrets). To each Loan
Party's knowledge, the Business Trade Secrets have not been disclosed to any
Persons other than such Loan Party's employees or contractors who had a need to
know and use such Business Trade Secrets in the ordinary course of employment or
contract performance and who executed appropriate confidentiality agreements.
(x) Material Contracts. Set forth on Schedule 6.01(x) is a
complete and accurate list as of the Effective Date (after giving effect to the
Acquisition) of all Material Contracts (other than the Loan Documents) of each
Loan Party, showing the parties and subject matter thereof and amendments and
modifications thereto. Each such Material Contract (i) is in full force and
effect and is binding upon and enforceable against each Loan Party that is a
party thereto and, to the best knowledge of such Loan Party, all other parties
thereto in accordance with its terms, (ii) has not been otherwise amended or
modified, and (iii) is not in default due to the action of any Loan Party or, to
the best knowledge of any Loan Party, any other party thereto.
(y) Holding Company and Investment Company Acts. None of the
Loan Parties is (i) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company", as such terms are defined in
the Public Utility Holding Company Act of 1935, as amended, or (ii) an
"investment company" or an "affiliated person" or "promoter" of, or "principal
underwriter" of or for, an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended.
(z) Employee and Labor Matters. There is (i) no unfair labor
practice complaint pending or, to the best knowledge of any Loan Party,
threatened against any Loan Party before any Governmental Authority and no
grievance or arbitration proceeding pending or threatened against any Loan Party
which arises out of or under any collective bargaining agreement, (ii) no
strike, labor dispute, slowdown, stoppage or similar action or grievance pending
or threatened against any Loan Party or (iii) to the best knowledge of any Loan
Party, no union representation question existing with respect to the employees
of any Loan Party and no union organizing activity taking place with respect to
any of the employees of any Loan Party. No Loan Party or any of its ERISA
Affiliates has incurred any liability or obligation under the Worker Adjustment
and Retraining Notification Act ("WARN") or similar state law, which remains
unpaid or unsatisfied. The hours worked and payments made to employees of any
Loan Party have not been in violation of the Fair Labor Standards Act or any
other applicable legal requirements. After giving effect to the Acquisition, all
material payments due from any Loan Party on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of such Loan Party.
(aa) Customers and Suppliers. There exists no actual or
threatened termination, cancellation or limitation of, or modification to or
change in, the business relationship between (i) any Loan Party, on the one
hand, and any customer or any group thereof, on the other hand, whose agreements
with any Loan Party are individually or in the aggregate material to the
business or operations of such Loan Party, or (ii) any Loan Party, on the one
hand, and any material supplier thereof, on the other hand; and there exists no
present state of facts or circumstances that could give rise to or result in any
such termination, cancellation, limitation, modification or change.
(bb) No Bankruptcy Filing. No Loan Party is contemplating
either an Insolvency Proceeding or the liquidation of all or a major portion of
such Loan Party's assets or
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property, and no Loan Party has any knowledge of any Person contemplating an
Insolvency Proceeding against it.
(cc) Separate Existence.
(i) All customary formalities regarding the corporate
existence of each Loan Party has been at all times since its formation and will
continue to be observed.
(ii) Each Loan Party has at all times since its formation
accurately maintained, and will continue to accurately maintain, its financial
statements, accounting records and other organizational documents separate from
those of any Affiliate of such Loan Party and any other Person. No Loan Party
has at any time since its formation commingled, and will not commingle, its
assets with those of any of its Affiliates or any other Person. Each Loan Party
has at all times since its formation accurately maintained, and will continue to
accurately maintain its own bank accounts and separate books of account.
(iii) Each Loan Party has at all times since its formation
paid, and will continue to pay, its own liabilities from its own separate
assets.
(iv) Each Loan Party has at all times since its formation
identified itself, and will continue to identify itself, in all dealings with
the public, under its own name and as a separate and distinct Person. No Loan
Party has at any time since its formation identified itself, or will identify
itself, as being a division or a part of any other Person (except that the
Canadian Loan Parties and Laidlaw Environmental Services de Mexico, S.A. de
C.V., were prior to the Acquisition identified as being part of the "Chemical
Services Division" of Safety-Kleen Corp. and its Subsidiaries).
(dd) Name; Jurisdiction of Organization; Organizational ID
Number; Chief Place of Business; Chief Executive Office; FEIN. Schedule 6.01(dd)
sets forth a complete and accurate list as of the date hereof of (i) the exact
legal name of each Loan Party, (ii) the jurisdiction of organization of each
Loan Party, (iii) the organizational identification number of each Loan Party
(or indicates that such Loan Party has no organizational identification number),
(iv) each place of business of each Loan Party, (v) the chief executive office
of each Loan Party and (vi) the federal employer identification number of each
Loan Party.
(ee) Tradenames. Schedule 6.01(ee) hereto sets forth a complete
and accurate list as of the Effective Date (after giving effect to the
Acquisition) of all tradenames used by each Loan Party.
(ff) Locations of Collateral. There is no location at which any
Loan Party has any Collateral (except for Rolling Stock in transit) other than
(i) those locations listed on Schedule 6.01(ff) and (ii) any other locations
approved in writing by the Collateral Agent from time to time. Schedule 6.01(ff)
hereto contains a true, correct and complete list, as of the Effective Date, of
the legal names and addresses of each warehouse at which Collateral of each Loan
Party is stored. None of the receipts received by any Loan Party from any
warehouse states that the goods covered thereby are to be delivered to bearer or
to the order of a named Person or to a named Person and such named Person's
assigns.
(gg) Security Interests. (i) Each Security Agreement creates in
favor of the Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the
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Collateral secured thereby. Upon the filing of the UCC-1 financing statements
described in Section 5.01(d)(ix) and the recording of the Collateral Assignments
for Security referred to in each Security Agreement in the United States Patent
and Trademark Office and the United States Copyright Office, as applicable, and
the submission of an appropriate application requesting that the Lien of the
Agent be noted on the certificate of title or ownership for any Rolling Stock,
completed and authenticated by the applicable Loan Party, together with the
certificate of title or ownership, with respect to such Rolling Stock, to the
applicable state agency and the recording of the filings required under any
other similar law of any foreign jurisdiction, such security interests in and
Liens on the Collateral granted thereby shall be perfected, first priority
(except to the extent specified in the Intercreditor Agreement with respect to
certain Collateral) security interests, and no further recordings or filings are
or will be required in connection with the creation, perfection or enforcement
of such security interests and Liens, other than (i) the filing of continuation
statements in accordance with applicable law, (ii) the recording of the
Collateral Assignments for Security pursuant to each Security Agreement in the
United States Patent and Trademark Office and the United States Copyright
Office, as applicable, with respect to after-acquired U.S. patent and trademark
applications and registrations and U.S. copyrights and (iii) the recordation of
appropriate evidence of the security interest in the appropriate foreign
registry with respect to all foreign intellectual property.
(ii) Each Canadian Security Agreement creates in favor of the Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral secured thereby. Upon the filing of the PPSA financing statements
described in Section 5.01(d)(ix) and the recording of the Canadian Security
Agreement in the Canadian Intellectual Property Office, such Liens on the
Collateral granted thereby shall be perfected, first priority (except to the
extent specified in the Intercreditor Agreement with respect to certain
Collateral) security interests, and no further recordings or filings are or will
be required in connection with the creation, perfection or enforcement of such
Liens, other than (i) the filing of continuation statements in accordance with
applicable law, (ii) the recording of the Canadian Security Agreement in the
Canadian Intellectual Property Office with respect to after-acquired Canadian
intellectual property and (iii) the recordation of appropriate evidence of the
Lien on the appropriate foreign registry with respect to all foreign
intellectual property.
(hh) Acquisition Documents. (i) No party to any Acquisition
Document is in default on any of its obligations under such Acquisition
Document, (ii) all representations and warranties made by the Parent in the
Acquisition Documents and in the certificates delivered in connection therewith
are true and correct in all material respects as of the date hereof and, to the
best knowledge of the Parent, all material representations and warranties made
in the Acquisition Documents by or on behalf of the Sellers, or any other party
thereto other than the Parent, are true and correct in all material respects as
of the date hereof, (iii) all written information with respect to the Parent and
the Acquisition, and, to the best knowledge of the Borrowers, the business and
Acquisition Assets acquired in connection with the Acquisition, furnished to
Agent by the Borrowers or on behalf of the Borrowers, were, at the time the same
were so furnished, complete and correct in all material respects, or have been
subsequently supplemented by other written information, to the extent necessary
to give Agent and Lenders a true and accurate knowledge of the subject matter of
each of them in relation to Borrowers, the Acquisition, and the business and
Acquisition Assets acquired in connection with the Acquisition, in all material
respects, (iv) no representation, warranty or statement made by the Parent or,
to its best knowledge, the Sellers or any other party thereto other than the
Parent, at the time they were made in any Acquisition Document, or any
agreement, certificate, statement or document required to be delivered pursuant
to any Acquisition Document contains any untrue
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statement of material fact or omits to state a material fact necessary in order
to make the statements contained in such Acquisition Documents not misleading in
light of the circumstances in which they were made, and (v) in connection with
the Acquisition, certain of the Borrowers are acquiring the Acquisition Assets
and, on the date hereof, after giving effect to the transactions contemplated by
this Agreement, by the Acquisition Agreement and by the other Acquisition
Documents, the Sale Order and Loan Documents, will have good title to such
Acquisition Assets free and clear of all Liens other than the Liens created by
the Loan Documents and other than Permitted Liens.
(ii) Consummation of the Acquisition. (i) The Parent has
delivered to the Agent a complete and correct copy of the Acquisition Documents,
including all schedules and exhibits thereto, (ii) each Acquisition Document
sets forth the entire agreement and understanding of the parties thereto
relating to the subject matter thereof, and there are no other agreements,
arrangements or understandings, written or oral, relating to the matters covered
thereby, (iii) no Acquisition Document has been amended or otherwise modified
without the prior written consent of the Agent, (iv) the execution, delivery and
performance of the Acquisition Documents have been duly authorized by all
necessary action on the part of each such Person, (v) the Acquisition has been
effected in accordance with the terms of the Sale Order, the Acquisition
Documents and all applicable law (including, without limitation, the Bankruptcy
Code), (vi) at the time of consummation of the Acquisition, there does not exist
any judgment, order or injunction prohibiting or imposing any material adverse
condition upon the consummation of the Acquisition, (vii) at the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all Government
Authorities required in order to consummate the Acquisition shall have been
obtained, given, filed or taken and shall be in full force and effect, (viii)
all actions taken by the Loan Parties pursuant to or in furtherance of the
Acquisition have been taken in compliance in all material respects with
respective Acquisition Documents, the Bankruptcy Code and the Sale Order, (ix)
the Loan Parties did not incur or assume any liabilities or obligations pursuant
to or in connection with the Acquisition other than those liabilities and
obligations set forth on Schedule 6.01(ii) hereto, and (x) each Acquisition
Document is the legal, valid and binding obligation of the parties thereto,
enforceable against such parties in accordance with its terms.
(jj) Schedules. All of the information which is required to be
scheduled to this Agreement is set forth on the Schedules attached hereto, is
correct and accurate and does not omit to state any information material
thereto.
(kk) Representations and Warranties in Documents; No Default.
All representations and warranties set forth in this Agreement and the other
Loan Documents are true and correct in all respects at the time as of which such
representations were made and on the Effective Date. No Event of Default has
occurred and is continuing and no condition exists which constitutes a Default
or an Event of Default.
