- ---------------------------------------------------------------------------
$130,000,000
SECURED GUARANTEED CREDIT AGREEMENT
Dated as of March 10, 1995
Among
AIR & WATER TECHNOLOGIES CORPORATION
and
THE PERSONS LISTED ON ANNEX B HEREOF,
as Borrowers and Guarantors,
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF,
THE FIRST NATIONAL BANK OF CHICAGO
and
SOCIETE GENERALE, NEW YORK BRANCH,
as Arranging Agents,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent,
and
SOCIETE GENERALE, NEW YORK BRANCH
as Collateral Agent and Issuing Bank
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ANNEX A Banks, Lending Offices and Notice Addresses
ANNEX B Borrowers and Guarantors
Schedule 1.02(a) NOTICE OF BORROWING
Schedule 1.02(b) NOTICE FOR ISSUANCE OF LETTER OF CREDIT
Schedule 1.03(c)(iv) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05(a) NOTICE OF PREPAYMENT
Schedule 1.13(d) CERTIFICATION OF NON-US BANK
Schedule 2.01(a)(i) [ASSISTANT] SECRETARY'S CERTIFICATE
Schedule 2.01(a)(iv) OPINION OF COUNSEL TO EACH LOAN PARTY
Schedule 2.01(a)(vi) OPINION OF COUNSEL TO THE ARRANGING AGENTS
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND GOVERNMENTAL
APPROVALS
Schedule 3.04 SCHEDULE OF EXISTING OUTSTANDING TAXES
Schedule 3.05 SCHEDULE OF MATERIAL LITIGATION
Schedule 3.08 SCHEDULE OF ADDITIONAL MATERIAL ADVERSE FACTS
Schedule 3.10 SCHEDULE OF ENVIRONMENTAL PERMITS AND CLAIMS
Schedule 3.12 SCHEDULE OF MULTIEMPLOYER BENEFIT PLANS
Schedule 4.07 SCHEDULE OF EXISTING INDEBTEDNESS
Schedule 4.08 SCHEDULE OF EXISTING GUARANTIES
Schedule 4.09 SCHEDULE OF EXISTING LIENS
Schedule 4.15 SCHEDULE OF EXISTING INVESTMENTS
Schedule 4.16 SCHEDULE OF TAXES OF OTHER PERSONS
Schedule 4.17 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 4.19 SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
Schedule 4.20 SCHEDULE OF EXISTING HAZARDOUS MATERIALS
Schedule 5.01(c) CERTIFICATE AS TO FINANCIAL STATEMENTS AND
DEFAULTS
Schedule 5.01(e) BORROWING BASE CERTIFICATE
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
Schedule 10.01 SCHEDULE OF EXISTING LETTERS OF CREDIT
Schedule 10.10(a) NOTICE OF ASSIGNMENT
Schedule 11.01 SCHEDULE OF PLANNED DISPOSITIONS
EXHIBIT A NOTE
EXHIBIT B FORM OF SUBSIDIARY SUPPLEMENT
TABLE OF CONTENTS
Page
ARTICLE 1
CREDIT FACILITY
1.01. (a) Commitment to Lend.............................................. 1
(b) Commitment to Issue Letters of Credit. (i) Amounts of Letters
of Credit...................................................... 1
(ii) Terms of Letters of Credit............................... 2
1.02. (a) Manner of Borrowing............................................. 2
(b) (i) Manner of Issuance and Amendment of Letters of
Credit..................................................... 3
(ii) Acquisition of Participations upon Issuance................. 4
(iii) Certain Responsibilities in respect of Letters of
Credit................................................... 4
1.03. Interest............................................................ 5
(a) Rates........................................................... 5
(b) Payment......................................................... 5
(c) Conversion and Continuation..................................... 6
(d) Maximum Interest Rate........................................... 6
1.04. Repayment........................................................... 7
1.05. Prepayments......................................................... 9
(a) Optional Prepayments............................................ 9
(b) Borrowing Base Mandatory Prepayments............................ 9
1.06. Limitation on Types of Loans....................................... 10
1.07. Reduction of Commitments........................................... 10
1.08. Fees............................................................... 10
(a) Commitment Fees................................................ 10
(b) Upfront Fees................................................... 10
(c) Agents' Fees................................................... 11
(d) Letter of Credit Fees.......................................... 11
(i) Fronting Bank Fees....................................... 11
(ii) Participating Bank Fees................................. 11
(e) Fees Non-Refundable............................................ 11
1.09. Computation of Interest and Fees................................... 11
1.10. Evidence of Indebtedness........................................... 11
1.11. Payments by the Borrowers.......................................... 12
(a) Time, Place and Manner......................................... 12
(b) No Reductions.................................................. 12
(c) Authorization to Charge Accounts............................... 12
(d) Extension of Payment Dates..................................... 13
1.12. Distribution of Payments by the Administrative Agent............... 13
1.13. Taxes.............................................................. 13
(a) Taxes Payable by the Borrowers................................. 13
(b) Taxes Payable by the Administrative Agent or any
Bank.......................................................... 14
(c) Credits and Deductions......................................... 14
(d) Exemption from U.S. Withholding Taxes.......................... 15
1.14. Pro Rata Treatment................................................. 16
ARTICLE 2
CONDITIONS TO CREDIT EXTENSIONS
2.01. Conditions to Initial Credit Extensions............................ 16
2.02. Conditions to Each Credit Extension................................ 18
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
3.01. Organization; Power; Qualification................................. 20
3.02. Subsidiaries....................................................... 20
3.03. Authorization; Enforceability; Required Consents; Absence of
Conflicts........................................................ 20
3.04. Taxes.............................................................. 21
3.05. Litigation......................................................... 21
3.06. Burdensome Provisions.............................................. 21
3.07. No Adverse Change or Event......................................... 21
3.08. Additional Adverse Facts........................................... 22
3.09. Investment Company Act............................................. 22
3.10. Environmental Laws................................................. 22
3.11. Pari Passu Status.................................................. 23
3.12. ERISA.............................................................. 23
3.13. Security Interest.................................................. 23
ARTICLE 4
CERTAIN COVENANTS
A.
4.01. Preservation of Existence and Properties, Scope of Business, Compliance
with Law, Payment of Taxes and Claims, Preservation of
Enforceability.................................................... 24
4.02. Insurance.......................................................... 24
4.03. Use of Proceeds.................................................... 24
4.04. Additional Subsidiaries............................................ 24
4.05. Additional Real Property........................................... 25
4.06. Filing of Termination Statements and Releases under Existing Credit
Agreement......................................................... 25
B.
4.07. Indebtedness....................................................... 25
4.08. Guaranties......................................................... 26
4.09. Liens.............................................................. 26
4.10. Restricted Payments................................................ 26
4.11. Merger or Consolidation............................................ 27
4.12. Disposition of Assets.............................................. 27
4.13. Capital Expenditures............................................... 27
4.14. Operating Leases; Bonding Agreements............................... 28
4.15. Investments........................................................ 28
4.16. Taxes of Other Persons............................................. 29
4.17. Benefit Plans...................................................... 29
4.18. Transactions with Affiliates....................................... 30
4.19. Limitation on Restrictive Covenants................................ 30
4.20. Substance Storage and Disposal..................................... 30
4.21. Debt Repurchase.................................................... 30
C.
4.22. Minimum Adjusted Consolidated Net Worth............................ 30
4.23. Current Ratio...................................................... 31
4.24. Interest Coverage.................................................. 31
4.25. Cash Flow Coverage Ratio........................................... 31
4.26. Leverage Ratio..................................................... 31
ARTICLE 5
INFORMATION
5.01. Information to Be Furnished........................................ 31
(a) Quarterly Financial Statements................................. 31
(b) Year End Financial Statements; Accountants'
Certificate................................................... 32
(c) Officer's Certificate as to Financial Statements and
Defaults...................................................... 32
(d) Borrowing Base Certificates.................................... 32
(e) Financial Statements of CGE.................................... 33
(f) Reports and Filings............................................ 33
(g) Requested Information.......................................... 33
(h) Notice of Defaults, Material Adverse Changes and Other
Matters....................................................... 33
5.02. Accuracy of Financial Statements and Information................... 34
(a) Historical Financial Statements................................ 34
(b) Future Financial Statements.................................... 34
(c) Historical Information......................................... 34
(d) Future Information............................................. 34
5.03. Additional Covenants Relating to Disclosure........................ 35
(a) Accounting Methods and Financial Records....................... 35
(b) Fiscal Year.................................................... 35
(c) Visits, Inspections and Discussions............................ 35
5.04. Authorization of Third Parties to Deliver Information and Discuss
Affairs........................................................... 36
ARTICLE 6
DEFAULT
6.01. Events of Default.................................................. 36
6.02. Remedies upon Event of Default..................................... 39
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
7.01. Mandatory Suspension and Conversion of Eurodollar Rate
Loans............................................................... 40
7.02. Regulatory Changes................................................. 41
7.03. Capital Requirements............................................... 42
7.04. Funding Losses..................................................... 42
7.05. Certain Determinations............................................. 42
7.06. Change of Lending Office........................................... 43
7.07. Replacement of Affected Banks...................................... 43
ARTICLE 8
GUARANTIES
8.01. Guaranties......................................................... 44
(a) General........................................................ 44
(b) Limitation on Guaranties....................................... 44
(c) Nature of Guarantors' Obligations.............................. 44
(d) No Release of Guarantors....................................... 44
(e) Certain Other Waivers.......................................... 45
ARTICLE 9
THE AGENTS
9.01. Appointment and Powers............................................. 45
9.02. Limitation on Liability of Agents.................................. 45
9.03. Defaults........................................................... 46
9.04. Rights as a Bank................................................... 46
9.05. Indemnification.................................................... 47
9.06. Non Reliance on Agents, the Issuing Bank and Other
Banks.....................................................................
47
9.07. Execution and Amendment of Loan Documents on Behalf of the
Banks.............................................................. 47
9.08. Resignation of the Administrative Agent............................ 48
9.09. Resignation of the Collateral Agent................................ 49
ARTICLE 10
MISCELLANEOUS
10.01. Notices and Deliveries............................................ 49
(a) Notices and Materials Other than Collateral.................... 49
(i) Manner of Delivery....................................... 49
(ii) Addresses............................................... 50
(iii) Effectiveness.......................................... 51
(iv) Reasonable Notice...................................... 52
(b) Collateral..................................................... 52
10.02. Expenses; Indemnification......................................... 52
10.03. Amounts Payable Due upon Request for Payment...................... 54
10.04. Remedies of the Essence........................................... 55
10.05. Rights Cumulative................................................. 55
10.06. Disclosures....................................................... 55
10.07. Amendments; Waivers............................................... 55
10.08. Set-Off; Suspension of Payment and Performance.................... 56
10.09. Sharing of Recoveries.............................................. 56
10.10. Assignments and Participations.................................... 57
(a) Assignments.................................................... 57
(b) Participations................................................. 58
10.11. Governing Law..................................................... 59
10.12. Judicial Proceedings; Waiver of Jury Trial........................ 60
10.13. Judgment Currency................................................. 60
10.14. LIMITATION OF LIABILITY........................................... 61
10.15. Severability of Provisions........................................ 61
10.16. Counterparts...................................................... 61
10.17. Survival of Obligations........................................... 61
10.18. Entire Agreement.................................................. 61
10.19. Successors and Assigns............................................ 61
10.20. Cash Collateral................................................... 61
10.21. Registered Notes.................................................. 62
ARTICLE 11
INTERPRETATION
11.01. Defined Terms..................................................... 62
11.02. Other Interpretive Provisions..................................... 90
11.03. Accounting Matters................................................ 91
11.04. Representations and Warranties.................................... 92
11.05. Captions.......................................................... 92
11.06. Interpretation of Related Documents............................... 92
ANNEX A Banks, Lending Offices and Notice Addresses
ANNEX B Borrowers and Guarantors
Schedule 1.02(a) NOTICE OF BORROWING
Schedule 1.02(b) NOTICE FOR ISSUANCE OF LETTER OF CREDIT
Schedule 1.03(c)(iv) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05(a) NOTICE OF PREPAYMENT
Schedule 1.13(d) CERTIFICATION OF NON-US BANK
Schedule 2.01(a)(i) [ASSISTANT] SECRETARY'S CERTIFICATE
Schedule 2.01(a)(iv) OPINION OF COUNSEL TO EACH LOAN PARTY
Schedule 2.01(a)(vi) OPINION OF COUNSEL TO THE ARRANGING AGENTS
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND GOVERNMENTAL
APPROVALS
Schedule 3.04 SCHEDULE OF EXISTING OUTSTANDING TAXES
Schedule 3.05 SCHEDULE OF MATERIAL LITIGATION
Schedule 3.08 SCHEDULE OF ADDITIONAL MATERIAL ADVERSE FACTS
Schedule 3.10 SCHEDULE OF ENVIRONMENTAL PERMITS AND CLAIMS
Schedule 3.12 SCHEDULE OF MULTIEMPLOYER BENEFIT PLANS
Schedule 4.07 SCHEDULE OF EXISTING INDEBTEDNESS
Schedule 4.08 SCHEDULE OF EXISTING GUARANTIES
Schedule 4.09 SCHEDULE OF EXISTING LIENS
Schedule 4.15 SCHEDULE OF EXISTING INVESTMENTS
Schedule 4.16 SCHEDULE OF TAXES OF OTHER PERSONS
Schedule 4.17 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 4.19 SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
Schedule 4.20 SCHEDULE OF EXISTING HAZARDOUS MATERIALS
Schedule 5.01(c) CERTIFICATE AS TO FINANCIAL STATEMENTS AND
DEFAULTS
Schedule 5.01(e) BORROWING BASE CERTIFICATE
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
Schedule 10.01 SCHEDULE OF EXISTING LETTERS OF CREDIT
Schedule 10.10(a) NOTICE OF ASSIGNMENT
Schedule 11.01 SCHEDULE OF PLANNED DISPOSITIONS
EXHIBIT A NOTE
EXHIBIT B FORM OF SUBSIDIARY SUPPLEMENT
SECURED GUARANTEED CREDIT AGREEMENT
Dated as of March 10, 1995
AIR & WATER TECHNOLOGIES CORPORATION, a Delaware corporation
("AWT"), THE PERSONS LISTED ON ANNEX B HEREOF, together with AWT, as Borrowers
or Guarantors, or both, the BANKS listed on the signature pages hereof, THE
FIRST NATIONAL BANK OF CHICAGO and SOCIETE GENERALE, as Arranging Agents, THE
FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent and SOCIETE GENERALE,
NEW YORK BRANCH, as Collateral Agent and Issuing Bank, agree as follows (with
certain terms used herein being defined in Article 11):
ARTICLE 1
CREDIT FACILITY
Section 1.01. (a) Commitment to Lend. Upon the terms and subject
to the conditions of this Agreement, each Bank agrees to make, from time to
time during the period from the Agreement Date through the Termination Date,
one or more Loans to one or more Borrowers in an aggregate unpaid principal
amount not exceeding at any time the lesser of (i) such Bank's Commitment at
such time minus, in the case of a Participating Bank, the aggregate of such
Bank's Letter of Credit Amounts at such time and (ii) the Borrowing Base at
such time minus the aggregate unpaid principal amount of all Loans made by the
Banks other than Loans made by such Bank. Subject to Section 1.06 and the
other terms and conditions of this Agreement, the Loans made to a Borrower
may, at the option of such Borrower, be made as, and from time to time
continued as or converted into, Base Rate or Eurodollar Rate Loans of any
permitted Type, or any combination thereof. The aggregate amount of the
Commitments on the Agreement Date is $130,000,000.
(b) Commitment to Issue Letters of Credit. (i) Amounts of
Letters of Credit. Upon the terms and subject to the conditions of this
Agreement, the Issuing Bank shall issue, from time to time during the period
from the Agreement Date through the Termination Date, one or more Letters of
Credit for the account of one or more Borrowers, provided that (A) the
aggregate of all Letter of Credit Amounts together with the aggregate unpaid
principal amount of all Loans at any time shall not exceed the aggregate
amount of the Commitments at such time and (B) in the case of a Participating
Bank, the aggregate of such Participating Bank's Letter of Credit Amounts
together with such Participating Bank's Loans at any time shall not exceed such
Participating Bank's Commitment at such time.
(ii) Terms of Letters of Credit. Each Letter of Credit:
(A) May be either (1) a documentary Letter of Credit in support
of trade obligations of AWT, its Consolidated Subsidiaries
or its other Affiliates or (2) a standby Letter of Credit in
support of other Liabilities of AWT, its Consolidated
Subsidiaries or its other Affiliates, in each case, that
arise in the ordinary course of business and are in respect
of general corporate purposes of AWT, such Consolidated
Subsidiaries or such other Affiliates, as the case may be,
provided that the face amount of all such Letters of Credit
issued in support of the trade obligations and other
Liabilities of Affiliates of AWT other than Consolidated
Subsidiaries does not exceed $2,000,000 in the aggregate at
any time;
(B) Shall be (1) denominated only in Approved Currencies,
provided, however, that a Letter of Credit denominated in a
currency other than Dollars shall be issued on terms and
conditions satisfactory to the Issuing Bank, (2) in a stated
amount of not less than $5,000;
(C) Shall have an expiration date occurring not later than the
Termination Date; and
(D) May contain such other terms and conditions as may be
approved by the Issuing Bank and the Administrative Agent.
Section 1.02. (a) Manner of Borrowing. (i) A Borrower shall
give the Administrative Agent notice (which shall be irrevocable) no later
than 10:00 a.m. (Chicago time) on, in the case of Base Rate Loans, the
requested date for the making of such Loans, and, in the case of Eurodollar
Rate Loans, the third Eurodollar Business Day before the requested date for
the making of such Loans. Each such notice shall be telephonic, with written
confirmation in the form of Schedule 1.02(a) to be made on the same day of
such telephonic notice, and shall specify (A) the requested date for the
making of the requested Loans, which shall be, in the case of Base Rate Loans,
a Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar
Business Day, (B) the Type or Types of Loans requested and (C) the amount of
each such Type of Loan, the aggregate of which amounts for all Types of Loans
requested to be made on the requested date shall be not less than the lesser
of (I)(x) in the case of Eurodollar Rate Loans, $2,000,000 and (y) in the case
of Base Rate Loans, $1,500,000, or, in either case, any integral multiple of
$500,000 in excess thereof and (II) the maximum amount that can then be
borrowed hereunder. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of the amount and
Type of each Loan to be made by such Bank on the requested date specified
therein.
(ii) Not later than 1:00 p.m. (Chicago time) on each requested
date for the making of Loans, each Bank shall make available to the
Administrative Agent, in Dollars in funds immediately available to the
Administrative Agent at the Administrative Agent's Office, the Loans to be
made by such Bank on such date. Any Bank's failure to make any Loan to be
made by it on the requested date therefor shall not relieve any other Bank of
its obligation to make any Loan to be made by such other Bank on such date,
but such other Bank shall not be liable for such failure.
(iii) Unless the Administrative Agent shall have received notice
from a Bank prior to 12:00 noon (Chicago time) on the requested date for the
making of any Loans that such Bank will not make available to the
Administrative Agent the Loans requested to be made by such Bank on such date,
the Administrative Agent may assume that such Bank has made such Loans
available to the Administrative Agent on such date in accordance with Section
1.02(a)(ii) and the Administrative Agent in its sole discretion may, in
reliance upon such assumption, make available to the applicable Borrower on
such date a corresponding amount on behalf of such Bank. If and to the extent
such Bank shall not have so made available to the Administrative Agent the
Loans requested to be made by such Bank on such date and the Administrative
Agent shall have so made available to such Borrower a corresponding amount on
behalf of such Bank, such Bank shall, on demand, pay to the Administrative
Agent such corresponding amount together with interest thereon, for each day
from the date such amount shall have been so made available by the
Administrative Agent to such Borrower until the date such amount shall have
been repaid to the Administrative Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and thereafter at the
Base Rate. If such Bank does not pay such corresponding amount promptly upon
the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify such Borrower and such Borrower shall immediately repay such
corresponding amount to the Administrative Agent together with accrued
interest thereon at the applicable rate or rates provided in Section 1.03(a).
(iv) All Loans made available to the Administrative Agent in
accordance with Section 1.02(a)(ii) shall be disbursed by the Administrative
Agent not later than 1:00 p.m. (Chicago time) on the requested date therefor
in Dollars in funds immediately available to the applicable Borrower by credit
to an account of such Borrower at the Administrative Agent's Office or in such
other manner as may have been specified in the applicable notice and as shall
be acceptable to the Administrative Agent.
(b) (i) Manner of Issuance and Amendment of Letters of Credit.
(A) A Borrower shall request the issuance or amendment of a Letter of Credit
by delivering to the Issuing Bank (with a copy to the Administrative Agent),
at least 3 Business Days before the requested date of such issuance or
amendment, (1) in the case of any such issuance or amendment, a duly completed
and executed request for the issuance or amendment of such Letter of Credit
substantially in the form of Schedule 1.02(b) (to which request shall be
attached, in the case of a request for a standby Letter of Credit, the duly
executed form attached as Exhibit A to Schedule 1.02(b), with a notation on
such form indicating that such letter of credit is a Letter of Credit issued
pursuant to and in accordance with the terms of the Credit Agreement),
provided that if such request is transmitted to the Issuing Bank by facsimile,
the original of such request shall be provided to the Issuing Bank as soon as
practicable thereafter, and (2) in the case of any such issuance, if the
desired form of Letter of Credit is different from the Issuing Bank's standard
form, a copy of such desired form of Letter of Credit.
(B) The Issuing Bank shall, on the date of each issuance or
amendment of a Letter of Credit, give the Administrative Agent, each other
Participating Bank and the applicable Borrower notice of such issuance or
amendment, accompanied by a copy to the Administrative Agent of such Letter
of Credit or amendment.
(ii) Acquisition of Participations upon Issuance. Upon the date
of issuance of a Letter of Credit, the Issuing Bank shall be deemed to have
granted to each Participating Bank (other than the Issuing Bank), and each
Participating Bank (other than the Issuing Bank) shall be deemed to have
acquired from the Issuing Bank, without further action by any party hereto, a
participation in such Letter of Credit and any Drawings that may at any time
be made thereunder, to the extent of such Bank's Participating Bank Percentage
thereof. A Bank that is a Participating Bank with respect to a Letter of
Credit shall remain a Participating Bank with respect to that Letter of Credit
notwithstanding its later designation, if any, as a Nonparticipating Bank.
(iii) Certain Responsibilities in respect of Letters of Credit.
Neither the Issuing Bank nor any Participating Bank shall be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with
the application for or issuance of a Letter of Credit;
(B) the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of Credit or
the rights or benefits thereunder or proceeds thereof in whole or in
part;
(C) the failure of any request for a Drawing under a Letter of
Credit to comply fully with conditions required in order to draw on such
Letter of Credit, except, in the case only of the Issuing Bank, under
the circumstances specified in the proviso to Section 1.04(b)(iv);
(D) errors, omissions, interruptions or delays in transmissions
or delivery of any messages, by mail, cable, telex or otherwise, whether
or not in cipher;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission of any document
required in order to make a drawing under any Letter of Credit or of the
proceeds thereof;
(G) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any Drawing under such Letter of Credit; and
(H) any consequence arising from causes beyond the control of
the Issuing Bank, including, without limitation, any change in
Applicable Law.
Section 1.03. Interest. (a) Rates. (i) Each Loan shall bear
interest on the outstanding principal amount thereof at a rate per annum equal
to (A) so long as it is a Base Rate Loan, the Alternate Base Rate as in effect
from time to time and (B) so long as it is a Eurodollar Rate Loan, the
applicable Adjusted Eurodollar Rate plus the applicable Eurodollar Rate
Margin, (ii) each Drawing shall bear interest on the outstanding principal
amount thereof at a rate per annum equal to the Alternate Base Rate as in
effect from time to time and (iii) each other amount due and payable under the
Borrower Loan Documents shall, to the maximum extent permitted by Applicable
Law, bear interest at a rate per annum equal to the Alternate Base Rate as in
effect from time to time. Any overdue principal of or interest on any Loan or
Drawing and, to the maximum extent permitted by Applicable Law, each other
amount due and payable under the Borrower Loan Documents shall bear interest
at a rate per annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable, (i) in the case of Base
Rate Loans, on each Interest Payment Date, (ii) in the case of Eurodollar Rate
Loans, on the last day of each applicable Interest Period (and, if an Interest
Period is longer than three months, at intervals of three months after the
first day of such Interest Period), (iii) in the case of any Loan or Drawing,
when such Loan or Drawing shall be due (whether at maturity, by reason of
notice of prepayment or acceleration or otherwise) or, in the case of Loans,
converted, but only to the extent then accrued on the amount then so due or
converted, and (iv) in the case of all other amounts due and payable under the
Borrower Loan Documents, on demand. Interest at the Post-Default Rate shall
be payable on demand.
(c) Conversion and Continuation. (i) All or any part of the
principal amount of Loans of any Type may, on any Business Day, be converted
into any other Type or Types of Loans.
(ii) Base Rate Loans shall continue as Base Rate Loans
unless and until such Loans are converted into Loans of another Type.
Eurodollar Rate Loans of any Type shall continue as Loans of such Type until
the end of the then current Interest Period therefor, at which time they shall
be automatically converted into Base Rate Loans unless the applicable Borrower
shall have given the Administrative Agent notice in accordance with Section
1.03(c)(iv) requesting either that such Loans continue as Loans of such Type
for another Interest Period or that such Loans be converted into Loans of
another Type at the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.03(c)(i) or (ii), during an Event of Default, the Administrative
Agent may notify the Borrowers that Loans may only be converted into or
continued as Loans of certain specified Types and, thereafter, until no
Default shall continue to exist, Loans may not be converted into or continued
as Loans of any Type other than one or more of such specified Types.
(iv) A Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of Loans or continuation of
Eurodollar Rate Loans no later than 10:00 a.m. (Chicago time) on, in the case
of a conversion into Base Rate Loans, the day of, and, in the case of a
conversion into or continuation of Eurodollar Rate Loans, the third Eurodollar
Business Day before, the requested date of such conversion or continuation.
Each notice of conversion or continuation shall be in the form of Schedule
1.03(c)(iv) and shall specify (A) the requested date of such conversion or
continuation, (B) the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of the Loans to be
converted or continued and (C) the amount and Type or Types of Loans into
which such Loans are to be converted or as which such Loans are to be
continued. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of (x) the contents thereof, (y) the amount and Type
and, in the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period of each Loan to be converted or continued by such Bank and (z)
the amount and Type or Types of Loans into which such Loans are to be
converted or as which such Loans are to be continued.
(d) Maximum Interest Rate. Nothing contained in the Loan
Documents shall require any of the Borrowers at any time to pay interest at a
rate exceeding the Maximum Permissible Rate. If interest payable by a
Borrower on any date would exceed the maximum amount permitted by the Maximum
Permissible Rate, such interest payment shall automatically be reduced to such
maximum permitted amount, and interest for any subsequent period, to the
extent less than the maximum amount permitted for such period by the Maximum
Permissible Rate, shall be increased by the unpaid amount of such reduction.
Any interest actually received for any period in excess of such maximum amount
permitted for such period shall be deemed to have been applied as a prepayment
of the Loans or the Drawings, as the case may be.
Section 1.04. Repayment. (a) The Loans shall mature and become
due and payable, and shall be repaid by the Borrowers, in full on the
Termination Date.
(b) (i) Drawings shall mature and become due and payable, and
shall be repaid by the applicable Borrower in full on, if disbursed on or
prior to 10:00 a.m. (Chicago time), the date such Drawing is disbursed and, if
not, the next Business Day.
