Exhibit 10.6.1
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MERRILL LYNCH NO. 582-07596
WCMA (R) NOTE, LOAN AND SECURITY AGREEMENT
WCMA NOTE, LOAN AND SECURITY AGREEMENT ("Loan Agreement") dated
as of August 23, 1996, between AMERICAN ECO/SP CORPORATION, a
corporation organized and existing under the laws of the State of
Delaware having its principal office at 1013 Centre Road,
Wilmington, DE 19805 ("Customer"), and MERRILL LYNCH BUSINESS
FINANCIAL SERVICES INC., a corporation organized and existing
under the laws of the State of Delaware having its principal
office at 33 West Monroe Street, Chicago, IL 60603 ("MLBFS").
In accordance with that certain WORKING CAPITAL MANAGEMENT
ACCOUNT AGREEMENT NO. 582-07596 ("WCMA Agreement") between
Customer and MLBFS' affiliate, MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED ("MLPF&S"), Customer has subscribed to the
WCMA Program described in the WCMA Agreement. The WCMA Agreement
is by this reference incorporated as a part hereof. In
conjunction therewith and as part of the WCMA Program, Customer
has requested that MLBFS provide, and subject to the terms and
conditions herein set forth MLBFS has agreed to provide, a
commercial line of credit for Customer (the "WCMA Line of
Credit").
Accordingly, and in consideration of the premises and of the
mutual covenants of the parties hereto, Customer and MLBFS hereby
agree as follows:
1. DEFINITIONS
(a) Specific Terms. In addition to terms defined elsewhere in
this Loan Agreement, when used herein the following terms shall
have the following meanings:
(i) "Account Debtor" shall mean any party who is or may become
obligated with respect to an Account or Chattel Paper.
(ii) "Activation Date" shall mean the date upon which MLBFS shall
cause the WCMA Line of Credit to be fully activated under MLPF&S'
computer system as part of the WCMA Program.
(iii) "Additional Agreements" shall mean all agreements,
instruments, documents and opinions other than this Loan
Agreement, whether with or from Customer or any other party,
which are contemplated hereby or otherwise reasonably required by
MLBFS in connection herewith, or which evidence the creation,
guaranty or collateralization of any of the Obligations or the
granting or perfection of liens or security interests upon the
Collateral or any other collateral for the Obligations.
(iv) "Business Day" shall mean any day other than a Saturday,
Sunday, federal holiday or other day on which the New York Stock
Exchange is regularly closed.
(v) "Collateral" shall mean all Accounts, Chattel Paper, Contract
Rights, Inventory, Equipment, Fixtures, General Intangibles,
Deposit Accounts, Documents and Instruments of Customer,
howsoever arising, whether now owned or existing or hereafter
acquired or arising, and wherever located; together with all
parts thereof (including spare parts), all accessories and
accessions thereto, all books and records (including computer
records) directly related thereto, all proceeds thereof
(including, without limitation, proceeds in the form of Accounts
and insurance proceeds), and the additional collateral described
in Section 9 (b) hereof.
(vi) "Commitment Expiration Date" shall mean September 30, 1997.
(vii) "General Funding Conditions" shall mean each of the
following conditions to any WCMA Loan by MLBFS hereunder: (A) no
Event of Default, or event which with the giving of notice,
passage of time, or both, would constitute an Event of Default,
shall have occurred and be continuing or would result from the
making of any WCMA Loan hereunder by MLBFS; (B) there shall not
have occurred any material adverse change in the business or
financial condition of Customer or any Guarantor; (C) all
representations and warranties of Customer or any Guarantor
herein or in any Additional Agreements shall then be true and
correct in all material respects; (D) MLBFS shall have received
this Loan Agreement and all of the Additional Agreements, duly
executed and filed or recorded where applicable, all of which
shall be in form and substance reasonably satisfactory to MLBFS;
(E) MLBFS shall have received evidence reasonably satisfactory to
it as to the ownership of the Collateral and the perfection and
priority of MLBFS' liens and security interests thereon, as well
as the ownership of and the perfection and priority of MLBFS'
liens and security interests on any other collateral for the
Obligations furnished pursuant to any of the Additional
Agreements; (F) MLBFS shall have received evidence reasonably
satisfactory to it of the insurance required hereby or by any of
the Additional Agreements; and (G) any additional conditions
specified in the "WCMA Line of Credit Approval" letter executed
by MLBFS with respect to the transactions contemplated hereby
shall have been met to the reasonable satisfaction of MLBFS.
(viii) "Guarantor" shall mean a person or entity who has either
guaranteed or provided collateral for any or all of the
Obligations; and "Business Guarantor" shall mean any such
Guarantor that is a corporation, partnership, proprietorship,
limited liability company or other entity regularly engaged in a
business activity.
(ix) "Interest Rate" shall mean a variable per annum rate of
interest equal to the sum of 2.75% and the 30-Day Commercial
Paper Rate. The "30-Day Commercial Paper Rate" shall mean, as of
the date of any determination, the interest rate from time to
time published in the "Money Rates" section of The Wall Street
Journal for 30-day high-grade unsecured notes sold through
dealers by major corporations. The Interest Rate will change as
of the date of publication in The Wall Street Journal of a 30-Day
Commercial Paper Rate that is different from that published on
the preceding Business Day. In the event that The Wall Street
Journal shall, for any reason, fail or cease to publish the
30-Day Commercial Paper Rate, MLBFS will choose a reasonably
comparable index or source to use as the basis for the Interest
Rate.