ARTICLE VII
COVENANTS OF THE LOAN PARTIES
Section 7.01 Affirmative Covenants. So long as any principal of or
interest on any Loan or any other Obligation (whether or not due) shall remain
unpaid or any Lender shall have any Commitment hereunder, each Loan Party will,
unless the Required Lenders shall otherwise consent in writing:
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(a) Reporting Requirements. Furnish to the Agent and each
Lender:
(i) as soon as available and in any event within 45
days after the end of the first three fiscal quarters of each Fiscal Year of the
Parent commencing with the fiscal quarter ending September 30, 2002,
consolidated balance sheets and consolidated statements of operations, cash
flows and stockholders' equity of the Parent and its Subsidiaries as at the end
of such quarter, and for the period commencing at the end of the immediately
preceding Fiscal Year and ending with the end of such quarter, setting forth in
each case in comparative form the figures for the corresponding date or period
of the immediately preceding Fiscal Year, all in reasonable detail and certified
by an Authorized Officer of the Parent as fairly presenting, in all material
respects, the financial position of the Parent and its Subsidiaries as of the
end of such quarter and the results of operations and cash flows of the Parent
and its Subsidiaries for such quarter, in accordance with GAAP applied in a
manner consistent with that of the most recent audited financial statements of
the Parent and its Subsidiaries furnished to the Agent and the Lenders, subject
to normal year-end adjustments;
(ii) as soon as available, and in any event within 90
days after the end of each Fiscal Year of the Parent and its Subsidiaries,
consolidated balance sheets and consolidated statements of operations, cash
flows and stockholders' equity of the Parent and its Subsidiaries as at the end
of such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the immediately preceding Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, and accompanied by a
report and an unqualified opinion, prepared in accordance with generally
accepted auditing standards, of independent certified public accountants of
recognized standing selected by the Parent and satisfactory to the Agent (which
opinion shall be without (A) a "going concern" or like qualification or
exception, (B) any qualification or exception as to the scope of such audit, or
(C) any qualification which relates to the treatment or classification of any
item and which, as a condition to the removal of such qualification, would
require an adjustment to such item, the effect of which would be to cause any
noncompliance with the provisions of Section 7.03), together with a written
statement of such accountants (1) to the effect that, in making the examination
necessary for their certification of such financial statements, they have not
obtained any knowledge of the existence of an Event of Default or a Default
under any financial covenant contained in Section 7.03 and (2) if such
accountants shall have obtained any knowledge of the existence of any such Event
of Default or Default, describing the nature thereof;
(iii) as soon as available, and in any event within 30
days (or, for the months during 2002, 45 days) after the end of each fiscal
month of the Parent and its Subsidiaries commencing with the first fiscal month
of the Parent and its Subsidiaries ending after the Effective Date, internally
prepared consolidated balance sheets and consolidated statements of operations
as at the end of such fiscal month, and for the period commencing at the end of
the immediately preceding Fiscal Year and ending with the end of such fiscal
month, all in reasonable detail and certified by an Authorized Officer of the
Parent as fairly presenting, in all material respects, the financial position of
the Parent and its Subsidiaries as at the end of such fiscal month and the
results of operations of the Parent and its Subsidiaries for such fiscal month,
in accordance with GAAP applied in a manner consistent with that of the most
recent audited financial statements furnished to the Agent and the Lenders,
subject to normal year-end adjustments;
(iv) simultaneously with the delivery of the financial
statements of the Parent and its Subsidiaries required by clauses (i), (ii) and
(iii) of this Section 7.01(a), a
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certificate of an Authorized Officer of the Parent (A) stating that such
Authorized Officer has reviewed the provisions of this Agreement and the other
Loan Documents and has made or caused to be made under his or her supervision a
review of the condition and operations of the Parent and its Subsidiaries during
the period covered by such financial statements with a view to determining
whether the Parent and its Subsidiaries were in compliance with all of the
provisions of this Agreement and such Loan Documents at the times such
compliance is required hereby and thereby, and that such review has not
disclosed, and such Authorized Officer has no knowledge of, the existence during
such period of an Event of Default or Default or, if an Event of Default or
Default existed, describing the nature and period of existence thereof and the
action which the Parent and its Subsidiaries propose to take or have taken with
respect thereto and (B) attaching a schedule showing the calculations specified
in Section 7.03;
(v) as soon as available and in any event within 30
days (or, for the months during 2002, 45 days) after the end of each fiscal
month of the Parent and its Subsidiaries commencing with the month ending
September 30, 2002, reports in form and detail satisfactory to the Agent and
certified by an Authorized Officer of the Administrative Borrower as being
accurate and complete with respect to the Rolling Stock of the Loan Parties, a
certificate setting forth, as of the end of the previous fiscal month and for
the portion of the Fiscal Year then ended, (A) a summary report of the Rolling
Stock of the Loan Parties, indicating changes in value and depreciation amounts,
(B) a list of Rolling Stock of the Loan Parties purchased or otherwise acquired
during such period, setting forth the following information: the date of
acquisition, the manufacturer, the year made, the model, the vehicle
identification number, the state in which it is licensed, the license number,
the owner, state in which it is titled and the certificate of title or ownership
identification number, together with a copy of the invoice, purchase order,
registration or other document setting forth the vehicle identification number
of such vehicle, which list shall supplement and update Schedule 5.01(d)(xxiv)
and Schedule 5.3(a), (C) a list of Rolling Stock of the Loan Parties sold or
contracted for sale during such period, (D) the Dollar amount spent on such
purchases or acquisitions during such period, (E) a report reconciling the
records of the Loan Parties against the most recent report of the Rolling Stock
Collateral Custodian with respect to the Rolling Stock and (F) any other
information relating to the Rolling Stock as the Agents may reasonably request;
(vi) (A) as soon as possible and in any event not later
than 30 days prior to the end of each Fiscal Year, financial projections,
supplementing and superseding the financial projections referred to in Section
6.01(g)(ii)(A), prepared on a quarterly basis and otherwise in form and
substance satisfactory to the Agent, for the immediately succeeding Fiscal Year
for the Parent and its Subsidiaries and (B) as soon as possible and in any event
not later than 30 days prior to the end of each fiscal quarter, financial
projections, supplementing and superseding the financial projections referred to
in Section 6.01(g)(ii)(B), prepared on a quarterly basis and otherwise in form
and substance satisfactory to the Agent, for each remaining quarterly period in
such Fiscal Year, all such financial projections to be reasonable, to be
prepared on a reasonable basis and in good faith, and to be based on assumptions
believed by the Parent to be reasonable at the time made and from the best
information then available to the Parent;
(vii) promptly after submission to any Governmental
Authority, all documents and information furnished to such Governmental
Authority in connection with any investigation of any Loan Party other than
routine inquiries by such Governmental Authority;
(viii) as soon as possible, and in any event within 3
Business Days after the occurrence of an Event of Default or Default or the
occurrence of any event or
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development that could have a Material Adverse Effect, the written statement of
an Authorized Officer of the Administrative Borrower setting forth the details
of such Event of Default or Default or other event or development having a
Material Adverse Effect and the action which the affected Loan Party proposes to
take with respect thereto;
(ix) (A) as soon as possible and in any event within 10
days after any Loan Party or any ERISA Affiliate thereof knows or has reason to
know that (1) any Reportable Event with respect to any Employee Plan has
occurred, (2) any other Termination Event with respect to any Employee Plan has
occurred, or (3) an accumulated funding deficiency has been incurred or an
application has been made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including installment payments) or
an extension of any amortization period under Section 412 of the Internal
Revenue Code with respect to an Employee Plan, a statement of an Authorized
Officer of the Administrative Borrower setting forth the details of such
occurrence and the action, if any, which such Loan Party or such ERISA Affiliate
proposes to take with respect thereto, (B) promptly and in any event within
three days after receipt thereof by any Loan Party or any ERISA Affiliate
thereof from the PBGC, copies of each notice received by any Loan Party or any
ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have
a trustee appointed to administer any Plan, (C) promptly and in any event within
10 days after the filing thereof with the Internal Revenue Service if requested
by the Agent, copies of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Employee Plan and Multiemployer
Plan, (D) promptly and in any event within 10 days after any Loan Party or any
ERISA Affiliate thereof knows or has reason to know that a required installment
within the meaning of Section 412 of the Internal Revenue Code has not been made
when due with respect to an Employee Plan, (E) promptly and in any event within
3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof
from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice
received by any Loan Party or any ERISA Affiliate thereof concerning the
imposition or amount of withdrawal liability under Section 4202 of ERISA or
indicating that such Multiemployer Plan may enter reorganization status under
Section 4241 of ERISA, and (F) promptly and in any event within 10 days after
any Loan Party or any ERISA Affiliate thereof sends notice of a plant closing or
mass layoff (as defined in WARN) to employees, copies of each such notice sent
by such Loan Party or such ERISA Affiliate thereof;
(x) promptly after the commencement thereof but in any
event not later than 5 days after service of process with respect thereto on, or
the obtaining of knowledge thereof by, any Loan Party, notice of each action,
suit or proceeding before any court or other Governmental Authority or other
regulatory body or any arbitrator which, if adversely determined, could have a
Material Adverse Effect;
(xi) as soon as possible and in any event within 5 days
after execution, receipt or delivery thereof, copies of any material notices
that any Loan Party executes or receives in connection with any Revolving Credit
Document, any Acquisition Document or any other Material Contract;
(xii) as soon as possible and in any event within 5 days
after execution, receipt or delivery thereof, copies of any material notices
that any Loan Party executes or receives in connection with the sale or other
Disposition of the Capital Stock of, or all or substantially all of the assets
of, any Loan Party;
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(xiii) promptly after the sending or filing thereof,
copies of all statements, reports and other information any Loan Party sends to
any holders of its publicly-held securities or files with the SEC or any
national (domestic or foreign) securities exchange;
(xiv) promptly upon receipt thereof, copies of all
financial reports (including, without limitation, management letters), if any,
submitted to any Loan Party by its auditors in connection with any annual or
interim audit of the books thereof; and
(xv) weekly, an availability report with respect to the
Accounts Receivable borrowing base contained in each Revolving Credit Agreement,
in the same form and substance, and at the same time, as delivered to each
Revolving Credit Agent;
(xvi) at the earlier of (x) the delivery of the financial
statements required to be delivered pursuant to Section 7.01(a)(i) after the end
of each fiscal quarter of the Parent and (y) within 30 days after the date on
which the Net Book Value of Rolling Stock of the Loan Parties purchased,
acquired or otherwise obtained during the period since the latest delivery
pursuant to this clause (xvi) exceeds $200,000, the originals of all
certificates of title or ownership for such Rolling Stock, and duly executed and
completed title or ownership applications with appropriate state agencies to
enable such Rolling Stock to be retitled with the Agent listed as a lienholder
thereof and an updated Schedule 5.01(d)(xxiv) or Schedule 5.03(a), as
applicable), which Schedule shall include for all Rolling Stock of the Loan
Parties information with respect to the manufacturer, the year made, the model,
the vehicle identification number, the state in which it is licensed, the
license number, the owner, state in which it is titled and the certificate of
title or ownership identification number; and
(xvii) promptly upon request, such other information
concerning the condition or operations, financial or otherwise, of any Loan
Party as the Agent may from time to time may reasonably request, including,
without limitation, financial information pertaining to any operating division
or unit of any Loan Party.
(b) Additional Guaranties and Collateral Security. Cause:
(i) each Subsidiary of any Loan Party not in existence
on the Effective Date to execute and deliver to the Agent promptly and in any
event within 3 days after the formation, acquisition or change in status thereof
(A) a Guaranty guaranteeing the Obligations, (B) a Security Agreement, (C) if
such Subsidiary has any Subsidiaries, a Pledge Agreement together with (x)
certificates evidencing all of the Capital Stock of any Person owned by such
Subsidiary, (y) undated stock powers executed in blank with signature
guaranteed, and (z) such opinion of counsel and such approving certificate of
such Subsidiary as the Agent may reasonably request in respect of complying with
any legend on any such certificate or any other matter relating to such shares,
(D) one or more Mortgages creating on the real property of such Subsidiary a
perfected, first priority Lien on such real property, a Title Insurance Policy
covering such real property, a current ALTA survey thereof and a surveyor's
certificate, each in form and substance satisfactory to the Agent, together with
such other agreements, instruments and documents as the Agent may require
whether comparable to the documents required under Section 7.01(o) or otherwise,
(E) any Canadian Security Documents, if applicable, and (F) such other
agreements, instruments, approvals, legal opinions or other documents reasonably
requested by the Agent in order to create, perfect, establish the first priority
of or otherwise protect any Lien purported to be covered by any such Security
Agreement, Pledge Agreement or
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Mortgage or Canadian Security Document or otherwise to effect the intent that
such Subsidiary shall become bound by all of the terms, covenants and agreements
contained in the Loan Documents and that all property and assets of such
Subsidiary shall become Collateral for the Obligations; and
(ii) each owner of the Capital Stock of any such
Subsidiary to execute and deliver promptly and in any event within 3 days after
the formation or acquisition of such Subsidiary a Pledge Agreement, together
with (A) certificates evidencing all of the Capital Stock of such Subsidiary,
(B) undated stock powers or other appropriate instruments of assignment executed
in blank with signature guaranteed, (C) such opinion of counsel and such
approving certificate of such Subsidiary as the Agent may reasonably request in
respect of complying with any legend on any such certificate or any other matter
relating to such shares and (D) such other agreements, instruments, approvals,
legal opinions or other documents requested by the Agent.
(c) Compliance with Laws, Etc. (i) Comply, and cause each of
its Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (including, without limitation, all Environmental
Laws and Motor Vehicle Laws), such compliance to include, without limitation,
(A) paying before the same become delinquent all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any of its properties, and (B) paying all lawful claims (including, without
limitation, all Environmental Claims) which if unpaid might become a Lien or
charge upon any of its properties, except to the extent contested in good faith
by proper proceedings which stay the imposition of any penalty, fine or Lien
resulting from the non-payment thereof and with respect to which adequate
reserves have been set aside for the payment thereof in accordance with GAAP.
(ii) Establish and maintain, at its expense, a system
and policies to assure and monitor its continued compliance with all
Environmental Laws in all of its operations, which system and policies shall
include periodic reviews of such compliance by employees or agents of the Loan
Parties who are familiar with the requirements of the Environmental Laws. Copies
of all such periodic reviews shall be made available by the Loan Parties for
inspection by the Agent and, upon the Agent's request, copies of all
environmental reviews, surveys, audits, assessments, feasibility studies and
results of remedial investigations shall be promptly furnished, or caused to be
furnished, by the Loan Parties to the Agent. The Loan Parties shall take prompt
and appropriate action to respond to any non-compliance with any of the
Environmental Laws and shall regularly report to the Agent on such response.
(d) Preservation of Existence, Etc. Maintain and preserve, and
cause each of its Subsidiaries (other than Inactive Subsidiaries) to maintain
and preserve, its existence, rights and privileges, and become or remain, and
cause each of its Subsidiaries (other than Inactive Subsidiaries) to become or
remain, duly qualified and in good standing in each jurisdiction in which the
character of the properties owned or leased by it or in which the transaction of
its business makes such qualification necessary, except where the failure to be
so qualified could not reasonably be expected to have a Material Adverse Effect.
(e) Keeping of Records and Books of Account. Keep, and cause
each of its Subsidiaries to keep, adequate records and books of account, with
complete entries made to permit the preparation of financial statements in
accordance with GAAP.
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(f) Inspection Rights. Permit, and cause each of its
Subsidiaries to permit, the agents and representatives of the Agent at any time
and from time to time during normal business hours, at the expense of the
Borrowers, to examine and make copies of and abstracts from its records and
books of account, to visit and inspect its properties, to verify materials,
leases, notes, accounts receivable, deposit accounts and its other assets, to
conduct audits, physical counts, valuations, appraisals, Phase I Environmental
Site Assessments (and, if requested by the Agent based upon the results of any
such Phase I Environmental Site Assessment, a Phase II Environmental Site
Assessment) or examinations and to discuss its affairs, finances and accounts
with any of its directors, officers, managerial employees, independent
accountants or any of its other representatives. In furtherance of the
foregoing, each Loan Party hereby authorizes its independent accountants, and
the independent accountants of each of its Subsidiaries, to discuss the affairs,
finances and accounts of such Person (independently or together with
representatives of such Person) with the agents and representatives of the Agent
in accordance with this Section 7.01(f).
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties
which are necessary or useful in the proper conduct of its business in good
working order and condition, ordinary wear and tear excepted, and comply, and
cause each of its Subsidiaries to comply, at all times with the provisions of
all leases relating to such properties to which it is a party as lessee or under
which it occupies property, so as to prevent any loss or forfeiture thereof or
thereunder.
(h) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations (including, without limitation, comprehensive general
liability, hazard, rent and business interruption insurance) with respect to its
properties (including all real properties leased or owned by it) and business,
in such amounts and covering such risks as is required by any Governmental
Authority having jurisdiction with respect thereto or as is carried generally in
accordance with sound business practice by companies in similar businesses
similarly situated and in any event in amount, adequacy and scope reasonably
satisfactory to the Agent. All policies covering the Collateral are to be made
payable to the Agent for the benefit of the Lenders, as its interests may
appear, in case of loss, under a standard non-contributory "lender" or "secured
party" clause and are to contain such other provisions as the Agent may require
to fully protect the Lenders' interest in the Collateral and to any payments to
be made under such policies. All certificates of insurance are to be delivered
to the Agent and the policies are to be premium prepaid, with the loss payable
and additional insured endorsement in favor of the Agent and such other Persons
as the Agent may designate from time to time, and shall provide for not less
than 30 days' prior written notice to the Agent of the exercise of any right of
cancellation. If any Loan Party or any of its Subsidiaries fails to maintain
such insurance, the Agent may arrange for such insurance, but at the Borrowers'
expense and without any responsibility on the Agent's part for obtaining the
insurance, the solvency of the insurance companies, the adequacy of the
coverage, or the collection of claims. Upon the occurrence and during the
continuance of an Event of Default, the Agent shall have the sole right, in the
name of the Lenders, any Loan Party and its Subsidiaries, to file claims under
any insurance policies, to receive, receipt and give acquittance for any
payments that may be payable thereunder, and to execute any and all
endorsements, receipts, releases, assignments, reassignments or other documents
that may be necessary to effect the collection, compromise or settlement of any
claims under any such insurance policies.
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(i) Obtaining of Permits, Etc. (i) Obtain, maintain and
preserve, and cause each of its Subsidiaries to obtain, maintain and preserve,
and take all necessary action to timely renew, all permits, licenses,
authorizations, approvals, entitlements and accreditations which are necessary
or useful in the proper conduct of its business.
(ii) Cause all Rolling Stock, now owned or hereafter acquired by any Loan Party,
which, under applicable law, is required to be registered, to be properly
registered (including, without limitation, the payment of all necessary taxes
and receipt of any applicable permits) in the name of such Loan Party and cause
all Rolling Stock, now owned or hereafter acquired by any Loan Party, the
ownership of which, under applicable law (including, without limitation, any
Motor Vehicle Law), is evidenced by a certificate of title or ownership, to be
properly titled in the name of such Loan Party, with the Agent's Lien noted
thereon.
(j) Environmental. (i) Keep any property either owned or
operated by it or any of its Subsidiaries free of any Environmental Liens and
maintain each Loan Parties' businesses, Facilities, operations, properties and
assets in material compliance with Environmental Laws; (ii) provide the Agents
written notice within five (5) days of any Release of a Hazardous Material in
excess of any reportable quantity from or onto property at any time owned or
operated by it or any of its Subsidiaries and take any material Remedial Actions
required to abate said Release; (iii) provide the Agents with written notice
within ten (10) days of the receipt of any of the following: (A) notice that an
Environmental Lien has been filed against any property of any Loan Party or any
of its Subsidiaries; (B) commencement of any Environmental Claim in excess of
$1,000,000 or notice that an Environmental Claim will be filed against any Loan
Party or any of its Subsidiaries; and (C) notice of a violation, citation or
other administrative order which could have a Material Adverse Effect, (iv)
defend, indemnify and hold harmless the Agent and the Lenders and their
transferees, and their respective employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses (including, without limitation, attorney
and consultant fees, investigation and laboratory fees, court costs and
litigation expenses) arising out of (A) the generation, presence, disposal,
Release or threatened Release of any Hazardous Materials on, under, in,
originating or emanating from any property at any time owned or operated by any
Loan Party or any of its Subsidiaries (or its predecessors in interest or
title), (B) any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to the presence or Release of such
Hazardous Materials, (C) any request for information, investigation, lawsuit
brought or threatened, settlement reached or order by a Governmental Authority
relating to the presence or Release of such Hazardous Materials, (D) any
violation of any Environmental Law and/or (E) any Environmental Claim filed
against the Agent or any Lender, (v) maintain and preserve all Environmental
Permits necessary to operate, use or occupy each of the Loan Parties'
businesses, Facilities, operations, properties and assets, (vi) maintain and
comply with all financial assurance requirements under RCRA and any similar
Environmental Law, as specifically set forth but not limited to 40 C.F.R. 264
and 265, necessary to operate, use or occupy each of the Loan Parties'
businesses, Facilities, operations, properties and assets, (vii) comply with all
applicable writs, orders, consent decrees, judgments, injunctions,
communications by any Governmental Authority, decrees, informational requests or
demands issued pursuant to, or arising under, any Environmental Laws, (viii)
provide the Agent with prompt written notice in the event any Loan Party is
required to spend more than $1,000,000 individually or $5,000,000 in the
aggregate to comply with any Environmental Laws that have been promulgated and
enacted by a Governmental Authority throughout the term of this Agreement, and
(ix) file and submit truthful and complete representations, including without
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limitation applications, warranty statements and accompanying materials provided
in support of such representations, submitted by the Loan Parties to obtain
insurance.