(ii) The Issuing Bank shall promptly notify (A) the applicable
Borrower, the Administrative Agent and each Participating Bank having a
Participation in such Letter of Credit of its receipt of a Drawing request
with respect to such Letter of Credit, stating the date and amount of the
Drawing requested and, in the case of a Participating Bank, the amount of such
Participating Bank's Participating Bank Percentage of such Drawing, and (B)
such Borrower of the date and amount of each Drawing made pursuant to such
request. The Issuing Bank's failure to give, or delay in giving, any such
notice shall not release or diminish the obligations hereunder of such Borrower
and each such Participating Bank in respect of such Drawing.
(iii) If a Borrower fails to pay to the Issuing Bank in full the
principal amount of, together with interest accrued on, a Drawing in
accordance with Section 1.04(b)(ii), each other Participating Bank that has a
Participation in such Letter of Credit shall pay to the Issuing Bank, upon
demand, its Participating Bank Percentage of such unpaid amount, in Dollars
in funds immediately available to the Issuing Bank at the Issuing Bank's
Office on, if such demand is made not later than 3:00 p.m. on a Business Day,
such Business Day, and, if not, the next Business Day, together with interest
on such amount from the date of such Drawing until such amount is paid in full
at, for the first three days, the Federal Funds Rate and, thereafter, the Base
Rate. Upon, but only upon, making such required payment to the Issuing Bank,
a Participating Bank shall be entitled to receive its Participating Bank
Percentage of the amount which such Borrower has failed to pay, together with
interest accrued thereon, and, until such payment in full by such Participating
Bank, the Issuing Bank shall hold such Participating Bank's Participating Bank
Percentage as collateral for such payment.
(iv) The obligation of each of the Borrowers and each
Participating Bank under this Section 1.04, in the case of a Borrower, to
reimburse the Issuing Bank for, and in the case of such Participating Bank, to
fund its Participation in unpaid, Drawings together with interest thereon
shall be absolute and unconditional under any and all circumstances and
irrespective of:
(A) any setoff, counterclaim or defense to payments which such
Borrower or such Participating Bank may at any time have against the
Issuing Bank based on (1) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents; (2) any draft, certificate
or any other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (3) the
surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or (4) the
occurrence of any Default; and
(B) the existence of any claim, setoff, other defense or other
right which such Borrower or such Participating Bank may have at any
time against a beneficiary named in a Letter of Credit, any transferee
of any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, the Arranging Agents, the Issuing
Bank, any other Participating Bank or any other Person, whether in
connection with any Letter of Credit, any Loan Document, or the
transactions contemplated therein, or any unrelated transactions
(including any underlying transaction between such Borrower and the
beneficiary named in any such Letter of Credit);
provided, that no Borrower nor any Participating Bank shall be obligated to
reimburse the Issuing Bank or fund its Participation in respect of a Drawing
if and to the extent it is determined by a judgment of a court that is binding
on the Issuing Bank, that the related disbursement under such Letter of Credit
by the Issuing Bank did not comply with the terms of such Letter of Credit as
a result of acts or omissions by the Issuing Bank constituting gross
negligence, fraud, willful misconduct or knowing violations of Applicable Law.
In furtherance and not in limitation of the foregoing, the Issuing Bank may
accept documents that appear on their face to be in order without
responsibility for further investigation, regardless of any notice or
information to the contrary and not thereby constituting a gross negligence,
fraud, willful misconduct or knowing violation of Applicable Law.
(v) (A) If any Bank Nonparticipation occurs with respect to any
Bank, (1) the Borrowers and such Bank agree, if requested by the Borrowers, to
attempt to locate another Eligible Assignee that desires to accept the
assignment of the Loans, Participations, Commitment and other rights and
obligations hereunder of such Bank and (2) if such an assignee is located,
such Bank agrees to assign its interest in its Loans, Participations,
Commitment and other rights and obligations hereunder to such assignee in
accordance with Section 10.10. If no such assignment is arranged, the
Borrowers may, if no Default exists, upon 10 days' prior notice to such Bank,
terminate such Bank's Commitment and thereupon promptly prepay such Bank's
Loans and all other amounts payable to such Bank hereunder (including, without
limitation, with respect to its Participations and Commitments), and cash
collateralize its Participations, provided that prepayments of Eurodollar Rate
Loans shall (A) be made on the last day of the applicable Interest Periods or
(B) if made on a day other than the last day of the applicable Interest
Periods, be accompanied by the amount, if any, due with respect thereto under
Section 7.04.
(B) If, as a result of the existence of a Bank Nonparticipation
with respect to any Bank, availability under the Commitment is reduced, such
Bank shall be deemed to have breached its Commitment and shall be liable to
the Borrowers for any damages resulting from such reduction.
Section 1.05. Prepayments. (a) Optional Prepayments. The
Borrowers may, at any time and from time to time, prepay the Loans in whole or
in part, without premium or penalty (but subject to Section 7.04), except that
any partial prepayment shall be in an aggregate principal amount of at least
(i) in the case of Eurodollar Rate Loans, $2,000,000 and (ii) in the case of
Base Rate Loans, $1,500,000 or, in either case, any integral multiple of
$500,000 in excess thereof. A Borrower shall give the Administrative Agent
notice of each prepayment pursuant to this Section 1.05(a) no later than 10:00
a.m. (Chicago time) on, in the case of a prepayment of Base Rate Loans, the
date of such prepayment, and, in the case of a prepayment of Eurodollar Rate
Loans, the third Eurodollar Business Day before the date of such prepayment.
Each such notice of prepayment shall be in the form of Schedule 1.05(a) and
shall specify (A) the date such prepayment is to be made and (B) the amount
and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Period of the Loans to be prepaid. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each Bank of the
contents thereof and the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of each Loan of such
Bank to be prepaid. Amounts to be prepaid pursuant to this Section 1.05(a)
shall irrevocably be due and payable on the date specified in the applicable
notice of prepayment, together with interest thereon as provided in Section
1.03(b).
(b) Borrowing Base Mandatory Prepayments. If at any time the
aggregate unpaid principal amount of Loans exceeds the Borrowing Base, the
Borrowers shall, upon two Business Days' notice by the Administrative Agent,
prepay the Loans in an amount not less than the amount of such excess.
Amounts prepaid pursuant to this Section 1.05 shall be applied first to prepay
Base Rate Loans and then to prepay Eurodollar Rate Loans in the order that the
Interest Periods for such Loans end. Amounts to be prepaid pursuant to this
Section 1.05 shall be paid on the day or within the time period specified
therefor, whether or not such payment would require a prepayment of Eurodollar
Rate Loans prior to the last day of an applicable Interest Period or would
result in losses, costs or expenses compensable under Section 7.04.
Section 1.06. Limitation on Types of Loans. Notwithstanding
anything to the contrary contained in this Agreement, the Borrowers shall
borrow, prepay, convert and continue Loans in a manner such that (a) the
aggregate principal amount of Eurodollar Rate Loans of the same Type and
having the same Interest Period shall at all times be not less than $2,000,000
and (b) there shall not be, at any one time, more than ten Interest Periods in
effect with respect to Eurodollar Rate Loans of all Types.
Section 1.07. Reduction of Commitments. The Borrowers may reduce
the Commitments by giving the Administrative Agent notice (which shall be
irrevocable) thereof no later than 10:00 a.m. (Chicago time) on the tenth
Business Day before the requested date of such reduction, except that no
partial reduction of the Commitments shall be in an aggregate amount less than
$2,000,000 or any integral multiple of $500,000 in excess thereof, and no
reduction may reduce the Commitments to an amount less than the aggregate
amount of the Loans and Letter of Credit Amounts outstanding on such date
(after giving effect to any repayment or prepayment of Loans to be made on
such date). Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of the contents thereof and the amount to which such
Bank's Commitment is to be reduced.
Section 1.08. Fees. (a) Commitment Fees. The Borrowers shall
pay to the Administrative Agent for the account of each Bank a commitment fee
on the daily unused amount of such Bank's Commitment for each day from the
Agreement Date through the Termination Date at a rate per annum equal to the
Applicable Commitment Fee Rate, payable on successive Interest Payment Dates,
on the Termination Date and on the date the Commitments are terminated in
their entirety.
(b) Upfront Fees. The Borrowers shall, on the Agreement Date,
pay to the Administrative Agent for the account of each Bank an upfront fee
equal to the product of such Bank's Commitment times the percentage set forth
below applicable to such Bank's Initial Commitment.
Initial Commitment Percentage
------------------ ----------
Greater than or equal to $25,000,000 0.20%
$10,000,000 to $24,999,999 0.10%
For purposes hereof, "Initial Commitment" means, with respect to
any Bank, the amount of such Bank's initial commitment with respect to the
credit facility provided for in this Agreement, as set forth in the commitment
advice submitted in writing by such Bank to either of the Arranging Agents or,
in the case of such two Banks, as otherwise communicated to the Borrowers.
(c) Agents' Fees. The Borrowers shall pay to each of the Agents,
each for its own account, the fees payable to it under the Agents' Fee Letter.
Such fees shall be payable in the amounts and at the times provided therein.
(d) Letter of Credit Fees. (i) Fronting Bank Fees. The
Borrowers shall pay to the Issuing Bank, for its own account, (A) a fronting
bank fee equal to the greater of (x) 0.25% of the face amount of such Letter
of Credit and (y) $250, payable on successive Interest Payment Dates and (B)
the standard processing fees of the Issuing Bank for the issuance,
reconfirmation, reissuance and amendment of each Letter of Credit with respect
thereto, as such processing fees are in effect from time to time.
(ii) Participating Bank Fees. The Borrowers shall pay to the
Administrative Agent, for the account of each Participating Bank, a letter of
credit fee on the daily Letter of Credit Amount of each such Participating
Bank at a rate equal to the Applicable LC Fee Rate. Such fee shall be payable
on successive Interest Payment Dates (commencing with the first Interest
Payment Date occurring after the issuance of a Letter of Credit) and on the
Termination Date.
(e) Fees Non-Refundable. None of the fees payable under this
Section 1.08 shall be refundable in whole or in part.
Section 1.09. Computation of Interest and Fees. Interest
calculated on the basis of the Adjusted Eurodollar Rate or the Federal Funds
Rate and the fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed. Interest calculated on the basis
of the Base Rate shall be computed on the basis of a year of 365 or 366 days,
as applicable, and paid for the actual number of days elapsed. Interest for
any period shall be calculated from and including the first day thereof to but
excluding the last day thereof.
Section 1.10. Evidence of Indebtedness. Each Bank's Loans and
the Borrowers' obligation to repay such Loans with interest in accordance with
the terms of this Agreement shall be evidenced by this Agreement, the records
of such Bank and a single Note payable to the order of such Bank, which,
subject to Section 10.21, may be a Registered Note. The records of each Bank
shall be prima facie evidence of such Bank's Loans and accrued interest
thereon and of all payments made in respect thereof. Drawings, Contingent
Reimbursement Obligations and Participations, and the Borrowers' obligations
to repay Drawings with interest in accordance with the terms of this Agreement
and to prepay Contingent Reimbursement Obligations, shall be evidenced by this
Agreement and the records of the Issuing Bank. The records of the Issuing
Bank shall, absent manifest error, be prima facie evidence of, with respect to
each Letter of Credit, the amount of Drawings and the Contingent Reimbursement
Obligations thereunder and Participations therein.
Section 1.11. Payments by the Borrowers. (a) Time, Place and
Manner. All payments due to the Administrative Agent under the Borrower Loan
Documents shall be made to the Administrative Agent at the Administrative
Agent's Office or to such other Person or at such other address as the
Administrative Agent may designate by notice to the Borrowers. All payments
due to any Bank under the Borrower Loan Documents shall, in the case of
payments on account of principal of or interest on the Loans or Drawings or
fees, be made to the Administrative Agent at the Administrative Agent's Office
and, in the case of all other payments, be made directly to such Bank at its
Domestic Lending Office or at such other address as such Bank may designate by
notice to the Borrower. All payments due to any Bank under the Borrower Loan
Documents, whether made to the Administrative Agent or directly to such Bank,
shall be made for the account of, in the case of payments in respect of
Eurodollar Rate Loans, such Bank's Eurodollar Lending Office and, in the case
of all other payments, such Bank's Domestic Lending Office. A payment shall
not be deemed to have been made on any day unless such payment has been
received by the required Person, at the required place of payment, in Dollars
in funds immediately available to such Person at such place, no later than
1:00 p.m. (Chicago time) on such day.
(b) No Reductions. All payments due to the Administrative Agent
or any Bank under the Borrower Loan Documents, and all other terms,
conditions, covenants and agreements to be observed and performed by the
Borrowers thereunder, shall be made, observed or performed by the Borrowers
without any reduction or deduction whatsoever, including any reduction or
deduction for any set-off, recoupment, counterclaim (whether sounding in tort,
contract or otherwise) or Tax, except for any withholding or deduction for
Taxes required to be withheld or deducted under Applicable Law.
(c) Authorization to Charge Accounts. To the extent permitted by
Applicable Law, each Borrower hereby authorizes the Administrative Agent and
each Bank, if and to the extent any amount payable by such Borrower under the
Borrower Loan Documents (whether payable to such Person or to any other Person
that is the Agent or a Bank) is not otherwise paid when due, to charge such
amount against any or all of the accounts of such Borrower with such Person or
any of its Affiliates (whether maintained at a branch or office located within
or without the United States), with such Borrower remaining liable for any
deficiency.
(d) Extension of Payment Dates. Whenever any payment to the
Administrative Agent or any Bank under the Borrower Loan Documents would
otherwise be due (except by reason of acceleration) on a day that is not a
Business Day, or, in the case of payments of the principal of Eurodollar Rate
Loans, a Eurodollar Business Day, such payment shall instead be due on the
next succeeding Business or Eurodollar Business Day, as the case may be,
unless, in the case of a payment of the principal of Eurodollar Rate Loans,
such extension would cause payment to be due in the next succeeding calendar
month, in which case such due date shall be advanced to the next preceding
Eurodollar Business Day. If the date any payment under the Borrower Loan
Documents is due is extended (whether by operation of any Borrower Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.12. Distribution of Payments by the Administrative
Agent. (a) The Administrative Agent shall promptly distribute to each Bank
its ratable share of each payment received by the Administrative Agent under
the Loan Documents for the account of the Banks by credit to an account of
such Bank at the Administrative Agent's Office or by wire transfer to an
account of such Bank at an office of any other commercial bank located in the
United States.
(b) Unless the Administrative Agent shall have received notice
from the applicable Loan Party prior to the date on which any payment is due
to the Banks under the Loan Documents that such Loan Party will not make such
payment in full, the Administrative Agent may assume that such Loan Party has
made such payment in full to the Administrative Agent on such date and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date a
corresponding amount with respect to the amount then due such Bank. If and to
the extent such Loan Party shall not have so made such payment in full to the
Administrative Agent and the Administrative Agent shall have so distributed to
any Bank a corresponding amount, such Bank shall, on demand, repay to the
Administrative Agent the amount so distributed together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Administrative Agent, at the Federal
Funds Rate until (and including) the third Business Day after demand is made
and thereafter at the Base Rate.
Section 1.13. Taxes. (a) Taxes Payable by the Borrowers. If
under Applicable Law any Tax is required to be withheld or deducted from, or
is otherwise payable by a Borrower in connection with, any payment to the
Administrative Agent or any Bank under the Loan Documents, such Borrower (i)
shall (A) if so required, withhold or deduct the amount of such Tax from such
payment and, in any case, pay such Tax to the appropriate taxing authority in
accordance with Applicable Law and (B) indemnify the Administrative Agent and
such Bank in accordance with the provisions of Section 10.02(d) against its
failure so to do and (ii) shall, subject to Section 1.13(d), pay to the
Administrative Agent or such Bank, as applicable, such additional amounts as
may be necessary so that the net amount received by the Administrative Agent
or such Bank with respect to such payment, after withholding or deducting all
Taxes required to be withheld or deducted, is equal to the full amount payable
under the Loan Documents; provided, however, that no such additional amounts
shall be payable on account of the withholding or deduction for any Bank
Taxes. If any Tax is withheld or deducted from, or is otherwise payable by a
Borrower in connection with, any payment payable to the Administrative Agent
or any Bank under the Loan Documents, such Borrower shall, as soon as possible
after the date of such payment, furnish to the Administrative Agent or such
Bank, as applicable, the original or a certified copy of a receipt (if any)
for such Tax from the applicable taxing authority (or other evidence of
payment thereof). If any payment due to the Administrative Agent or any Bank
under the Loan Documents is or is expected to be made without withholding or
deducting therefrom, or otherwise paying in connection therewith, any Tax
payable to any taxing authority, such Borrower shall, within 90 days after any
reasonable request from the Administrative Agent or such Bank, as applicable,
furnish to the Administrative Agent or such Bank a certificate from such taxing
authority, or an opinion of counsel reasonably acceptable to the
Administrative Agent or such Bank, in either case stating that no Tax payable
to such taxing authority was or is, as the case may be, required to be
withheld or deducted from, or otherwise paid by such Borrower in connection
with, such payment.
(b) Taxes Payable by the Administrative Agent or any Bank. The
Borrowers shall, promptly upon request by the Administrative Agent or any Bank
for the payment thereof (such request to be accompanied by a detailed
explanation of the nature and amount of the Taxes at issue), pay to the
Administrative Agent or such Bank, as the case may be, (i) all Taxes (other
than Bank Taxes) payable by the Administrative Agent or such Bank, as the case
may be, with respect to any payment due to the Administrative Agent or such
Bank under the Loan Documents and (ii) all Taxes (other than Bank Taxes)
payable by the Administrative Agent or such Bank as a result of payments made
by any Borrower (whether made to a taxing authority or to the Administrative
Agent or such Bank) pursuant to Section 1.13(a) or (b).
(c) Credits and Deductions. If the Administrative Agent or any
Bank is, in its reasonable opinion, able to apply for any credit, deduction or
other reduction in Bank Taxes by reason of any payment made by a Borrower
under Section 1.13(a) or (b), the Administrative Agent or such Bank, as the
case may be, shall use reasonable efforts to obtain such credit, deduction or
other reduction and, upon receipt thereof, will pay to such Borrower such
amount, not exceeding the increased amount paid by such Borrower, as is equal
to the net after-tax value to the Administrative Agent or such Bank, in its
reasonable opinion, of such part of such credit, deduction or other reduction
allocable to such payment by the Borrower, having regard to all of the
Administrative Agent's or such Bank's dealings giving rise to similar credits,
deductions or other reductions in relation to the same tax period and to the
cost of obtaining the same; provided, however, that (i) the Administrative
Agent or such Bank, as the case may be, shall not be obligated to disclose to
any Borrower any information regarding its tax affairs or computations and
(ii) nothing in this Section 1.13(c) shall interfere with the right of the
Administrative Agent or such Bank to arrange its tax affairs as it deems
appropriate.
(d) Exemption from U.S. Withholding Taxes. (i) There shall be
submitted to the Borrowers and the Administrative Agent, (A) on or before the
first date that interest or fees are payable to such Bank under the Loan
Documents, (1) by each Bank that is not a United States Person, two duly
completed and signed copies of Internal Revenue Service Form 1001 or 4224, in
either case entitling such Bank to a complete exemption from withholding of
any United Stated federal income taxes on all amounts to be received by such
Bank under the Loan Documents, or (2) by each Bank that is a Non-US Bank, (aa)
a duly completed Internal Revenue Service Form W-8 and (bb) a certification in
the form of Schedule 1.13(d) that such Bank is a Non-US Bank and (B) from
time to time thereafter, prior to the expiration or obsolescence of any
previously delivered form or upon any previously delivered form becoming
inaccurate or inapplicable, such further duly completed and signed copies of
such forms, in each case entitling such Bank to complete exemption from
withholding of United States federal income taxes to the maximum extent to
which such Bank is then entitled under Applicable Law. Each Bank shall
promptly notify the Borrowers and the Administrative Agent if (I) it is
required to modify, withdraw or cancel any form or certificate previously
submitted by it or any such form or certificate has otherwise become
ineffective or inaccurate or (II) payments to it are or will be subject to
withholding of United States federal income taxes to a greater extent than the
extent to which payments to it were previously subject. Upon the request of
the Borrowers or the Administrative Agent, each Bank that is a United States
Person shall from time to time submit to the Borrowers and the Administrative
Agent a certificate to the effect that it is such a United States Person and a
duly completed Internal Revenue Service Form W-9.
(ii) Notwithstanding anything to the contrary contained herein,
no Borrower shall be required to pay any additional amount in respect of Taxes
pursuant to this Section 1.13 or Section 7.02 to any Bank (A) except to the
extent Taxes are required to be withheld as a result of a change after the
Agreement Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the
deduction or withholding of Taxes or (B) to the extent withholding is required
because such Bank has failed (I) to submit any form or certificate that it is
entitled to so submit under Applicable Law or, (II) in the case of a Bank that
is a Non-US Bank, to cause its Notes to be issued as Registered Notes.
Section 1.14. Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) Loans of each Type to be made on any day shall be made by
the Banks pro rata in accordance with their respective Commitments, (b) Loans
of the Banks shall be converted and continued pro rata in accordance with their
respective amounts of Loans of the Type and, in the case of Eurodollar Rate
Loans, having the Interest Period being so converted or continued, (c) each
reduction in the Commitments shall be made pro rata in accordance with the
respective amounts thereof, (d) each payment of the principal of or interest
on the Loans, reimbursement of Drawings or of fees (other than the
Participating Bank fees payable pursuant to Section 1.08(d)(ii)) shall be made
for the account of the Banks pro rata in accordance with the respective
amounts thereof then due and payable and (e) each payment of Participating
Bank fees payable with respect to a Letter of Credit pursuant to Section
1.08(d)(ii) shall be made for the account of the Participating Bank having
Participations in such Letter of Credit pro rata in accordance with their
respective Letter of Credit Amounts with respect to such Letter of Credit.
ARTICLE 2
CONDITIONS TO CREDIT EXTENSIONS
Section 2.01. Conditions to Initial Credit Extensions. The
obligation of each Bank to make its initial Loan (or, if no Loans have been
made at such time, the obligation of the Issuing Bank to issue the initial
Letter of Credit) is subject to the fulfillment of each of the following
conditions:
(a) the Arranging Agents shall have received each of the
following, in form and substance satisfactory to the Arranging Agents:
(i) a certificate of the Secretary or an Assistant
Secretary of each Loan Party, dated the requested date for the making of
such Credit Extension, substantially in the form of Schedule 2.01(a)(i),
to which shall be attached copies of the resolutions and by-laws
referred to in such certificate;
(ii) a copy of the certificate of incorporation of each
Loan Party, certified, as of a recent date, by the Secretary of State or
other appropriate official of such Loan Party's jurisdiction of
incorporation;
(iii) a good standing certificate with respect to each Loan
Party, issued as of a recent date by the Secretary of State or other
appropriate official of such Person's jurisdiction of incorporation,
together with a confirmation from such Secretary of State or other
official, updating the information in such certificate;
(iv) an opinion of counsel for each Loan Party, dated the
requested date for the making of such Credit Extension, in the form of
Schedule 2.01(a)(iv), with such changes as the Arranging Agents shall
approve;
(v) an opinion of local counsel in New Jersey;
(vi) an opinion of counsel for the Arranging Agents, dated
the requested date for the making of such Credit Extension, in the form
of Schedule 2.01(a)(vi);
(vii) a copy of each Governmental Approval and other
consent or approval listed on Schedule 3.03;
(viii) a certificate of the chairman, chief financial
officer or treasurer of AWT, dated the requested date for the making of
such Credit Extension, setting forth the manner and degree of detail in
which AWT will make the calculations required by paragraph 3 of Schedule
5.01(c);
(ix) a duly executed Note for each Bank;
(x) a duly executed copy of each of the other Loan
Documents;
(xi) either (A) such duly executed UCC-1 financing
statements and other documents as the Arranging Agents may request, the
filing or recordation of which is necessary or appropriate in the
Arranging Agents' determination to create or perfect a security interest
in the Collateral under Applicable Law, or (B) evidence of the filing or
recordation of the same in such offices as the Arranging Agents shall
have specified;
(xii) such instruments and other documents as the Arranging
Agents may request, the possession of which is necessary or appropriate
in the Arranging Agents' determination to create or perfect a security
interest in the Collateral under Applicable Law;
(xiii) [intentionally omitted];
(xiv) a paid title insurance policy for the Mortgage in
scope, form and substance satisfactory to the Arranging Agents;
(xv) a Phase I Environmental Report in scope, form and
substance satisfactory to, and prepared by an engineering firm approved
by, the Arranging Agents;
(xvi) certificates of insurance covering all insurance
policies and loss payee endorsements required under the Security
Agreement and the Mortgage;
(xvii) a Borrowing Base Certificate as of January 31, 1995;
and
(xviii) such additional materials as any Bank may have
reasonably requested pursuant to Section 5.01(g);
(b) all fees payable on or prior to the requested date of such
Credit Extension pursuant to Section 1.08, and all amounts payable pursuant to
Section 10.02 for which invoices have been delivered to the Borrowers on or
prior to such date, shall have been paid in full or arrangements satisfactory
to the Arranging Agents shall have been made to cause them to be paid in full
concurrently with such Credit Extension; and
(c) the Arranging Agents shall be satisfied that, concurrently
with the Credit Extension to be made on such date, (i) all outstanding loans
and letters of credit under the Existing Credit Agreements will be repaid in
full or terminated, replaced or deemed Letters of Credit, as applicable, (ii)
all commitments for the making of loans and issuance of letters of credit
under the Existing Credit Agreements will be terminated, (iii) all
unliquidated receivables subject to a purchase agreement under the Existing
Credit Agreements will be repurchased, (iv) all Liens on property of the
applicable Borrowers and their respective Subsidiaries securing the Existing
Credit Agreements and any related arrangements will be terminated and (v)
there will be delivered to the Borrowers (A) such duly executed UCC-3's,
notices and releases as are necessary or appropriate to effect or reflect the
termination of all such Liens and any related arrangements and (B) all
instruments, documents and other property of the applicable Borrower and their
respective Subsidiaries constituting or otherwise relating to collateral held
by or for the benefit of the lenders under the Existing Credit Agreements.
Section 2.02. Conditions to Each Credit Extension. The
obligation of each Bank to make each Loan requested to be made by it,
including its initial Loan, and the obligation of the Issuing Bank to issue
each Letter of Credit requested to be issued by it (including, if no loans
have been made at such time, the initial Letter of Credit) is subject to the
fulfillment of each of the following conditions:
(a) the Arranging Agents and, in the case of a request for the
issuance of a Letter of Credit, the Issuing Bank, shall have received, in the
case of a Loan, a notice of borrowing with respect to such Loan complying with
the requirements of Section 1.02(a) and, in the case of a Letter of Credit, a
request for the issuance of such Letter of Credit complying with the
requirements of Section 1.02(b);
(b) each Loan Document Representation and Warranty shall be true
and correct at and as of the time of such Credit Extension (except to the
extent such representations and warranties expressly relate to an earlier
date), both with and without giving effect to such Credit Extension and all
other Credit Extensions and to the application of the proceeds thereof;
(c) no Default or Borrowing Base Deficiency shall have occurred
and be continuing at the time of such Credit Extension or would result from
the making of such Credit Extension and all other Credit Extensions or from
the application of the proceeds thereof;
(d) such Bank shall have received such material Information as it
may have requested pursuant to Section 5.01(g); and
(e) such Credit Extension will not contravene any Applicable Law
applicable to such Bank.