Without limiting the generality of the foregoing, whenever the Agent reasonably
determines that there is non-compliance, or any condition which requires any
action by or on behalf of any Loan Party in order to avoid any material
non-compliance, with any Environmental Law which could result in the imposition
of substantial fines or penalties or otherwise materially and adversely affect
the business, assets or prospects of the Loan Parties on a consolidated basis,
the Loan Parties shall, at the Agent's request and Borrowers' expense: (i) cause
an independent environmental engineer acceptable to the Agent to conduct such
assessments, investigations or tests of the site where any Loan Party's
non-compliance or alleged non-compliance with such Environmental Laws has
occurred as to such non-compliance and prepare and deliver to the Agent a report
as to such non-compliance setting forth the results of such tests, a proposed
plan for responding to any environmental problems described therein, and an
estimate of the costs thereof and (ii) provide to the Agent a supplemental
report of such engineer whenever the scope of such non-compliance, or the
applicable Loan Party's response thereto or the estimated costs thereof, shall
change in any material respect.
Borrowers acknowledge and agree that neither the Loan Documents or the actions
of the Agent or any Lender pursuant thereto shall operate or be deemed (i) to
place upon the Agent or any Lender any responsibility for the operation,
control, care, service, management, maintenance or repair of property or
facilities of Loan Parties or (ii) to make the Agent or any Lender the "owner"
or "operator" of any property or facilities of the Loan Parties or a
"responsible party" within the meaning of applicable Environmental Laws. The
indemnification provisions of this Section 7.01(j) shall survive the repayment
of the Obligations and discharge of any Liens granted under the Loan Documents.
(k) Further Assurances. Take such action and execute,
acknowledge and deliver, and cause each of its Subsidiaries to take such action
and execute, acknowledge and deliver, at its sole cost and expense, such
agreements, instruments or other documents as the Agent may require from time to
time in order (i) to carry out more effectively the purposes of this Agreement
and the other Loan Documents, (ii) to subject to valid and perfected first
priority (except to the extent specified in the Intercreditor Agreement and the
Cash Collateral Control Agreement with respect to certain Collateral) Liens any
of the Collateral or any other property of any Loan Party and its Subsidiaries,
(iii) to establish and maintain the validity and effectiveness of any of the
Loan Documents and the validity, perfection and priority of the Liens intended
to be created thereby, and (iv) to better assure, convey, grant, assign,
transfer and confirm unto the Agent and each Lender the rights now or hereafter
intended to be granted to it under this Agreement or any other Loan Document. In
furtherance of the foregoing, to the maximum extent permitted by applicable law,
each Loan Party (i) authorizes the Agent to execute any such agreements,
instruments or other documents in such Loan Party's name and to file such
agreements, instruments or other documents in any appropriate filing office,
(ii) authorizes the Agent to file any financing statement required hereunder or
under any other Loan Document, and any continuation statement or amendment with
respect thereto, in any appropriate filing office without the signature of such
Loan Party, and (iii) ratifies the filing of any financing statement, and any
continuation statement or amendment with respect thereto, filed without the
signature of such Loan Party prior to the date hereof.
(l) Change in Collateral; Collateral Records. (i) Give the
Agent not less than 30 days' prior written notice of any change in the location
of any Collateral, other than
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to locations set forth on Schedule 6.01(ff) and with respect to which the Agent
has filed financing statements and otherwise fully perfected its Liens thereon,
(ii) advise the Agent promptly, in sufficient detail, of any material adverse
change relating to the type, quantity or quality of the Collateral or the Lien
granted thereon and (iii) execute and deliver, and cause each of its
Subsidiaries to execute and deliver, to the Agent for the benefit of the Lenders
from time to time, solely for the Agent's convenience in maintaining a record of
Collateral, such written statements and schedules as the Agent may reasonably
require, designating, identifying or describing the Collateral.
(m) Landlord Waivers; Collateral Access Agreements. (i) At any
time any Collateral with a book value in excess of $250,000 (when aggregated
with all other Collateral at the same location) is located on any real property
of a Loan Party (whether such real property is now existing or acquired after
the Effective Date) which is not owned by a Loan Party, obtain written
subordinations or waivers, in form and substance satisfactory to the Agent, of
all present and future Liens which the owner or lessor of such premises may be
entitled to assert against the Collateral; and
(ii) Use commercially reasonable efforts to obtain written
access agreements, in form and substance satisfactory to the Agent, providing
access to Collateral located on any premises not owned by a Loan Party in order
to remove such Collateral from such premises during an Event of Default.
(n) Subordination. Cause all Indebtedness and other
obligations now or hereafter owed by it to any of its Affiliates, to be
subordinated in right of payment and security to the Indebtedness and other
Obligations owing to the Agent and the Lenders in accordance with a
subordination agreement in form and substance satisfactory to the Agent.
(o) After Acquired Real Property. Upon the acquisition by it
or any of its Subsidiaries after the date hereof of any interest (whether fee or
leasehold) in any real property (wherever located) (each such interest being an
"After Acquired Property") (x) with a Current Value (as defined below) in excess
of $100,000 in the case of a fee interest, or (y) requiring the payment of
annual rent exceeding in the aggregate $100,000 in the case of leasehold
interest, promptly (but in any event within three Business Days) so notify the
Agent, setting forth with specificity a description of the interest acquired,
the location of the real property, any structures or improvements thereon and
either an appraisal or such Loan Party's good-faith estimate of the current
value of such real property (for purposes of this Section, the "Current Value").
The Agent shall notify such Loan Party whether it intends to require a Mortgage
and the other documents referred to below or in the case of leasehold, a
leasehold Mortgage or landlord's waiver (pursuant to Section 7.01(m) hereof).
Upon receipt of such notice requesting a Mortgage, the Person which has acquired
such After Acquired Property shall immediately furnish to the Agent the
following, each in form and substance satisfactory to the Agent: (i) a Mortgage
with respect to such real property and related assets located at the After
Acquired Property, each duly executed by such Person and in recordable form;
(ii) evidence of the recording of the Mortgage referred to in clause (i) above
in such office or offices as may be necessary or, in the opinion of the Agent,
desirable to create and perfect a valid and enforceable first priority lien on
the property purported to be covered thereby or to otherwise protect the rights
of the Agent and the Lenders thereunder, (iii) a Title Insurance Policy, (iv) an
ALTA survey of such real property, certified to the Agent and to the issuer of
the Title Insurance Policy by a licensed professional surveyor and using a form
of certification reasonably satisfactory to the Agent, (v) Phase I Environmental
Site Assessments with respect to such real property,
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certified to the Agent by a company reasonably satisfactory to the Agent, (vi)
in the case of a leasehold interest, a certified copy of the lease between the
landlord and such Person with respect to such real property in which such Person
has a leasehold interest, and the certificate of occupancy with respect thereto,
(vii) in the case of a leasehold interest, an attornment and nondisturbance
agreement between the landlord (and any fee mortgagee) with respect to such real
property and the Agent, and (viii) evidence satisfactory to the Agent of the
compliance of such real property with all applicable building codes, subdivision
and zoning laws, rules and regulations, and (ix) such other documents or
instruments (including guarantees and opinions of counsel) as the Agent may
reasonably require. The Borrowers shall pay all fees and expenses, including
reasonable attorneys' fees and expenses, and all title insurance charges and
premiums, in connection with each Loan Party's obligations under this Section
7.01(o).
(p) Fiscal Year. Cause the Fiscal Year of the Parent and its
Subsidiaries to end on December 31 of each calendar year unless the Agent
consents to a change in such Fiscal Year (and appropriate related changes to
this Agreement).
Section 7.02 Negative Covenants. So long as any principal of or
interest on any Loan or any other Obligation (whether or not due) shall remain
unpaid or any Lender shall have any Commitment hereunder, each Loan Party shall
not, unless the Required Lenders shall otherwise consent in writing:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien upon or with respect to any of its properties, whether now owned or
hereafter acquired; file or suffer to exist under the Uniform Commercial Code or
any similar law or statute of any jurisdiction, a financing statement (or the
equivalent thereof) that names it or any of its Subsidiaries as debtor; sign or
suffer to exist any security agreement authorizing any secured party thereunder
to file such financing statement (or the equivalent thereof); sell any of its
property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets (including sales of accounts
receivable) with recourse to it or any of its Subsidiaries or assign or
otherwise transfer, or permit any of its Subsidiaries to assign or otherwise
transfer, any account or other right to receive income; other than, as to all of
the above, Permitted Liens.
(b) Indebtedness. Create, incur, assume, guarantee or suffer
to exist, or otherwise become or remain liable with respect to, or permit any of
its Subsidiaries to create, incur, assume, guarantee or suffer to exist or
otherwise become or remain liable with respect to, any Indebtedness other than
Permitted Indebtedness.
(c) Fundamental Changes; Dispositions. Wind-up, liquidate or
dissolve, or merge, consolidate or amalgamate with any Person, or convey, sell,
lease or sublease, transfer or otherwise dispose of, whether in one transaction
or a series of related transactions, all or any part of its business, property
or assets, whether now owned or hereafter acquired (or agree to do any of the
foregoing), or purchase or otherwise acquire, whether in one transaction or a
series of related transactions, all or substantially all of the assets of any
Person (or any division thereof) (or agree to do any of the foregoing), or
permit any of its Subsidiaries to do any of the foregoing; provided, however,
that
(i) any Borrower (other than the Parent) may be merged
into or consolidated with any other Borrower and any wholly-owned Subsidiary of
any Loan Party (other than a Borrower) may be merged into such Loan Party or
another wholly-owned
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Subsidiary of such Loan Party, or may consolidate with another wholly-owned
Subsidiary of such Loan Party, so long as (A) no other provision of this
Agreement would be violated thereby, (B) such Loan Party gives the Agent at
least 30 days' prior written notice of such merger or consolidation, (C) no
Default or Event of Default shall have occurred and be continuing either before
or after giving effect to such transaction, (D) the Lenders' rights in any
Collateral, including, without limitation, the existence, perfection and
priority of any Lien thereon, are not adversely affected by such merger or
consolidation and (E) the surviving Subsidiary, if any, is joined as a Loan
Party hereunder and is a party to a Guaranty and a Security Agreement and the
Capital Stock of which Subsidiary is the subject of a Pledge Agreement, in each
case, which is in full force and effect on the date of and immediately after
giving effect to such merger or consolidation;
(ii) any Loan Party and its Subsidiaries may (A) dispose
of obsolete or worn-out equipment (other than Rolling Stock) in the ordinary
course of business, and (B) sell or otherwise dispose of other property or
assets (other than any Capital Stock or Facility of any Loan Party) for cash in
an aggregate amount not less than the fair market value of such property or
assets, provided that (1) the Net Cash Proceeds of all such Dispositions are
paid to the Agent for the benefit of the Lenders pursuant to the terms of
Section 2.05(c)(i), (2) if the aggregate amount of Net Cash Proceeds of all such
Dispositions exceeds $500,000 in any twelve month period, the Loan Parties may
sell or otherwise dispose of additional property or assets during such period so
long as (I) at least five Business Days prior to selling or disposing of such
property or assets, the Loan Parties furnish to the Agent an appraisal,
reasonably satisfactory to the Agent, of the fair market value of the property
or assets subject to such sale or disposition and (II) the other provisions of
this paragraph (ii) are satisfied, and (3) in all cases, so long as, before and
after giving effect to the transactions permitted thereby, there exists no
continuing Event of Default; and
(iii) so long as no Event of Default has occurred and is
continuing, any Loan Party may (A) license, on a non-exclusive basis, any of its
patents, trademarks or copyrights in the ordinary course of business, and (B)
enter into leases, as lessor, in respect of space at any Facility so long as the
applicable tenant executes and delivers to the Agent, to the extent reasonably
requested by the Agent, an estoppel letter and a subordination and
non-disturbance agreement the form and substance of which are reasonably
satisfactory to the Agent.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any change in the nature of its business as described in
Section 6.01(l).
(e) Loans, Advances, Investments, Etc. Make or commit or agree
to make any loan, advance guarantee of obligations, other extension of credit or
capital contributions to, or hold or invest in or commit or agree to hold or
invest in, or purchase or otherwise acquire or commit or agree to purchase or
otherwise acquire any shares of the Capital Stock, bonds, notes, debentures or
other securities of, or make or commit or agree to make any other investment in,
any other Person, or purchase or own any futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or permit any of its Subsidiaries to
do any of the foregoing, except for: (i) investments existing on the date
hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the
amount thereof as set forth in such Schedule or any other modification of the
terms thereof, (ii) investments made by the Parent or any other Loan Party in or
to its respective wholly-owned Subsidiaries and by such Subsidiaries to it, made
in the ordinary course of
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business, provided that the aggregate principal amount of such investments made
in or to the Loan Parties' Subsidiaries organized outside of the United States
(exclusive of (A) investments in the Capital Stock of such Subsidiaries
resulting from the allocation of the consideration paid by the Loan Parties for
the Acquisition Assets and (B) Indebtedness incurred by a Loan Party on behalf
of one or more of its Subsidiaries which is permitted under clause (i) of the
definition of "Permitted Indebtedness") shall not exceed, in the case of such
Subsidiaries organized under the laws of a Canadian province, $5,000,000 or, in
the case of any other Subsidiary organized outside the United States, $500,000,
in each case at any one time outstanding, and (iii) Permitted Investments.
(f) Inactive Subsidiaries. Permit any Inactive Subsidiary to
(i) become an active company, have operations or conduct business or (ii) own
any assets other than assets with a fair market value not in excess of $25,000
in the aggregate for all Inactive Subsidiaries.
(g) Capital Expenditures. Make or commit or agree to make, or
permit any of its Subsidiaries to make or commit or agree to make, any Capital
Expenditure (by purchase or Capitalized Lease) that would cause the aggregate
amount of all Capital Expenditures made by the Loan Parties and their
Subsidiaries to exceed the applicable amount for the corresponding Fiscal Year
set forth below:
------------------------------------------------------
CapEx Amount Fiscal Year
------------------------------------------------------
$45,000,000 2003
------------------------------------------------------
$32,000,000 2004
------------------------------------------------------
$28,000,000 2005
------------------------------------------------------
$25,000,000 2006
------------------------------------------------------
$25,000,000 2007
------------------------------------------------------
; provided, however, if the amount of Capital Expenditures permitted to be made
by the Loan Parties pursuant to the foregoing in any Fiscal Year (before giving
effect to any increase in such permitted expenditure amount pursuant to this
proviso) is greater than the amount of such Capital Expenditures actually made
by the Loan Parties during such Fiscal Year, such excess may be carried forward
to the next succeeding Fiscal Year and utilized to make Capital Expenditures in
such Fiscal Year (but not in any subsequent Fiscal Year).