Except to the extent that a Borrower shall have disclosed in the
notice of borrowing or in the request for the issuance of a Letter of Credit,
as applicable, or in a subsequent notice given to, in the case of Loans, the
Banks or, in the case of Letters of Credit, the Issuing Bank, prior to 10:00
a.m. (Chicago time) on the requested date of a Credit Extension, that a
condition specified in clause (b) or (c) above will not be fulfilled as of the
requested time of such Credit Extension, the Borrowers shall each be deemed to
have made a Representation and Warranty as of the time of such Credit
Extension that the conditions specified in such clauses have been fulfilled as
of such time. No such disclosure by a Borrower that a condition specified in
clause (b) or (c) above will not be fulfilled as of the requested time of a
requested Credit Extension shall affect the right of each Bank or the Issuing
Bank, as the case may be, not to make the Credit Extension requested to be
made by it if, in such Person's determination, such condition has not been
fulfilled at such time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce each Bank and the Issuing Bank to enter into
this Agreement and to make each Credit Extension requested of it, each of the
Borrowers and the Guarantors represents and warrants as follows:
Section 3.01. Organization; Power; Qualification. Such Person
and each of its Material Subsidiaries are corporations or partnerships, as the
case may be, duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of organization, have the corporate or
partnership power and authority to own their respective properties and to
carry on their respective businesses as now being and hereafter proposed to be
conducted and are duly qualified and in good standing as foreign corporations
or partnerships, as the case may be, and are authorized to do business, in all
jurisdictions in which the character of their respective properties or the
nature of their respective businesses requires such qualification or
authorization, except for qualifications and authorizations the lack of which,
singly or in the aggregate, has not had and is not reasonably likely to have a
Materially Adverse Effect on (a) AWT and its Consolidated Subsidiaries taken
as a whole or (b) the Collateral.
Section 3.02. Subsidiaries. Schedule 3.02 sets forth, as of the
Agreement Date, AWT and all of its Subsidiaries, their jurisdictions of
organization and the percentages of the various classes of their Capital
Securities owned by AWT or another Subsidiary and indicates which Subsidiaries
are Consolidated Subsidiaries. AWT or another Subsidiary, as the case may be,
has the unrestricted right to vote, and (subject to limitations imposed by
Applicable Law) to receive dividends and distributions on, all Capital
Securities indicated on Schedule 3.02 as owned by AWT or such Subsidiary,
except any such Capital Securities the disposition of which is permitted
pursuant to the terms of this Agreement. All such Capital Securities have
been duly authorized and issued and are fully paid and nonassessable.
Section 3.03. Authorization; Enforceability; Required Consents;
Absence of Conflicts. Such Person and each of its Subsidiaries has the power,
and has taken all necessary action (including, if a corporation, any necessary
stockholder action) to authorize it, to execute, deliver and perform in
accordance with their respective terms the Loan Documents to which it is a
party and, in the case of a Borrower, to borrow hereunder in the unused amount
of the Commitments. This Agreement has been, and each of the other Loan
Documents to which such Person or any Subsidiary is a party when delivered to
the Arranging Agents will have been, duly executed and delivered by such
Person and each Subsidiary that is a party thereto and is, or when so delivered
will be, a legal, valid and binding obligation of such Loan Party, enforceable
against such Loan Party in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally. The execution, delivery and performance in accordance with their
respective terms by such Person and its Subsidiaries of the Loan Documents to
which they are parties, and each borrowing hereunder, whether or not in the
amount of the unused Commitments, do not and (absent any change in any
Applicable Law or applicable Contract) will not (a) require any Governmental
Approval or any other consent or approval, including any consent or approval
of the stockholders of such Person or any of its Subsidiaries, other than
Governmental Approvals and other consents and approvals that have been
obtained, are final and not subject to review on appeal or to collateral
attack, are in full force and effect and, in the case of any such required
under any Applicable Law or Contract as in effect on the Agreement Date, are
listed on Schedule 3.03, or (b) violate, conflict with, result in a breach of,
constitute a default under, or result in or require the creation of any Lien
(other than the Security Interest) upon any assets of such Person or any of its
Subsidiaries under, (i) any material Contract to which such Person or any of
its Subsidiaries is a party or by which such Person or any of its Subsidiaries
or any of their respective properties may be bound or (ii) any Applicable Law.
Section 3.04. Taxes. Such Person and each of its Subsidiaries
have (a) filed all material Tax returns required to have been filed by it
under Applicable Law, (b) paid all material Taxes that are due and payable by
it except for Taxes the failure to have paid which does not contravene Section
4.01 and (c) to the extent required by generally accepted accounting
principles, reserved against all material Taxes that are payable by it but are
not yet due or that are due and payable by it but have not yet been paid,
other than as set forth on Schedule 3.04.
Section 3.05. Litigation. Except as set forth on Schedule 3.05,
there are not, in any court or before any arbitrator of any kind or before or
by any governmental or non-governmental body, any actions, suits or
proceedings pending or, to the knowledge of AWT, threatened against or in any
other way relating to or affecting (a) AWT or any of its Subsidiaries or any
of their respective businesses or properties, (b) any Loan Document or (c) the
Collateral, in which there is a reasonable possibility of an adverse decision
which would, singly or in the aggregate, have a Materially Adverse Effect on
(x) AWT and its Consolidated Subsidiaries taken as a whole, (y) the Loan
Documents or (z) the Collateral.
Section 3.06. Burdensome Provisions. Neither AWT nor any of its
Subsidiaries is a party to or bound by any Contract or Applicable Law,
compliance with which could reasonably be expected to have a Materially
Adverse Effect on (a) AWT and its Consolidated Subsidiaries taken as a whole,
(b) the Loan Documents or (c) the Collateral.
Section 3.07. No Adverse Change or Event. Since October 31,
1994, no change in the business, assets, Liabilities, financial condition or
results of operations of AWT or any of its Subsidiaries has occurred, and no
event has occurred or failed to occur, that has had or might reasonably be
expected to have, either alone or in conjunction with all other such changes,
events and failures, a Materially Adverse Effect on (a) AWT and its
Consolidated Subsidiaries taken as a whole, (b) the Loan Documents or (c) the
Collateral. Such an adverse change may have occurred, and such an event may
have occurred or failed to occur, at any particular time notwithstanding the
fact that at such time no Default shall have occurred and be continuing.
Section 3.08. Additional Adverse Facts. Except for facts and
circumstances disclosed on Schedule 3.05 or Schedule 3.08 or in the notes to
the financial statements referred to in Section 5.02(a), no fact or
circumstance is known to AWT, as of the Agreement Date, that, either alone or
in conjunction with all other such facts and circumstances, has had or might
reasonably be expected to have (so far as AWT and its Subsidiaries can
reasonably foresee) a Materially Adverse Effect on (a) AWT and its
Consolidated Subsidiaries taken as a whole, (b) the Loan Documents or (c) the
Collateral.
Section 3.09. Investment Company Act. Such Person is not an
"investment company", within the meaning of the Investment Company Act of 1940.
Section 3.10. Environmental Laws. (a) Except as set forth on
Schedule 3.10, AWT and its Subsidiaries have obtained all permits, licenses
and other authorizations which are required with respect to the operation of
their respective businesses under any applicable Environmental Laws, except
any permits, licenses and other authorizations the absence of which would not,
individually or in the aggregate, have a Materially Adverse Effect on AWT and
its Consolidated Subsidiaries taken as a whole.
(b) Except as set forth on Schedule 3.10, AWT and its
Subsidiaries are in full compliance with all terms and conditions of the
required permits, licenses and authorizations under, and are in compliance
with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in, any
applicable Environmental Laws or contained in any code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, except where such non-compliance would not have a
Materially Adverse Effect on AWT and its Consolidated Subsidiaries taken as a
whole.
(c) Except as set forth on Schedule 3.10, there is no
Environmental Claim pending or, to the best knowledge of AWT, threatened
against AWT or any of its Subsidiaries, which, in any one case or in the
aggregate of all such Environmental Claims, might reasonably be expected to
have a Materially Adverse Effect on (i) AWT and its Consolidated Subsidiaries
taken as a whole, (ii) the Loan Documents or (iii) the Collateral.
(d) To AWT's best knowledge, no events, conditions, activities,
practices, incidents, actions or plans of or taken by AWT or its Subsidiaries
are reasonably likely to: (i) interfere with or prevent compliance or
continued compliance with any Environmental Laws or with any code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, in any manner which could reasonably be
expected to have a Materially Adverse Effect on AWT and its Consolidated
Subsidiaries taken as a whole; (ii) give rise to any common law or legal
liability, including without limitation liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, or similar
state or local laws, which could reasonably be expected to have a Materially
Adverse Effect on AWT and its Consolidated Subsidiaries taken as a whole; or
(iii) form the basis of any Environmental Claim, which could reasonably be
expected to have a Materially Adverse Effect on (x) AWT and its Consolidated
Subsidiaries taken as a whole, (y) the Loan Documents or (z) the Collateral.
Section 3.11. Pari Passu Status. The Loans and other obligations
of such Person to the Banks and the Issuing Bank under the Loan Documents will
at all times rank at least pari passu in priority of payment with all of such
Persons' other Indebtedness, except as pursuant to a written agreement with the
Banks and the Issuing Bank.
Section 3.12. ERISA. All Benefit Plans are in substantial
compliance with ERISA and none is insolvent or in reorganization or has an
accumulated or waived funding deficiency within the meaning of Section 412 of
the Code. Neither such Person nor any of its Subsidiaries has incurred any
material liability (including any material contingent liability) to or on
account of any Benefit Plan pursuant to Sections 4062, 4063, 4064, 4201 or
4204 of ERISA. No Prohibited Transaction or Reportable Event has occurred
with respect to any Benefit Plan, each Benefit Plan meets the minimum funding
requirements of Section 412 of the Code, no waiver from such minimum funding
requirements has been applied for or approved pursuant to Section 412(d) of
the Code and no condition exists which presents a material risk to such
Borrower or any of its Subsidiaries of incurring a liability to or on account
of any Benefit Plan pursuant to any of the foregoing Sections of ERISA.
Except as otherwise disclosed on Schedule 3.12, neither such Person nor any
of its Subsidiaries contributes to or maintains a Multiemployer Benefit Plan.
Section 3.13. Security Interest. The Security Interest
constitutes a perfected security interest in all Collateral except to the
extent otherwise permitted by the Security Agreement, and the Collateral is
not subject to any other Liens except as permitted by Section 4.09.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. Each of the Borrowers and the Guarantors shall and shall cause each
of its Material Subsidiaries to:
Section 4.01. Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability. (a) Except pursuant to a transaction expressly permitted
under Section 4.11 or 4.12, preserve and maintain its corporate or partnership
existence, as the case may be, and all of its other franchises, licenses,
rights and privileges, (b) preserve, protect and obtain all Intellectual
Property, and preserve and maintain in good repair, working order and
condition all other properties, required for the conduct of its business, (c)
engage only in businesses in substantially the same fields as the businesses
conducted on the Agreement Date and other businesses reasonably related
thereto or developed therefrom, (d) comply with Applicable Law, (e) pay or
discharge when due all Taxes and all Liabilities that might become a Lien on
any of its properties unless being contested in good faith and with adequate
reserves therefor and (f) take all action and obtain all consents and
Governmental Approvals required so that its obligations under the Loan
Documents will at all times be legal, valid and binding and enforceable in
accordance with their respective terms, except that this Section 4.01 (other
than clauses (a), in so far as it requires any Loan Party to preserve its
corporate existence, (c) and (f)) shall not apply in any circumstance where
noncompliance, together with all other noncompliances with this Section 4.01,
could not reasonably be expected to have a Materially Adverse Effect on (x)
AWT and its Consolidated Subsidiaries taken as a whole, (y) the Loan Documents
or (z) the Collateral.
Section 4.02. Insurance. Maintain insurance with responsible
insurance companies against at least such risks and in at least such amounts
as is customarily maintained by prudent managers engaged in similar
businesses, or as may be required by Applicable Law.
Section 4.03. Use of Proceeds. Use the proceeds of the Loans
only (a) to repay in full the Predecessor Indebtedness and (b) for general
corporate purposes. None of the proceeds of any of the Loans shall be used to
purchase or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of Regulations U and X
of the Board of Governors of the Federal Reserve System) or to extend credit
to others for the purpose of purchasing or carrying any margin stock.
Section 4.04. Additional Subsidiaries. On or prior to the date
it forms or acquires any new Material Subsidiary, deliver to the Arranging
Agents (a) certificates representing all of the issued and outstanding shares
of capital stock of such new Material Subsidiary held by such Person and its
Subsidiaries, together with appropriate stock powers, duly endorsed in blank,
(b) a supplement to this Agreement in the form of Exhibit B, duly executed by
such new Material Subsidiary whereby such Material Subsidiary agrees to become
a Guarantor with respect to the obligations of the Borrowers under the Loan
Documents, (c) a security agreement in the form of the Security Agreement, duly
executed by such new Material Subsidiary, (d) upon the request of the Required
Banks, such documents necessary or appropriate for creating a mortgage and
security interest in favor of the Collateral Agent in all interests in real
property having a fair market value in excess of $1,000,000 and rents and
profits thereof, as the Arranging Agents may request, and (e) such
certificates, resolutions, legal opinions, copies of filings and notices, and
other materials, relating to such new Material Subsidiary, the documents
referred to above and the actions required thereunder, as the Arranging Agents
may reasonably request.
Section 4.05. Additional Real Property. On or prior to the
date it acquires any additional interest in real property having a fair market
value of more than $1,000,000, upon the request of the Required Banks, deliver
to the Arranging Agents (a) such documents necessary or appropriate for
creating a mortgage and security interest in favor of the Collateral Agent in
such interest and the rents and profits thereof as the Arranging Agents may
request and (b) such certificates, resolutions, legal opinions, copies of
filings and notices, and other materials, relating to such documents and the
actions required thereunder as the Arranging Agents may reasonably request.
Section 4.06. Filing of Termination Statements and Releases under
Existing Credit Agreement. As soon as practicable after the disbursement of
the initial Credit Extension, cause the UCC-3's, notices and releases referred
above to be filed with or sent to the appropriate Persons to effect or reflect
the termination of the Liens and related arrangements referred to above.
B. No Borrower or Guarantor shall, or shall permit any of its
Subsidiaries to, directly or indirectly:
Section 4.07. Indebtedness. Have any Indebtedness, at any time,
except that this Section 4.07 shall not apply to (a) Indebtedness under the
Loan Documents, (b) Existing Indebtedness, (c) Indebtedness to any Bank under
any swap agreement with such Bank, (d) CGE Subordinated Indebtedness, (e)
Permitted Environmental Project Indebtedness, (f) Indebtedness incurred or
assumed in connection with financing all or a part of the cost of acquiring
any asset, in an aggregate principal amount outstanding not to exceed at any
time $10,000,000, (g) Indebtedness in respect of Capitalized Leases and other
Indebtedness in an aggregate principal amount outstanding not to exceed at any
time $5,000,000, (h) Indebtedness incurred under foreign credit lines,
agreements or arrangements in an aggregate principal amount outstanding not to
exceed $25,000,000 at any time, (i) Indebtedness owed by AWT or any Subsidiary
to a Subsidiary or, in the case of Indebtedness owed by a Subsidiary, to AWT,
(j) Indebtedness consisting of a Guaranty by AWT or any of its Subsidiaries of
any Indebtedness of another Subsidiary or AWT, to the extent that the
Indebtedness so guaranteed is permitted pursuant to this Section 4.07, and (k)
Indebtedness incurred for the purpose of refinancing, renewing, or extending
any Indebtedness permitted under clause (b), (f) or (g) above; provided that
such refinancings, renewals or extensions shall not increase the amount of
such Indebtedness or the amount of collateral securing it.
Section 4.08. Guaranties. Be obligated, at any time, in respect
of any Guaranty, except that this Section 4.08 shall not apply to (a) Existing
Guaranties, (b) Letters of Credit and (c) Permitted Guaranties.
Section 4.09. Liens. Permit to exist, at any time, any Lien upon
any of its properties or assets of any character, whether now owned or
hereafter acquired, or upon any income or profits therefrom, except that this
Section 4.09 shall not apply to Permitted Liens, provided, however, that if,
notwithstanding this Section 4.09, any Lien which is prohibited by this Section
shall be created or arise, the Liabilities of the Loan Parties under the Loan
Documents shall, to the extent such Lien attaches to any asset that does not
constitute Collateral or to any asset with respect to which such Lien would be
prior to the Security Interest, automatically be secured by such Lien equally
and ratably with the other Liabilities secured thereby, and the holder of such
other Liabilities, by accepting such Lien, shall be deemed to have agreed
thereto and to share with the Banks, on that basis, the proceeds of such Lien,
whether or not the Banks' security interest shall be perfected, provided
further, however, that notwithstanding such equal and ratable securing and
sharing, the existence of such Lien shall constitute a default by the
applicable Loan Party in the performance or observance of this Section 4.09.
Section 4.10. Restricted Payments. Make or declare or otherwise
become obligated to make any Restricted Payment, except that this Section 4.10
shall not apply to (a) payments of interest currently due on CGE Subordinated
Indebtedness, (b) so long as no Default has occurred and is continuing, amounts
payable to CGE in consideration for the delivery by CGE of the Comfort Letter,
in an aggregate amount not to exceed $1,235,000 per year, (c) with respect to
AWT, any repurchase of the 8% Convertible Subordinated Debentures of AWT in
accordance with Section 4.21, (d) any repurchase of Capital Securities of AWT
or any of its Subsidiaries pursuant to an employee stock option plan, (e)
payments of dividends to AWT or a Subsidiary of AWT and pro rata payments of
dividends to minority shareholders or (f) payments of dividends on preferred
stock.
Section 4.11. Merger or Consolidation. Merge or consolidate with
any Person, except that, if after giving effect thereto no Default would
exist, this Section 4.11 shall not apply to (a) any merger or consolidation of
any Subsidiary with any one or more other Subsidiaries, provided that (i) if
such Subsidiary is a Loan Party, such Subsidiary shall be the continuing
Person, or the continuing Person shall assume in writing the obligations of
such Loan Party under the Loan Documents and (ii) the continuing Person shall,
after giving effect to such merger or consolidation, be in compliance with
Section 4.07, (b) any merger or consolidation of a Borrower or a Guarantor
with any other Person provided that (i) no Default shall have occurred or be
continuing, both immediately before and after giving effect to such merger or
consolidation and (ii) a Borrower or Guarantor, as the case may be, shall be
the continuing or surviving corporation or, with the consent of the Agents
which consent shall not be unreasonable withheld, the continuing or surviving
corporation shall be a corporation, organized under the laws of any State of
the United States, which shall expressly assume in writing (in a manner
reasonably satisfactory to the Required Banks) all of the obligations of such
Borrower or such Guarantor, as the case may be, under the Loan Documents.
Section 4.12. Disposition of Assets. Sell, lease, license,
transfer or otherwise dispose of any asset or any interest therein, except
that this Section 4.12 shall not apply to (a) any disposition of any asset or
any interest therein in the ordinary course of business, (b) any disposition
of any property not used or useful in its business, (c) any disposition of any
asset or any interest therein to a Borrower, a Guarantor or a Wholly Owned
Subsidiary, (d) any transaction to which any of the other provisions of this
Agreement (other than Section 4.18) is by its express terms inapplicable, (e)
Planned Dispositions, (f) any liquidation or dissolution of a Subsidiary (x)
that is not a Material Subsidiary or (y) in connection with which all or
substantially all of the assets of such Subsidiary are distributed to a
Borrower or another Wholly Owned Subsidiary and (g) any other disposition, so
long as no Default shall have occurred and be continuing immediately prior or
after giving effect to such disposition and such disposition is a sale to any
Person in an amount not less than the fair market value of the assets sold net
of the liabilities assumed, as determined in the good faith judgment of the
Board of Directors of the applicable Person and the net proceeds for all of
the Borrowers and Guarantors attributable to such assets shall not exceed
$2,500,000 per annum.
Section 4.13. Capital Expenditures. Make or be obligated at any
time to make Capital Expenditures in any fiscal year of AWT in excess of
$20,000,000 per annum in the aggregate for AWT and its Consolidated
Subsidiaries, on a consolidated basis; provided, that if, in any fiscal year,
the aggregate amount of Capital Expenditures made by AWT and its Consolidated
Subsidiaries shall be less than $20,000,000, the amount of such difference may
be carried forward to any subsequent fiscal year, so long as the aggregate
amount of Capital Expenditures made by AWT and its Consolidated Subsidiaries,
on a consolidated basis, does not exceed $60,000,000 in the aggregate during
the term of this Agreement.
Section 4.14. Operating Leases; Bonding Agreements. (a) Be
obligated, at any time, under operating leases to make rental payments in any
fiscal year of AWT in excess, for leases with a term in excess of one year, of
$20,000,000 per annum in the aggregate for AWT and its Consolidated
Subsidiaries, on a consolidated basis.
(b) Effect any extension or replacement of the Bonding Agreements
without the prior written consent of the Agents which consent shall not be
unreasonably withheld.
(c) Use any Letter of Credit to secure any amounts due or to
become due under the Bonding Agreements or any related bond, except for a
Letter of Credit in the amount of $1,000,000 or less outstanding on the date
hereof and any renewal thereof.
Section 4.15. Investments. Make or acquire any Investment or
have any Investment outstanding, except that this Section 4.15 shall not apply
to (a) Existing Investments, (b) Money Market Investments, (c) extensions of
trade credit in the ordinary course of business, but only if and so long as
the same are payable on customary trade terms, (d) loans and advances to
employees of the Borrowers, the Guarantors and their respective Subsidiaries
in the ordinary course of business in an amount not exceeding $3,000,000
outstanding at any time in the aggregate for the Borrowers, the Guarantors and
their respective Subsidiaries, (e) operating deposit accounts (i) with any of
the Banks, the Lockbox Banks or the Blocked Account Banks, (ii) with any
banking institution maintained in the ordinary course of business, but only so
long as no more than 15 days has elapsed from the date on which the Collateral
Agent has, upon the occurrence and during the continuance of a Default,
requested in accordance with the terms of the Security Agreement that such
banking institution execute a Lockbox Agreement or a Blocked Account
Agreement, or (iii) in the case of any foreign Subsidiary, with any local
banking institution maintained in the ordinary course of business, (f)
operating deposit accounts with commercial banks organized under the laws of
the United States or a State thereof, provided that the amount on deposit (x)
in any single account shall not exceed $50,000 and (y) in all such accounts
shall not exceed $500,000 in the aggregate, in each case at any time, (g)
Investments of the Borrowers and their Subsidiaries in accounts and notes
receivable arising in the ordinary course of business, (h) Investments by a
Borrower or any Subsidiary in any other Borrower or any Subsidiary, (i)
Investments in environmental treatment facilities, projects and other joint
ventures (or other facilities, projects and joint ventures in any business in
which a Borrower or Subsidiary is permitted to engage pursuant to Section
4.01) entered into in the normal course of business, no one of which (other
than any with the Puerto Rican Aqueduct and Sewer Authority) shall exceed
$10,000,000 (each such facility, project or joint venture, a "Permitted
Project"); provided that in each instance (i) a firm service, operation,
maintenance or management contract (a "Service Contract") is in existence for
such facility, project or joint venture, and (ii) such Borrower or such
Subsidiary, as the case may be, will receive a cash return on the Investment
equal in aggregate amount to such Investment within the term of such Service
Contract (for purposes of computing the amount of an Investment in any
facility, project or joint venture as of a particular date, the initial amount
of such Investment shall be reduced by the amount of any cash return received
by the relevant Borrower or Subsidiary in respect of such Investment prior to
the date of such determination, and for the purposes of computing the cash
return in clause (ii) above, the following items shall be considered: (w)
profits from the related Service Contracts, (x) profits from related services
which such Borrower or such Subsidiary, as the case may be, generates from
such Investment, (y) tax benefits realized by such Borrower or such
Subsidiary, as the case may be, as a result of such Investment, and (z)
proceeds received from the sale of all or a portion of the ownership interest
in such Investment, (j) Investments held in trust in connection with projects
being undertaken by AWT or any of its Subsidiaries; provided that such
Investments or the proceeds of such Investments are applied to the payment of
principal of or interest on Indebtedness incurred in connection with any such
project or to the payment of expenditures for or, to the extent such project
is a Permitted Project, additional Investments in such project, (k) Investments
(in addition to those existing as of the Agreement Date) not in excess of
$5,000,000 in the aggregate in AWT's existing facilities located in Baltimore,
Maryland and Auburn, Alabama which are described on Schedule 4.15 and (l)
Investments not otherwise permitted by clauses (a) through (k) not exceeding
$5,000,000 outstanding at any time.
Section 4.16. Taxes of Other Persons. (a) File a consolidated
tax return with any other Person other than, in the case of a Borrower or a
Guarantor, a Consolidated Subsidiary and, in the case of any such Subsidiary,
AWT or a Consolidated Subsidiary, or (b) except as required by Applicable Law,
in the ordinary course of business for similarly situated companies or as
listed on Schedule 4.16, pay or enter into any Contract to pay any Taxes owing
by any Person other than AWT or a Consolidated Subsidiary.
Section 4.17. Benefit Plans. (a) Have, or permit any of its
ERISA Affiliates to have, any Benefit Plan other than an Existing Benefit Plan
or (b) permit any Existing Benefit Plan (other than a Multiemployer Benefit
Plan) to have a Funded Current Liability Percentage of less than 60% in
respect of AWT and its Consolidated Subsidiaries taken as a whole.
Section 4.18. Transactions with Affiliates. Effect any material
transaction with any Affiliate that is on a basis less favorable than would at
the time be obtainable for a comparable transaction in arms-length dealing
with an unrelated third party, other than (a) the payment of any amounts to
CGE in accordance with Section 4.10 or (b) any exchange, transfer or provision
of technical know-how or design or consulting services, in each case (i) by
CGE or any of its Subsidiaries to AWT or any of its Subsidiaries or (ii) to
the extent permitted by Applicable Law, by AWT or any of its Subsidiaries to
CGE or any of its Subsidiaries.
Section 4.19. Limitation on Restrictive Covenants. Permit to
exist, at any time, any consensual restriction limiting the ability (whether
by covenant, event of default, subordination or otherwise) of any Subsidiary
(other than a Borrower) to (a) pay dividends or make any other distributions
on shares of its capital stock held by such Person or any other Subsidiary, (b)
pay any obligation owed to such Person or any other Subsidiary, (c) make any
loans or advances to or investments in such Person or in any other Subsidiary,
(d) transfer any of its property or assets to such Person or any other
Subsidiary or (e) create any Lien upon its property or assets whether now
owned or hereafter acquired or upon any income or profits therefrom, except
that this Section 4.19 shall not apply to Permitted Restrictive Covenants.
Section 4.20. Substance Storage and Disposal. Except as set
forth on Schedule 4.20, permit any Hazardous Materials or other substances the
improper release or disposal of which could result in the incurrence by such
Person or any of its Subsidiaries of remedial obligations under Applicable
Law, to be brought onto or stored on the properties owned or leased by it
except for (a) substances to be used in connection with the business of such
Person and its Subsidiaries, pending and during such use, and (b) substances
that were generated or used in connection with such business, pending their
disposal.
Section 4.21. Debt Repurchase. In the case of AWT, effect any
repurchase or renewal of the 8% Convertible Subordinated Debentures of AWT,
other than such a renewal or repurchase accompanied, substantially
simultaneously, by an contribution of equity or CGE Subordinated Indebtedness
in the amount of such renewal or repurchase by CGE to AWT.