(h) Restricted Payments. (i) Declare or pay any dividend or
other distribution, direct or indirect, on account of any Capital Stock of any
Loan Party or any of its Subsidiaries, now or hereafter outstanding, (ii) make
any repurchase, redemption, retirement, defeasance, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Capital Stock of any Loan Party or any direct or indirect parent of any Loan
Party, now or hereafter outstanding, (iii) make any payment to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights for
the purchase or acquisition of shares of any class of Capital Stock of any Loan
Party, now or hereafter outstanding, (iv) return any Capital Stock to any
shareholders or other equity holders of any Loan Party or any of its
Subsidiaries, or make any other distribution of property, assets, shares of
Capital Stock, warrants, rights, options, obligations or securities thereto as
such or (v) pay any management fees or any other fees or expenses (including the
reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to
any management, consulting or other services agreement to any of the
shareholders or other equityholders of any Loan Party or any of its Subsidiaries
or other
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Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party;
provided, however, (A) any Loan Party may pay dividends to the Parent, (B) any
Subsidiary of any Borrower may pay dividends to such Borrower, (C) the Parent
may pay dividends in the form of common Capital Stock, and (D) the Parent may
pay cash dividends at an annual rate of $4.00 per share on its 112,000 currently
outstanding shares of Series B convertible preferred stock and any dividends
required or permitted to be paid in cash on the shares of its Series C
convertible preferred stock described in Section 5.01(g), provided that (I) in
each case of clauses (A) through (D) above, at the election of the Agent, which
the Agent may and, upon the direction of the Required Lenders, shall make by
notice to the Administrative Borrower, no such payment shall be made if an Event
of Default shall have occurred and be continuing or would result from the making
of any such payment and (II) in the case of clause (D) above, no such payment
shall be made if, immediately before or after giving effect to any such payment,
Adjusted Excess Availability (in the case of any such payments made on or prior
to March 1, 2003) or Excess Availability (as defined in the Revolving Credit
Agreement as in effect on the date hereof) (in the case of any such payments
made after March 1, 2003) under the Revolving Credit Agreement is less than
$30,000,000.
(i) Federal Reserve Regulations. Permit any Loan or the
proceeds of any Loan under this Agreement to be used for any purpose that would
cause such Loan to be a margin loan under the provisions of Regulation T, U or X
of the Board.
(j) Transactions with Affiliates. Enter into, renew, extend or
be a party to, or permit any of its Subsidiaries to enter into, renew, extend or
be a party to, any transaction or series of related transactions (including,
without limitation, the purchase, sale, lease, transfer or exchange of property
or assets of any kind or the rendering of services of any kind) with any
Affiliate, except (i) in the ordinary course of business in a manner and to an
extent consistent with past practice and necessary or desirable for the prudent
operation of its business, for fair consideration and on terms no less favorable
to it or its Subsidiaries than would be obtainable in a comparable arm's length
transaction with a Person that is not an Affiliate thereof, (ii) transactions
with another Loan Party and (iii) transactions permitted by Section 7.02(e).
(k) Limitations on Dividends and Other Payment Restrictions
Affecting Subsidiaries. Create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Subsidiary of any Loan Party (i) to pay dividends
or to make any other distribution on any shares of Capital Stock of such
Subsidiary owned by any Loan Party or any of its Subsidiaries, (ii) to pay or
prepay or to subordinate any Indebtedness owed to any Loan Party or any of its
Subsidiaries, (iii) to make loans or advances to any Loan Party or any of its
Subsidiaries or (iv) to transfer any of its property or assets to any Loan Party
or any of its Subsidiaries, or permit any of its Subsidiaries to do any of the
foregoing; provided, however, that nothing in any of clauses (i) through (iv) of
this Section 7.02(k) shall prohibit or restrict compliance with:
(A) this Agreement, the other Loan Documents and the
Revolving Credit Agreement;
(B) any agreements in effect on the date of this
Agreement and described on Schedule 7.02(k);
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(C) any applicable law, rule or regulation
(including, without limitation, applicable currency control laws and applicable
state corporate statutes restricting the payment of dividends in certain
circumstances);
(D) in the case of clause (iv) any agreement setting
forth customary restrictions on the subletting, assignment or transfer of any
property or asset that is a lease, license, conveyance or contract of similar
property or assets; or
(E) in the case of clause (iv) any agreement,
instrument or other document evidencing a Permitted Lien from restricting on
customary terms the transfer of any property or assets subject thereto.
(l) Limitation on Issuance of Capital Stock. Issue or sell or
enter into any agreement or arrangement for the issuance and sale of, or permit
any of its Subsidiaries to issue or sell or enter into any agreement or
arrangement for the issuance and sale of, any shares of its Capital Stock, any
securities convertible into or exchangeable for its Capital Stock or any
warrants, except (i) for the Series B and Series C convertible preferred stock
of the Parent outstanding on the Effective Date, (ii) the Parent may issue and
sell shares of its common Capital Stock to its officers, directors and employees
pursuant to stock option and stock purchase plans in effect on the Effective
Date, and (iii) for the issuance or sale by the Parent of shares of its common
Capital Stock so long as the proceeds from such issuance or sale are applied to
prepay the Loans in accordance with Section 2.05(c)(ii).
(m) Modifications of Indebtedness, Organizational Documents
and Certain Other Agreements; Etc. (i) Amend, modify or otherwise change (or
permit the amendment, modification or other change in any manner of) any of the
provisions of any of its or its Subsidiaries' Indebtedness (including, without
limitation, any Revolving Credit Document) or of any instrument or agreement
(including, without limitation, any purchase agreement, indenture, loan
agreement or security agreement) relating to any such Indebtedness if such
amendment, modification or change would shorten the final maturity or average
life to maturity of, or require any payment to be made earlier than the date
originally scheduled on, such Indebtedness, would increase the interest rate
applicable to such Indebtedness, would change the subordination provision, if
any, of such Indebtedness, or would otherwise be adverse to the Lenders or the
issuer of such Indebtedness in any respect, (ii) except for the Obligations,
make any voluntary or optional payment or prepayment (other than to the
Revolving Credit Lenders pursuant to the Revolving Credit Documents) or
redemption, defeasance, sinking fund payment or other acquisition for value of
any of its or its Subsidiaries' Indebtedness (including, without limitation, by
way of depositing money or securities with the trustee therefor before the date
required for the purpose of paying any portion of such Indebtedness when due),
or refund, refinance, replace or exchange any other Indebtedness for any such
Indebtedness (except to the extent such Indebtedness is otherwise expressly
permitted by the definition of "Permitted Indebtedness"), or make any payment,
prepayment, redemption, defeasance, sinking fund payment or repurchase of any
outstanding Indebtedness as a result of any asset sale, change of control,
issuance and sale of debt or equity securities or similar event, or give any
notice with respect to any of the foregoing, (iii) except as permitted by
Section 7.02(c), amend, modify or otherwise change its name, jurisdiction of
organization, organizational identification number or FEIN or (iv) amend, modify
or otherwise change its certificate of incorporation or bylaws (or other similar
organizational documents), including, without limitation, by the filing or
modification of any certificate of designation, or any agreement or arrangement
entered into by it, with respect to any of its Capital Stock (including any
shareholders' agreement), or enter into
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any new agreement with respect to any of its Capital Stock, except any such
amendments, modifications or changes or any such new agreements or arrangements
pursuant to this clause (iv) that either individually or in the aggregate, could
not have a Material Adverse Effect.
(n) Investment Company Act of 1940. Engage in any business,
enter into any transaction, use any securities or take any other action or
permit any of its Subsidiaries to do any of the foregoing, that would cause it
or any of its Subsidiaries to become subject to the registration requirements of
the Investment Company Act of 1940, as amended, by virtue of being an
"investment company" or a company "controlled" by an "investment company" not
entitled to an exemption within the meaning of such Act.
(o) Acquisition Costs. Except for amounts paid prior to June
30, 2002 and disclosed in Parent's Quarterly Report on Form 10-Q for the fiscal
quarter then ended, pay more than a total of $32,000,000 of fees, costs, charges
and other expenses incurred in connection with (i) the repayment and defeasance
of any Loan Parties' Indebtedness upon the making of the Loans (exclusive of the
principal of and interest on the Indebtedness so repaid and defeased), (ii) the
work performed by Loan Parties' environmental consultants related to the
Acquisition Assets and (iii) the services rendered by Loan Parties' legal
counsel in connection with the consummation of the Acquisition and the financing
transactions contemplated hereunder.
(p) ERISA. (i) Engage, or permit any ERISA Affiliate to
engage, in any transaction described in Section 4069 of ERISA; (ii) engage, or
permit any ERISA Affiliate to engage, in any prohibited transaction described in
Section 406 of ERISA or 4975 of the Internal Revenue Code for which a statutory
or class exemption is not available or a private exemption has not previously
been obtained from the U.S. Department of Labor; (iii) adopt or permit any ERISA
Affiliate to adopt any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA or applicable law;
(iv) fail to make any contribution or payment to any Multiemployer Plan which it
or any ERISA Affiliate may be required to make under any agreement relating to
such Multiemployer Plan, or any law pertaining thereto; or (v) fail, or permit
any ERISA Affiliate to fail, to pay any required installment or any other
payment required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or other payment.
(q) Environmental. (i) Permit the use, handling, generation,
storage, treatment, Release or disposal of Hazardous Materials at any property
owned or leased by it or any of its Subsidiaries, except in compliance with
Environmental Laws and so long as such use, handling, generation, storage,
treatment, Release or disposal of Hazardous Materials does not result in a
Material Adverse Effect, or (ii) prejudice its rights to obtain the benefits of
its insurance by failing to comply with any of the provisions, conditions or
requirements of its policies of insurance.
(r) Certain Agreements. Agree to any amendment or other change
to or waiver of any of its rights under any Material Contract to the extent such
amendment, change or waiver is materially adverse to the interests of such Loan
Party or the Agent or the Lenders.
(s) Amendment to Acquisition Documents. Amend, modify, change,
agree to any amendment, modification or other change to (or make any payment
consistent with any amendment or other change to) or waive any of its rights
under any of the Acquisition Documents.
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Section 7.03 Financial Covenants. So long as any principal of or
interest on any Loan or any other Obligation (whether or not due) shall remain
unpaid or any Lender shall have any Commitment hereunder, each Loan Party shall
not, unless the Required Lenders shall otherwise consent in writing:
(a) Leverage Ratio. Permit the ratio of Consolidated Funded
Indebtedness to (i) for any fiscal quarter ending on or prior to June 30, 2003,
Consolidated Annualized EBITDA of the Parent and its Subsidiaries and (ii) for
each fiscal quarter ending thereafter, Consolidated EBITDA of the Parent and its
Subsidiaries as of the end of each period of four (4) consecutive fiscal
quarters of the Parent and its Subsidiaries for which the last quarter ends on a
date set forth below, to be greater than the applicable ratio set forth below:
Fiscal Quarter End Leverage Ratio
December 31, 2002 3.5:1
March 31, 2003 3.75:1
June 30, 2003 3.15:1
September 30, 2003 3.0:1
December 31, 2003 2.5:1
March 31, 2004 2.1:1
June 30, 2004 1.9:1
September 30, 2004 1.6:1
December 31, 2004 and 1.5:1
for each fiscal quarter thereafter
(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio of the Parent and its Subsidiaries for each period of four (4)
consecutive fiscal quarters (or, in the case of each fiscal quarter ending on or
prior to June 30, 2003, such lesser number of consecutive fiscal quarters as
shall then have been completed since the fiscal quarter commencing on October 1,
2002) of the Parent and its Subsidiaries for which the last quarter ends on a
date set forth below to be less than the amount set forth opposite such date:
----------------------------------------------------------------
Fixed Charge Coverage
Fiscal Quarter End Ratio
----------------------------------------------------------------
December 31, 2002 0.65:1
----------------------------------------------------------------
March 31, 2003 0.75:1
----------------------------------------------------------------
June 30, 2003 0.85:1
----------------------------------------------------------------
September 30, 2003 0.90:1
----------------------------------------------------------------
December 31, 2003 1:1
----------------------------------------------------------------
March 31, 2004 1.1:1
----------------------------------------------------------------
June 30, 2004 1.2:1
----------------------------------------------------------------
September 30, 2004 1.4:1
----------------------------------------------------------------
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--------------------------------------------------------------
December 31, 2004 1.45:1
--------------------------------------------------------------
For each fiscal quarter thereafter 1.5:1
--------------------------------------------------------------
(c) Consolidated EBITDA. Permit (i) for any fiscal quarter
ending on or prior to June 30, 2003, Consolidated Annualized EBITDA of the
Parent and its Subsidiaries and (ii) for each fiscal quarter ending thereafter,
Consolidated EBITDA of the Parent and its Subsidiaries for the four fiscal
quarters ending as of the end of the applicable fiscal quarter set forth below,
to be less than the applicable amount set forth below:
--------------------------------------------------------------
Consolidated EBITDA (annualized
or trailing four quarters, as
Fiscal Quarter End applicable)
--------------------------------------------------------------
December 31, 2002 $56,000,000
--------------------------------------------------------------
March 31, 2003 $63,700,000
--------------------------------------------------------------
June 30, 2003 $76,200,000
--------------------------------------------------------------
September 30, 2003 $82,100,000
--------------------------------------------------------------
December 31, 2003 $90,000,000
--------------------------------------------------------------
March 31, 2004 $99,100,000
--------------------------------------------------------------
June 30, 2004 $108,000,000
--------------------------------------------------------------
September 30, 2004 $116,000,000
--------------------------------------------------------------
December 31, 2004 $125,000,000
--------------------------------------------------------------
March 31, 2005 $129,300,000
--------------------------------------------------------------
June 30, 2005 $134,000,000
--------------------------------------------------------------
September 30, 2005 $140,000,000
--------------------------------------------------------------
December 31, 2005 $145,000,000
--------------------------------------------------------------
March 31, 2006 $145,000,000
--------------------------------------------------------------
June 30, 2006 $150,000,000
--------------------------------------------------------------
September 30, 2006 $155,000,000
--------------------------------------------------------------
December 31, 2006 $160,000,000
--------------------------------------------------------------
March 31, 2007 $162,000,000
--------------------------------------------------------------
June 30, 2007 $165,000,000
--------------------------------------------------------------
September 30, 2007 $167,000,000
--------------------------------------------------------------
December 31, 2007 $170,000,000
--------------------------------------------------------------
ARTICLE VIII
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MANAGEMENT, COLLECTION AND STATUS OF
ACCOUNTS RECEIVABLE AND OTHER COLLATERAL
Section 8.01 Management of Collateral. (a) After the occurrence and
during the continuance of an Event of Default, the Agent may send a notice of
assignment and/or notice of the Lenders' security interest to any and all
Account Debtors or third parties holding or otherwise concerned with any of the
Collateral, and thereafter the Agent shall have the sole right to collect the
Accounts Receivable and/or take possession of the Collateral and the books and
records relating thereto, subject to the terms of the Intercreditor Agreement.
After the occurrence and during the continuance of an Event of Default, and
subject to the Intercreditor Agreement and the prior rights of the Revolving
Credit Agent, no Loan Party shall, without prior written consent of the Agent,
grant any extension of time of payment of any Account Receivable, compromise or
settle any Account Receivable for less than the full amount thereof, release, in
whole or in part, any Person or property liable for the payment thereof, or
allow any credit or discount whatsoever thereon.
(b) Each Loan Party hereby appoints the Agent or its
designee on behalf of the Agent as the Loan Parties' attorney-in-fact with power
exercisable during the continuance of an Event of Default to endorse any Loan
Party's name upon any notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Accounts Receivable, to sign any Loan
Party's name on any invoice or bill of lading relating to any of the Accounts
Receivable, drafts against Account Debtors with respect to Accounts Receivable,
assignments and verifications of Accounts Receivable and notices to Account
Debtors with respect to Accounts Receivable, to send verification of Accounts
Receivable, and to notify the Postal Service authorities to change the address
for delivery of mail addressed to any Loan Party to such address as the Agent
may designate and to do all other acts and things necessary to carry out this
Agreement, subject to the terms of the Intercreditor Agreement. All acts of said
attorney or designee are hereby ratified and approved, and said attorney or
designee shall not be liable for any acts of omission or commission (other than
acts of omission or commission constituting gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction), or for any error of judgment or mistake of fact or law; this
power being coupled with an interest is irrevocable until all of the Loans and
other Obligations under the Loan Documents are paid in full and all of the Loan
Documents are terminated.
(c) Nothing herein contained shall be construed to
constitute the Agent as agent of any Loan Party for any purpose whatsoever, and
the Agent shall not be responsible or liable for any shortage, discrepancy,
damage, loss or destruction of any part of the Collateral wherever the same may
be located and regardless of the cause thereof (other than from acts of omission
or commission constituting gross negligence or willful misconduct as determined
by a final judgment of a court of competent jurisdiction). The Agent shall not,
under any circumstance or in any event whatsoever, have any liability for any
error or omission or delay of any kind occurring in the settlement, collection
or payment of any of the Accounts Receivable or any instrument received in
payment thereof or for any damage resulting therefrom (other than acts of
omission or commission constituting gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction). The Agent,
by anything herein or in any assignment or otherwise, does not assume any of the
obligations under any contract or agreement assigned to the Agent and shall not
be responsible in any way for the performance by any Loan Party of any of the
terms and conditions thereof.
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(d) After the occurrence and during the continuance of an
Event of Default, and subject to the Intercreditor Agreement and the prior
rights of the Revolving Credit Agent, if any Account Receivable includes a
charge for any tax payable to any Governmental Authority, the Agent is hereby
authorized (but in no event obligated) in its discretion to pay the amount
thereof to the proper taxing authority for the Loan Parties' account and to
charge the Loan Parties therefor. The Loan Parties shall notify the Agent if any
Account Receivable includes any taxes due to any such Governmental Authority
and, in the absence of such notice, the Agent shall have the right to retain the
full proceeds of such Account Receivable and shall not be liable for any taxes
that may be due by reason of the sale and delivery creating such Account
Receivable.
(e) Notwithstanding any other terms set forth in the Loan
Documents, the rights and remedies of the Agent and the Lenders herein provided,
and the obligations of the Loan Parties set forth herein, are cumulative of, may
be exercised singly or concurrently with, and are not exclusive of, any other
rights, remedies or obligations set forth in any other Loan Document or as
provided by law.
Section 8.02 Accounts Receivable Documentation. After the occurrence
and during the continuance of an Event of Default, and subject to the
Intercreditor Agreement and the prior rights of the Revolving Credit Agent, each
Loan Party will at such intervals as the Agent may require, execute and deliver
confirmatory written assignments of the Accounts Receivable to the Agent and
furnish such further schedules and/or information as the Agent may require
relating to the Accounts Receivable, including, without limitation, sales
invoices or the equivalent, credit memos issued, remittance advices, reports and
copies of deposit slips and copies of original shipping or delivery receipts for
all merchandise sold. In addition, the Loan Parties shall notify the Agent of
any non-compliance in respect of the representations, warranties and covenants
contained in Section 8.03. The items to be provided under this Section 8.02 are
to be in form reasonably satisfactory to the Agent and are to be executed and
delivered to the Agent from time to time solely for its convenience in
maintaining records of the Collateral. The Loan Parties' failure to give any of
such items to the Agent shall not affect, terminate, modify or otherwise limit
the Agent's Lien on the Collateral. The Loan Parties shall not re-date any
invoice or sale or make sales on extended dating beyond that customary in the
Loan Parties' industry, and shall not re-bill any Accounts Receivable without
promptly disclosing the same to the Agent and providing the Agent with a copy of
such re-billing, identifying the same as such. If the Loan Parties become aware
of anything materially detrimental to any of the Loan Parties' customers'
credit, the Loan Parties will promptly advise the Agent thereof.
Section 8.03 Status of Accounts Receivable and Other Collateral.
With respect to Collateral of any Loan Party at the time the Collateral becomes
subject to the Agent's Lien, each Loan Party covenants, represents and warrants:
(a) each Account Receivable shall be a good and valid account representing an
undisputed bona fide indebtedness incurred or an amount indisputably owed by the
Account Debtor therein named, for a fixed sum as set forth in the invoice
relating thereto with respect to an absolute sale and delivery upon the
specified terms of goods sold or services rendered by such Loan Party; (b) no
Account Receivable shall be subject to any known defense, offset, counterclaim,
discount or allowance except as may be stated in the invoice relating thereto,
discounts and allowances as may be customary in such Loan Party's business and
as otherwise disclosed to the Agent; (c) none of the transactions underlying or
giving rise to any Account Receivable shall violate any applicable state or
federal laws or regulations, and all documents relating thereto shall be legally
sufficient under such laws or
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regulations and shall be legally enforceable in accordance with their terms; (e)
all agreements, instruments and other documents relating to any Account
Receivable shall be true and correct and in all material respects what they
purport to be; (f) all signatures and endorsements that appear on all material
agreements, instruments and other documents relating to any Account Receivable
shall be genuine and all signatories and endorsers shall have full capacity to
contract; (g) such Loan Party will, immediately upon learning thereof, report to
the Agent any material loss or destruction of, or substantial damage to, any of
the Collateral, and any other matters affecting the value, enforceability or
collectibility of any of the Collateral; and (h) such Loan Party is not and
shall not be entitled to pledge the Agent's or any Lender's credit on any
purchases or for any purpose whatsoever.
Section 8.04 Collateral Custodian. (a)Without limiting the Agent's
or the Lenders' rights with respect to the Collateral, the Agent has implemented
an arrangement, on terms and pursuant to written agreements in form and
substance satisfactory to the Agent, pursuant to which a third party collateral
custodian or agent, acceptable to the Agent (together with any substitute or
supplemental collateral custodian or agent, the "Rolling Stock Collateral
Custodian") has been engaged, at the expense of the Borrowers, to hold physical
possession of original certificates of title or ownership, vehicle registrations
and other similar instruments and documents with respect to the Rolling Stock
included in the Collateral, upon which certificates of title or ownership the
Agent's Liens shall be noted, and pursuant to which arrangements, on terms and
conditions satisfactory to the Agent, the Rolling Stock Collateral Custodian
will, among other things, monitor and render reports to the Agent regarding the
acquisition and disposition of such Rolling Stock by the Loan Parties as
permitted by this Agreement, and receive and maintain documentation evidencing
compliance with vehicle titling and registration requirements under applicable
law (including, without limitation, all Motor Vehicle Law), and will assist and
cooperate with the Agent in making the necessary arrangements for such Liens and
any releases thereof with respect to the dispositions of Rolling Stock permitted
under this Agreement.
(b) Subject to the terms of the Intercreditor Agreement,
upon the occurrence and during the continuance of any Default or Event of
Default, the Agent may at any time and from time to time employ and maintain on
the premises of any Loan Party a custodian selected by the Agent who shall have
full authority to do all acts necessary to protect the Agent's and the Lenders'
interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to,
cooperate with any such custodian and to do whatever the Agent may reasonably
request to preserve the Collateral. All costs and expenses incurred by the Agent
by reason of the employment of the custodian shall be the responsibility of the
Borrowers and charged to the Loan Account.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01 Events of Default. If any of the following Events of
Default shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of or
interest on any Loan, any Agent Advance or any fee, indemnity or other amount
payable under this Agreement or any other Loan Document when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise);
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(b) (i) any representation or warranty made or deemed made
by or on behalf of any Loan Party or by any officer of the foregoing under or in
connection with any Transaction Document or under or in connection with any
report, certificate, or other document delivered to the Agent or any Lender
pursuant to any Transaction Document shall have been incorrect in any material
respect when made or deemed made, or (ii) any representation or warranty made or
deemed made by or on behalf of any Seller or by any officer of a Seller under or
in connection with any Acquisition Document or under or in connection with any
report, certificate, or other document delivered to a Loan Party pursuant to any
Acquisition Document shall have been incorrect in any material respect when made
or deemed made;
(c) any Loan Party shall fail to perform or comply with any
covenant or agreement contained in paragraphs (b), (c), (d), (f), (h), (j) or
(l) of Section 7.01, Section 7.02 or Section 7.03 or Article VIII, or any Loan
Party shall fail to perform or comply with any covenant or agreement contained
in any Security Agreement to which it is a party, any Pledge Agreement to which
it is a party or any Mortgage to which it is a party or any Canadian Security
Document to which it is a party;
(d) any Loan Party shall default in the performance or
observance of (i) the covenants contained in Section 7.01(a) of this Agreement
(other than subparagraphs (vii), (viii), (ix), (x) and (xi) thereof) and such
default shall continue unremedied for a period of 10 days, (ii) the covenants
contained in subparagraphs (vii), (viii), (ix), (x) and (xi) of Section 7.01(a)
of this Agreement and such default shall continue unremedied for a period of 3
days, or (iii) any other covenant contained in Section 7.01 of this Agreement
(to the extent not otherwise provided for in paragraphs (a), (b) or (c) of this
Section 9.01) and such default shall continue unremedied for a period of 15
days;
(e) any Loan Party shall fail to perform or comply with any
other term, covenant or agreement contained in any Loan Document to be performed
or observed by it and, except as set forth in subsections (a), (b), (c) or (d)
of this Section 9.01, such failure, if capable of being remedied, shall remain
unremedied for 15 days after the earlier of the date a senior officer of any
Loan Party becomes aware of such failure and the date written notice of such
default shall have been given by the Agent to such Loan Party;
(f) any Loan Party shall fail to pay any principal of or
interest on any of its Indebtedness (excluding Indebtedness evidenced by this
Agreement) in excess of $500,000, or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Indebtedness, or
any other default under any agreement or instrument relating to any such
Indebtedness, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), redeemed, purchased or defeased
or an offer to prepay, redeem, purchase or defease such Indebtedness shall be
required to be made, in each case, prior to the stated maturity thereof;
(g) any Loan Party (i) shall institute any proceeding or
voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under
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any law relating to bankruptcy, insolvency, reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for any such Person or for any
substantial part of its property, (ii) shall be generally not paying its debts
as such debts become due or shall admit in writing its inability to pay its
debts generally, (iii) shall make a general assignment for the benefit of
creditors, or (iv) shall take any action to authorize or effect any of the
actions set forth above in this subsection (f);
(h) any proceeding shall be instituted against any Loan
Party seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for any
such Person or for any substantial part of its property, and either such
proceeding shall remain undismissed or unstayed for a period of 45 days or any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against any such Person or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property) shall occur;
(i) any provision of any Loan Document shall at any time
for any reason (other than pursuant to the express terms thereof) cease to be
valid and binding on or enforceable against any Loan Party intended to be a
party thereto, or the validity or enforceability thereof shall be contested by
any party thereto, or a proceeding shall be commenced by any Loan Party or any
Governmental Authority having jurisdiction over any of them, seeking to
establish the invalidity or unenforceability thereof, or any Loan Party shall
deny in writing that it has any liability or obligation purported to be created
under any Loan Document;
(j) any Security Agreement, any Pledge Agreement, any
Mortgage, any Canadian Security Document or any other security document, after
delivery thereof pursuant hereto, shall for any reason fail or cease to create a
valid and perfected and, except to the extent permitted by the terms hereof or
thereof, first priority Lien in favor of the Agent for the benefit of the
Lenders on any Collateral purported to be covered thereby;
(k) any bank at which any deposit account, blocked account,
or lockbox account of any Loan Party is maintained shall fail to comply with any
of the terms of any deposit account, blocked account, lockbox account or similar
agreement to which such bank is a party or any securities intermediary,
commodity intermediary or other financial institution at any time in custody,
control or possession of any investment property of any Loan Party shall fail to
comply with any of the terms of any investment property control agreement to
which such Person is a party;
(l) one or more judgments or orders for the payment of
money exceeding $250,000 in the aggregate shall be rendered against any Loan
Party and remain unsatisfied and either (i) enforcement proceedings shall have
been commenced by any creditor upon any such judgment or order, or (ii) there
shall be a period of 10 consecutive days after entry thereof during which a stay
of enforcement of any such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such judgment or
order shall not give rise to an Event of Default under this subsection (l) if
and for so long as (A) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the insurer
covering full payment thereof and (B) such insurer has
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been notified, and has not disputed the claim made for payment, of the amount of
such judgment or order;
(m) any Loan Party is enjoined, restrained or in any way
prevented by the order of any court or any Governmental Authority from
conducting all or any material part of its business for more than fifteen (15)
days;
(n) any material damage to, or loss, theft or destruction
of, any Collateral, whether or not insured, or any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy, or other casualty
which causes, for more than fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities at any facility of any
Loan Party, if any such event or circumstance could reasonably be expected to
have a Material Adverse Effect;
(o) any cessation of a substantial part of the business of
any Loan Party for a period which materially and adversely affects the ability
of such Person to continue its business on a profitable basis;
(p) the loss, suspension or revocation of, or failure to
renew, any license or permit now held or hereafter acquired by any Loan Party,
if such loss, suspension, revocation or failure to renew could reasonably be
expected to have a Material Adverse Effect;
(q) the indictment, or the threatened indictment of any
Loan Party under any criminal statute, or commencement or threatened
commencement of criminal or civil proceedings against any Loan Party, pursuant
to which statute or proceedings the penalties or remedies sought or available
include forfeiture to any Governmental Authority of any material portion of the
property of such Person;
(r) any Loan Party or any of its ERISA Affiliates shall
have made a complete or partial withdrawal from a Multiemployer Plan, and, as a
result of such complete or partial withdrawal, any Loan Party or any of its
ERISA Affiliates incurs a withdrawal liability in an annual amount exceeding
$1,000,000; or a Multiemployer Plan enters reorganization status under Section
4241 of ERISA, and, as a result thereof any Loan Party's or any of its ERISA
Affiliates' annual contribution requirements with respect to such Multiemployer
Plan increases in an annual amount exceeding $1,000,000;
(s) any Termination Event with respect to any Employee Plan
shall have occurred, and, 30 days after notice thereof shall have been given to
any Loan Party by the Agent, (i) such Termination Event (if correctable) shall
not have been corrected, and (ii) the then current value of such Employee Plan's
vested benefits exceeds the then current value of assets allocable to such
benefits in such Employee Plan by more than $1,000,000 (or, in the case of a
Termination Event involving liability under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of
the Internal Revenue Code, the liability is in excess of such amount);
(t) any Loan Party shall be liable for any Environmental
Liabilities (other than those described in Section 6.01(r)(xi) and 6.01(r)(xii))
the payment of which could reasonably be expected to have a Material Adverse
Effect;
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(u) an "Event of Default" shall have occurred and be
continuing under the Revolving Credit Agreement;
(v) a Change of Control shall have occurred;
(w) any breach, default, event of default or termination
shall occur under any Acquisition Document or other Material Contract after
giving effect to applicable grace periods, if any, contained in any such
Acquisition Document or other Material Contract that gives any third party the
right to terminate any such Acquisition Document or other Material Contract or
that otherwise could reasonably be expected to have a Material Adverse Effect;
or
(x) an event or development occurs which could reasonably
be expected to have a Material Adverse Effect;
then, and in any such event, the Agent may, and shall at the request
of the Required Lenders, by notice to the Administrative Borrower, (i) terminate
or reduce all Commitments, whereupon all Commitments shall immediately be so
terminated or reduced, (ii) declare all or any portion of the Loans then
outstanding to be due and payable, whereupon all or such portion of the
aggregate principal of all Loans, all accrued and unpaid interest thereon, all
fees and all other amounts payable under this Agreement and the other Loan
Documents shall become due and payable immediately, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by each Loan Party and (iii) exercise any and all of its other rights and
remedies under applicable law, hereunder and under the other Loan Documents;
provided, however, that upon the occurrence of any Event of Default described in
subsection (g) or (h) of this Section 9.01, without any notice to any Loan Party
or any other Person or any act by the Agent or any Lender, all Commitments shall
automatically terminate and all Loans then outstanding, together with all
accrued and unpaid interest thereon, all fees and all other amounts due under
this Agreement and the other Loan Documents shall become due and payable
automatically and immediately, without presentment, demand, protest or notice of
any kind, all of which are expressly waived by each Loan Party.