C. AWT and its Consolidated Subsidiaries on a consolidated basis shall
not:
Section 4.22. Minimum Adjusted Consolidated Net Worth. Permit
Adjusted Consolidated Net Worth to be less than (i) at any time during the
period from January 31, 1995 to and including October 31, 1995, $175,000,000,
(ii) at any time during the period from November 1, 1995 to and including
October 31, 1996, $180,000,000 and (iii) at any time on or after November 1,
1996, $190,000,000.
Section 4.23. Current Ratio. Permit the ratio of Consolidated
Current Assets to Consolidated Current Liabilities to be less than (a) at any
time during the period from January 31, 1995, to and including October 31,
1995, 0.8 to 1.0 and (b) at any time on or after November 1, 1995, 0.9 to 1.0.
Section 4.24. Interest Coverage. Permit the Interest Coverage
Ratio to be less than (a) for the fiscal quarter ending on April 30, 1995,
0.40 to 1.0, (b) for the fiscal quarter ending on July 31, 1995, 0.65 to 1.0,
(c) for the period of four consecutive fiscal quarters ending on October 31,
1995, 0.9 to 1.0, (d) for any period of four consecutive fiscal quarters
ending after October 31, 1995, and on or before October 31, 1996, 1.5 to 1.0
and (e) for any period of four consecutive fiscal quarters ending after
October 31, 1996, 2.0 to 1.0.
Section 4.25. Cash Flow Coverage Ratio. Permit the Cash Flow
Coverage Ratio to be less than (a) for the fiscal quarter ending April 30,
1995, 0.30 to 1.0, (b) for the fiscal quarter ending on July 31, 1995, 0.45 to
1.0, (c) for the period of four consecutive fiscal quarters ending on October
31, 1995, 0.65 to 1.0, (d) for any period of four consecutive fiscal quarters
ending after October 31, 1995, and on or before October 31, 1996, 1.0 to 1.0
and (e) for any period of four consecutive fiscal quarters ending after
October 31, 1996, 1.2 to 1.0.
Section 4.26. Leverage Ratio. Permit the Leverage Ratio to be
greater than (a) at any time during the period from January 31, 1995, to and
including October 31, 1995, 0.58 to 1.0 and (b) at any time after November 1,
1995, 0.55 to 1.0.
ARTICLE 5
INFORMATION
Section 5.01. Information to Be Furnished. From the Agreement
Date and until the Repayment Date, AWT shall furnish to the Administrative
Agent with sufficient copies for each Bank:
(a) Quarterly Financial Statements. As soon as available and in
any event within 60 days after the close of each of the first three quarterly
accounting periods in each fiscal year of AWT, commencing with the quarterly
period ending April 30, 1995, consolidated balance sheets of AWT and its
Consolidated Subsidiaries as at the end of such quarterly period and the
related consolidated statements of income, stockholders' equity and cash flows
of AWT and its Consolidated Subsidiaries for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, setting forth in each case in comparative form the figures for the
corresponding periods of the previous fiscal year.
(b) Year-End Financial Statements; Accountants' Certificate. As
soon as available and in any event within 90 days after the end of each fiscal
year of AWT, commencing with the fiscal year ended October 31, 1995:
(i) consolidated balance sheets of AWT and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash flows
of AWT and its Consolidated Subsidiaries for such fiscal year, setting
forth in comparative form the figures as at the end of and for the
previous fiscal year;
(ii) an audit report of Arthur Andersen LLP, McGladrey &
Pullen or other independent certified public accountants of nationally
recognized standing or as otherwise approved in writing by the Arranging
Agents, which report shall state that such consolidated financial
statements fairly present in all material respects the consolidated
financial condition and results of operations of AWT and the
Consolidated Subsidiaries in conformity with Generally Accepted
Accounting Principles as at the end for such fiscal year; and
(iii) a certificate of such accountants addressed to the
Banks and in form and substance satisfactory to the Arranging Agents (A)
confirming that AWT is authorized to deliver their report referred to in
clause (ii) to the Banks pursuant to this Agreement, (B) stating that,
in making the examination necessary for their report on such consolidated
financial statements, nothing came to their attention that caused them
to believe that, as of the date of such financial statements, any
Default exists or, if such is not the case, specifying such Default and
its nature, when it occurred and whether it is continuing and (C) having
attached the calculations required to establish whether or not the AWT
was in compliance with the covenants contained in Sections 4.22, 4.23,
4.24, 4.25 and 4.26.
(c) Officer's Certificate as to Financial Statements and
Defaults. At the time that financial statements are furnished pursuant to
Section 5.01(a) or (b), a certificate of the chairman or chief financial
officer of AWT in the form of Schedule 5.01(c).
(d) Borrowing Base Certificates. Within 15 days after any
request therefor by any Bank and within 15 days after the last day of each
month, commencing with the month in which the Agreement Date occurs, a
Borrowing Base Certificate as of the date of the request therefor or the last
day of such month, as applicable.
(e) Financial Statements of CGE. As soon as available to AWT,
commencing with the fiscal year ended December 31, 1994, the annual report of
CGE;
(f) Reports and Filings. (i) Promptly upon receipt thereof,
copies of all reports, if any, submitted to AWT or any of its publicly held
Material Subsidiaries, or the Board of Directors of AWT or any of its publicly
held Material Subsidiaries, by its independent certified public accountants,
including any management letter; (ii) as soon as practicable, copies of all
such financial statements and reports as AWT or any of its publicly held
Material Subsidiaries shall send to its stockholders and of all registration
statements and all regular or periodic reports that AWT or any of its publicly
held Material Subsidiaries shall file, or may be required to file, with the
Securities and Exchange Commission or any successor commission.
(g) Requested Information. From time to time and promptly upon
request of any Bank, such Information regarding the Loan Documents, the Loans,
the Letters of Credit or the business, assets, Liabilities, financial
condition, results of operations or business prospects of any Borrower or any
Subsidiary as such Bank may reasonably request, in each case in form and
substance reasonably satisfactory to the requesting Bank.
(h) Notice of Defaults, Material Adverse Changes and Other
Matters. Prompt notice of:
(i) any Default of which the chief executive officer,
chairman, principal financial officer or principal accounting officer of
AWT has obtained knowledge,
(ii) the acquisition or formation of a new Subsidiary and,
in the case of each such new Subsidiary, its name, jurisdiction of
incorporation, the percentages of the various classes of its Capital
Securities owned by AWT or another Subsidiary and whether or not such
new Subsidiary is a Consolidated Subsidiary,
(iii) any change in the name of any Loan Party, its
jurisdiction of incorporation or its status as a Consolidated or
non-Consolidated Subsidiary,
(iv) the threatening or commencement of, or the occurrence
or nonoccurrence of any change or event relating to, any action, suit or
proceeding that would cause the Representation and Warranty contained in
Section 3.05 to be incorrect if made at such time,
(v) the failure of any Collateral included in the Borrowing
Base (as calculated in the most recently delivered Borrowing Base
Certificate) to comply at any time with the applicable criteria of
eligibility.
Section 5.02. Accuracy of Financial Statements and Information.
(a) Historical Financial Statements. AWT hereby represents and
warrants that (i) Schedule 5.02(a) sets forth a complete and correct list of
the financial statements submitted by AWT to the Banks and the Issuing Bank in
order to induce them to execute and deliver this Agreement, (ii) such financial
statements present fairly in all material respects, in accordance with
Generally Accepted Accounting Principles, the consolidated financial position
of AWT and its Consolidated Subsidiaries as at their respective dates and the
consolidated results of operations, stockholders' equity and, as applicable,
changes in financial position or cash flows of AWT and such Subsidiaries for
the respective periods to which such statements relate, and (iii) except as
disclosed or reflected in such financial statements, as at October 31, 1994,
neither AWT nor any Subsidiary had any Liability, contingent or otherwise, or
any unrealized or anticipated loss, that, singly or in the aggregate, has had
or might reasonably be expected to have a Materially Adverse Effect on AWT and
its Consolidated Subsidiaries taken as a whole.
(b) Future Financial Statements. The financial statements
delivered pursuant to Section 5.01(a) or (b) shall present fairly in all
material respects, in accordance with Generally Accepted Accounting Principles
(except for changes therein or departures therefrom that are described in the
certificate or report accompanying such statements and that have been approved
in writing by AWT's then current independent certified public accountants),
the consolidated financial position of AWT and its Consolidated Subsidiaries
as at their respective dates and the consolidated results of operations,
stockholders' equity and cash flows of AWT and such Subsidiaries for the
respective periods to which such statements relate.
(c) Historical Information. Each Borrower hereby represents and
warrants that all Information furnished to the Arranging Agents, the Issuing
Bank or the Banks by or on behalf of such Borrower or any Subsidiary prior to
the Agreement Date in connection with or pursuant to the Loan Documents and the
relationships established thereunder, at the time the same was so furnished,
but in the case of Information dated as of a prior date, as of such date, did
not contain any untrue statement of a material fact, and did not omit to state
a material fact necessary in order to make the statements contained therein not
misleading in the light of the circumstances under which they were made.
(d) Future Information. All Information furnished to the
Arranging Agents, the Issuing Bank or the Banks by or on behalf of any
Borrower or any Subsidiary on or after the Agreement Date in connection with
or pursuant to the Loan Documents or in connection with or pursuant to any
amendment or modification of, or waiver of rights under, the Loan Documents,
shall, at the time the same is so furnished, but in the case of Information
dated as of a prior date, as of such date, (i) not contain any untrue
statement of a material fact, and (ii) not omit to state a material fact
necessary in order to make the statements contained therein not misleading in
the light of the circumstances under which they were made, and the furnishing
of the same to the Agent or any Bank shall constitute a representation and
warranty by such Borrower made on the date the same are so furnished to the
effect specified in clauses (i) and (ii).
Section 5.03. Additional Covenants Relating to Disclosure. From
the Agreement Date and until the Repayment Date, each Borrower shall and shall
cause each of its Subsidiaries to:
(a) Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts, as may be required
or necessary to permit (i) the preparation of financial statements required to
be delivered pursuant to Section 5.01(a) and (b) and (ii) the determination of
the compliance of such Borrower and its Subsidiaries with the terms of the
Loan Documents.
(b) Fiscal Year. Unless the Arranging Agents shall have
consented in writing in advance, such consent not to be unreasonably withheld,
maintain the same opening and closing dates for each fiscal year as for the
fiscal year reflected in the Base Financial Statements or, if the opening and
closing dates for the fiscal year reflected in the Base Financial Statements
were determined pursuant to a formula, determine the opening and closing dates
for each fiscal year pursuant to the same formula.
(c) Visits, Inspections and Discussions. Permit, or, in the case
of premises, property, books, records or Persons not within its immediate
control, promptly take such actions as are necessary or desirable in order to
permit, representatives (whether or not officers or employees) of any Bank,
from time to time, as often as may be reasonably requested, at such Bank's
expense, to (i) visit any of its premises or property or any premises or
property of others on which any of its property or books and records (or books
and records of others relating to it) may be located, (ii) inspect, and verify
the amount, character and condition of, any of its property, (iii) review and
make extracts from its books and records and books and records of others
relating to it, including management letters prepared by its independent
certified public accountants, and (iv) discuss with its principal officers
and, upon prior notice to AWT and subject to AWT's right to have a
representative present, independent certified public accountants, suppliers,
customers, debtors and other creditors, its business, assets, Liabilities,
financial condition, results of operation and business prospects.
Section 5.04. Authorization of Third Parties to Deliver
Information and Discuss Affairs. Each Borrower hereby authorizes and directs
each Person whose preparation or delivery to the Administrative Agent, the
Arranging Agents, the Issuing Bank or the Banks of any opinion, report or
other Information is a condition or covenant under the Loan Documents
(including under Article 2 or this Article 5) to so prepare or deliver such
Information for the benefit of the Administrative Agent, the Arranging Agents,
the Issuing Bank and the Banks. Each Borrower agrees to promptly execute and
deliver from time to time such further authorizations to effect the purposes
of this Section 5.04 as the Agent or any Bank may reasonably request.
ARTICLE 6
DEFAULT
Section 6.01. Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary, or within or without the control of any
Borrower or any Subsidiary, or be effected by operation of law or pursuant to
any judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body:
(a) Any payment of principal of or interest on any of the Loans,
the Notes or the Drawings or of fees, or any prepayment of Contingent
Reimbursement Obligations, shall not be made when and as due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) and
in accordance with the terms of this Agreement and the Notes and, except in
the case of payments of principal and prepayments of Contingent Reimbursement
Obligations, such failure shall continue for 5 days;
(b) Any Loan Document Representation and Warranty shall at any
time prove to have been incorrect or misleading in any material respect when
made;
(c) (i) A Borrower shall default in the performance or observance
of:
(A) any term, covenant, condition or agreement
contained in Section 4.01(a) (insofar as such Section requires the
preservation of the corporate existence of a Borrower), 4.01(f), 4.03
through 4.28, 5.01(e), 5.01(h)(i) or 5.03(b); or
(B) any term, covenant, condition or agreement
contained in this Agreement (other than a term, covenant, condition or
agreement a default in the performance or observance of which is
elsewhere in this Section specifically dealt with) and, if capable of
being remedied, such default shall continue unremedied for a period of
30 days after notice thereof shall have been given to AWT by the
Administrative Agent; or
(ii) Any Loan Party shall default in the performance or
observance of:
(A) any term, covenant, condition or agreement
contained in (1) Section 1.02, 1.03(a), 4.01, 4.03, 4.05(a) and (c),
4.06, 4.08, 4.11, 4.12, 4.14, 4.15, 4.18, 4.20, 4.21, 4.24, 4.26, 4.27,
4.28, 4.31, 4.33, 4.34, 4.36 or 4.39 of the Security Agreement or (2)
Section 2.3 or 2.5 of any Mortgage to which such Loan Party is a party;
or
(B) any term, covenant, condition or agreement
contained in any Loan Document (other than any term, covenant, condition
or agreement a default in the performance or observance of which is
elsewhere in this Section specifically dealt with) and, if capable of
being remedied, such default shall continue unremedied for a period of
30 days after notice shall have been given to AWT by the Administrative
Agent;
(d) (i) A Borrower or any Subsidiary shall fail to pay, in
accordance with its terms and when due and payable, any of the principal of or
interest on any of its Indebtedness (other than the Indebtedness under the
Loan Documents) in excess of $2,500,000 in the aggregate, (ii) the maturity of
any such Indebtedness shall, in whole or in part, have been accelerated, or
any such Indebtedness shall, in whole or in part, have been required to be
prepaid by reason of a default prior to the stated maturity thereof, in
accordance with the provisions of any Contract evidencing, providing for the
creation of or concerning such Indebtedness, or (iii) any event shall have
occurred and be continuing that permits (or, with the passage of time or the
giving of notice or both, would permit) any holder or holders of Indebtedness
in excess of $5,000,000 in the aggregate, any trustee or agent acting on
behalf of such holder or holders or any other Person so to accelerate such
maturity or require any such prepayment;
(e) (i) A Borrower or any Material Subsidiary shall (A) commence
a voluntary case under the Federal bankruptcy laws (as now or hereafter in
effect), (B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, (C) consent to or fail to
contest in a timely and appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws, (D) apply for, or
consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or the like of itself or of a substantial part of its
assets, domestic or foreign, (E) admit in writing its inability to pay, or
generally not be paying, its debts (other than those that are the subject of
bona fide disputes) as they become due, (F) make a general assignment for the
benefit of creditors, or (G) take any corporate action for the purpose of
effecting any of the foregoing;
(ii) (A) A case or other proceeding shall be commenced
against a Borrower or any Material Subsidiary seeking (1) relief under the
Federal bankruptcy laws (as now or hereafter in effect) or under any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, or (2) the appointment of a
trustee, receiver, custodian, liquidator or the like of a Borrower or any
Material Subsidiary, or of all or any substantial part of the assets, domestic
or foreign, of a Borrower or any Material Subsidiary, and such case or
proceeding shall continue undismissed and unstayed for a period of 60 days, or
(B) an order granting the relief requested in such case or proceeding against
a Borrower or any Material Subsidiary (including an order for relief under
such Federal bankruptcy laws) shall be entered;
(f) A judgment or order shall be entered against a Borrower or
any Material Subsidiary by any court, and either (A) such judgment or order
shall continue undischarged and unstayed for a period of 30 days in which the
aggregate amount of all such judgments and orders exceeds $5,000,000 or (B)
enforcement proceedings shall have been commenced upon such judgment or order;
(g) (i) any Termination Event shall occur with respect to any
Benefit Plan of a Borrower, any Subsidiary or any of their respective ERISA
Affiliates, (ii) any Accumulated Funding Deficiency, whether or not waived,
shall exist with respect to any such Benefit Plan, (iii) any Person shall
engage in any Prohibited Transaction involving any such Benefit Plan, (iv) a
Borrower, any Subsidiary or any of their respective ERISA Affiliates shall be
in "default" (as defined in ERISA Section 4219(c)(5)) with respect to payments
owing to any such Benefit Plan that is a Multiemployer Benefit Plan as a
result of such Person's complete or partial withdrawal (as described in ERISA
Section 4203 or 4205) therefrom, (v) a Borrower, any Subsidiary or any of
their respective ERISA Affiliates shall fail to pay when due an amount that is
payable by it to the PBGC or to any such Benefit Plan under Title IV of ERISA,
(vi) a proceeding shall be instituted by a fiduciary of any such Benefit Plan
against a Borrower, any Subsidiary or any of their respective ERISA Affiliates
to enforce ERISA Section 515 and such proceeding shall not have been dismissed
within 30 days thereafter, or (vii) any other event or condition shall occur
or exist with respect to any such Benefit Plan, except that no event or
condition referred to in clauses (i) through (vii) shall constitute an Event of
Default if it, together with all other such events or conditions at the time
existing, has not subjected, and in the reasonable determination of the
Required Banks will not subject, a Borrower or any Subsidiary to any Liability
that, alone or in the aggregate with all such Liabilities for all such
Persons, exceeds $5,000,000;
(h) Any Loan Party or any Subsidiary of any Loan Party asserts,
or any Loan Party or any Subsidiary of any Loan Party or any other Person
institutes any proceedings seeking to establish, that (i) any provision of the
Loan Documents is invalid, not binding or unenforceable, (ii) the Guaranty of
any Guarantor under Section 8.01 is limited in amount pursuant to clause (b)
thereof, (iii) the amount of obligations secured under the Security Agreement
is limited pursuant to Sections 6.09 thereof, or (iv) the Security Interest is
not a valid and perfected first priority security interest in the Collateral
subject only to Permitted Liens;
(i) CGE shall at any time (i) beneficially own, directly or
indirectly, less than 40% of the issued and outstanding shares of the AWT's
common stock or (ii) have the right to designate less than 40% of the
directors and the Chief Executive Officer and the Chief Financial Officer of
AWT; or
(j) the Comfort Letter shall at any time terminate, become
invalid or cease to be enforceable against CGE in accordance with its terms.
Section 6.02. Remedies upon Event of Default. During the
continuance of any Event of Default (other than one specified in Section
6.01(e) with respect to any Loan Party) and in every such event, the
Administrative Agent, upon notice to the Borrowers, may do any or all of the
following: (a) declare, in whole or, from time to time, in part, the
principal of and interest on the Loans and the Notes and all other amounts
owing under the Loan Documents to be, and the Loans and the Notes and all such
other amounts shall thereupon and to that extent become, due and payable, (b)
terminate, in whole or, from time to time, in part, the Commitments and (c)
demand that the Borrowers deliver cash collateral to the Administrative Agent
in an amount equal to the aggregate amount of Contingent Reimbursement
Obligations then outstanding to be held in accordance with Section 10.20 and
thereupon such amount shall become so due and payable to the Administrative
Agent. Upon the occurrence of an Event of Default specified in Section
6.01(e) with respect to any Loan Party, automatically and without any notice
to the Borrowers, (a) the principal of and interest on the Loans and the Notes
and all other amounts owing under the Loan Documents shall be due and payable,
(b) the Commitments shall terminate and (c) an amount equal to the aggregate
amount of Contingent Reimbursement Obligations then outstanding shall be due
and payable to the Administrative Agent to be held in accordance with Section
10.20. Presentment, demand, protest or notice of any kind (other than the
notice provided for in the first sentence of this Section 6.02) are hereby
expressly waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar
Rate Loans. A Bank's obligations to make, continue or convert into Eurodollar
Rate Loans of any Type and, in the case of clause (c) below, the Issuing
Bank's obligation to issue Letters of Credit, shall be suspended, all such
Bank's outstanding Loans of that Type shall be converted on the last day of
their applicable Interest Periods (or, if earlier, in the case of clause (c)
below, on the last day such Bank may lawfully continue to maintain Loans of
that Type or, in the case of clause (d) below, on the day determined by such
Bank to be the last Business Day before the effective date of the applicable
restriction) into, and all pending requests for the making or continuation of
or conversion into Loans of such Type by such Bank shall be deemed requests
for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate
for a Eurodollar Rate Loan of that Type for any Interest Period, the
Administrative Agent determines that for any reason appropriate
information is not available to it for purposes of determining the
Adjusted Eurodollar Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for
a Eurodollar Rate Loan of that Type, such Bank determines that the
Adjusted Eurodollar Rate as determined by the Administrative Agent for
such Interest Period would not accurately reflect the cost to such Bank
of making, continuing or converting into a Eurodollar Rate Loan of such
Type for such Interest Period;
(c) at any time any Regulatory Change (i) in the
determination of any Bank, makes it unlawful or impracticable for such
Bank or its applicable Lending Office to make, continue or convert into
any Eurodollar Rate Loan of that Type, or to comply with its obligations
hereunder in respect thereof or (ii) in the determination of the Issuing
Bank, makes it unlawful or impracticable for the Issuing Bank to issue
any Letter of Credit or to comply with its obligations hereunder in
respect thereof; or
(d) such Bank determines that, by reason of any Regulatory
Change, such Bank or its applicable Lending Office is restricted,
directly or indirectly, in the amount that it may hold of (i) a category
of liabilities that includes deposits by reference to which, or on the
basis of which, the interest rate applicable to Eurodollar Rate Loans
of that Type is directly or indirectly determined or (ii) the category
of assets that includes Eurodollar Rate Loans of that Type.
If, as a result of this Section 7.01, any Loan of any Bank that would
otherwise be made or maintained as or converted into a Eurodollar Rate Loan of
any Type for any Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then, unless the corresponding Loan of each of the
other Banks is also to be made or maintained as or converted into a Base Rate
Loan, such Loan shall be treated as being a Eurodollar Rate Loan of such Type
for such Interest Period for all purposes of this Agreement (including the
timing, application and proration among the Banks of interest payments,
conversions and prepayments) except for the calculation of the interest rate
borne by such Loan. The Administrative Agent shall promptly notify the
Borrowers and each Bank of the existence or occurrence of any condition or
circumstance specified in clause (a) above, and each Bank and the Issuing Bank
shall promptly notify the Borrowers and the Administrative Agent of the
existence or occurrence of any condition or circumstance specified, in the
case of such Bank, in clause (b), (c) or (d) above applicable to such Bank's
Loans or, in the case of the Issuing Bank, clause (c) above applicable to the
Issuing Bank's obligation to issue Letters of Credit, but the failure by the
Administrative Agent or such Bank or the Issuing Bank, as the case may be, to
give any such notice shall not affect such Bank's or the Issuing Bank's rights
hereunder.
Section 7.02. Regulatory Changes. Subject to Section 1.13(d), if
in the determination of any Bank (a) any Regulatory Change shall directly or
indirectly (i) reduce the amount of any sum received or receivable by such
Bank with respect to any Loan or the return to be earned by such Bank on any
Loan, (ii) impose a cost on such Bank or any Affiliate of such Bank that is
attributable to the making or maintaining of, or such Bank's commitment to
make, any Loan, (iii) require such Bank or any Affiliate of such Bank to make
any payment on or calculated by reference to the gross amount of any amount
received by such Bank under any Loan Document or (iv) reduce, or have the
effect of reducing, the rate of return on any capital of such Bank or any
Affiliate of such Bank that such Bank or such Affiliate is required to
maintain on account of any Loan or such Bank's commitment to make any Loan and
(b) such reduction, increased cost or payment shall not be fully compensated
for by an adjustment in the applicable rates of interest payable under the
Loan Documents, then the Borrowers shall pay to such Bank such additional
amounts as such Bank determines will, together with any adjustment in the
applicable rates of interest payable hereunder, fully compensate for such
reduction, increased cost or payment. Such additional amounts shall be
payable, in the case of those applicable to prior periods, within 15 days after
request by such Bank for such payment and, in the case of those applicable to
future periods, on the dates specified, or determined in accordance with a
method specified, by such Bank. Each Bank will promptly notify the Borrowers
of any determination made by it referred to in clauses (a) and (b) above, but
the failure to give such notice shall not affect such Bank's right to
compensation.
Section 7.03. Capital Requirements. If after the Agreement Date,
under Applicable Law, interpretations, directives, requests and guidelines
(whether or not having the force of law), (a) in the determination of any
Bank, such Bank or any of its Affiliates is required to maintain capital on
account of any Loan or Participation or such Bank's commitment to make any
Loan or acquire any Participation, or (b) in the determination of the Issuing
Bank, the Issuing Bank or any of its Affiliates is required to maintain
capital on account of (i) any Letter of Credit or its commitment to issue any
Letter of Credit or (ii) any Drawing or Contingent Reimbursement Obligation
then, upon request by such Bank or the Issuing Bank, as the case may be, the
Borrowers shall from time to time thereafter pay to such Bank or the Issuing
Bank, as the case may be, such additional amounts as such Bank or the Issuing
Bank, as the case may be, determines will fully compensate for any reduction
in the rate of return on the additional capital that such Bank, or its
Affiliate or the Issuing Bank, or its Affiliate, as the case may be, is so
required to maintain. Such additional amounts shall be payable, in the case
of those applicable to prior periods, within 15 days after request by such
Bank or the Issuing Bank, as the case may be, for such payment and, in the
case of those relating to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank or the Issuing
Bank, as the case may be.
Section 7.04. Funding Losses. Each Borrower shall pay to each
Bank, upon request, such amount or amounts as such Bank determines are
necessary to compensate it for any loss, cost or expense incurred by it as a
result of (a) any payment, prepayment or conversion of a Eurodollar Rate Loan
on a date other than the last day of an Interest Period for such Eurodollar
Rate Loan or (b) a Eurodollar Rate Loan for any reason not being made or
converted, or any payment of principal thereof or interest thereon not being
made, on the date therefor determined in accordance with the applicable
provisions of this Agreement. At the election of such Bank, and without
limiting the generality of the foregoing, but without duplication, such
compensation on account of losses may include an amount equal to the excess of
(i) the interest that would have been received from such Borrower under this
Agreement on any amounts to be reemployed during an Interest Period or its
remaining portion (excluding any applicable margin) over (ii) the interest
component of the return that such Bank determines it could have obtained had
it placed such amount on deposit in the interbank Dollar market selected by
it for a period equal to such Interest Period or its remaining portion.
Section 7.05. Certain Determinations. In making the
determinations contemplated by Sections 7.01, 7.02, 7.03 and 7.04, each Bank
may make such estimates, assumptions, allocations and the like that such Bank
in good faith determines to be appropriate, and such Bank's selection thereof
in accordance with this Section 7.05, and the determinations made by such Bank
on the basis thereof, shall be final, binding and conclusive upon the
Borrower, except, in the case of such determinations, for manifest errors in
computation or transmission. Each Bank shall furnish to the Borrowers upon
request a certificate outlining in reasonable detail the computation of any
amounts claimed by it under Sections 7.02, 7.03 and 7.04 and the assumptions
underlying such computations.
Section 7.06. Change of Lending Office. If an event occurs with
respect to a Lending Office of any Bank or the Issuing Bank that obligates any
Borrower to pay any amount under Section 1.13, makes operable the provisions
of clause (c) or (d) of Section 7.01 or entitles such Person to make a claim
under Section 7.02 or 7.03, such Person shall, if requested by AWT, use
reasonable efforts to designate another Lending Office or Offices the
designation of which will reduce the amount any Borrower is so obligated to
pay, eliminate such operability or reduce the amount such Person is so
entitled to claim, provided that such designation would not, in the sole and
absolute discretion of such Person, be disadvantageous to such Person in any
manner or contrary to such Person's policies. Each Bank and the Issuing Bank
may at any time and from time to time change any Lending Office and shall give
notice of any such change to the Administrative Agent and the Borrowers.
Except in the case of a change in Lending Offices made at the request of a
Borrower, the designation of a new Lending Office by any Bank or the Issuing
Bank shall not obligate any Borrower to pay any amount to such Person under
Section 1.13, make operable the provisions of clause (c) or (d) of Section
7.01 or entitle such Person to make a claim under Section 7.02 or 7.03 if such
obligation, the operability of such clause or such claim results solely from
such designation and not from a subsequent Regulatory Change.
Section 7.07. Replacement of Affected Banks. If any Bank is owed
additional costs under Section 7.01 or 7.02, AWT shall have the right, if no
Default then exists, to replace such Bank with (a) another commercial bank
acceptable to the Arranging Agents or (b) subject to the consent of the
remaining Banks in their sole discretion, increased participation of such
Banks; provided, that (i) the obligations of the Borrowers owing to the Bank
being replaced shall be paid in full, (ii) the replacement commercial bank
shall execute a document satisfactory to the Arranging Agents to which it
becomes a party hereto with a Commitment equal to that of the Bank being
replaced and (iii) upon such execution, the replacement commercial bank shall
constitute a "Bank" hereunder; and provided, further, that if the Bank to be
replaced is Societe Generale, New York Branch, or The First National Bank of
Chicago, then a successor Collateral Agent, Issuing Bank or Administrative
Agent, as applicable, shall be appointed in compliance with the terms of this
Agreement.
ARTICLE 8
GUARANTIES
Section 8.01. Guaranties. (a) General. Each Guarantor hereby
(i) unconditionally guarantees to each Bank, each Agent, the Issuing Bank and
each other Indemnified Person the due and punctual payment, by each other Loan
Party of such Loan Party's Liabilities hereunder, under the Notes and under the
other Loan Documents, in each case in accordance with their respective terms
and when and as due (whether at maturity, by reason of acceleration or
otherwise) and (ii) agrees so to pay the same when so due, upon demand.
(b) Limitation on Guaranties. It is the intention of each
Guarantor and the Guaranteed Parties that the obligations of such Guarantor
under the Loan Documents shall be in, but not in excess of, the maximum amount
permitted by Applicable Law. To that end, but only to the extent such
obligations would otherwise be avoidable, the obligations of such Guarantor
under the Loan Documents shall be limited to the maximum amount that, after
giving effect to the incurrence thereof, would not render such Guarantor
insolvent or unable to pay its Debts as they mature or leave such Guarantor
with an unreasonably small capital. The need for any such limitation shall be
determined, and any such needed limitation shall be effective, at the time or
times that such Guarantor is deemed, under Applicable Law, to incur
obligations thereunder. This Section 8.01(b) is intended solely to preserve
the rights of the Guaranteed Parties under the Loan Documents to the maximum
extent permitted by Applicable Law, and neither such Guarantor nor any other
Person shall have any right under this Section 8.01(b) that it would not
otherwise have under Applicable Law. For the purposes of this Section
8.01(b), "insolvency", "Unreasonably small capital" and "inability to pay
Debts as they mature" shall be determined in accordance with Applicable
Law.
(c) Nature of Guarantors' Obligations. Each Guarantor's
obligations under the Loan Documents (i) are absolute and unconditional,
(ii) are, subject to Section 8.01(b), unlimited in amount, (iii) shall be a
continuing guarantee of all present and future obligations of any Borrower
under the Loan Documents and all promissory notes and other documentation
given in extension or renewal or substitution for any of such obligations
and (iv) shall be irrevocable. If at any time any payments under the Loan
Documents to the Banks is rescinded or must otherwise be returned by such
Bank for whatever reason, each Guarantor hereby unconditionally guarantees
to each Bank the prompt repayment of such amount rescinded or otherwise
returned.
(d) No Release of Guarantors. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NO GUARANTOR'S OBLIGATIONS UNDER THE LOAN DOCUMENTS SHALL,
SUBJECT TO SECTIONS 8.01(b), 4.11 AND 4.12 , BE LIMITED OR REDUCED OR BE
TERMINATED, NOR SHALL SUCH GUARANTOR'S OBLIGATIONS BE REDUCED OR LIMITED, NOR
SHALL SUCH GUARANTOR BE DISCHARGED FROM ANY THEREOF, FOR ANY REASON
WHATSOEVER, INCLUDING ANY ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR
CIRCUMSTANCE THAT (i) VARIES THE RISK OF SUCH GUARANTOR THEREUNDER OR (ii) BUT
FOR THE PROVISIONS HEREOF WOULD, AS A MATTER OF STATUTE OR RULE OF LAW OR
EQUITY, OPERATE TO LIMIT OR TERMINATE SUCH OBLIGATIONS OR TO REDUCE OR LIMIT
SUCH OBLIGATIONS OR TO DISCHARGE SUCH GUARANTOR FROM ANY OF SUCH OBLIGATIONS.
(e) Certain Other Waivers. EACH GUARANTOR WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT
WOULD, BUT FOR THIS SECTION 8.01(e), BE AVAILABLE TO SUCH GUARANTOR AS (i) A
DEFENSE AGAINST THE ENFORCEMENT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS,
(ii) A REDUCTION OR LIMITATION OF SUCH OBLIGATIONS OR (iii) A DEFENSE AGAINST
SUCH OBLIGATIONS.
ARTICLE 9
THE AGENTS
Section 9.01. Appointment and Powers. The Issuing Bank and each
Bank hereby irrevocably appoint and authorize the Agents, individually and in
their respective capacities as Agents, to act as the agents for such Issuing
Bank or Bank under the Loan Documents with such powers as are delegated to the
respective Agents and the Secured Party by the terms thereof, together with
such other powers as are reasonably incidental thereto. The Agents' duties
shall be purely ministerial and they shall have no duties or responsibilities
except those expressly set forth in the Loan Documents. None of the Agents
shall be required under any circumstances to take any action that, in its
judgment, (a) is contrary to any provision of the Loan Documents or Applicable
Law or (b) would expose it to any Liability or expense against which it has
not been indemnified to its satisfaction. None of the Agents shall, by reason
of its serving as the Agent, be a trustee or other fiduciary for any Bank.
Section 9.02. Limitation on Liability of Agents. None of the
Agents nor any of their respective directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by
it or them under or in connection with the Loan Documents, except for its or
their own gross negligence, willful misconduct or knowing violations of law.
None of the Agents shall be responsible to the Issuing Bank or any Bank for
(a) any recitals, statements, representations or warranties contained in the
Loan Documents or in any certificate or other document referred to or provided
for in, or received by the Issuing Bank or any of the Banks under, the Loan
Documents, (b) the validity, effectiveness or enforceability of the Loan
Documents or any such certificate or other document, (c) the value or
sufficiency of the Collateral or (d) any failure by the Loan Parties to
perform any of their obligations under the Loan Documents. Each of the Agents
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact so long as
such Agent was not grossly negligent in selecting or directing such agents or
attorneys-in-fact. Each Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, facsimile, telegram or cable) believed by it to be genuine
and correct and to have been signed or given by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by such Agent. As to any
matters not expressly provided for by the Loan Documents, each Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
the Loan Documents in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 9.03. Defaults. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default (other than the
non-payment to it of fees or Drawings or principal of or interest on Loans)
unless the Administrative Agent has received notice from a Bank or a Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent has knowledge of such a non-payment
or receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the Banks. In the event of any
Default, the Administrative Agent shall (a) in the case of a Default that
constitutes an Event of Default, take any or all of the actions referred to in
clauses (a), (b) and (c) of the first sentence of Section 6.02 if so directed
by the Required Banks and (b) in the case of any Default, take such other
action with respect to such Default as shall be reasonably directed by the
Required Banks. Unless and until the Administrative Agent shall have received
such directions, in the event of any Default, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable in the best
interests of the Banks.
Section 9.04. Rights as a Bank. Each Person acting as an Agent
that is also a Bank shall, in its capacity as a Bank, have the same rights and
powers under the Loan Documents as any other Bank and may exercise the same as
though it were not acting as an Agent, and the term "Bank" or "Banks" shall
include such Person in its individual capacity. Each Person acting as an
Agent (whether or not such Person is a Bank) and its Affiliates may (without
having to account therefor to the Issuing Bank or any Bank) accept deposits
from, lend money to and generally engage in any kind of banking, trust or
other business with the Loan Parties and their Affiliates as if it were not
acting as an Agent, and such Person and its Affiliates may accept fees and
other consideration from the Loan Parties and their Affiliates for services in
connection with the Loan Documents or otherwise without having to account for
the same to the Issuing Bank or the Banks.
Section 9.05. Indemnification. The Banks agree to indemnify each
of the Agents (to the extent not reimbursed by the Loan Parties under the Loan
Documents), ratably on the basis of the respective principal amounts of the
Loans outstanding made by the Banks and Participations of such Banks (or, if
no Loans or Participations are at the time outstanding, ratably on the basis
of their respective Commitments), for any and all Liabilities, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against such Agent (including the costs and expenses
that the Loan Parties are obligated to pay under the Loan Documents) in any
way relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to
the extent (a) they are subject to the indemnity contemplated by the last
sentence of Section 10.10(b) or (b) they arise from gross negligence, willful
misconduct or knowing violations of law by such Agent.
Section 9.06. Non-Reliance on Agents, the Issuing Bank and Other
Banks. Each Bank agrees that it has made and will continue to make,
independently and without reliance on the Agents or the Issuing Bank or any
other Bank, and based on such documents and information as it deems
appropriate, its own credit analysis of the Loan Parties, its own evaluation
of the Collateral and its own decision to enter into the Loan Documents and to
take or refrain from taking any action in connection therewith. None of the
Agents shall be required to keep itself informed as to the performance or
observance by the Loan Parties of the Loan Documents or any other document
referred to or provided for therein or to inspect the properties or books of
any Loan Party or any Subsidiary thereof or the Collateral. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Administrative Agent under the Loan Documents,
none of the Agents shall have any obligation to provide any Bank with any
information concerning the business, status or condition of any Loan Party or
any Subsidiary thereof, the Loan Documents or the Collateral that may come
into the possession of such Agent or any of their respective Affiliates.
Section 9.07. Execution and Amendment of Loan Documents on Behalf
of the Banks. Each Bank hereby authorizes (a) the Collateral Agent to execute
and deliver, in the name of and on behalf of such Bank (i) the Security
Agreement and the Mortgages and (ii) all UCC financing and continuation
statements and other documents the filing or recordation of which are, in the
determination of the Arranging Agents, necessary or appropriate to create,
perfect or maintain the existence or perfected status of the Security Interest
and (b) the Administrative Agent to execute and deliver, in the name of and
on behalf of such Bank, any other Loan Document requiring execution by or on
behalf of such Bank. The Administrative Agent or the Collateral Agent, as the
case may be, shall consent to any amendment of any term, covenant, agreement
or condition of the Security Agreement or the Mortgages, or to any waiver of
any right thereunder, if, but only if, the Administrative Agent or the
Collateral Agent, as the case may be, is directed to do so in writing by the
Required Banks; provided, however, that (i) the Administrative Agent or the
Collateral Agent, as the case may be, shall not be required to consent to any
such amendment or waiver that affects its rights or duties and (ii) the
Administrative Agent or the Collateral Agent, as the case may be, shall not,
unless directed to do so in writing by each Bank, (A) consent to any
assignment by any Loan Party of any of its rights or obligations under any
such agreement, unless in connection with a transaction that is permitted
under the Loan Documents, or (B) release any Collateral from the Security
Interest, except as required or permitted by the Loan Documents.
Section 9.08. Resignation of the Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the
Issuing Bank, the Banks and AWT. The Administrative Agent shall resign if
directed by the Required Banks. Upon receipt of any such notice of
resignation or removal, the Required Banks may, after consultation with AWT,
appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Banks and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent's giving of notice of resignation or removal, then the retiring
Administrative Agent may, on behalf of the Banks and after consultation with
AWT, appoint a successor Administrative Agent. Upon the acceptance by any
Person of its appointment as a successor Administrative Agent, (a) such Person
shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations as Administrative Agent under the Loan Documents and (b) the
retiring Administrative Agent shall promptly transfer all Collateral within
its possession or control to the possession or control of the successor
Administrative Agent and shall execute and deliver such notices, instructions
and assignments as may be necessary or desirable to transfer the rights of the
Administrative Agent with respect to the Collateral to the successor
Administrative Agent. After any retiring Administrative Agent's resignation
or removal as Administrative Agent, the provisions of this Article 9 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent.
Section 9.09. Resignation of the Collateral Agent. The
Collateral Agent may at any time give notice of its resignation to the Issuing
Bank, the Banks and AWT. The Collateral Agent shall resign if directed by the
Required Banks. Upon receipt of any such notice of resignation or removal, the
Required Banks may, after consultation with AWT, appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Collateral Agent's giving of notice of
resignation or removal, then the retiring Collateral Agent may, on behalf of
the Banks and after consultation with AWT, appoint a successor Collateral
Agent. Upon the acceptance by any Person of its appointment as a successor
Collateral Agent, (a) such Person shall thereupon succeed to and become vested
with all the rights, powers, privileges, duties and obligations of the
retiring Collateral Agent and the retiring Collateral Agent shall be
discharged from its duties and obligations as Collateral Agent under the Loan
Documents and (b) the retiring Collateral Agent shall promptly transfer all
Collateral within its possession or control to the possession or control of
the successor Collateral Agent and shall execute and deliver such notices,
instructions and assignments as may be necessary or desirable to transfer the
rights of the Collateral Agent with respect to the Collateral to the successor
Collateral Agent. After any retiring Collateral Agent's resignation or
removal as Collateral Agent, the provisions of this Article 9 shall continue
in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as the Collateral Agent.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices and Deliveries. (a) Notices and Materials
Other than Collateral. Except as provided in Section 10.01(b):
(i) Manner of Delivery. All notices, communications and
materials (including all Information) to be given or delivered pursuant to the
Borrower Loan Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in writing (which
shall include telex and facsimile transmissions). Notices under Sections
1.02(a), 1.02(b), 1.03(c), 1.04(b), 1.05(a), 1.07 and 6.02 may be by
telephone, promptly, in the case of each notice other than one under Section
6.02, confirmed in writing. In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent that
the any Person has acted in reliance on such telephonic notice.
(ii) Addresses. All notices, communications and materials
to be given or delivered pursuant to the Borrower Loan Documents shall be
given or delivered at the following respective addresses and facsimile and
telephone numbers and to the attention of the following individuals or
departments:
(A) if to a Borrower or Guarantor, to it at the address set
forth the name of such Borrower or such Guarantor, as the
case may be, on Annex B.
(B) if to the Administrative Agent, to it at:
One First National Plaza
Mail Suite 0353
Chicago, Illinois 60670
Fax No.: (312) 732-2038
Telephone No.: (312) 732-7268
Attention: Thomas E. Both
with a copy to:
One First National Plaza
Mail Suite 0363
Chicago, Illinois 60670
Fax No.: (312) 732-3055
Telephone No.: (312) 732-4305
Attention: Amy R. Howatt
(C) if to any Bank, to it at the address or fax or
telephone number and to the attention of the individual or
department, set forth below such Bank's name under the
heading "Notice Address" on Annex A or, in the case of a
Bank that becomes a Bank pursuant to an assignment, set
forth under the heading "Notice Address" in the Notice of
Assignment given to the Borrower and the Administrative
Agent with respect to such assignment;
(D) if to the Issuing Bank at an address or fax or
telephone number different from that determined in
accordance with clause (C) above with respect to the Bank
that is the Issuing Bank, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7428
Telephone No.: (212) 278-6727
Attention: Jeffrey Green
(E) if to the Collateral Agent at an address or fax or
telephone number different from that determined in
accordance with clause (C) above with respect to the Bank
that is the Collateral Agent, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7463
Telephone No.: (212) 278-6926
Attention: Betty Burg
or at such other address or fax or telephone number or to the attention of
such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (x) if the party to which such
information pertains is a Borrower, the Administrative Agent, the Issuing Bank
and each Bank, (y) if the party to which such information pertains is the
Administrative Agent, the Borrowers, the Issuing Bank and each Bank and (z) if
the party to which such information pertains is a Bank or the Issuing Bank,
the Borrowers and the Agent.
(iii) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Loan Documents shall be
deemed so given or delivered (A) if sent by registered or certified mail,
postage prepaid, return receipt requested, on the third Business Day after
such notice, communication or material, addressed as above provided, is
delivered to a United States post office and a receipt therefor is issued
thereby, (B) if sent by any other means of physical delivery, when such
notice, communication or material is delivered to the appropriate address as
above provided, (C) if sent by facsimile, when such notice, communication or
material is transmitted to the appropriate fax number as above provided and is
received at such number and (D) if given by telephone, when communicated to
the individual or any member of the department specified as the individual or
department to whose attention notices, communications and materials are to be
given or delivered, or, in the case of notice by the Administrative Agent to
the Borrowers under Section 6.02 given by telephone as above provided, if any
individual or any member of the department to whose attention notices,
communications and materials are to be given or delivered is unavailable at
the time, to any other officer or employee of a Borrower, except that (1)
notices of a change of address, fax or telephone number or individual or
department to whose attention notices, communications and materials are to be
given or delivered shall not be deemed given until received and (2) notices,
communications and materials to be given or delivered to the (x)
Administrative Agent or any Bank pursuant to Sections 1.02(a), 1.03(c),
1.04(b), 1.05(a), 1.07 and 1.12(b) and Article 5 shall not be deemed given or
delivered until received by the officer of the Administrative Agent or such
Bank responsible, at the time, for the administration of the Loan Documents
and (y) the Issuing Bank pursuant to Section 1.02(b) shall not be deemed given
or delivered until received by the officer of the Issuing Bank responsible, at
the time, for the administration of the Issuing Bank's commitment hereunder to
issue Letters of Credit.
(iv) Reasonable Notice. Any requirement under Applicable
Law of reasonable notice by the Administrative Agent, the Issuing Bank or the
Banks to the Borrowers of any event in connection with, or in any way related
to, the Loan Documents or the exercise by the Administrative Agent, the
Issuing Bank or the Banks of any of their rights thereunder shall, to the
extent permitted by Applicable Law, be met if notice of such event is given to
the Borrowers in the manner prescribed above at least 10 days before (A) the
date of such event or (B) the date after which such event will occur.
(b) Collateral. Until the Collateral Agent shall otherwise
specify, all Collateral to be delivered to the Collateral Agent pursuant to
the Loan Documents consisting of instruments, securities, chattel paper,
letters of credit or documents shall be delivered to the Collateral Agent at
the Collateral Agent's Office either by hand delivery or by registered or
certified mail, postage prepaid, return receipt requested. All other
Collateral to be delivered to the Collateral Agent pursuant to the Loan
Documents shall be delivered to such Person, at such address, by such means and
in such manner as the Collateral Agent may designate.
Section 10.02. Expenses; Indemnification. Whether or not any
Credit Extensions are made hereunder, the Borrowers shall:
(a) pay or reimburse the Administrative Agent, the Issuing Bank
and each Bank for all transfer, documentary, stamp and similar taxes, and all
recording and filing fees and taxes, payable in connection with, arising out
of, or in any way related to, the execution, delivery and performance of the
Loan Documents or the making of the Loans or the Drawings or the issuance of
the Letters of Credit;
(b) pay or reimburse the Administrative Agent and the Arranging
Agents for all reasonable costs and expenses (including fees and disbursements
of legal counsel, appraisers, accountants and other experts employed or
retained by the Arranging Agents or the Administrative Agent) incurred by such
Person in connection with, arising out of, or in any way related to (i) the
negotiation, preparation, execution and delivery of (A) the Loan Documents and
(B) whether or not executed, any waiver, amendment or consent thereunder or
thereto, (ii) the administration of and any operations under the Loan
Documents, (iii) consulting with respect to any matter in any way arising out
of, related to, or connected with, the Loan Documents, including (A) the
protection or preservation of the Collateral, (B) the protection,
preservation, exercise or enforcement of any of the rights of such Person or
the Banks in, under or related to the Collateral or the Loan Documents or (C)
the performance of any of the obligations of such Person or the Banks under or
related to the Loan Documents, (iv) protecting or preserving the Collateral or
(v) protecting, preserving, exercising or enforcing any of the rights of such
Person or the Banks in, under or related to the Collateral or the Loan
Documents, including defending the Security Interest as a valid, perfected,
first priority security interest in the Collateral subject only to Permitted
Liens;
(c) pay or reimburse each Bank and the Issuing Bank for all
reasonable costs and expenses (including fees and disbursements of legal
counsel and other experts employed or retained by such Person) incurred by
such Person in connection with, arising out of, or in any way related to
protecting, preserving, exercising or enforcing any of its rights in, under or
related to the Collateral or the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and
against all losses (including judgments, penalties and fines) suffered, and
pay or reimburse each Indemnified Person for all costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts employed
or retained by such Indemnified Person) incurred, by such Indemnified Person
in connection with, arising out of, or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person or a
Borrower or any other Person), including the prosecution or defense thereof
and any litigation or proceeding with respect thereto (whether or not, in the
case of any such litigation or proceeding, such Indemnified Person is a party
thereto), or (ii) any investigation, governmental or otherwise, arising out
of, related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity
shall not be applicable to any loss suffered by any Indemnified Person to the
extent such loss is the result of acts or omissions on the part of such
Indemnified Person constituting (w) gross negligence, (x) willful misconduct,
(y) knowing violations of law or (z) in the case of claims by a Borrower
against such Indemnified Person, such Indemnified Person's failure to observe
any other standard applicable to it under any of the other provisions of the
Loan Documents or, but only to the extent not waivable thereunder, Applicable
Law.
If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnified Person in
respect of which indemnity may be sought from a Borrower, such Indemnified
Person shall promptly notify such Borrower in writing, and such Borrower shall
assume the defense thereof, including the employment of counsel satisfactory
to such Indemnified Person, and the payment of all expenses. Any Indemnified
Person seeking indemnification shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expense of such Indemnified Person
unless (a) such Borrower has agreed to pay such fees and expenses or (b) such
Borrower shall have failed to assume the defense of such action or proceeding
or shall have failed to employ counsel satisfactory to such Indemnified Person
in any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include such Indemnified Person,
and such Indemnified Person shall have been advised by counsel that there may
be one or more legal defenses available to such Indemnified Person that are
different from or additional to those available to such Borrower (in which
case, if such Indemnified Person notifies such Borrower in writing that it
elects to employ separate counsel at the expense of such Borrower, such
Borrower shall not have the right to assume the defense of such action or
proceeding on behalf of such Indemnified Person; it being understood, however,
that such Borrower shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all Indemnified
Persons, which firm shall be designated in writing by such Indemnified
Persons). The Borrowers shall not be liable for any settlement of any such
action or proceeding effected without their written consent, but if settled
with their written consent, or if there is a final judgment for the plaintiff
in any such action or proceeding, each of the Borrowers agrees to indemnify and
hold harmless any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
Section 10.03. Amounts Payable Due upon Request for Payment. All
amounts payable by a Borrower under Section 10.02 and under the other
provisions of the Borrower Loan Documents shall, except as otherwise expressly
provided, be immediately due upon request for the payment thereof.
Section 10.04. Remedies of the Essence. The various rights and
remedies of the Administrative Agent, the Issuing Bank and the Banks under the
Borrower Loan Documents are of the essence of those agreements, and the
Administrative Agent, the Issuing Bank and the Banks shall be entitled, to the
extent permitted by Applicable Law, to obtain a decree requiring specific
performance of each such right and remedy.
Section 10.05. Rights Cumulative. Each of the rights and
remedies of the Administrative Agent, the Issuing Bank and the Banks under the
Loan Documents shall be in addition to all of their other rights and remedies
under the Loan Documents and Applicable Law, and nothing in the Loan Documents
shall be construed as limiting any such rights or remedies.
Section 10.06. Disclosures. Each of the Administrative Agent,
the Issuing Bank and the Banks agrees to hold any information which it may
receive from a Borrower or any Subsidiary pursuant to any Loan Document in
confidence, except for disclosure (i) to other Banks, the Administrative
Agent, the Issuing Bank, (ii) to legal counsel, accountants, and other
professional advisors to the Administrative Agent, the Issuing Bank or such
Bank, as the case may be, (iii) to regulatory officials, (iv) as requested
pursuant to or as required by Applicable Law, (v) in connection with any legal
proceeding to which the Administrative Agent, the Issuing Bank or such Bank,
as the case may be, is a party, and (vi) to potential assignees and
participants of such Bank, provided, that such Bank shall require any assignee
or participant to be bound in like manner to this Section 10.06.
Section 10.07. Amendments; Waivers. Any term, covenant,
agreement or condition of the Borrower Loan Documents may be amended, and any
right under the Borrower Loan Documents may be waived, if, but only if, such
amendment or waiver is in writing and is signed by (a) in the case of an
amendment or waiver with respect to the Borrower Loan Documents referred to in
Section 9.07(b), the Administrative Agent, (b) in the case of an amendment or
waiver with respect to any other Borrower Loan Document, the Required Banks
and, if the rights and duties of the Administrative Agent or the Issuing Bank
are affected thereby, by the Administrative Agent or the Issuing Bank, as the
case may be, and (c) in the case of an amendment with respect to any Borrower
Loan Document, by the Borrowers; provided, however, that no amendment or
waiver shall be effective, unless in writing and signed by each Bank affected
thereby, to the extent it (i) changes the amount of such Bank's Commitment,
except as permitted by Section 7.07, (ii) reduces (A) the principal of or the
rate of interest on (1) such Bank's Loans or Notes or (2) any of the Drawings
or (B) the fees payable to such Bank hereunder, (iii) postpones any date fixed
for (A) any payment of (1) principal of or interest on (aa) such Bank's Loans
or Notes or (bb) any of the Drawings or (2) the fees payable to such Bank
hereunder or (B) the expiration of any Letter of Credit if such postponement
would extend the expiration of such Letter of Credit beyond the Termination
Date, (iv) amends Section 1.14, this Section 10.07 or any other provision of
this Agreement requiring the consent or other action of all of the Banks or
(v) eliminates the definition of Borrowing Base (it being understood that any
amendment to or waiver of any provision included in the definition of
Borrowing Base shall not be deemed to be an elimination of the Borrowing
Base). Unless otherwise specified in such waiver, a waiver of any right under
the Borrower Loan Documents shall be effective only in the specific instance
and for the specific purpose for which given. No election not to exercise,
failure to exercise or delay in exercising any right, nor any course of
dealing or performance, shall operate as a waiver of any right of the
Administrative Agent, the Issuing Bank or any Bank under the Borrower Loan
Documents or Applicable Law, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of
any other right of the Administrative Agent, the Issuing Bank or any Bank
under the Borrower Loan Documents or Applicable Law.