ARTICLE X
AGENT
Section 10.01 Appointment. Each Lender (and each subsequent maker of
any Loan by its making thereof) hereby irrevocably appoints and authorizes the
Agent to perform the duties of the Agent as set forth in this Agreement
including: (i) to receive on behalf of each Lender any payment of principal of
or interest on the Loans outstanding hereunder and all other amounts accrued
hereunder for the account of the Lenders and paid to the Agent, and, subject to
Section 2.02 of this Agreement, to distribute promptly to each Lender its Pro
Rata Share of all payments so received; (ii) to distribute to each Lender copies
of all material notices and agreements received by the Agent and not required to
be delivered to each Lender pursuant to the terms of this Agreement, provided
that the Agent shall not have any liability to the Lenders for the Agent's
inadvertent failure to distribute any such notices or agreements to the Lenders;
(iii) to maintain, in accordance with its customary business practices, ledgers
and records reflecting the status of the Obligations, the Loans, and related
matters and to maintain, in accordance with its customary business practices,
ledgers and records reflecting the status of the Collateral and related matters;
(iv) to execute or file any and all financing or similar statements or notices,
amendments, renewals, supplements, documents, instruments, proofs of claim,
notices and other
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written agreements with respect to this Agreement or any other Loan Document;
(v) to make the Loans and Agent Advances, for the Agent or on behalf of the
applicable Lenders as provided in this Agreement or any other Loan Document;
(vi) to perform, exercise, and enforce any and all other rights and remedies of
the Lenders with respect to the Loan Parties, the Obligations, or otherwise
related to any of same to the extent reasonably incidental to the exercise by
the Agent of the rights and remedies specifically authorized to be exercised by
the Agent by the terms of this Agreement or any other Loan Document; (vii) to
incur and pay such fees necessary or appropriate for the performance and
fulfillment of its functions and powers pursuant to this Agreement or any other
Loan Document; and (viii) subject to Section 10.03 of this Agreement, to take
such action as the Agent deems appropriate on its behalf to administer the Loans
and the Loan Documents and to exercise such other powers delegated to the Agent
by the terms hereof or the other Loan Documents (including, without limitation,
the power to give or to refuse to give notices, waivers, consents, approvals and
instructions and the power to make or to refuse to make determinations and
calculations) together with such powers as are reasonably incidental thereto to
carry out the purposes hereof and thereof. As to any matters not expressly
provided for by this Agreement and the other Loan Documents (including, without
limitation, enforcement or collection of the Loans), the 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, and such
instructions of the Required Lenders shall be binding upon all Lenders and all
makers of Loans; provided, however, that the Agent shall not be required to take
any action which, in the reasonable opinion of the Agent, exposes the Agent to
liability or which is contrary to this Agreement or any other Loan Document or
applicable law.
Section 10.02 Nature of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement or in the
other Loan Documents. The duties of the Agent shall be mechanical and
administrative in nature. The Agent shall not have by reason of this Agreement
or any other Loan Document a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any other Loan Document, express or implied, is
intended to or shall be construed to impose upon the Agent any obligations in
respect of this Agreement or any other Loan Document except as expressly set
forth herein or therein. Each Lender shall make its own independent
investigation of the financial condition and affairs of the Loan Parties in
connection with the making and the continuance of the Loans hereunder and shall
make its own appraisal of the creditworthiness of the Loan Parties and the value
of the Collateral, and the Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the initial Loan hereunder or at any time or times thereafter, provided
that, upon the reasonable request of a Lender, the Agent shall provide to such
Lender any documents or reports delivered to the Agent by the Loan Parties
pursuant to the terms of this Agreement or any other Loan Document. If the Agent
seeks the consent or approval of the Required Lenders to the taking or
refraining from taking any action hereunder, the Agent shall send notice thereof
to each Lender. The Agent shall promptly notify each Lender any time that the
Required Lenders have instructed the Agent to act or refrain from acting
pursuant hereto.
Section 10.03 Rights, Exculpation, Etc. The Agent and its directors,
officers, agents or employees shall not be liable for any action taken or
omitted to be taken by them under or in connection with this Agreement or the
other Loan Documents, except for their own gross negligence or willful
misconduct as determined by a final judgment of a court of competent
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jurisdiction. Without limiting the generality of the foregoing, the Agent (i)
may treat the payee of any Loan as the owner thereof until the Agent receives
written notice of the assignment or transfer thereof, pursuant to Section 12.07
hereof, signed by such payee and in form satisfactory to the Agent; (ii) may
consult with legal counsel (including, without limitation, counsel to the Agent
or counsel to the Loan Parties), independent public accountants, and other
experts selected by any of them and shall not be liable for any action taken or
omitted to be taken in good faith by any of them in accordance with the advice
of such counsel or experts; (iii) make no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements,
certificates, warranties or representations made in or in connection with this
Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or the other Loan Documents on the part of any
Person, the existence or possible existence of any Default or Event of Default,
or to inspect the Collateral or other property (including, without limitation,
the books and records) of any Person; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; and (vi) shall not
be deemed to have made any representation or warranty regarding the existence,
value or collectibility of the Collateral, the existence, priority or perfection
of the Agent's Lien thereon, or any certificate prepared by any Loan Party in
connection therewith, nor shall the Agent be responsible or liable to the
Lenders for any failure to monitor or maintain any portion of the Collateral.
The Agent shall not be liable for any apportionment or distribution of payments
made in good faith pursuant to Section 4.04, and if any such apportionment or
distribution is subsequently determined to have been made in error the sole
recourse of any Lender to whom payment was due but not made, shall be to recover
from other Lenders any payment in excess of the amount which they are determined
to be entitled. The Agent may at any time request instructions from the Lenders
with respect to any actions or approvals which by the terms of this Agreement or
of any of the other Loan Documents the Agent is permitted or required to take or
to grant, and if such instructions are promptly requested, the Agent shall be
absolutely entitled to refrain from taking any action or to withhold any
approval under any of the Loan Documents until it shall have received such
instructions from the Required Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Agent as a result
of the Agent acting or refraining from acting under this Agreement or any of the
other Loan Documents in accordance with the instructions of the Required
Lenders.
Section 10.04 Reliance. The Agent shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the other Loan Documents and its
duties hereunder or thereunder, upon advice of counsel selected by it.
Section 10.05 Indemnification. To the extent that the Agent is not
reimbursed and indemnified by any Loan Party, the Lenders will reimburse and
indemnify the Agent from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, advances
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising out
of this Agreement or any of the other Loan Documents or any action taken or
omitted by the Agent under this Agreement or any of the other Loan Documents, in
proportion to each Lender's Pro Rata Share, including, without limitation,
advances and disbursements made pursuant to
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Section 10.08; provided, however, that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, advances or disbursements for which there has
been a final judicial determination that such liability resulted from the
Agent's gross negligence or willful misconduct. The obligations of the Lenders
under this Section 10.05 shall survive the payment in full of the Loans and the
termination of this Agreement.
Section 10.06 Agent Individually. With respect to its Pro Rata Share
of the Total Commitment hereunder and the Loans made by it, the Agent shall have
and may exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender or maker of a Loan. The terms "Lenders" or "Required Lenders" or any
similar terms shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity as a Lender or one of the Required Lenders. The
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with any Borrower as if
it were not acting as the Agent pursuant hereto without any duty to account to
the other Lenders.
Section 10.07 Successor Agent. (a) The Agent may resign from the
performance of all its functions and duties hereunder and under the other Loan
Documents at any time by giving at least thirty (30) Business Days' prior
written notice to the Administrative Borrower and each Lender. Such resignation
shall take effect upon the acceptance by a successor Agent of appointment
pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required
Lenders shall appoint a successor Agent. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the Agent, and the Agent shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. After the Agent's resignation
hereunder as the Agent, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Agreement and the other Loan Documents.
(c) If a successor Agent shall not have been so appointed
within said thirty (30) Business Day period, the Agent shall then appoint a
successor Agent who shall serve as the Agent until such time, if any, as the
Required Lenders appoint a successor Agent as provided above.
Section 10.08 Collateral Matters.
(a) The Agent may from time to time make such disbursements
and advances ("Agent Advances") which the Agent, in its sole discretion, deems
necessary or desirable to preserve, protect, prepare for sale or lease or
dispose of the Collateral or any portion thereof, to enhance the likelihood or
maximize the amount of repayment by the Borrowers of the Loans and other
Obligations or to pay any other amount chargeable to the Borrowers pursuant to
the terms of this Agreement, including, without limitation, costs, fees and
expenses as described in Section 12.04. The Agent Advances shall be repayable on
demand, be secured by the Collateral and bear interest at a rate per annum equal
to the rate of interest then applicable to the Term Loan B. The Agent Advances
shall constitute Obligations hereunder which may be charged to the Loan Account
in accordance with Section 4.02. The Agent shall notify each
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Lender and the Administrative Borrower in writing of each such Agent Advance,
which notice shall include a description of the purpose of such Agent Advance.
Without limitation to its obligations pursuant to Section 10.05, each Lender
agrees that it shall make available to the Agent, upon the Agent's demand, in
Dollars in immediately available funds, the amount equal to such Lender's Pro
Rata Share of each such Agent Advance. If such funds are not made available to
the Agent by such Lender, the Agent shall be entitled to recover such funds on
demand from such Lender, together with interest thereon for each day from the
date such payment was due until the date such amount is paid to the Agent, at
the Federal Funds Rate for three Business Days and thereafter at the Reference
Rate.
(b) The Lenders hereby irrevocably authorize the Agent, at
its option and in its discretion, to release any Lien granted to or held by the
Agent upon any Collateral upon termination of the Total Commitment and payment
and satisfaction of all Loans and all other Obligations which have matured and
which the Agent has been notified in writing are then due and payable; or
constituting property being sold or disposed of in the ordinary course of any
Loan Party's business and in compliance with the terms of this Agreement and the
other Loan Documents; or constituting property in which the Loan Parties owned
no interest at the time the Lien was granted or at any time thereafter; or if
approved, authorized or ratified in writing by the Lenders. Upon request by the
Agent at any time, the Lenders will confirm in writing the Agent's authority to
release particular types or items of Collateral pursuant to this Section
10.08(b).
(c) Without in any manner limiting the Agent's authority to
act without any specific or further authorization or consent by the Lenders (as
set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon
request by the Agent, the authority to release Collateral conferred upon the
Agent under Section 10.08(b). Upon receipt by the Agent of confirmation from the
Lenders of its authority to release any particular item or types of Collateral,
and upon prior written request by any Loan Party, the Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Agent for the
benefit of the Lenders upon such Collateral; provided, however, that (i) the
Agent shall not be required to execute any such document on terms which, in the
Agent's opinion, would expose the Agent to liability or create any obligations
or entail any consequence other than the release of such Liens without recourse
or warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations or any Lien upon (or obligations of any Loan Party in
respect of) all interests in the Collateral retained by any Loan Party.
(d) The Agent shall have no obligation whatsoever to any
Lender to assure that the Collateral exists or is owned by the Loan Parties or
is cared for, protected or insured or has been encumbered or that the Lien
granted to the Agent pursuant to this Agreement or any other Loan Document has
been properly or sufficiently or lawfully created, perfected, protected or
enforced or is entitled to any particular priority, or to exercise at all or in
any particular manner or under any duty of care, disclosure or fidelity, or to
continue exercising, any of the rights, authorities and powers granted or
available to the Agent in this Section 10.08 or in any other Loan Document, it
being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, the Agent may act in any manner it may deem
appropriate, in its sole discretion, given the Agent's own interest in the
Collateral as one of the Lenders and that the Agent shall have no duty or
liability whatsoever to any other Lender, except as otherwise provided herein.
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Section 10.09 Agency for Perfection. Each Lender hereby appoints the
Agent and each other Lender as agent and bailee for the purpose of perfecting
the security interests in and liens upon the Collateral in assets which, in
accordance with Article 9 of the Uniform Commercial Code, can be perfected only
by possession or control (or where the security interest of a secured party with
possession or control has priority over the security interest of another secured
party) and each Agent and each Lender hereby acknowledges that it holds
possession of or otherwise controls any such Collateral for the benefit of the
Agent and the Lenders as secured party. Should any Lender obtain possession or
control of any such Collateral, such Lender shall notify the Agent thereof, and,
promptly upon the Agent's request therefor shall deliver such Collateral to the
Agent or in accordance with the Agent's instructions. Each Loan Party by its
execution and delivery of this Agreement hereby consents to the foregoing.
ARTICLE XI
GUARANTY
Section 11.01 Guaranty. Each Guarantor hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations of the Borrowers now
or hereafter existing under any Loan Document, whether for principal, interest
(including, without limitation, all interest that accrues after the commencement
of any Insolvency Proceeding of any Borrower whether or not allowed in such
proceeding), fees, commissions, expense reimbursements, indemnifications or
otherwise (such obligations, to the extent not paid by the Borrowers, being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agent and the Lenders in
enforcing any rights under the guaranty set forth in this Article XI. 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 the Borrowers to the Agent and the Lenders under any Loan
Document but for the fact that they are unenforceable or not allowable due to
the existence of an Insolvency Proceeding involving any Borrower. In no event
shall the obligation of any Guarantor hereunder exceed the maximum amount such
Guarantor could guarantee under any bankruptcy, insolvency or other similar law.
Section 11.02 Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan 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
Agent or the Lenders with respect thereto. The obligations of each Guarantor
under this Article XI are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against each Guarantor
to enforce such obligations, irrespective of whether any action is brought
against any Loan Party or whether any Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Article XI shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in
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the Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the
corporate, limited liability company or partnership structure or existence of
any Loan Party; or
(e) any other circumstance (including, without limitation,
any statute of limitations) or any existence of or reliance on any
representation by the Agents or the Lenders that might otherwise constitute a
defense available to, or a discharge of, any Loan Party or any other guarantor
or surety.
This Article XI 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 Agent, the Lenders or any other Person upon
the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all
as though such payment had not been made.
Section 11.03 Waiver. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Article XI and any requirement that the Agent or
the Lenders exhaust any right or take any action against any Loan Party or any
other Person or any Collateral. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated herein
and that the waiver set forth in this Section 11.03 is knowingly made in
contemplation of such benefits. Each Guarantor hereby waives any right to revoke
this Article XI, and acknowledges that this Article XI is continuing in nature
and applies to all Guaranteed Obligations, whether existing now or in the
future.
Section 11.04 Continuing Guaranty; Assignments. This Article XI is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations (other than
indemnification obligations as to which no claim has been made) and all other
amounts payable under this Article XI and the Termination Date, (b) be binding
upon each Guarantor, its successors and assigns and (c) inure to the benefit of
and be enforceable by the Agent and the Lenders and their successors, pledgees,
transferees and assigns. Without limiting the generality of the foregoing clause
(c), any Lender may pledge, assign or otherwise transfer all or any portion of
its rights and obligations under this Agreement (including, without limitation,
all or any portion of its Commitments and its Loans) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted such Lender herein or otherwise, in each case as provided in
Section 12.07.
Section 11.05 Subrogation. No Guarantor will exercise any rights that
it may now or hereafter acquire against any Loan Party or any other guarantor
that arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under this Article XI, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Agent
and the Lenders against any Loan Party or any other guarantor or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including,
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without limitation, the right to take or receive from any Loan Party or any
other guarantor, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security solely on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Article XI shall have been paid in full in cash
and the Termination Date shall have occurred. If any amount shall be paid to any
Guarantor in violation of the immediately preceding sentence at any time prior
to the later of the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Article XI and the Termination Date, such
amount shall be held in trust for the benefit of the Agent and the Lenders and
shall forthwith be paid to the Agent and the Lenders to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Article
XI, whether matured or unmatured, in accordance with the terms of this
Agreement, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Article XI thereafter arising. If (i) any Guarantor
shall make payment to the Agent and the Lenders of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Article XI shall be paid in full in cash and (iii)
the Termination Date shall have occurred, the Agent and the Lenders will, at
such Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by such
Guarantor.
Section 11.06 Judgment Currency. The specification under this
Agreement of Dollars and payment in New York City is of the essence. Each
Guarantor's obligations hereunder and under the other Loan Documents to make
payments inDollars and shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than Dollars, except to the extent that such tender or recovery results in
the effective receipt by the Lenders or the Agent of the full amount of Dollars
expressed to be payable to the Agent and the Lenders under this Agreement or the
other Loan Documents. If, for the purpose of obtaining or enforcing judgment in
any court, it is necessary to convert into or from any currency other than
Dollars (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in Dollars, the rate of exchange used shall be that at
which the Lenders or the Agent could, in accordance with normal banking
procedures, purchase Dollars with the Judgment Currency on the Business Day
preceding that on which final judgment is given. The obligation of each
Guarantor in respect of any such sum due from it to the Lender or the Agent
hereunder shall, notwithstanding any judgment in such Judgment Currency, be
discharged only to the extent that, on the Business Day immediately following
the date on which the Lender or the Agent receives any sum adjudged to be so due
in the Judgment Currency, the Lenders or the Agent may, in accordance with
normal banking procedures, purchase Dollars with the Judgment Currency. If the
Dollars so purchased are less than the sum originally due to the Agent or the
Lender in Dollars, each Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Lenders or the Agent against
such loss, and if the Dollars so purchased exceed the sum originally due to the
Lenders or the Agent in Dollars, the Lenders or the Agent agrees to remit to
such Guarantor such excess.
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ARTICLE XII
MISCELLANEOUS
Section 12.01 Notices, Etc. All notices and other communications
provided for hereunder shall be in writing and shall be mailed, telecopied or
delivered, if to any Loan Party, at the following address:
Clean Harbors, Inc.
1501 Washington Street
Braintree, MA 02185
Attention: Chief Financial Officer
Telephone: 781-849-1800, Ext. 4450
Telecopier: 781-848-1632
with a copy to:
Davis, Malm & D'Agostine, P.C.
One Boston Place, 37th Floor
Boston, MA 02108
Attention: C. Michael Malm, Esq.
Telephone: 617-367-2500
Telecopier: 617-523-6215
if to the Agent, to it at the following address:
Ableco Finance LLC
450 Park Avenue, 28/th/ Floor
New York, New York 10022
Attention: Daniel E. Wolf
Telephone: 212-891-2121
Telecopier: 212-891-1541
with a copy to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Lawrence S. Goldberg, Esq.
Telephone: 212-756-2000
Telecopier: 212-593-5955
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties complying as to delivery
with the terms of this Section 12.01. All such notices and other communications
shall be effective, (i) if mailed, when received or three days after deposited
in the mails, whichever occurs first, (ii) if telecopied, when transmitted and
confirmation received, or (iii) if delivered, upon delivery, except that notices
to the Agent pursuant to Article II shall not be effective until received by the
Agent.
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Section 12.02 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, and no consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders or by the Agent with the consent of the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given, provided,
however, that no amendment, waiver or consent shall (i) increase the Commitment
of any Lender, reduce the principal of, or interest on, the Loans payable to any
Lender, reduce the amount of any fee payable for the account of any Lender, or
postpone or extend any date fixed for any payment of principal of, or interest
or fees on, the Loans payable to any Lender, in each case without the written
consent of any Lender affected thereby, (ii) increase the Total Commitment
without the written consent of each Lender, (iii) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Loans that is
required for the Lenders or any of them to take any action hereunder, (iv) amend
the definition of "Required Lenders" or "Pro Rata Share", (v)(A) release all or
a substantial portion of the Collateral (except as otherwise provided in this
Agreement and the other Loan Documents), (B) consent to any Disposition of
Collateral, or waive any provision of Section 2.05 with respect to any such
Disposition, in either case following the date on which the aggregate amount of
Net Cash Proceeds received by the Loan Parties shall exceed, for all such
Dispositions since the Effective Date, $8,000,000, (C) subordinate any Lien
granted in favor of the Agent for the benefit of the Lenders, or (D) release any
Borrower or any Guarantor or (vi) amend, modify or waive Section 4.04 or this
Section 12.02 of this Agreement, in each case, without the written consent of
each Lender. Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing and signed by the Agent, affect the rights or duties of
the Agent (but not in its capacity as a Lender) under this Agreement or the
other Loan Documents.
Section 12.03 No Waiver; Remedies, Etc. No failure on the part of the
Agent or any Lender to exercise, and no delay in exercising, any right hereunder
or under any other Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right under any Loan Document preclude any
other or further exercise thereof or the exercise of any other right. The rights
and remedies of the Agent and the Lenders provided herein and in the other Loan
Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of the Agent and the Lenders
under any Loan Document against any party thereto are not conditional or
contingent on any attempt by the Agent and the Lenders to exercise any of their
rights under any other Loan Document against such party or against any other
Person.
Section 12.04 Expenses; Taxes; Attorneys' Fees. The Borrowers will
pay on demand, all costs and expenses incurred by or on behalf of the Agent
(and, in the case of clauses (b) through (m) below, each Lender), regardless of
whether the transactions contemplated hereby are consummated, including, without
limitation, reasonable fees, costs, client charges and expenses of counsel for
the Agent (and, in the case of clauses (b) through (m) below, each Lender),
accounting, due diligence, periodic field audits, physical counts, valuations,
investigations, searches and filings, monitoring of assets, appraisals of
Collateral, title searches and reviewing environmental assessments,
miscellaneous disbursements, examination, travel, lodging and meals, arising
from or relating to: (a) the negotiation, preparation, execution, delivery,
performance and administration of this Agreement and the other Loan Documents
(including, without limitation, the preparation of any additional Loan Documents
pursuant to Section 7.01(b) or the review of any of the agreements, instruments
and documents referred to in Section 7.01(f)), (b) any requested amendments,
waivers or consents to this Agreement or the
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other Loan Documents whether or not such documents become effective or are
given, (c) the preservation and protection of any of the Lenders' rights under
this Agreement or the other Loan Documents, (d) the defense of any claim or
action asserted or brought against the Agent or any Lender by any Person that
arises from or relates to this Agreement, any other Loan Document, the Agent's
or the Lenders' claims against any Loan Party, or any and all matters in
connection therewith, (e) the commencement or defense of, or intervention in,
any court proceeding arising from or related to this Agreement or any other Loan
Document, (f) the filing of any petition, complaint, answer, motion or other
pleading by the Agent or any Lender, or the taking of any action in respect of
the Collateral or other security, in connection with this Agreement or any other
Loan Document, (g) the protection, collection, lease, sale, taking possession of
or liquidation of, any Collateral or other security in connection with this
Agreement or any other Loan Document, (h) any attempt to enforce any Lien or
security interest in any Collateral or other security in connection with this
Agreement or any other Loan Document, (i) any attempt to collect from any Loan
Party, (j) all liabilities and costs arising from or in connection with the
past, present or future operations of any Loan Party involving any damage to
real or personal property or natural resources or harm or injury alleged to have
resulted from any Release of Hazardous Materials on, upon or into such property,
(k) any Environmental Liabilities incurred in connection with the investigation,
removal, cleanup and/or remediation of any Hazardous Materials present or
arising out of the operations of any facility of any Loan Party, (l) any
Environmental Liabilities incurred in connection with any Environmental Lien; or
(m) the receipt by the Agent or any Lender of any advice from professionals with
respect to any of the foregoing. Without limitation of the foregoing or any
other provision of any Loan Document: (x) the Borrowers agree to pay all stamp,
document, transfer, recording (including mortgage recording) or filing taxes or
fees and similar impositions now or hereafter determined by the Agent or any
Lender to be payable in connection with this Agreement or any other Loan
Document, and the Borrowers agree to save the Agent and each Lender harmless
from and against any and all present or future claims, liabilities or losses
with respect to or resulting from any omission to pay or delay in paying any
such taxes, fees or impositions, (y) the Borrowers agree to pay all broker fees
that may become due in connection with the transactions contemplated by this
Agreement and the other Loan Documents, and (z) if the Borrowers fail to perform
any covenant or agreement contained herein or in any other Loan Document, the
Agent may itself perform or cause performance of such covenant or agreement, and
the expenses of the Agent incurred in connection therewith shall be reimbursed
on demand by the Borrowers.
Section 12.05 Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, any Agent or any Lender may, and is hereby
authorized to, at any time and from time to time, without notice to any Loan
Party (any such notice being expressly waived by the Loan Parties) and to the
fullest extent permitted by law, set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
Indebtedness at any time owing by the Agent or such Lender to or for the credit
or the account of any Loan Party against any and all obligations of the Loan
Parties either now or hereafter existing under any Loan Document, irrespective
of whether or not the Agent or such Lender shall have made any demand hereunder
or thereunder and although such obligations may be contingent or unmatured. The
Agent and each Lender agrees to notify such Loan Party promptly after any such
set-off and application made by the Agent or such Lender provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Agent and the Lenders under this Section 12.05
are in addition to the other rights and remedies (including other rights of
set-off) which the Agent and the Lenders may have under this Agreement or any
other Loan Documents of law or otherwise.
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Section 12.06 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 12.07 Assignments and Participations. (a) This Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of each
Loan Party and the Agent and each Lender and their respective successors and
assigns; provided, however, that none of the Loan Parties may assign or transfer
any of its rights hereunder without the prior written consent of each Lender and
any such assignment without the Lenders' prior written consent shall be null and
void.
(b) Each Lender may, with the written consent of the Agent
(provided that no written consent of the Agent shall be required in connection
with any assignment by a Lender (i) to an Affiliate of such Lender or a Related
Fund or (ii) during the existence of an Event of Default), assign to one or more
other lenders or other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitments and the Loans made by it); provided, however, that (i) such
assignment is in an amount which is at least $1,000,000 or a multiple of
$1,000,000 in excess thereof (or the remainder of such Lender's Commitment)
(except such minimum amount shall not apply to an assignment by a Lender to an
Affiliate of such Lender or a fund or account managed by such Lender or an
Affiliate of such Lender), (ii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance, an Assignment and
Acceptance, together with any promissory note subject to such assignment and
such parties shall deliver to the Agent a processing and recordation fee of
$3,500 (except the payment of such fee shall not be required in connection with
an assignment by a Lender to an Affiliate of such Lender or a Related Fund) and
(iii) no written consent of the Agent shall be required in connection with any
assignment by a Lender to an Affiliate of such Lender or a Related Fund. Upon
such execution, delivery and acceptance, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least three Business Days after the delivery thereof to the Agent (or such
shorter period as shall be agreed to by the Agent and the parties to such
assignment), (A) the assignee thereunder shall become a "Lender" hereunder and,
in addition to the rights and obligations hereunder held by it immediately prior
to such effective date, have the rights and obligations hereunder that have been
assigned to it pursuant to such Assignment and Acceptance and (B) the assigning
Lender thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(i) By executing and delivering an Assignment and
Acceptance, the assigning Lender and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (A) other than as
provided in such Assignment and Acceptance, the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document furnished pursuant hereto; (B) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or any of its
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Subsidiaries or the performance or observance by any Loan Party of any of its
obligations under this Agreement or any other Loan Document furnished pursuant
hereto; (C) such assignee confirms that it has received a copy of this Agreement
and the other Loan Documents, together with such other documents and information
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (D) such assignee will, independently and
without reliance upon the assigning Lender, the Agent or any Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents; (E) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental hereto and thereto; and (F) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of this Agreement and the other Loan Documents are required to be
performed by it as a Lender.
(ii) The Agent shall, on behalf of the Borrowers,
maintain, or cause to be maintained, at the Payment Office a copy of each
Assignment and Acceptance delivered to and accepted by it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amount of the Loans (the "Registered Loans")
owing to each Lender from time to time. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders shall treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Administrative
Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice. In the event any assignment permitted under Section
12.07(b) is not reflected in the Register, the assigning Lender shall maintain a
register comparable to the Register in order to reflect such assignment.
(iii) Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee, together with any
promissory notes subject to such assignment, the Agent shall, if the Agent
consents to such assignment and if such Assignment and Acceptance has been
completed (i) accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register.
(iv) A Registered Loan (and the registered note, if
any, evidencing the same) may be assigned or sold in whole or in part only by
registration of such assignment or sale on the Register (and each registered
note shall expressly so provide). Any assignment or sale of all or part of such
Registered Loan (and the registered note, if any, evidencing the same) may be
effected only by registration of such assignment or sale on the Register,
together with the surrender of the registered note, if any, evidencing the same
duly endorsed by (or accompanied by a written instrument of assignment or sale
duly executed by) the holder of such registered note, whereupon, at the request
of the designated assignee(s) or transferee(s), one or more new registered notes
in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or sale of
any Registered Loan (and the registered note, if any, evidencing the same), the
Agent shall treat the Person in whose name such Registered Loan (and the
registered note, if any, evidencing the same) is registered as the owner thereof
for the purpose of receiving all payments thereon and for all other purposes,
notwithstanding notice to the contrary.
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(v) In the event that any Lender sells
participations in a Registered Loan, such Lender shall maintain a register on
which it enters the name of all participants in the Registered Loans held by it
(the "Participant Register"). A Registered Loan (and the registered note, if
any, evidencing the same) may be participated in whole or in part only by
registration of such participation on the Participant Register (and each
registered note shall expressly so provide). Any participation of such
Registered Loan (and the registered note, if any, evidencing the same) may be
effected only by the registration of such participation on the Participant
Register.
(vi) Any foreign Person who purchases or is assigned
or participates in any portion of such Registered Loan shall provide the Agent
and the Lender with a completed Internal Revenue Service Form W-8BEN
(Certificate of Foreign Status) or a substantially similar form for such
purchaser, participant or any other affiliate who is a holder of beneficial
interests in the Registered Loan.
(c) Each Lender holding a Term Loan A agrees that, until
the 90/th/ day after the Effective Date, it will, at the written request of the
Administrative Borrower, assign all or a portion of its interest in the Term
Loan A to one or more other lenders not a party hereto that are proposed by the
Borrowers so long as (i) such assignment shall be effected in accordance with
Section 12.07(b), except that (A) the amount of such assignment shall be at
least $5,000,000 or a multiple of $1,000,000 in excess thereof and (B) the Agent
shall not charge the $3,500 processing and recordation fee in connection with
such assignment, (ii) such assignment shall be on customary commercial terms and
conditions (without representation, warranty or recourse by the assigning
Lender), (iii) the rate of interest on the Term Loan A assigned to such other
lender shall be equal to or less than LIBOR plus 7.25% per annum and (iv) no
Event of Default shall exist either immediately before or after giving effect to
such assignment.
(d) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, all or a portion of its Commitments and the Loans made by it);
provided, that (i) such Lender's obligations under this Agreement (including
without limitation, its Commitments hereunder) and the other Loan Documents
shall remain unchanged; (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, and the Borrowers,
the Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents; and (iii) a participant shall not be
entitled to require such Lender to take or omit to take any action hereunder
except (A) action directly effecting an extension of the maturity dates or
decrease in the principal amount of the Loans, (B) action directly effecting an
extension of the due dates or a decrease in the rate of interest payable on the
Loans or the fees payable under this Agreement, or (C) actions directly
effecting a release of all or a substantial portion of the Collateral or any
Loan Party (except as set forth in Section 10.08 of this Agreement or any other
Loan Document). The Loan Parties agree that each participant shall be entitled
to the benefits of Section 2.08 and Section 4.05 of this Agreement with respect
to its participation in any portion of the Commitments and the Loans as if it
was a Lender.
Section 12.08 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of this Agreement by telecopier shall be equally
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as effective as delivery of an original executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by telecopier
also shall deliver an original executed counterpart of this Agreement but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement. The foregoing
shall apply to each other Loan Document mutatis mutandis.
Section 12.09 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN
RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK.
Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND
VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE
COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH LOAN PARTY
HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF NEW YORK AS
ITS AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
ADMINISTRATIVE BORROWER AT ITS ADDRESS FOR NOTICES AS SET FORTH IN SECTION 12.01
AND TO THE SECRETARY OF STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME
EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY LOAN PARTY IN ANY OTHER JURISDICTION. EACH LOAN PARTY HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
Section 12.11 WAIVER OF JURY TRIAL, ETC. EACH LOAN PARTY, THE
AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY
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RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT,
WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN
THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY
FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER,
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF
ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS.
EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT.
Section 12.12 Consent by the Agent and Lenders. Except as
otherwise expressly set forth herein to the contrary, if the consent, approval,
satisfaction, determination, judgment, acceptance or similar action (an
"Action") of the Agent or any Lender shall be permitted or required pursuant to
any provision hereof or any provision of any other agreement to which any Loan
Party is a party and to which the Agent or any Lender has succeeded thereto,
such Action shall be required to be in writing and may be withheld or denied by
the Agent or such Lender, in its sole discretion, with or without any reason,
and without being subject to question or challenge on the grounds that such
Action was not taken in good faith.
Section 12.13 No Party Deemed Drafter. Each of the parties hereto
agrees that no party hereto shall be deemed to be the drafter of this Agreement.
Section 12.14 Reinstatement; Certain Payments. If any claim is
ever made upon the Agent or any Lender for repayment or recovery of any amount
or amounts received by the Agent or such Lender in payment or on account of any
of the Obligations, the Agent or such Lender shall give prompt notice of such
claim to each other Lender and the Administrative Borrower, and if the Agent or
such Lender repays all or part of such amount by reason of (i) any judgment,
decree or order of any court or administrative body having jurisdiction over the
Agent or such Lender or any of its property, or (ii) any good faith settlement
or compromise of any such claim effected by the Agent or such Lender with any
such claimant, then and in such event each Loan Party agrees that (A) any such
judgment, decree, order, settlement or compromise shall be binding upon it
notwithstanding the cancellation of any Indebtedness hereunder or under the
other Loan Documents or the termination of this Agreement or the other Loan
Documents, and (B) it shall be and remain liable to the Agent or such Lender
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by the Agent or such Lender.