Section 10.08. Set-Off; Suspension of Payment and Performance.
The Administrative Agent, the Issuing Bank and each Bank is hereby authorized
by the Borrowers, at any time and from time to time, without notice, to the
extent permitted by Applicable Law, (a) during any Event of Default, to set
off against, and to appropriate and apply to the payment of, the Liabilities
of any Borrower under the Borrower Loan Documents (whether owing to such
Person or to any other Person that is the Administrative Agent, the Issuing
Bank or a Bank and whether matured or unmatured, fixed or contingent or
liquidated or unliquidated) any and all Liabilities owing by such Person or
any of its Affiliates to any of the Borrowers (whether payable in Dollars or
any other currency, whether matured or unmatured and, in the case of
Liabilities that are deposits, whether general or special, time or demand and
however evidenced and whether maintained at a branch or office located within
or without the United States) and (b) during any Default, to suspend the
payment and performance of such Liabilities owing by such Person or its
Affiliates and, in the case of Liabilities that are deposits, to return as
unpaid for insufficient funds any and all checks and other items drawn against
such deposits.
Section 10.09. Sharing of Recoveries. (a) Each Bank agrees that,
if, for any reason, including as a result of (i) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar law being deemed secured by
a Debt owed by it to any Loan Party, including a claim deemed secured under
Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the
Administrative Agent or any Loan Party in a manner contrary to the provisions
of Section 1.14, such Bank shall receive payment of a proportion of the
aggregate amount due and payable to it hereunder as principal of or interest
on the Loans or fees that is greater than the proportion received by any other
Bank in respect of the aggregate of such amounts due and payable to such other
Bank hereunder, then the Bank receiving such proportionately greater payment
shall purchase participations (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in the rights of the other
Banks hereunder so that all such recoveries with respect to such amounts due
and payable hereunder (net of costs of collection) shall be pro rata; provided
that if all or part of such proportionately greater payment received by the
purchasing Bank is thereafter recovered by or on behalf of any Loan Party from
such Bank, such purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such Bank to the extent of such
recovery, but without interest (unless the purchasing Bank is required to pay
interest on the amount recovered to the Person recovering such amount, in
which case the selling Bank shall be required to pay interest at a like rate).
Each Borrower expressly consents to the foregoing arrangements and agree that
any holder of a participation in any rights hereunder so purchased or acquired
pursuant to this Section 10.09(a) shall, with respect to such participation,
be entitled, to the extent permitted by Applicable Law, to all of the rights
of a Bank under Sections 7.02, 10.02 and 10.08 (subject to any condition
imposed on a Bank hereunder with respect thereto) and may, to the extent
permitted by Applicable Law, exercise any and all rights of set-off with
respect to such participation as fully as though such Borrower was directly
indebted to the holder of such participation for Loans to such Borrower in the
amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim,
set-off, banker's lien or similar right that it may have in respect of any
Loan Party in a manner so as to apportion the amount subject to such exercise,
on a pro rata basis, between (i) obligations of such Loan Party for amounts
subject to the sharing provisions of Section 10.09(a) and (ii) other
Liabilities of such Loan Party.
Section 10.10. Assignments and Participations. (a) Assignments.
(i) None of the Borrowers may assign any of their rights or obligations under
the Borrower Loan Documents without the prior written consent of (A) in the
case of the Loan Documents referred to in Section 9.07(b), the Administrative
Agent, (B) in the case of the Loan Documents referred to in Section 9.07(a),
the Collateral Agent and (C) in the case of any of the other Loan Documents,
the Issuing Bank and each Bank, and, except as permitted by Section 4.11 or
4.12, no assignment of any such obligation shall release a Borrower therefrom
unless the Administrative Agent, the Collateral Agent, or the Issuing Bank and
each Bank, as applicable, shall have consented to such release in a writing
specifically referring to the obligation from which such Borrower is to be
released.
(ii) Each Bank may from time to time assign any or all of
its rights and obligations under the Borrower Loan Documents to one or more
Eligible Assignees; provided that, except in the case of the grant of a
security interest to a Federal Reserve Bank (which may be made without
condition or restriction), no such assignment shall be effective unless (A)
the assignment is consented to by the Borrowers which consent shall not be
unreasonably withheld (unless an Event of Default specified in Section 6.01(g)
with respect to a Borrower exists), the Issuing Bank and the Administrative
Agent, (B) if less than the full amount of the assignor Bank's Commitment, the
assignment shall involve the assignment of not less than $5,000,000 of the
assignor Bank's Commitment, (C) a Notice of Assignment with respect the
assignment, duly executed by the assignor and the assignee, shall have been
given to AWT and the Administrative Agent, (D) in the case of an assignment of
a Registered Note, such Registered Note shall have been surrendered for
registration of assignment duly endorsed by (or accompanied by a written
instrument of assignment duly executed by) the Registered Holder and such
assignment shall have been recorded on the Register and (E) except in the case
of an assignment by the Bank that is an Agent, the Administrative Agent shall
have been paid an assignment fee of $4,000. Upon any effective assignment,
the assignor shall be released from the obligations so assigned and, in the
case of an assignment of all of its Loans and Commitment, shall cease to be a
Bank. In the event of any effective assignment by a Bank, the Borrowers
shall, against receipt of the existing Note of the assignor Bank, issue a new
Note to the assignee Bank and, in the case of a partial assignment, to the
assignor Bank, appropriately reflecting such assignment.
(b) Participations. Each Bank may from time to time sell or
otherwise grant participations in any or all of its rights and obligations
under the Borrower Loan Documents without the consent of the Borrowers, the
Administrative Agent or any other Bank. In the event of any such grant by a
Bank of a participation, such Bank's obligations under the Loan Documents to
the other parties thereto shall remain unchanged, such Bank shall remain
solely responsible for the performance thereof, and the Borrowers, the
Administrative Agent and the other Banks may continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
thereunder. A Bank may not grant to any holder of a participation the right
to require such Bank to take or omit to take any action under the Loan
Documents, except that a Bank may grant to any such holder the right to
require such holder's consent to (i) reduce (A) the principal of or the rate
of interest on (1) such Bank's Loans or Notes or (2) any of the Drawings or
(B) the fees payable to such Bank hereunder, (ii) postpone any date fixed for
(A) any payment of (1) principal of or interest on (aa) such Bank's Loans or
Notes or (bb) any of the Drawings or (2) the fees payable to such Bank
hereunder or (B) the expiration of any Letter of Credit if such postponement
would extend the expiration date of such Letter of Credit beyond the
Termination Date, (iii) except in connection with a transaction that is
permitted under the Loan Documents, permit any Loan Party to assign any of its
obligations under the Loan Documents to any other Person, (iv) except in
connection with a transaction that is permitted under the Loan Documents,
release any guarantor from its obligations under Section 8.01 or (v) release
all or substantially all of the Collateral from the Security Interest except
as required or contemplated by the Loan Documents. Each holder of a
participation in any rights under the Borrower Loan Documents, if and to the
extent the applicable participation agreement so provides, shall, with respect
to such participation, be entitled to all of the rights of a Bank as fully as
though it were a Bank under Sections 1.13, 7.02, 7.03, 7.04 and 10.02(d)
(subject to any conditions imposed on a Bank hereunder with respect thereto,
including delivery of the forms and certificates required under Section
1.13(c)) and may, to the extent permitted by Applicable Law, exercise any and
all rights of set-off with respect to such participation as fully as though
each Borrower was directly indebted to the holder of such participation for
Loans made to such Borrower in the amount of such participation; provided,
however, that no holder of a participation shall be entitled to any amounts
that would otherwise be payable to it with respect to its participation under
Section 1.13 or 7.02 unless (x) such amounts are payable in respect of
Regulatory Changes that are enacted, adopted or issued after the date the
applicable participation agreement was executed or (y) such amounts would have
been payable to the Bank that granted such participation if such participation
had not been granted. Each Bank selling or granting a participation shall
indemnify the Borrowers and the Administrative Agent for any Taxes and
Liabilities that then may sustain as a result of such Bank's failure to
withhold and pay any Taxes applicable to payments by such Bank to its
participant in respect of such participation.
Section 10.11. Governing Law. This Agreement and the Notes
(including matters relating to the Maximum Permissible Rate) shall be
construed in accordance with and governed by the law of the State of New York
(without giving effect to its choice of law principles).
Section 10.12. Judicial Proceedings; Waiver of Jury Trial. Any
judicial proceeding brought against a Borrower with respect to any Loan
Document Related Claim may be brought in any court of competent jurisdiction
in the City of New York, and, by execution and delivery of this Agreement,
each Borrower (a) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any judgment rendered thereby in connection with any
Loan Document Related Claim and (b) irrevocably waives, to the extent
permitted by Applicable Law, any objection it may now or hereafter have as to
the venue of any such proceeding brought in such a court or that such a court
is an inconvenient forum. Each Borrower hereby waives personal service of
process and consents that service of process upon it may be made by certified
or registered mail, return receipt requested, at its address specified or
determined in accordance with the provisions of Section 10.01(a)(ii), and
service so made shall be deemed completed on the third Business Day after such
service is deposited in the mail. Nothing herein shall affect the right of
any Agent, the Issuing Bank, any Bank or any other Indemnified Person to serve
process in any other manner permitted by law or shall limit the right of any
Agent, the Issuing Bank, any Bank or any other Indemnified Person to bring
proceedings against the Borrower in the courts of any other jurisdiction.
EACH BORROWER, THE AGENTS, THE ISSUING BANK AND EACH BANK HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN DOCUMENT
RELATED CLAIM.
Section 10.13. Judgment Currency. If in connection with
determining the amount of a judgment to be rendered in a currency other than
Dollars (a "Foreign Currency"), it is necessary to convert a sum payable by
each Borrower to an Indemnified Person under the Loan Documents in Dollars
into such Foreign Currency, then, unless another rate of exchange is required
under Applicable Law, the rate of exchange used shall be the Administrative
Agent's Spot Rate on the Business Day preceding the day on which final judgment
is to be rendered. The obligations of each Borrower in respect of any such
sum payable by it to such Indemnified Person under the Loan Documents in
Dollars shall, notwithstanding any such judgment in such Foreign Currency, be
discharged only to the extent that on the Business Day following actual
receipt by such Indemnified Person of the amount of the judgment in such
Foreign Currency, such Indemnified Person is able to purchase Dollars in New
York with such sum of Foreign Currency, whether or not at the Agent's spot
rate of exchange. As a separate obligation and notwithstanding any such
judgment, each Borrower shall pay such Indemnified Person on demand in Dollars
any difference between the amount originally payable by such Borrower to such
Indemnified Person in Dollars and the amount of Dollars that may be so
purchased. In the event that the amount that may be so purchased exceeds the
amount originally payable, such Indemnified Person shall promptly remit such
excess to such Borrower.
Section 10.14. LIMITATION OF LIABILITY. NEITHER THE
ADMINISTRATIVE AGENT, THE ISSUING BANK NOR THE BANKS NOR ANY OTHER INDEMNIFIED
PERSON SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND EACH BORROWER HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY THE BORROWER IN CONNECTION WITH ANY LOAN
DOCUMENT RELATED CLAIM.
Section 10.15. Severability of Provisions. Any provision of the
Borrower Loan Documents that 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
provisions thereof or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent permitted by Applicable
Law, each Borrower hereby waives any provision of Applicable Law that renders
any provision of the Borrower Loan Documents prohibited or unenforceable in
any respect.
Section 10.16. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same instrument.
Section 10.17. Survival of Obligations. Except as otherwise
expressly provided therein, the rights and obligations of the Borrowers,
the Agents, the Issuing Bank, the Banks and the other Indemnified Persons
under the Borrower Loan Documents shall survive the Repayment Date and the
termination of the Security Interest.
Section 10.18. Entire Agreement. This Agreement and the Notes
embody the entire agreement among the Borrowers, the Agents, the Issuing Bank
and the Banks relating to the subject matter hereof and supersede all prior
agreements, representations and understandings, if any, relating to the
subject matter hereof.
Section 10.19. Successors and Assigns. All of the provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 10.20. Cash Collateral. If, at any time, payment or
prepayment of Contingent Reimbursement Obligations shall be required pursuant
to any provision of any of the Loan Documents, such payment or prepayment
shall be made by deposit of funds in Dollars, in the amount of such payment or
prepayment, into an interest bearing cash collateral account at the
Administrative Agent's Office, which account shall be under the dominion and
control of the Administrative Agent and is hereby pledged to the Banks and the
Issuing Bank as security for the payment of the Contingent Reimbursement
Obligations and any other amounts that may become payable hereunder. Funds
deposited in such account, and any income thereon, may be applied by the
Administrative Agent against amounts payable under the Loan Documents as such
amounts become due. Any funds remaining in such account when all Contingent
Reimbursement Obligations and other amounts payable under the Loan Documents
have been paid shall be returned to the Borrowers.
Section 10.21. Registered Notes. A Bank that is a Non-US Bank
that has complied with Section 1.13(d)(i)(A)(2) may have its Note issued as a
Registered Note, and for this purpose the Borrowers shall cause to be
maintained a Register. Once issued, Registered Notes may not be exchanged for
Notes that are not Registered Notes, and of the Loans evidenced thereby, may
be transferred only in accordance with the provisions of Section
10.10(a)(ii)(D).
ARTICLE 11
INTERPRETATION
Section 11.01. Defined Terms. For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to that
term in Section 302 of ERISA.
"Adjusted Consolidated Net Worth" means, at any time, the sum of
(a) Consolidated Net Worth of AWT plus (b) CGE Subordinated Indebtedness, in
each case determined as of such time.
"Adjusted Eurodollar Rate" means, for any Interest Period, a rate
per annum (rounded upward, if necessary, to the next higher 1/16 of 1%) equal
to the rate obtained by dividing (a) the Eurodollar Rate for such Interest
Period by (b) a percentage equal to 1 minus the Reserve Requirement in effect
from time to time during such Interest Period.
"Administrative Agent" means The First National Bank of Chicago,
as Administrative Agent for the Banks under the Loan Documents, and any
successor Administrative Agent appointed pursuant to Section 9.08.
"Administrative Agent's Office" means the address of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 10.01(a)(ii).
"Affiliate" means, with respect to any Person, any other Person
(other than a Borrower or a Subsidiary) (i) which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person; (ii) which beneficially owns or holds
twenty-five percent (25%) or more of any class of the voting stock of such
first Person; (iii) twenty-five percent (25%) or more of the voting stock (or
in the case of a person which is not a corporation, twenty-five percent (25%)
or more of the equity interest) of which is beneficially owned or held by such
first Person or a Consolidated Subsidiary of such first Person; or (iv) who is
an executive officer or director of such first Person and beneficially owns
five percent (5%) or more of the voting stock of such first Person. As used
in this definition the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise. Unless otherwise specified, "Affiliate" means an
Affiliate of a Borrower.
"Agent" means the Administrative Agent, the Arranging Agents and
the Collateral Agent.
"Agents' Fee Letter" means the letter agreement dated January 3,
1995 among AWT, The First National Bank of Chicago and Societe Generale.
"Agreement" means this Agreement, including all schedules, annexes
and exhibits hereto.
"Agreement Date" means the date set forth as such on the signature
pages hereof, which date is the date the executed copies of this Agreement
were delivered by all parties hereto and, accordingly, the date this Agreement
became effective and, for the first time, binding upon such parties.
"Air Receivables" means Eligible Receivables owing to AWT or any
Consolidated Subsidiary of AWT included in the Research-Cottrell business
segment for financial reporting purposes.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the higher of (a) the Base Rate and (b) the Federal Funds Rate in effect on
such day plus 1/2%.
"Applicable Commitment Fee Rate" means, as determined quarterly,
(a) if the Interest Coverage Ratio is greater than 2.0 to 1.0, 0.20% and (b)
if the Interest Coverage Ratio is less than or equal to 2.0 to 1.0, 0.25%.
"Applicable Law" means, anything in Section 10.11 to the contrary
notwithstanding, (a) all applicable common law and principles of equity and
(b) all applicable provisions of all (i) constitutions, statutes, rules,
regulations and orders of governmental bodies, (ii) Governmental Approvals and
(iii) orders, decisions, judgments and decrees of all courts (whether at law
or in equity or admiralty) and arbitrators.
"Applicable LC Fee Rate" means a per annum rate, as determined
quarterly, (a) with respect to a standby Letter of Credit, (i) if the Interest
Coverage Ratio is greater than 2.0 to 1.0, 0.600% and (ii) if the Interest
Coverage Ratio is less than or equal to 2.0 to 1.0, 0.725%, and (b) with
respect to a documentary Letter of Credit, (i) with respect to Letters of
Credit in a stated amount less than or equal to $5,000,000, 0.500%, and (ii)
with respect to Letters of Credit in a stated amount greater than $5,000,000,
0.400%.
"Approved Country" means Japan, Canada, Singapore, or any country
in full membership and in good standing in the European Economic Community or
any other country approved in writing by the Arranging Agents.
"Approved Currency" means Dollars and any freely convertible
currency of any Approved Country.
"Arranging Agents" means The First National Bank of Chicago and
Societe Generale, as Arranging Agents for the Banks under the Loan Documents.
"AWT" means Air & Water Technologies Corporation, a Delaware
corporation.
"Bank" means (a) any Person listed as such on the signature pages
hereof and (b) any Person that has been assigned any or all of the rights or
obligations of a Bank pursuant to Section 10.10(a).
"Bank Nonparticipation" means (a) the inability of any Bank to
acquire any Participation pursuant to Section 1.02(b)(ii) or to make any
payment required by it under Section 1.04(c)(iii) because of such Bank's
having been subject to receivership, insolvency or other similar laws, (b) the
refusal of any Bank to acquire any Participation pursuant to Section
1.02(b)(ii) or to make any payment required by it under Section 1.04(c)(iii)
or (c) the giving by any Bank to the Issuing Bank of any notice (which has not
been retracted) of its intention not to so acquire any Participation or to
make any such required payment.
"Bank Tax" means any income (other than an income tax collected by
withholding), branch profit tax or franchise or similar tax imposed upon any
Bank or any Agent by any jurisdiction (or political subdivision thereof) under
the laws of which such Bank or such Agent is organized or is doing business in
which such Bank or such Agent or, in the case of such Bank, any of its Lending
Offices is located.
"Base Financial Statements" means the most recent, audited,
consolidated balance sheets of AWT and its Consolidated Subsidiaries referred
to in Schedule 5.02(a) and the related statements of income, stockholders'
equity and, as applicable, changes in financial position or cash flows for the
fiscal year ended with the date of such balance sheet.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (a) the corporate base rate of interest announced by The First
National Bank of Chicago at its offices in Chicago from time to time and (b)
the prime rate of interest announced by Societe Generale at its office in New
York from time to time. The Base Rate shall be adjusted automatically,
without notice, on the effective date of any change in such corporate base
rate or such prime rate, as the case may be. The Base Rate is not necessarily
the lowest rate of interest of either The First National Bank of Chicago or
Societe Generale.
"Base Rate Loan" means any Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Alternate Base
Rate.
"Benefit Plan" of any Person, means, at any time, any employee
pension benefit plan as defined in Section 3(2) of ERISA subject to Title IV
of ERISA (including a Multiemployer Benefit Plan), the funding requirements of
which (under Section 302 of ERISA or Section 412 of the Code) are, or at any
time within six years immediately preceding the time in question were, in
whole or in part, the responsibility of such Person.
"Bonding Agreement" means (a) the Agreement, dated March 13, 1989,
by and among Reliance Insurance Company, United Pacific Insurance Company, and
Planet Insurance Company of Federal Way Washington (together the "Sureties"),
Research-Cottrell, Inc., AWT and certain Subsidiaries of Research-Cottrell,
Inc., and (b) the Agreement, dated March 13, 1989, by and among the Sureties,
Metcalf & Eddy Companies, Inc., Research-Cottrell, Inc., AWT and certain
Subsidiaries of Research-Cottrell, Inc., and any amendment, modification,
replacement or renewal which is permitted pursuant to Section 4.14(b) hereof
of such Bonding Agreements with any Surety or any other surety.
"Bonding Arrangement" means any deposit, bonding arrangement or
Lien to secure the performance of (or to secure obligations in respect of
letters of credit posted to secure the performance of) bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business.
"Borrower" means each of (a) AWT and (b) the Persons listed on
Annex B; "Borrowers" means AWT and the Persons listed on Annex B collectively.
"Borrower Loan Documents" means the Loan Documents to which any
Borrower is a party.
"Borrowing Base" means, on any date, in each case determined as of
the date of the Borrowing Base Certificate required to be delivered most
recently prior to such date, as such Borrowing Base Certificate may be amended
by any notice delivered pursuant to Section 5.01(h)(v), the amount equal to
the sum of (i) (A) 70% of the Air Receivables, (B) 80% of M&E Receivables and
(C) 90% of PSG Receivables, (ii) 50% of Eligible Inventory, not to exceed
$15,000,000 at any time, (iii) 25% of the book value of the property, plant and
equipment of AWT and its Consolidated Subsidiaries, net of accumulated
depreciation, not to exceed $10,000,000 at any time and (iv) 20% of the Costs
and Earnings in Excess of Billings of the Borrowers, not to exceed $15,000,000
at any time. For this purpose, Inventory shall be valued at the lower of cost
or market determined principally on a FIFO basis.
"Borrowing Base Certificate" means a certificate in the form of
Schedule 5.01(e).
"Borrowing Base Deficiency" means, at any time, the amount by
which the aggregate unpaid principal amount of all Loans at such time exceeds
the Borrowing Base at such time.
"Business Day" means a day on which banks are open for business in
Chicago, Illinois, New York, New York, and the State of New Jersey.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
that portion of capital leases which is capitalized on the consolidated
balance sheet of AWT and its Consolidated Subsidiaries) by AWT and its
Consolidated Subsidiaries during that period that, in conformity with
Generally Accepted Accounting Principles, are required to be included in or
reflected by the property, plant or equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of AWT and its Consolidated
Subsidiaries.
"Capital Security" means, with respect to any Person, (a) any
share of capital stock of such Person or (b) any security convertible into, or
any option, warrant or other right to acquire, any share of capital stock of
such Person.
"Capitalized Lease Obligation" means any rental obligation which,
under Generally Accepted Accounting Principles, is or will be required to be
capitalized on a balance sheet of AWT or any of its Consolidated Subsidiaries,
or for which the amount of the asset and liability thereunder as if so
capitalized should be disclosed in a note to such balance sheet, in each case
taken at the amount thereof accounted for as indebtedness (net of interest
expense) in accordance with such principles.
"Cash Flow" means, for any period, (a) the operating income (loss)
from continuing operations as set forth on AWT's consolidated statement of
income for such period adjusted to exclude gains or losses from unusual items
plus (b) the amortization of goodwill for such period.
"Cash Flow Coverage Ratio" means, for AWT and its Consolidated
Subsidiaries, with respect to any specified period as measured on the last day
of any fiscal quarter of AWT, the ratio of (a) net cash provided by (used for)
operating activities as set forth on AWT's consolidated statements of cash
flows, but excluding adjustments for changes in working capital, net of
effects from acquisitions; plus Interest Expense; plus Rental Expense; less
Capital Expenditures, to (b) Interest Expense plus Rental Expense plus current
installments of long-term debt of AWT and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles (but excluding Loans outstanding and Letter of Credit
Amounts as of the date of such determination).
"CGE" means Compagnie Generale des Eaux, a corporation organized
and existing under the laws of France.
"CGE Subordinated Indebtedness" shall have the meaning ascribed to
the term "Subordinated Obligations" in the Subordination Agreement.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property in which a Lien is created
pursuant to the Loan Documents.
"Collateral Agent" means Societe Generale, New York Branch, in its
capacity as collateral agent for and representative (within the meaning of
Section 9-105(m) of the Uniform Commercial Code) of the Principals under the
Security Agreement, and any successor appointed pursuant to such Security
Agreement.
"Collateral Agent's Office" means the address of the Collateral
Agent specified in or determined in accordance with the provisions of Section
10.01(a)(ii).
"Comfort Letter" means that certain letter of CGE to the Banks,
dated February 24, 1995.
"Commitment" of any Bank means (a) the amount set forth opposite
such Bank's name under the heading "Commitment" on Annex A or, in the case of
a Bank that becomes a Bank pursuant to an assignment, the amount of the
assignor's Commitment assigned to such Bank, in either case, as the same may
be reduced from time to time pursuant to Section 1.07 or increased or reduced
from time to time pursuant to Section 7.07 or assignments in accordance with
Section 10.10(a), or (b) as the context may require, the obligation of such
Bank to make Loans in an aggregate unpaid principal amount not exceeding such
amount.
"Consolidated Current Assets" means, at any time, the consolidated
current assets of AWT and its Consolidated Subsidiaries as of such time.
"Consolidated Current Liabilities" means, at any time, (a) the
consolidated current liabilities of AWT and its Consolidated Subsidiaries
(excluding the Loans) plus (b) the current liabilities of any Person (other
than AWT or any of its Consolidated Subsidiaries) that are Guaranteed by AWT or
any of its Consolidated Subsidiaries, all as of such time.
"Consolidated Indebtedness" means, at any time, the consolidated
Indebtedness of AWT and its Consolidated Subsidiaries as of such time.
"Consolidated Net Worth" means, at any time, the consolidated
stockholders' equity of AWT and its Consolidated Subsidiaries determined at
such time.
"Consolidated Subsidiary" means, with respect to any Person at any
time, any Subsidiary or other Person the accounts of which would be
consolidated with those of such first Person in its consolidated financial
statements as of such time; unless otherwise specified, "Consolidated
Subsidiary" means a Consolidated Subsidiary of AWT.
"Contingent Reimbursement Obligation" means, at any time, the
amount by which (a) the contingent obligation of a Borrower, at such time, to
reimburse the Issuing Bank for any Drawing (converted to Dollars, if
applicable, at the Issuing Bank's Spot Rate plus 10%) that may be made under a
Letter of Credit exceeds (b) the amount of cash collateral held by the
Administrative Agent under Section 10.20 as security for such Contingent
Reimbursement Obligation, but only to the extent that the Lien of the Banks
and the Issuing Bank in such collateral is, in the determination of the
Administrative Agent, perfected and subject to no other Liens.
"Contract" means (a) any agreement (whether bilateral or
unilateral or executory or non-executory and whether a Person entitled to
rights thereunder is so entitled directly or as a third-party beneficiary),
including an indenture, lease or license, (b) any deed or other instrument of
conveyance, (c) any certificate of incorporation or charter and (d) any by-law.
"Costs and Earnings in Excess of Billings" means, at any time, the
aggregate amount of costs incurred and earned margin in excess of billings
with respect to uncompleted contracts at such time.
"Credit Extension" means (a) the making by any Bank of any Loan or
(b) the issuance by the Issuing Bank of any Letter of Credit.
"Debt" means any Liability that constitutes "debt" or "Debt" under
section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous
Applicable Law.
"Default" means any condition or event that constitutes an Event
of Default or that with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Domestic Lending Office" of any Bank means (a) as applied to any
Bank, (i) the branch or office of such Bank set forth below such Bank's name
under the heading "Domestic Lending Office" on Annex A or, in the case of a
Bank that becomes a Bank pursuant to an assignment, the branch or office of
such Bank set forth under the heading "Domestic Lending Office" in the Notice
of Assignment given to AWT and the Administrative Agent with respect to such
assignment or (ii) such other branch or office of such Bank designated by such
Bank from time to time as the branch or office at which its Base Rate Loans
and Participations are to be made or maintained and (b) as applied to the
Issuing Bank, if such branch or office is different from the Domestic Lending
Office of the Bank that is the Issuing Bank, (i) the branch or office of the
Issuing Bank set forth below the name of the Bank that is the Issuing Bank
under the heading "Issuing Bank Domestic Lending Office" on Annex A or (ii)
such other branch or office of such Bank designated by the Issuing Bank from
time to time as the branch or office at which Contingent Reimbursement
Obligations and Drawings are to be made or maintained.
"Drawing" means (a) any amount disbursed by the Issuing Bank under
a Letter of Credit or (b) as the context may require, the obligation of the
Borrower to reimburse the Issuing Bank for such disbursement, which
reimbursement shall be in Dollars converted at the Spot Rate of the Issuing
Bank.
"Eligible Assignee" means (a) any commercial bank, savings and
loan institution or savings bank organized under the laws of the United
States, or any State thereof, and having combined capital and surplus in
excess of $100,000,000, (b) any commercial bank organized under the laws of
any other country that is a member of the Organization for Economic
Cooperation and Development ("OECD"), or a political subdivision of any such
country, and having combined capital and surplus (or the equivalent thereof
under the accounting principles applicable thereto) in excess of $100,000,000,
provided that such bank is acting through a branch, agency or Affiliate
located in the country in which it is organized or another country that is
also a member of the OECD, (c) the central bank of any country that is a
member of the OECD or (d) any insurance company, pension fund, mutual fund or
other financial institution of recognized standing.
"Eligible Inventory" means Inventory of the Borrowers that the
Required Banks in their sole and absolute discretion determine meets all of
the following requirements:
(a) such Inventory is (i) subject to the Lien created by
the Security Agreement and such Lien is perfected as to such Inventory and
(ii) subject to no Liens other than Permitted Liens;
(b) such Inventory is in good condition and was
manufactured in accordance with and meets all standards imposed by Applicable
Law or by any government agency, or department or division thereof, having
regulatory authority over such goods or their manufacture, use or sale;
(c) such Inventory is currently either readily usable or
saleable in the normal course of such Borrower's business, within such
Borrower's customary period of resale;
(d) such Inventory has not been consigned to any Person;
(e) no event has occurred and no condition exists that
would substantially impede such Borrower's ability to continue to use or sell
such Inventory in the normal course;
(f) no claim disputing such Borrower's title to, or right
to possession of, dominion over or right to sell, such Inventory has been
asserted;
(g) no covenant, representation or warranty applicable to
such Inventory under any of the Loan Documents has been breached or is
inaccurate in any respect; and
(h) such Inventory is not determined by the Required Banks
to be ineligible for any other reason generally accepted in the commercial
finance business as a reason for ineligibility.
"Eligible Receivable" means a Receivable of AWT or any of its
Consolidated Subsidiaries and that the Required Banks in their sole and
absolute discretion determine meets all of the following requirements:
(a) such Receivable represents a bona fide right to
receive payment that requires no further act under any circumstances on the
part of such Person to receive such payment and that arises from an arm's
length transaction with a party other than a Subsidiary in the ordinary course
of such Person's business;
(b) such Receivable shall not (i) be unpaid more than 90
days from the date of the original invoice, (ii) be payable by an account
debtor located outside the United States or an Approved Country, other than
any Receivable that is backed by a letter of credit issued by a bank organized
in an Approved Country and having combined capital and surplus in excess of
$250,000,000, or (iii) be subject to any Bonding Arrangement;
(c) if such Receivable arises from the sale of goods, the
goods the sale of which gave rise to such Receivable were shipped or delivered
to the account debtor on an absolute sale basis and not on a bill and hold
sale basis, a consignment sale basis, a guaranteed sale basis, a sale or
return basis, or on the basis of any other similar understanding, and no part
of such goods, or any other goods shipped or delivered to such account debtor
has been returned or rejected;
(d) if such Receivable arises from the performance of
services, such services have been fully rendered to the extent required to be
entitled to receive such payment;
(e) such Receivable is not evidenced by chattel paper or
an instrument of any kind;
(f) the account debtor with respect to such Receivable (i)
is not insolvent or the subject of any bankruptcy or insolvency proceedings of
any kind or of any other proceeding or action, threatened or pending, that
might, in the opinion of the Arranging Agents, have a Materially Adverse
Effect on the business of such account debtor or (ii) has not made an
assignment for the benefit of creditors or consented to or suffered the
appointment of a receiver, trustee, liquidator, custodian or the like for it
or for a significant portion of its assets or affairs;
(g) such Receivable is a valid, legally enforceable
obligation of the account debtor with respect thereto and is not subject to
any present, or contingent, and no facts exist that are the basis for any
future, offset or counterclaim or other defense or dispute on the part of such
account debtor;
(h) such Receivable is (i) subject to the Lien created by
the Security Agreement and such Lien is perfected as to such Receivable and
(ii) subject to no Liens other than Permitted Liens;
(i) such Receivable is evidenced by an invoice or other
documentation in form acceptable to the Arranging Agents;
(j) such Person has observed and complied with all laws of
the jurisdiction in which the account debtor on such Receivable is located
that, if not observed and complied with, would deny to such Person access to
the courts of such State;
(k) such Receivable does not arise out of any transaction
with a Subsidiary of such Person;
(l) such Receivable is not subject to any provision which
would invalidate any assignment thereof or prevent the perfection of a
security interest therein but for notice of or consent to such assignment,
unless such notice has been given or such consent obtained or unless waived by
the Collateral Agent;
(m) if such Receivable arises from the sale of goods, the
goods the sale of which gave rise to such Receivable (i) were not, at the time
of the sale or leasing thereof, subject to any Lien, except the Security
Interest and Liens that constitute Permitted Liens under the Security
Agreement and (ii) were manufactured in accordance with all Applicable Laws
including those specifying minimum wages and working conditions;
(n) such Receivable is payable in freely transferable
Dollars or any Approved Currency;
(o) no covenant, representation or warranty applicable to
such Receivable under any of the Loan Documents has been breached or is
inaccurate in any respect; and
(p) such Receivable is not determined by the Required
Banks to be ineligible for any other reason generally accepted in the
commercial finance business as a reason for ineligibility.
"Environmental Claim" means any civil, criminal or administrative
action, suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice or demand, letter relating in any way to any Environmental
Law or any code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, including, without
limitation, (a) any and all enforcement, cleanup, removal, or other
governmental or regulatory actions pursuant to any applicable Environmental
Law and (b) all claims by any third party with respect to or because of its or
their property relating to damage, responsibility, contribution, cost recovery
compensation, loss or injury resulting from any Hazardous Materials.
"Environmental Law" means any applicable federal, state, local or
foreign law, ordinance or regulation relating to pollution or protection of
the environment, including laws relating to industrial hygiene, emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or toxic or hazardous substances or wastes (including, without
limitation, Hazardous Materials) into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals, or toxic or hazardous substances or
wastes (including, without limitation, Hazardous Materials).
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means, with respect to any Person, any other
Person, including a Subsidiary or other Affiliate of such first Person, that
is a member of any group of organizations within the meaning of Code Sections
414(b), (c), (m) or (o) of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which dealings
in Dollar deposits are carried on in the London interbank market.
"Eurodollar Lending Office" of any Bank means (a) as applied to
any Bank (i) the branch or office of such Bank set forth below such Bank's
name under the heading "Eurodollar Lending Office" on Annex A or, in the case
of a Bank that becomes a Bank pursuant to an assignment, the branch or office
of such Bank set forth under the heading "Eurodollar Lending Office" in the
Notice of Assignment given to AWT and the Administrative Agent with respect to
such assignment or (ii) such other branch or office of such Bank designated by
such Bank from time to time as the branch or office at which its Eurodollar
Rate Loans and Participations are to be made or maintained and (b) as applied
to the Issuing Bank, if such branch or office is different from the Eurodollar
Lending Office of the Bank that is the Issuing Bank, (i) the branch or office
of the Issuing Bank set forth below the name of the Bank that is the Issuing
Bank under the heading "Issuing Bank Eurodollar Lending Office" on Annex A or
(ii) such other branch or office of such Bank designated by the Issuing Bank
from time to time as the branch or office at which Contingent Reimbursement
Obligations and Drawings are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the rate per
annum determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the rates per annum
determined, respectively, by each Arranging Agent to be the rate at which such
Arranging Agent offered or would have offered to place with first-class banks
in the London interbank market deposits in Dollars in amounts comparable to
the Eurodollar Rate Loan of such Arranging Agent to which such Interest Period
applies, for a period equal to such Interest Period, at 11:00 a.m. (London
time) on the second Eurodollar Business Day before the first day of such
Interest Period.
"Eurodollar Rate Loan" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the Adjusted
Eurodollar Rate.
"Eurodollar Rate Margin" means (a) if the Interest Coverage Ratio
is greater than 2.0 to 1.0, 0.600% and (b) if the Interest Coverage Ratio is
equal to or less than 2.0 to 1.0, 0.725%.
"Event of Default" means any of the events specified in Section
6.01.
"Existing Benefit Plan" means any Benefit Plan listed on Schedule
4.17.
"Existing Credit Agreements" means (i) the Credit Agreement, dated
as of September 12, 1990, among AWT, the banks party thereto and The First
National Bank of Chicago, as Agent, and (ii) the Bank Purchase Agreement,
dated as of April 12, 1990, between Metcalf & Eddy, Inc., as Seller, and The
First National Bank of Chicago, as Buyer.
"Existing Guaranty" means (a) any Guaranty outstanding on the
Agreement Date, to the extent set forth on Schedule 4.08, and (b) any Guaranty
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (i) at the time such Guaranty is entered into and immediately
after giving effect thereto, no Default would exist, (ii) such Guaranty is
binding only on the obligor or obligors under the Guaranty so renewed,
extended or replaced, (iii) the principal amount of the obligations Guaranteed
by such Guaranty does not exceed the principal amount of the obligations
Guaranteed by the Guaranty so renewed, extended or replaced at the time of
such renewal, extension or replacement and (iv) the obligations Guaranteed by
such Guaranty bear interest at a rate per annum not exceeding the rate borne
by the obligations Guaranteed by the Guaranty so renewed, extended or replaced
except for any increase that is commercially reasonable at the time of such
increase.
"Existing Indebtedness" means, in the case of any Borrower or any
Subsidiary of any Borrower, (a) any Indebtedness of such Borrower or
Subsidiary outstanding on the Agreement Date, to the extent set forth on
Schedule 4.07, and (b) any Indebtedness of such Borrower or Subsidiary
constituting a renewal, extension or refunding of any Existing Indebtedness of
such Borrower or Subsidiary, but only if (i) at the time such Indebtedness is
incurred and immediately after giving effect thereto, no Default would exist
and (ii) the principal amount of such Indebtedness does not exceed the
principal amount of the Indebtedness so renewed, extended or refunded.
"Existing Investments" means the Investments of the Borrowers
listed on Schedule 4.15.
"Federal Funds Rate" means, for any day, 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 for such day
(or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published
for any day that is a Business Day, the average of quotations for such day on
such transactions received by The First National Bank of Chicago from three
Federal funds brokers of recognized standing selected by such bank.
"Funded Current Liability Percentage" has the meaning ascribed to
that term in Code Section 401(a)(29).
"Generally Accepted Accounting Principles" means, unless the
Arranging Agents shall otherwise consent, such consent not to be unreasonably
withheld, (a) in the case of the Base Financial Statements, generally accepted
accounting principles at the time of the issuance of the Base Financial
Statements and (b) in all other cases, the accounting principles followed in
the preparation of the Base Financial Statements.
"Governmental Approval" means any authorization, consent,
approval, license or exemption of, registration or filing with, or report or
notice to, any governmental unit.
"Guaranteed Parties" means the Agents, the Issuing Bank, the Banks
and each other Indemnified Person hereunder.
"Guarantors" means the Persons listed on Annex B hereto and
identified as Guarantors.
"Guaranty" of any Person means any obligation, contingent or
otherwise, of such Person (a) to pay any Liability of any other Person or to
otherwise protect, or having the practical effect of protecting, the holder of
any such Liability against loss (whether such obligation arises by virtue of
such Person being a partner of a partnership or participant in a joint venture
or by agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with
the issuance by a third Person of a Guaranty of any Liability of any other
Person (whether such obligation arises by agreement to reimburse or indemnify
such third Person or otherwise). The word "Guarantee" when used as a verb has
the correlative meaning.
"Hazardous Materials" means any flammable explosives, radioactive
materials, hazardous wastes, toxic substances or related materials, including,
without limitation, any substances defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials", or "toxic
substances" under any applicable federal, state or foreign law or regulation.
"Indebtedness" of any Person means (in each case, whether such
obligation is with full or limited recourse) (a) any obligation of such Person
for borrowed money, (b) any obligation of such Person evidenced by a bond,
debenture, note or other similar instrument, (c) any obligation of such Person
to pay the deferred purchase price of property or services, except a trade
account payable that arises in the ordinary course of business but only if and
so long as the same is payable on customary trade terms, (d) any obligation
of such Person as lessee under a capital lease, (e) any Mandatorily Redeemable
Stock of such Person owned by any Person other than such Person or an
Indebtedness-Free Subsidiary of such Person (the amount of such Mandatorily
Redeemable Stock to be determined for this purpose as the higher of the
liquidation preference of and the amount payable upon redemption of such
Mandatorily Redeemable Stock), (f) any non-contingent obligation of such
Person to reimburse any other Person in respect of amounts paid under a letter
of credit or other Guaranty issued by such other Person to the extent that
such reimbursement obligation remains outstanding after it becomes
non-contingent, (g) any obligation with respect to an interest rate or
currency swap or similar obligation obligating such Person to make payments,
whether periodically or upon the happening of a contingency, except that if
any agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount thereof, (h) any
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
a Lien on any asset of such Person and (i) any Indebtedness of others
Guaranteed by such Person.
"Indebtedness-Free Subsidiary" means a Subsidiary (a) all of the
Capital Securities, other ownership interests and rights to acquire ownership
interests of which are owned or controlled by a Borrower, by one or more other
Indebtedness-Free Subsidiaries or by a Borrower and one or more other
Indebtedness-Free Subsidiaries and (b) that has no Indebtedness other than
Indebtedness under the Loan Documents and Indebtedness owing to a Borrower or
another Indebtedness-Free Subsidiary.
"Indemnified Person" means any Person that is, or at any time was,
the Administrative Agent, an Arranging Agent, the Issuing Bank, a Bank, an
Affiliate of the Administrative Agent, any other Agent, the Issuing Bank or a
Bank or a director, officer, employee or agent of any such Person.
"Information" means data, certificates, reports, statements
(including financial statements), documents and other information.
"Intellectual Property" means (a) (i) patents and patent rights,
(ii) trademarks, trademark rights, trade names, trade name rights, corporate
names, business names, trade styles, service marks, logos and general
intangibles of like nature and (iii) copyrights, in each case whether
registered, unregistered or under pending registration and, in the case of any
such that are registered or under pending registration, whether registered or
under pending registration under the laws of the United States or any other
country, (b) reissues, continuations, continuations-in-part and extensions of
any Intellectual Property referred to in clause (a), and (c) rights relating
to any Intellectual Property referred to in clause (a) or (b), including rights
under applications (whether pending under the laws of the United States or any
other country) or licenses relating thereto.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the date hereof, among the Administrative Agent, the Collateral Agent,
the Sureties, the Borrowers and the Guarantors.
"Interest Coverage Ratio" means, as of any date of determination,
the ratio of (i) Cash Flow of AWT and its Consolidated Subsidiaries for the
period of four consecutive fiscal quarters of AWT ending on, or most recently
ended prior to, such date (or, if shorter, the period from the Agreement Date
to such date) to (ii) the excess of Interest Expense for AWT for such period
over interest income of AWT and its Consolidated Subsidiaries for such period.
"Interest Expense" means, for any Person for any period, the
interest expense (without regard to any offsetting interest income or
reduction for capitalized interest) of such Person and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles.
"Interest Payment Date" means the last day of March, June,
September and December of each year.
"Interest Period" means a period commencing, in the case of the
first Interest Period applicable to a Eurodollar Rate Loan, on the date of the
making of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third or sixth calendar month
thereafter, except that (a) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls
in another calendar month, in which case such Interest Period shall end on the
next preceding Eurodollar Business Day and (b) any Interest Period that begins
on the last Eurodollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month in which such
Interest Period ends) shall end on the last Eurodollar Business Day of a
calendar month.
"Inventory" of any Person has the meaning ascribed to such term in
the Security Agreement.
"Investment" of any Person means (a) any Capital Security,
evidence of Indebtedness or other security or instrument issued by any other
Person, (b) any loan, advance or extension of credit to, or any contribution
to the capital of, any other Person and (c) any other investment in any other
Person. An Investment referred to in Section 4.15(d) shall be deemed to be
"outstanding", except to the extent that it has been paid or otherwise
satisfied in cash or securities or the Person making such Investment has
received cash in consideration for the sale thereof, notwithstanding the fact
that such Investment may otherwise have been forgiven, released, canceled or
otherwise nullified.
"Issuing Bank" means (a) with respect to each Letter of Credit
issued by The First National Bank of Chicago under an Existing Credit
Agreement and outstanding on the Agreement Date with a termination date that
is no more than three months after the Agreement Date, The First National Bank
of Chicago in its capacity as issuing bank of such Letter of Credit and (b)
with respect to each Letter of Credit (i) issued by The First National Bank of
Chicago under an Existing Credit Agreement and outstanding on the Agreement
Date with a termination date that is more than three months after the
Agreement Date and identified on Schedule 10.01, which shall be replaced with
a Letter of Credit under this Agreement as soon as practicable after the
Agreement Date, or (ii) issued by Societe Generale pursuant to Section 1.02(b),
Societe Generale in its capacity as issuing bank of such Letter of Credit.
"Issuing Bank's Office" means the address of the Issuing Bank
specified in or determined in accordance with the provisions of Section
10.01(a)(ii).
"Lending Office" of any Bank or the Issuing Bank means the
Domestic Lending Office or the Eurodollar Lending Office of such Person.
"Letter of Credit" means (a) a letter of credit issued by Societe
Generale as Issuing Bank pursuant to Section 1.02(b) and (b) a letter of
credit issued by The First National Bank of Chicago under an Existing Credit
Agreement and outstanding on the Agreement Date.
"Letter of Credit Amount" of a Participating Bank in a Letter of
Credit in which it has a Participation means, at any time, an amount equal to
the product of (a) the sum of (i) the aggregate unpaid principal amount of all
Drawings under such Letter of Credit at such time and (ii) the amount of the
Contingent Reimbursement Obligation with respect to such Letter of Credit at
such time multiplied by (b) such Participating Bank's Participating Bank
Percentage with respect to such Letter of Credit.
"Leverage Ratio" means, at any time, the ratio of (a) the total
Indebtedness (other than Indebtedness pursuant to clause (g) of the definition
of Indebtedness and less any CGE Subordinated Indebtedness and Permitted
Environmental Project Indebtedness of AWT and its Consolidated Subsidiaries)
of AWT and its Consolidated Subsidiaries to (b) the total Indebtedness (less
any CGE Subordinated Indebtedness and Permitted Environmental Project
Indebtedness of AWT and its Consolidated Subsidiaries) of AWT and its
Consolidated Subsidiaries plus Adjusted Consolidated Net Worth, in each case
determined at such time.
"Liability" of any Person means (in each case, whether with full
or limited recourse) any indebtedness, liability, obligation, covenant or duty
of or binding upon, or any term or condition to be observed by or binding upon,
such Person or any of its assets, of any kind, nature or description, direct
or indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law,
or otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"Lien" means, with respect to any property or asset (or any income
or profits therefrom) of any Person (in each case whether the same is
consensual or nonconsensual or arises by Contract, operation of law, legal
process or otherwise) (a) any mortgage, lien, pledge, attachment, levy or
other security interest of any kind thereupon or in respect thereof or (b) any
other arrangement, express or implied, under which the same is subordinated,
transferred, sequestered or otherwise identified so as to subject the same to,
or make the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured Liabilities of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to
a Lien any asset that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan" means any amount advanced by a Bank pursuant to Section
1.01.
"Loan Document Related Claim" means any claim (including, without
limitation, an Environmental Claim) or dispute (whether arising under
Applicable Law, including any Environmental Law, under Contract or otherwise
and, in the case of any proceeding relating to any such claim or dispute,
whether civil, criminal, administrative or otherwise) in any way arising out
of, related to, or connected with, the Loan Documents, the relationships
established thereunder or any actions or conduct thereunder or with respect
thereto, whether such claim or dispute arises or is asserted before or after
the Agreement Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any
"Representation and Warranty" as defined in any Loan Document and any other
representation or warranty made or deemed made under any Loan Document.
"Loan Documents" means (a) this Agreement, the Notes, the Security
Agreement, the Mortgages, the Letters of Credit and the related requests for
the issuances thereof, the Comfort Letter, the Subordination Agreement, the
Intercreditor Agreement and (b) all other agreements, documents and
instruments relating to or arising out of, (i) any agreement, document or
instrument referred to in clause (a), (ii) any other agreement, document or
instrument referred to in this clause (b) or (iii) any of the transactions
contemplated by any agreement, document or instrument referred to in clause
(a) or in this clause (b).
"Loan Party" means AWT and each of the other Borrowers and
Guarantors, and their respective successors.
"Mandatorily Redeemable Stock" means, with respect to any Person,
any share of such Person's capital stock to the extent that it is (a)
redeemable, payable or required to be purchased or otherwise retired or
extinguished, or convertible into any Indebtedness or other Liability of such
Person, (i) at a fixed or determinable date on or prior to the Termination
Date, whether by operation of a sinking fund or otherwise, (ii) at the option
of any Person other than such Person or (iii) upon the occurrence of a
condition not solely within the control of such Person, such as a redemption
required to be made out of future earnings or (b) convertible, at the option
of any Person other than such Person, into Mandatorily Redeemable Stock.
"Material Subsidiary" means any Subsidiary which has either (a)
assets exceeding 5% of the assets of AWT and its Consolidated Subsidiaries
taken as a whole or (b) revenues exceeding 5% of the revenues of AWT and its
Consolidated Subsidiaries taken as a whole.
"Materially Adverse Effect" means, (a) with respect to any Person,
any materially adverse effect on such Person's business, assets, Liabilities,
financial condition or results of operations, (b) with respect to a group of
Persons "taken as a whole", any materially adverse effect on such Persons'
business, assets, Liabilities, financial conditions or results of operations
taken as a whole on, where appropriate, a consolidated basis in accordance
with Generally Accepted Accounting Principles, (c) with respect to any Loan
Document, any material adverse effect on the binding nature, validity or
enforceability thereof as an obligation of any Loan Party that is a party
thereto and (d) with respect to the Collateral taken as a whole, a materially
adverse effect on its value as Collateral or a material adverse effect on the
validity, perfection, priority or enforceability of the Security Interest
therein.
"Maximum Permissible Rate" means, with respect to interest payable
on any amount, the rate of interest on such amount that, if exceeded, could,
under Applicable Law, result in (a) civil or criminal penalties being imposed
on the payee or (b) the payee's being unable to enforce payment of (or, if
collected, to retain) all or any part of such amount or the interest payable
thereon.
"M&E Receivables" means Eligible Receivables owing to AWT or any
Consolidated Subsidiary of AWT included in the Metcalf & Eddy, Inc. business
segment for financial reporting purposes.
"Money Market Investment" means (a) any security issued or
directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having a remaining maturity of not more
than twelve months, (b) any certificate of deposit, eurodollar time deposit
and bankers' acceptance with remaining maturity of not more than six months,
any overnight bank deposit, and any demand deposit account, in each case with
any Bank or with (i) any United States commercial bank rated B or better by
Thomson Bankwatch Inc. or (ii) any first-class bank in any Approved Country,
in each case having capital and surplus in excess of $500,000,000, (c) any
repurchase obligation with a term of not more than seven days for underlying
securities of the types described in clauses (a) and (b) above entered into
with any financial institution meeting the qualifications specified in clause
(b) above, (d) any commercial paper issued by any Bank or the parent
corporation of any Bank and any other commercial paper rated A-1 by Standard &
Poor's Corporation or Prime-1 by Moody's Investors Service, Inc. and in any
case having a remaining maturity of not more than twelve months and (e) money
market funds investing in any of the foregoing.
"Mortgage" means (a) the Mortgage, Security Agreement and
Assignment of Leases and Income, dated as of the date hereof, between Research
Cottrell, Inc., as mortgagor, and Societe Generale, New York Branch, as Agent
(as defined therein), as mortgagee, with respect to the headquarter parcel
located in New Jersey, and (b) the Mortgage, Security Agreement and Assignment
of Leases and Income, dated as of the date hereof, between Research Cottrell,
Inc., as mortgagor, and Societe Generale, New York Branch, as Agent (as
defined therein), as mortgagee, with respect to the farmland parcel located in
New Jersey.
"Mortgaged Property" means all property in which a Lien is created
pursuant to the Mortgage.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Nonparticipating Bank" means a Bank designated by the Issuing
Bank as a Bank with respect to which a Bank Nonparticipation has occurred.
The designation of a Bank by the Issuing Bank as a "Nonparticipating Bank"
shall not affect the status of such Bank as a Participating Bank in respect of
Letters of Credit issued prior to such designation.
"Non-US Bank" means a Person that is not a United States Person
and that is not described in Section 881(c)(3) of the Code.
"Note" means any promissory note in the form of Exhibit A and
includes such a Note that is a Registered Note.
"Notice of Assignment" means any notice to AWT and the
Administrative Agent with respect to an assignment pursuant to Section
10.10(a) in the form of Schedule 10.10(a).
"Participating Bank" means a Bank that is not a Nonparticipating
Bank.
"Participating Bank Percentage" means, as applied to a
Participating Bank with respect to a Letter of Credit, the fraction, the
numerator of which is such Participating Bank's Commitment at the time of the
issuance of such Letter of Credit and the denominator of which is the sum of
the Commitments of all of the Banks that are, at such time, Participating
Banks with respect to such Letter of Credit.
"Participation" in a Letter of Credit means, in the case of a
Participating Bank that is not the Issuing Bank, the participation interest in
such Letter of Credit acquired by such Participating Bank pursuant to Section
1.02(b)(ii) and, in the case of a Participating Bank that is the Issuing Bank,
the Issuing Bank's retained interest in such Letter of Credit.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Environmental Project Indebtedness" means Indebtedness
of a Borrower or any Subsidiary incurred for the sole purpose of funding
specific environmental projects of such Borrower and repayable solely from the
net cash flow of such projects without recourse to or Guaranty of payment by
such Borrower or any of its Consolidated Subsidiaries or any other Borrower or
Guarantor.
"Permitted Guaranty" means any Guaranty that is (a) a Guaranty
incurred in the ordinary course of business, (b) a Guaranty by AWT or any of
its Subsidiaries of the obligations of any Subsidiary of AWT or of AWT, to the
extent such Subsidiary or AWT is otherwise permitted to incur such Guaranteed
obligation pursuant to the terms of this Agreement, (c) a Guaranty resulting
in the incurrence of Indebtedness, to the extent such Indebtedness is permitted
pursuant to Section 4.07 or (d) a Guaranty of and only of the obligations of
the Loan Parties under the Loan Documents.