Section 12.15 Indemnification.
(a) General Indemnity. In addition to each Loan Party's
other Obligations under this Agreement, each Loan Party agrees to, jointly and
severally, defend, protect, indemnify and hold harmless the Agent and each
Lender and all of their respective officers, directors, employees, attorneys,
consultants and agents (collectively called the "Indemnitees") from and against
any and all losses, damages, liabilities, obligations, penalties, fees,
reasonable costs and expenses (including, without limitation, reasonable
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attorneys' fees, costs and expenses) incurred by such Indemnitees, whether prior
to or from and after the Effective Date, whether direct, indirect or
consequential, as a result of or arising from or relating to or in connection
with any of the following: (i) the negotiation, preparation, execution or
performance or enforcement of this Agreement, any other Loan Document or of any
other document executed in connection with the transactions contemplated by this
Agreement, (ii) the Agent's or any Lender's furnishing of funds to the Borrowers
under this Agreement or the other Loan Documents, including, without limitation,
the management of any such Loans, (iii) any matter relating to the financing
transactions contemplated by this Agreement or the other Loan Documents or by
any document executed in connection with the transactions contemplated by this
Agreement or the other Loan Documents, or (iv) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto (collectively, the "Indemnified Matters");
provided, however, that the Loan Parties shall not have any obligation to any
Indemnitee under this subsection (a) for any Indemnified Matter caused by the
gross negligence or willful misconduct of such Indemnitee, as determined by a
final judgment of a court of competent jurisdiction.
(b) Environmental Indemnity. Without limiting Section 12.15(a)
hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and
hold harmless the Indemnitees against any and all Environmental Liabilities and
all other claims, demands, penalties, fines, liability (including strict
liability), losses, damages, costs and expenses (including without limitation,
reasonable legal fees and expenses, consultant fees and laboratory fees),
arising out of (i) any Releases or threatened Releases (x) at any property
presently or formerly owned or operated by any Loan Party or any Subsidiary of
any Loan Party, or any predecessor in interest, or (y) of any Hazardous
Materials generated and disposed of by any Loan Party or any Subsidiary of any
Loan Party, or any predecessor in interest; (ii) any violations of Environmental
Laws; (iii) any Environmental Claim relating to any Loan Party or any Subsidiary
of any Loan Party, or any predecessor in interest; (iv) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
exposure to Hazardous Materials used, handled, generated, transported or
disposed by any Loan Party or any Subsidiary of any Loan Party, or any
predecessor in interest; and (v) any breach of any warranty or representation
regarding environmental matters made by the Loan Parties in Section 6.01(r) or
the breach of any covenant made by the Loan Parties in Section 7.01(j).
Notwithstanding the foregoing, the Loan Parties shall not have any obligation to
any Indemnitee under this subsection (b) regarding any potential environmental
matter covered hereunder which is caused by the gross negligence or willful
misconduct of such Indemnitee, as determined by a final judgment of a court of
competent jurisdiction.
(c) The indemnification for all of the foregoing losses,
damages, fees, costs and expenses of the Indemnitees are chargeable against the
Loan Account. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in this Section 12.15 may be unenforceable because it is
violative of any law or public policy, each Loan Party shall, jointly and
severally, contribute the maximum portion which it is permitted to pay and
satisfy under applicable law, to the payment and satisfaction of all Indemnified
Matters incurred by the Indemnitees. The indemnities set forth in this Section
12.15 shall survive the repayment of the Obligations and discharge of any Liens
granted under the Loan Documents.
Section 12.16 Agent for Borrowers. Each Borrower hereby
irrevocably appoints Clean Harbors, Inc. as the borrowing agent and
attorney-in-fact for the Borrowers (the "Administrative Borrower") which
appointment shall remain in full force and effect unless and
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until the Agent shall have received prior written notice signed by all of the
Borrowers that such appointment has been revoked and that another Borrower has
been appointed Administrative Borrower. Each Borrower hereby irrevocably
appoints and authorizes the Administrative Borrower (i) to provide to the Agent
and receive from the Agent all notices with respect to Loans obtained for the
benefit of any Borrower and all other notices and instructions under this
Agreement and (ii) to take such action as the Administrative Borrower deems
appropriate on its behalf to obtain Loans and to exercise such other powers as
are reasonably incidental thereto to carry out the purposes of this Agreement.
It is understood that the handling of the Loan Account and Collateral of the
Borrowers in a combined fashion, as more fully set forth herein, is done solely
as an accommodation to the Borrowers in order to utilize the collective
borrowing powers of the Borrowers in the most efficient and economical manner
and at their request, and that neither the Agent nor the Lenders shall incur
liability to the Borrowers as a result hereof. Each of the Borrowers expects to
derive benefit, directly or indirectly, from the handling of the Loan Account
and the Collateral in a combined fashion since the successful operation of each
Borrower is dependent on the continued successful performance of the integrated
group. To induce the Agent and the Lenders to do so, and in consideration
thereof, each of the Borrowers hereby jointly and severally agrees to indemnify
the Indemnitees and hold the Indemnitees harmless against any and all liability,
expense, loss or claim of damage or injury, made against such Indemnitee by any
of the Borrowers or by any third party whosoever, arising from or incurred by
reason of (a) the handling of the Loan Account and Collateral of the Borrowers
as herein provided, (b) the Agent and the Lenders relying on any instructions of
the Administrative Borrower, or (c) any other action taken by the Agent or any
Lender hereunder or under the other Loan Documents.]
Section 12.17 Records. The unpaid principal of and interest on the
Loans, the interest rate or rates applicable to such unpaid principal and
interest, the duration of such applicability, the Commitments, and the accrued
and unpaid fees payable pursuant to Section 2.06 hereof shall at all times be
ascertained from the records of the Agent, which shall be conclusive and binding
absent manifest error.
Section 12.18 Binding Effect. This Agreement shall become
effective when it shall have been executed by each Loan Party, the Agent and
each Lender and when the conditions precedent set forth in Section 5.01 hereof
have been satisfied or waived in writing by the Agent, and thereafter shall be
binding upon and inure to the benefit of each Loan Party, the Agent and each
Lender, and their respective successors and assigns, except that the Loan
Parties shall not have the right to assign their rights hereunder or any
interest herein without the prior written consent of each Lender, and any
assignment by any Lender shall be governed by Section 12.07 hereof.
Section 12.19 Interest. It is the intention of the parties hereto
that the Agent and each Lender shall conform strictly to usury laws applicable
to it. Accordingly, if the transactions contemplated hereby or by any other Loan
Document would be usurious as to the Agent or any Lender under laws applicable
to it (including the laws of the United States of America and the State of New
York or any other jurisdiction whose laws may be mandatorily applicable to the
Agent or such Lender notwithstanding the other provisions of this Agreement),
then, in that event, notwithstanding anything to the contrary in this Agreement
or any other Loan Document or any agreement entered into in connection with or
as security for the Obligations, it is agreed as follows: (i) the aggregate of
all consideration which constitutes interest under law applicable to the Agent
or any Lender that is contracted for, taken, reserved, charged or received
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by the Agent or such Lender under this Agreement or any other Loan Document or
agreements or otherwise in connection with the Obligations shall under no
circumstances exceed the maximum amount allowed by such applicable law, any
excess shall be canceled automatically and if theretofore paid shall be credited
by the Agent or such Lender on the principal amount of the Obligations (or, to
the extent that the principal amount of the Obligations shall have been or would
thereby be paid in full, refunded by the Agent or such Lender, as applicable, to
the Borrowers); and (ii) in the event that the maturity of the Obligations is
accelerated by reason of any Event of Default under this Agreement or otherwise,
or in the event of any required or permitted prepayment, then such consideration
that constitutes interest under law applicable to the Agent or any Lender may
never include more than the maximum amount allowed by such applicable law, and
excess interest, if any, provided for in this Agreement or otherwise shall be
canceled automatically by the Agent or such Lender, as applicable, as of the
date of such acceleration or prepayment and, if theretofore paid, shall be
credited by the Agent or such Lender, as applicable, on the principal amount of
the Obligations (or, to the extent that the principal amount of the Obligations
shall have been or would thereby be paid in full, refunded by the Agent or such
Lender to the Borrowers). All sums paid or agreed to be paid to the Agent or any
Lender for the use, forbearance or detention of sums due hereunder shall, to the
extent permitted by law applicable to the Agent or such Lender, be amortized,
prorated, allocated and spread throughout the full term of the Loans until
payment in full so that the rate or amount of interest on account of any Loans
hereunder does not exceed the maximum amount allowed by such applicable law. If
at an time and from time to time (x) the amount of interest payable to the Agent
or any Lender on any date shall be computed at the Highest Lawful Rate
applicable to the Agent or such Lender pursuant to this Section 12.19 and (y) in
respect of any subsequent interest computation period the amount of interest
otherwise payable to the Agent or such Lender would be less than the amount of
interest payable to the Agent or such Lender computed at the Highest Lawful Rate
applicable to the Agent or such Lender, then the amount of interest payable to
the Agent or such Lender in respect of such subsequent interest computation
period shall continue to be computed at the Highest Lawful Rate applicable to
the Agent or such Lender until the total amount of interest payable to the Agent
or such Lender shall equal the total amount of interest which would have been
payable to the Agent or such Lender if the total amount of interest had been
computed without giving effect to this Section 12.19.
For purposes of this Section 12.19, the term "applicable law"
shall mean that law in effect from time to time and applicable to the loan
transaction between the Borrowers, on the one hand, and the Agent and the
Lenders, on the other, that lawfully permits the charging and collection of the
highest permissible, lawful non-usurious rate of interest on such loan
transaction and this Agreement, including laws of the State of New York and, to
the extent controlling, laws of the United States of America.
The right to accelerate the maturity of the Obligations does not
include the right to accelerate any interest that has not accrued as of the date
of acceleration.
Section 12.20 Confidentiality. The Agent and each Lender agrees
(on behalf of itself and each of its affiliates, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature and in accordance with safe and sound practices of comparable
commercial finance companies, any non-public information supplied to it by the
Loan Parties pursuant to this Agreement or the other Loan Documents which is
identified in writing by the Loan Parties as being confidential at the time the
same is delivered to such Person
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(and which at the time is not, and does not thereafter become, publicly
available or available to such Person from another source not known to be
subject to a confidentiality obligation to such Person not to disclose such
information), provided that nothing herein shall limit the disclosure of any
such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for the Agent or any Lender, (iii) to
examiners, auditors, accountants or Securitization Parties, (iv) in connection
with any litigation to which the Agent or any Lender is a party or (v) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) first agrees,
in writing, to be bound by confidentiality provisions similar in substance to
this Section 12.20. The Agent and each Lender agrees that, upon receipt of a
request or identification of the requirement for disclosure pursuant to clause
(iv) hereof, it will make reasonable efforts to keep the Loan Parties informed
of such request or identification; provided that the each Loan Party
acknowledges that the Agent and each Lender may make disclosure as required or
requested by any Governmental Authority or representative thereof and that the
Agent and each Lender may be subject to review by Securitization Parties or
other regulatory agencies and may be required to provide to, or otherwise make
available for review by, the representatives of such parties or agencies any
such non-public information.
Section 12.21 Integration. This Agreement, together with the other
Loan Documents, reflects the entire understanding of the parties with respect to
the transactions contemplated hereby and shall not be contradicted or qualified
by any other agreement, oral or written, before the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWERS:
CLEAN HARBORS, INC.
ALTAIR DISPOSAL SERVICES, LLC
BATON ROUGE DISPOSAL, LLC
BRIDGEPORT DISPOSAL, LLC
CLEAN HARBORS ANDOVER, LLC
CLEAN HARBORS ANTIOCH, LLC
CLEAN HARBORS ARAGONITE, LLC
CLEAN HARBORS ARIZONA, LLC
CLEAN HARBORS BATON ROUGE, LLC
CLEAN HARBORS BDT, LLC
CLEAN HARBORS BUTTONWILLOW, LLC
CLEAN HARBORS CHATTANOOGA, LLC
CHEMICAL SALES, LLC
CLEAN HARBORS COFFEYVILLE, LLC
CLEAN HARBORS COLFAX, LLC
CLEAN HARBORS DEER PARK, L.P.
CLEAN HARBORS DEER TRAIL, LLC
CLEAN HARBORS DISPOSAL SERVICES, INC.
CLEAN HARBORS FINANCIAL SERVICES
COMPANY
CLEAN HARBORS FLORIDA, LLC
CLEAN HARBORS GRASSY MOUNTAIN, LLC
CLEAN HARBORS KANSAS, LLC
CLEAN HARBORS LAPORTE, L.P.
CLEAN HARBORS LAUREL, LLC
CLEAN HARBORS LONE MOUNTAIN, LLC
CLEAN HARBORS LONE STAR CORP.
CLEAN HARBORS LOS ANGELES, LLC
CLEAN HARBORS OF TEXAS, LLC
CLEAN HARBORS PECATONICA, LLC
CLEAN HARBORS PLAQUEMINE, LLC
CLEAN HARBORS PPM, LLC
CLEAN HARBORS REIDSVILLE, LLC
CLEAN HARBORS SAN JOSE, LLC
CLEAN HARBORS TENNESSEE, LLC
CLEAN HARBORS WESTMORLAND, LLC
CLEAN HARBORS WHITE CASTLE, LLC
CROWLEY DISPOSAL, LLC
DISPOSAL PROPERTIES, LLC
GSX DISPOSAL, LLC
HARBOR INDUSTRIAL SERVICES TEXAS,
L.P.
HILLIARD DISPOSAL, LLC
ROEBUCK DISPOSAL, LLC
SAWYER DISPOSAL SERVICES, LLC
TULSA DISPOSAL, LLC
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
CLEAN HARBORS OF BRAINTREE, INC.
CLEAN HARBORS OF NATICK, INC.
CLEAN HARBORS SERVICES, INC.
MURPHY'S WASTE OIL SERVICE, INC.
CLEAN HARBORS KINGSTON FACILITY
CORPORATION
CLEAN HARBORS OF CONNECTICUT, INC.
HARBOR MANAGEMENT CONSULTANTS, INC.
SPRING GROVE RESOURCE RECOVERY, INC.
By: /s/ Stephen H. Moynihan
------------------------------------------
Name: Stephen H. Moynihan
Title: Senior Vice President
GUARANTORS:
CLEAN HARBORS OF BALTIMORE, INC.
By: /s/ Stephen H. Moynihan
------------------------------------------
Name: Stephen H. Moynihan
Title: Senior Vice President
AGENT AND LENDER:
ABLECO FINANCE LLC
By: /s/ Kevin P. Genda
------------------------------------------
Name: Kevin P. Genda
Title: SVP
LENDER:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P., its
general partner
By: Oak Hill Securities MGP, Inc., its
general partner
By: /s/ William H. Bohmsack, Jr.
----------------------------------------
Name: William H. Bohmsack, Jr.
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its general partner
By: Oak Hill Securities MGP II, Inc.,
its general partner
By: /s/ William H. Bohmsack, Jr.
----------------------------------------
Name: William H. Bohmsack, Jr.
Title: Vice President
LERNER ENTERPRISES, L.P.:
By: Oak Hill Asset Management, Inc., as
advisor and attorney-in-fact to Lerner
Enterprises, L.P.
By: /s/ William H. Bohmsack, Jr.
----------------------------------------
Name: William H. Bohmsack, Jr.
Title: Vice President
P&PK FAMILY LTD. PARTNERSHIP:
By: Oak Hill Asset Management, Inc., as
advisor advisor and attorney-in-fact
to P&PK Family Ltd. Partnership
By: /s/ William H. Bohmsack, Jr.
----------------------------------------
Name: William H. Bohmsack, Jr.
Title: Vice President
CARDINAL INVESTMENT PARTNERS I, L.P.:
By: Oak Hill Advisors, L.P., as advisor
and attorney-in-fact to Cardinal
Investment Partners I, L.P.
By: Oak Hill Advisors MGP, Inc., its
general partner
By: /s/ William H. Bohmsack, Jr.
----------------------------------------
Name: William H. Bohmsack, Jr.
Title: Managing Director