"Permitted Lien" means (i) any Lien securing and only securing the
obligations of the Loan Parties under the Loan Documents; (ii) any Lien
securing a tax, assessment or other governmental charge or levy or the claim
of a materialman, mechanic, carrier, warehouseman or landlord for labor,
materials, supplies or rentals incurred in the ordinary course of business,
but only if payment thereof shall not at the time be required to be made in
accordance with Section 4.01 and foreclosure, distraint, sale or other similar
proceedings shall not have been commenced; (iii) any Lien on the properties
and assets of a Subsidiary of a Borrower securing an obligation owing to such
Borrower or any Subsidiary; (iv) any Lien consisting of a deposit or pledge
made in the ordinary course of business in connection with, or to secure
payment of, obligations under worker's compensation, unemployment insurance or
similar legislation; (v) any Lien arising pursuant to an order of attachment,
distraint or similar legal process arising in connection with legal
proceedings, but only if and so long as the execution or other enforcement
thereof is not unstayed for more than 90 days; (vi) any Lien existing on (A)
any property or asset of any Person at the time such Person becomes a
Subsidiary or (B) any property or asset at the time such property or asset is
acquired by a Borrower or a Subsidiary, but only, in the case of either (A) or
(B), if and so long as (1) such Lien was not created in contemplation of such
Person becoming a Subsidiary or such property or asset being acquired, (2) such
Lien is and will remain confined to the property or asset subject to it at the
time such Person becomes a Subsidiary or such property or asset is acquired
and to fixed improvements thereafter erected on such property or asset, (3)
such Lien secures only the obligation secured thereby at the time such Person
becomes a Subsidiary or such property or asset is acquired and (4) the
obligation secured by such Lien is not in default; (vii) any Lien in existence
on the Agreement Date to the extent set forth on Schedule 4.09, but only, in
the case of each such Lien, to the extent it secures an obligation outstanding
on the Agreement Date to the extent set forth on such Schedule; (viii) any
Lien securing Purchase Money Indebtedness but only if, in the case of each such
Lien, (A) such Lien shall at all times be confined solely to the property or
asset the purchase price of which was financed through the incurrence of the
Purchase Money Indebtedness secured by such Lien and to fixed improvements
thereafter erected on such property or asset and (B) such Lien attached to
such property or asset within 90 days of the acquisition of such property or
asset; (ix) any Bonding Arrangement; (x) any Lien arising as a result of the
Bonding Agreements and the bonds issued thereunder; (xi) Liens on goods sold
or shipped and covered by letters of credit securing reimbursement and
obligations under such letters of credit; (xii) liens securing Permitted
Environmental Project Indebtedness; (xiii) any Lien constituting a renewal,
extension or replacement of a Lien constituting a Permitted Lien by virtue of
clause (vi), (vii), (viii), (ix), (x), (xi) or (xii) of this definition, but
only if (A) at the time such Lien is granted and immediately after giving
effect thereto, no Default would exist, (B) such Lien is limited to all or a
part of the property or asset that was subject to the Lien so renewed,
extended or replaced and to fixed improvements thereafter erected on such
property or asset and (C) the principal amount of the obligations secured by
such Lien does not exceed the principal amount of the obligations secured by
the Lien so renewed, extended or replaced; (xiv) Liens on receivables to the
extent such receivables are permitted to be sold or otherwise disposed of
pursuant to Section 4.12(g), (xv) Liens incidental to the conduct of any
Borrower's or any Subsidiary's business or ownership of such Borrower's or
Subsidiary's property and assets and incurred in the ordinary course of
business, which Liens do not secure Indebtedness and do not in the aggregate
materially detract from the value of such Borrower's or Subsidiary's assets or
materially impair the use thereof in the operation of such Borrower's or
Subsidiary's business, and (xvi) Liens not otherwise permitted by clauses (i)
through (xv) above in an aggregate amount not to exceed $100,000 at any time;
and any Lien that constitutes a "Permitted Lien" under the applicable Security
Agreement or Mortgage.
"Permitted Project" has the meaning set forth in Section 4.15(i).
"Permitted Restrictive Covenant" means (a) any covenant or
restriction contained in any Loan Document, (b) any covenant or restriction
binding upon any Person at the time such Person becomes a Subsidiary of the
Borrower if the same is not created in contemplation thereof, (c) any covenant
or restriction of the type contained in Section 4.09 that is contained in any
Contract evidencing or providing for the creation of or concerning Purchase
Money Indebtedness so long as such covenant or restriction is limited to the
property purchased therewith, (d) any covenant or restriction described in
Schedule 4.19, but only to the extent such covenant or restriction is there
identified by specific reference to the provision of the Contract in which such
covenant or restriction is contained, (e) any covenant or restriction
contained in the terms of any Permitted Environmental Project Indebtedness or
(f) any covenant or restriction that (i) is not more burdensome than an
existing Permitted Restrictive Covenant that is such by virtue of clause (b),
(c), (d) or (e), (ii) is contained in a Contract constituting a renewal,
extension or replacement of the Contract in which such existing Permitted
Restrictive Covenant is contained and (iii) is binding only on the Person or
Persons bound by such existing Permitted Restrictive Covenant.
"Person" means any individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof or, for the purpose of the definition of "ERISA
Affiliate", any trade or business.
"Planned Dispositions" means any disposition of assets planned by
a Borrower or any Subsidiary as of the Agreement Date and described on
Schedule 11.01.
"Post-Default Rate" means (a) in the case of any failure to make
any payment of principal or interest on any of the Loans, Notes or the
Drawings at maturity, the Alternate Base Rate plus 2% and (b) in all other
cases, the rate otherwise applicable under Section 1.03(a) plus 2%.
"Predecessor Indebtedness" means Indebtedness under the Existing
Credit Agreements.
"Principals" shall have the meaning ascribed to such term in the
Security Agreement.
"Prohibited Transaction" means any transaction that is prohibited
under Code Section 4975 or ERISA Section 406 and not exempt under Code Section
4975 or ERISA Section 408.
"PSG Receivables" means Eligible Receivables owing to AWT or any
Consolidated Subsidiary of AWT which is included in the Professional Service
Group, Inc. business segment for financial reporting purposes.
"Purchase Money Indebtedness" means (a) Indebtedness of a Borrower
or any Subsidiary that is incurred to finance part or all of (but not more
than) the purchase price of an asset, provided that (i) neither such Borrower
nor such Subsidiary had at any time prior to such purchase any interest in
such asset other than a security interest or an interest as lessee under an
operating lease and (ii) such Indebtedness is incurred within 90 days after
such purchase, or (b) Indebtedness that constitutes a renewal, extension or
refunding of, but not an increase in the principal amount of, Purchase Money
Indebtedness that is such by virtue of clause (a) or (b).
"Receivable" of any Person has the meaning ascribed to such term
in the Security Agreement.
"Register" means a register kept at the Administrative Agent's
Office by the Administrative Agent on behalf of the Borrowers on which the
Administrative Agent records the names of the Registered Holders.
"Registered Holder" means the Person in whose name a Registered
Note is registered.
"Registered Note" means a Note the name of the holder of which has
been recorded on the Register. The registration of a Note shall constitute
the registration of the Loan evidenced thereby.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulatory Change" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law), or
any change therein or in the administration or enforcement thereof, that
becomes effective or is implemented or first required or expected to be
complied with after the Agreement Date, whether the same is (a) the result of
an enactment by a government or any agency or political subdivision thereof, a
determination of a court or regulatory authority, or otherwise or (b) enacted,
adopted, issued or proposed before or after the Agreement Date, including any
such that imposes, increases or modifies any Tax, reserve requirement,
insurance charge, special deposit requirement, assessment or capital adequacy
requirement, but excluding any such that imposes, increases or modifies any
Bank Tax.
"Rental Expense" means, for any period, the aggregate fixed
amounts payable by AWT and its Consolidated Subsidiaries under any lease of
property having an original term (including any required renewals or any
renewals at the option of the lessor or lessee) of one year or more (but does
not include any Capitalized Lease Obligations), less any sublease income.
"Repayment Date" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Termination Date,
reduction to zero pursuant to Section 1.07 or termination pursuant to Section
6.02) and (b) the payment in full of the Loans and Drawings and all other
amounts due and payable or accrued hereunder.
"Reportable Event" means, with respect to any Benefit Plan of any
Person, (a) the occurrence of any of the events set forth in ERISA Sections
4043(b) (other than a Reportable Event as to which the provision of 30 days'
notice to the PBGC is waived under applicable regulations), 4068(f) or 4063(a)
or the regulations thereunder with respect to such Benefit Plan, (b) any event
requiring such Person or any of its ERISA Affiliates to provide security to
such Benefit Plan under Code Section 401(a)(29) or (c) any failure to make a
payment required by Code Section 412(m) with respect to such Benefit Plan.
"Representation and Warranty" means any representation or warranty
made pursuant to or under (a) Section 2.02, Article 3, Section 5.02 or any
other provision of this Agreement or (b) any amendment to, or waiver of rights
under, this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR
WARRANTY REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH
CASE, TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE
SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF A BORROWER.
"Required Banks" means, at any time, Banks having more than
66-2/3% of the Loans and Participations outstanding or, if there are no Loans
or Participations outstanding, more than 66-2/3% of the aggregate amount of
the Commitments.
"Reserve Requirement" means, at any time, the then current maximum
rate for which reserves (including any marginal, supplemental or emergency
reserve) are required to be maintained under Regulation D by member banks of
the Federal Reserve System in New York City with deposits exceeding five
billion Dollars against "Eurocurrency liabilities", as that term is used in
Regulation D. The Adjusted Eurodollar Rate shall be adjusted automatically on
and as of the effective date of any change in the Reserve Requirement.
"Restricted Payment" means, with respect to any Borrower, any
payment with respect to or on account of (i) any of such Borrower's Capital
Securities, including any dividend or other distribution on, and any payment
on account of any purchase, redemption, retirement, exchange, defeasance or
conversion of, any such Capital Securities or (ii) payments of interest (other
than current interest) on, or payments or prepayments of principal of, or the
setting apart of money for a sinking fund or other analogous fund for, the
purchase, redemption, retirement or other acquisition of, any principal of or
interest on CGE Subordinated Indebtedness. For the purposes of this
definition, a "payment" shall include the transfer of any asset or the
incurrence of any Indebtedness or other Liability (the amount of any such
payment to be the fair market value of such asset or the amount of such
obligation, respectively) but shall not include the issuance or distribution
of any capital stock of a Borrower or any Subsidiary other than Mandatorily
Redeemable Stock.
"Secured Party" has the meaning ascribed to such term in the
Security Agreement and the Mortgages.
"Security Agreement" means the Security Agreement, dated as of the
date hereof among the Borrowers and Guarantors, as pledgors, and the
Collateral Agent, as Secured Party, and any other Security Agreement entered
into pursuant to Section 4.04.
"Security Interest" means the Liens created, or purported to be
created, by the Loan Documents.
"Spot Rate" means, at any time, the spot rate of exchange of the
Administrative Agent or the Issuing Bank, as applicable, for Dollars in
Chicago or New York, as the case may be.
"Subordination Agreement" means the Subordination Agreement, dated
as of the date hereof, among CGE, AWT and the Administrative Agent.
"Subsidiary" means, with respect to any Person, any other Person
(a) securities of which having ordinary voting power to elect a majority of
the board of directors (or other persons having similar functions) or (b) other
ownership interests of which ordinarily constituting a majority voting
interest, are at the time, directly or indirectly, owned or controlled by such
first Person, or by one or more of its Subsidiaries, or by such first Person
and one or more of its Subsidiaries; unless otherwise specified, "Subsidiary"
means a Subsidiary of a Borrower.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"Termination Date" means March 31, 1998.
"Termination Event" means, with respect to any Benefit Plan, (a)
any Reportable Event with respect to such Benefit Plan, (b) the termination of
such Benefit Plan, or the filing of a notice of intent to terminate such
Benefit Plan, or the treatment of any amendment to such Benefit Plan as a
termination under ERISA Section 4041(c), (c) the institution of proceedings to
terminate such Benefit Plan under ERISA Section 4042 or (d) the appointment of
a trustee to administer such Benefit Plan under ERISA Section 4042.
"Type" means, with respect to Loans, any of the following, each of
which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-month Interest Period, Eurodollar Rate
Loans having a two-month Interest Period, Eurodollar Rate Loans having a
three-month Interest Period and Eurodollar Rate Loans having a six-month
Interest Period. Any Eurodollar Rate Loan having an Interest Period that
differs from the duration specified for a Type of Eurodollar Rate Loan listed
above solely as a result of the operation of clauses (a) and (b) of the
definition of "Interest Period" shall be deemed to be a Loan of such
above-listed Type notwithstanding such difference in duration of Interest
Periods.
"Unfunded Benefit Liabilities" means, with respect to any Benefit
Plan at any time, the amount of unfunded benefit liabilities of such Benefit
Plan at such time as determined under ERISA Section 4001(a)(18).
"United States" means the fifty States of the United States of
America, the District of Columbia, and any territory of the United States of
America.
"United States Person" means a corporation, partnership or other
entity created, organized or incorporated under the laws of the United States
of America or a State thereof (including the District of Columbia).
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities and all other
ownership interests and rights to acquire ownership interests of which (except
directors' qualifying shares) are, directly or indirectly, owned or controlled
by such Person or one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more of such Subsidiaries; unless otherwise specified,
"Wholly Owned Subsidiary" means a Wholly Owned Subsidiary of AWT.
Section 11.02. Other Interpretive Provisions. (a) Except as
otherwise specified herein, all references herein (i) to any Person shall be
deemed to include such Person's successors and assigns, (ii) to any Applicable
Law defined or referred to herein shall be deemed references to such
Applicable Law or any successor Applicable Law as the same may have been or
may be amended or supplemented from time to time and (iii) to any Loan
Document or Contract defined or referred to herein shall be deemed references
to such Loan Document or Contract (and, in the case of any Note or any other
instrument, any instrument issued in substitution therefor) as the terms
thereof may have been or may be amended, supplemented, waived or otherwise
modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article",
"Section", "Annex", "Schedule" and "Exhibit" shall refer to Articles and
Sections of, and Annexes, Schedules and Exhibits to, this Agreement unless
otherwise specified.
(c) Whenever the context so requires, the neuter gender includes
the masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in
which such item or items are "included", such item or items are in such
category, and shall not be construed as indicating that the items in the
category in which such item or items are "included" are limited to such items
or to items similar to such items.
(e) Each authorization in favor of any Agent, the Issuing Bank,
the Banks or any other Person granted by or pursuant to this Agreement shall
be deemed to be irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references herein
to any Agent, the Issuing Bank, any Bank or any Loan Party shall be deemed to
refer to such Person however designated in Loan Documents, so that (i) a
reference to rights or duties of any Agent under the Loan Documents shall be
deemed to include the rights or duties of such Person as the Secured Party
under the Security Agreement and as the mortgagee under the Mortgages, (ii) a
reference to costs incurred by a Bank in connection with the Loan Documents
shall be deemed to include costs incurred by such Person as a Guaranteed Party
hereunder, as a Principal under the Security Agreement or as the mortgagee
under the Mortgages and (iii) a reference to the obligations of a Borrower
under the Loan Documents shall be deemed to include the obligations of such
Person as the Pledgor under the Security Agreement or as the mortgagor under
the Mortgages.
Section 11.03. Accounting Matters. Unless otherwise specified
herein, all accounting determinations hereunder and all computations utilized
by the Borrower in complying with the covenants contained herein shall be made,
all accounting terms used herein shall be interpreted, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with Generally Accepted Accounting Principles, except, in the case of such
financial statements, for departures from Generally Accepted Accounting
Principles that may from time to time be approved in writing by the
independent certified public accountants who are at the time, in accordance
with Section 5.01(b), reporting on the Borrower's financial statements.
Section 11.04. Representations and Warranties. All
Representations and Warranties shall be deemed made (a) in the case of any
Representation and Warranty contained in this Agreement at the time of its
initial execution and delivery, at and as of the Agreement Date, (b) in the
case of any Representation and Warranty contained in this Agreement or any
other document at the time any Loan is made, at and as of such time (except to
the extent that such representation and warranty expressly relates to a
specified date) and (c) in the case of any particular Representation and
Warranty, wherever contained, at such other time or times as such
Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in
connection with which such Representation and Warranty is made or deemed made
(except to the extent that such representation and warranty expressly relates
to a specified date).
Section 11.05. Captions. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or in any way affect the meaning or
construction of any provision of this Agreement.
Section 11.06. Interpretation of Related Documents. Except as
otherwise specified therein, terms that are defined herein that are used in
Notes, certificates, opinions and other documents delivered in connection
herewith shall have the meanings ascribed to them herein and such documents
shall be otherwise interpreted in accordance with the provisions of this
Article 11.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers all as of the Agreement Date.
BORROWER AND GUARANTOR: AIR & WATER TECHNOLOGIES
CORPORATION
By
---------------------------
Name:
Title:
AGENTS: THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent, as
Arranging Agent and as a Bank
By
---------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
as Arranging Agent, as Collateral
Agent, as Issuing Bank and as a
Bank
By
---------------------------
Name:
Title:
BANKS: ABN AMRO BANK N.V., NEW YORK BRANCH
By
---------------------------
Name:
Title:
By
---------------------------
Name:
Title:
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By
---------------------------
Name:
CREDIT AGREEMENT
BANQUE PARIBAS
By
---------------------------
Name:
Title:
By
---------------------------
Name:
Title:
CHEMICAL BANK
By
---------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By
---------------------------
Name:
Title:
By
---------------------------
Name:
Title:
CREDIT LYONNAIS
By
---------------------------
Name:
Title:
MIDLANTIC BANK, N.A.
By
---------------------------
Name:
Title:
CREDIT AGREEMENT
BORROWERS AND GUARANTORS: RESEARCH COTTRELL, INC.
By
---------------------------
Name:
Title:
FLEX-KLEEN CORP.
By
---------------------------
Name:
Title:
RESEARCH-COTTRELL TECHNOLOGIES, INC.
By
---------------------------
Name:
Title:
CUSTODIS-COTTRELL, INC.
By
---------------------------
Name:
Title:
CUSTODIS-ECODYNE, INC.
By
---------------------------
Name:
Title:
REGENERATIVE ENVIRONMENTAL EQUIPMENT CO.,
INC. (REECO)
By
---------------------------
Name:
Title:
THERMAL TRANSFER CORPORATION (TTC)
By
---------------------------
Name:
Title:
CREDIT AGREEMENT
METCALF & EDDY, INC. (M & E)
By
---------------------------
Name:
Title:
METCALF & EDDY INTERNATIONAL, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY SERVICES INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF MICHIGAN, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF NEW YORK, INC.
By
---------------------------
Name:
Title:
M & E PACIFIC, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF OHIO, INC.
By
Name:
---------------------------
Title:
CREDIT AGREEMENT
METCALF & EDDY TECHNOLOGIES, INC.
By
---------------------------
Name:
Title:
PIECO, INC.
By
---------------------------
Name:
Title:
RESEARCH-COTTRELL (CANADA) LTD.
By
---------------------------
Name:
Title:
CUSTODIS-COTTRELL CANADA, INC.
By
---------------------------
Name:
Title:
PROFESSIONAL SERVICES GROUP, INC.
By
---------------------------
Name:
Title:
2815869 CANADA, INC.
By
---------------------------
Name:
Title:
GUARANTORS: AWT MANAGEMENT COMPANY, INC.
By
---------------------------
Name:
Title:
CREDIT AGREEMENT
CUSTODIS-COTTRELL INTERNATIONAL, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF MASSACHUSETTS, INC.
By
---------------------------
Name:
Title:
ZECCO, INC.
By
---------------------------
Name:
Title:
Agreement Date:
CREDIT AGREEMENT
GUARANTORS: AWT AIR & WATER TECHNOLOGIES CANADA, LTD.
By
Name:
Title:
RESEARCH-COTTRELL INTERMEDIATE HOLDING
CORPORATION
By
Name:
Title:
Agreement Date:
CREDIT AGREEMENT
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of THE FIRST NATIONAL BANK OF
CHICAGO (the "Bank") the principal amount of Twenty-five Million Dollars
($25,000,000.00), or, if less, the principal amount of the Loans of the Bank
outstanding, on the dates and in the amounts specified in Section 1.04 of the
Credit Agreement referred to below, and to pay interest on such principal
amount on the dates and at the rates specified in Section 1.03 of such Credit
Agreement. All payments due the Bank hereunder shall be made to the Bank at
the place, in the type of money and funds and in the manner specified in
Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of SOCIETE GENERALE, NEW YORK
BRANCH (the "Bank") the principal amount of Twenty-five Million Dollars
($25,000,000.00), or, if less, the principal amount of the Loans of the Bank
outstanding, on the dates and in the amounts specified in Section 1.04 of the
Credit Agreement referred to below, and to pay interest on such principal
amount on the dates and at the rates specified in Section 1.03 of such Credit
Agreement. All payments due the Bank hereunder shall be made to the Bank at
the place, in the type of money and funds and in the manner specified in
Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of CHEMICAL BANK (the "Bank") the
principal amount of Twenty Million Dollars ($20,000,000.00), or, if less, the
principal amount of the Loans of the Bank outstanding, on the dates and in the
amounts specified in Section 1.04 of the Credit Agreement referred to below,
and to pay interest on such principal amount on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and
funds and in the manner specified in Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE (the "Bank") the principal amount of Fifteen Million
Dollars ($15,000,000.00), or, if less, the principal amount of the Loans of
the Bank outstanding, on the dates and in the amounts specified in Section
1.04 of the Credit Agreement referred to below, and to pay interest on such
principal amount on the dates and at the rates specified in Section 1.03 of
such Credit Agreement. All payments due the Bank hereunder shall be made to
the Bank at the place, in the type of money and funds and in the manner
specified in Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of ABN AMRO BANK N.V., NEW YORK
BRANCH (the "Bank") the principal amount of Thirteen Million Dollars
($13,000,000.00), or, if less, the principal amount of the Loans of the Bank
outstanding, on the dates and in the amounts specified in Section 1.04 of the
Credit Agreement referred to below, and to pay interest on such principal
amount on the dates and at the rates specified in Section 1.03 of such Credit
Agreement. All payments due the Bank hereunder shall be made to the Bank at
the place, in the type of money and funds and in the manner specified in
Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of BANQUE FRANCAISE du COMMERCE
EXTERIEUR (the "Bank") the principal amount of Eleven Million Dollars
($11,000,000.00), or, if less, the principal amount of the Loans of the Bank
outstanding, on the dates and in the amounts specified in Section 1.04 of the
Credit Agreement referred to below, and to pay interest on such principal
amount on the dates and at the rates specified in Section 1.03 of such Credit
Agreement. All payments due the Bank hereunder shall be made to the Bank at
the place, in the type of money and funds and in the manner specified in
Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of MIDLANTIC BANK, N.A. (the
"Bank") the principal amount of Seven Million Dollars ($7,000,000.00), or, if
less, the principal amount of the Loans of the Bank outstanding, on the dates
and in the amounts specified in Section 1.04 of the Credit Agreement referred
to below, and to pay interest on such principal amount on the dates and at the
rates specified in Section 1.03 of such Credit Agreement. All payments due
the Bank hereunder shall be made to the Bank at the place, in the type of
money and funds and in the manner specified in Section 1.11 of such Credit
Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of CREDIT LYONNAIS (the "Bank") the
principal amount of Seven Million Dollars ($7,000,000.00), or, if less, the
principal amount of the Loans of the Bank outstanding, on the dates and in the
amounts specified in Section 1.04 of the Credit Agreement referred to below,
and to pay interest on such principal amount on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and
funds and in the manner specified in Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
AIR & WATER TECHNOLOGIES CORPORATION
AND
THE OTHER BORROWERS LISTED ON ANNEX A HERETO
NOTE
March 10, 1995
FOR VALUE RECEIVED, AIR & WATER TECHNOLOGIES CORPORATION ("AWT")
and THE OTHER BORROWERS LISTED ON ANNEX A HERETO (together with AWT being
referred to herein, jointly and severally, as the "Borrowers") hereby, jointly
and severally, promise to pay to the order of BANQUE PARIBAS (the "Bank") the
principal amount of Seven Million Dollars ($7,000,000.00), or, if less, the
principal amount of the Loans of the Bank outstanding, on the dates and in the
amounts specified in Section 1.04 of the Credit Agreement referred to below,
and to pay interest on such principal amount on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and
funds and in the manner specified in Section 1.11 of such Credit Agreement.
Each Loan of the Bank and each payment, prepayment or conversion
with respect thereto, shall be evidenced by the records of the Bank.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Secured Guaranteed Credit Agreement (the "Credit Agreement"),
dated as of March 10, 1995, among the Borrowers, as Borrowers and Guarantors,
the Banks listed on the signature pages thereof, The First National Bank of
Chicago and Societe Generale, New York Branch, as Arranging Agents, The First
National Bank of Chicago, as Administrative Agent, and Societe Generale, New
York Branch, as Collateral Agent and Issuing Bank, as the same may be amended
from time to time. Reference is made to such Credit Agreement, as so amended,
for provisions relating to the prepayment and the acceleration of the maturity
hereof. This Note is also entitled to the benefits of the Security Agreement
and the Mortgages.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW
PRINCIPLES).
AIR & WATER TECHNOLOGIES
CORPORATION
By
---------------------------
Name:
Title:
RESEARCH COTTRELL, INC.
By
---------------------------
Name:
Title:
FLEX-KLEEN CORP.
By
---------------------------
Name:
Title:
RESEARCH-COTTRELL TECHNOLOGIES, INC.
By
---------------------------
Name:
Title:
CUSTODIS-COTTRELL, INC.
By
---------------------------
Name:
Title:
CUSTODIS-ECODYNE, INC.
By
---------------------------
Name:
Title:
REGENERATIVE ENVIRONMENTAL EQUIPMENT CO.,
INC. (REECO)
By
---------------------------
Name:
Title:
THERMAL TRANSFER CORPORATION (TTC)
By
---------------------------
Name:
Title:
METCALF & EDDY, INC. (M & E)
By
---------------------------
Name:
Title:
METCALF & EDDY INTERNATIONAL, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY SERVICES INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF MICHIGAN, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF NEW YORK, INC.
By
---------------------------
Name:
Title:
M & E PACIFIC, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY OF OHIO, INC.
By
---------------------------
Name:
Title:
METCALF & EDDY TECHNOLOGIES, INC.
By
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Name:
Title:
PIECO, INC.
By
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Name:
Title:
RESEARCH-COTTRELL (CANADA) LTD.
By
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Name:
Title:
CUSTODIS-COTTRELL CANADA, INC.
By
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Name:
Title:
PROFESSIONAL SERVICES GROUP, INC.
By
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Name:
Title:
2815869 CANADA, INC.
By
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Name:
Title:
ANNEX A
LIST OF BORROWERS
Air & Water Technologies Corporation (AWT)
Research Cottrell, Inc.
Flex-Kleen Corp.
Research-Cottrell Technologies, Inc.
Custodis-Cottrell, Inc.
Custodis-Ecodyne, Inc.
Regenerative Environmental Equipment Co., Inc. (REECO)
Thermal Transfer Corporation (TTC)
Metcalf & Eddy, Inc. (M & E)
Metcalf & Eddy International, Inc.
Metcalf & Eddy Services Inc.
Metcalf & Eddy of Michigan, Inc.
Metcalf & Eddy of New York, Inc.
M & E Pacific, Inc.
Metcalf & Eddy of Ohio, Inc.
Metcalf & Eddy Technologies, Inc.
Pieco, Inc.
Research-Cottrell (Canada) Ltd.
Custodis-Cottrell Canada, Inc.
Professional Services Group, Inc.
2815869 Canada, Inc.