(x) "Line Fee" shall mean a fee of $100,000.00 payable to MLBFS
in connection with the WCMA Line of Credit for the period from
the Activation Date to the Maturity Date.
(xi) "Location of Tangible Collateral" shall mean the address of
Customer set forth at the beginning of this Loan Agreement,
together with any other address or addresses set forth on an
exhibit hereto as being a Location of Tangible Collateral.
(xii) "Maturity Date" shall mean September 30,1997, or such later
date as may be consented to in writing by MLBFS.
(xiii) "Maximum WCMA Line of Credit" shall mean $10,000,000.00.
(xiv) "Obligations" shall mean all liabilities, indebtedness and
other obligations of Customer to MLBFS, howsoever created,
arising or evidenced, whether now existing or hereafter arising,
whether direct or indirect, absolute or contingent, due or to
become due, primary or secondary or joint or several, and,
without limiting the foregoing, shall include interest accruing
after the filing of any petition in bankruptcy, and all present
and future liabilities, indebtedness and obligations of Customer
under this Loan Agreement.
(xv) Permitted Liens" shall mean (A) liens for current taxes not
delinquent, other non-consensual liens arising in the ordinary
course of business for sums not due, and, if MLBFS' rights to and
interest in the Collateral are not materially and adversely
affected thereby, any such liens for taxes or other nonconsensual
liens arising in the ordinary course of business being contested
in good faith by appropriate proceedings; (B) liens in favor of
MLBFS; (C) liens which will be discharged with the proceeds of
the initial WCMA Loan; and (D) any other liens expressly
permitted in writing by MLBFS.
(xvi) "WCMA Account" shall mean and refer to the Working Capital
Management Account of Customer with MLPF&S identified as Account
No. 582-07596.
(xvii) "WCMA Loan" shall mean each advance made by MLBFS pursuant
to this Loan Agreement.
(b) OTHER TERMS. Except as otherwise defined herein: (i) all
terms used in this Loan Agreement which are defined in the
Uniform Commercial Code of Illinois ("UCC") shall have the
meanings set forth in the UCC, and (ii) capitalized terms used
herein which are defined in the WCMA Agreement shall have the
meaning set forth in the WCMA Agreement.
2. WCMA PROMISSORY NOTE
FOR VALUE RECEIVED, Customer hereby promises to pay to the order
of MLBFS, at the times and in the manner set forth in this Loan
Agreement, or in such other manner and at such place as MLBFS may
hereafter designate in writing, the following: (a) on the
Maturity Date, the aggregate unpaid principal amount of all WCMA
Loans (the "WCMA Loan Balance"); (b) interest at the Interest
Rate on the outstanding WCMA Loan Balance, from and including the
date on which the initial WCMA Loan is made until the date of
payment of all WCMA Loans in full; and (c) on demand, all other
sums payable pursuant to this Loan Agreement, including, but not
limited to, the Line Fee and any late charges. Except as
otherwise expressly set forth herein, Customer hereby waives
presentment, demand for payment, protest and notice of protest,
notice of dishonor, notice of acceleration, notice of intent to
accelerate and all other notices and formalities in connection
with this WCMA Promissory Note and this Loan Agreement.
3. WCMA LOANS
(a) Activation Date. Provided that: (i) the Commitment
Expiration Date shall not then have occurred, and (ii) Customer
shall have subscribed to the WCMA Program and its subscription to
the WCMA Program shall then be in effect, the Activation Date
shall occur on or promptly after the date, following the
acceptance of this Loan Agreement by MLBFS at its office in
Chicago, Illinois, upon which each of the General Funding
Conditions shall have been met or satisfied to the reasonable
satisfaction of MLBFS. No activation by MLBFS of the WCMA Line
of Credit for a nominal amount shall be deemed evidence of the
satisfaction of any of the conditions herein set forth, or a
waiver of any of the terms or conditions hereof. Customer hereby
authorizes MLBFS to pay out of and charge to Customer's WCMA
Account on the Activation Date all amounts necessary to fully pay
off any bank or other financial institution having a lien upon
any of the Collateral other than a Permitted Lien.
(b) WCMA LOANS. Subject to the terms and conditions hereof,
during the period from and after the Activation Date to the
Maturity Date: (i) MLBFS will make WCMA Loans to Customer in such
amounts as Customer may from time to time request in accordance
with the terms hereof, up to an aggregate outstanding amount not
to exceed the Maximum WCMA Line of Credit, and (ii) Customer may
repay any WCMA Loans in whole or in part at any time without
premium or penalty, and request a re-borrowing of amounts repaid
on a revolving basis. Customer may request WCMA Loans by use of
WCMA Checks, FTS, Visa charges, wire transfers, or such other
means of access to the WCMA Line of Credit as may be permitted by
MLBFS from time to time; it being understood that so long as the
WCMA Line of Credit shall be in effect, any charge or debit to
the WCMA Account which but for the WCMA Line of Credit would
under the terms of the WCMA Agreement result in an overdraft,
shall be deemed a request by Customer for a WCMA Loan.
(c) CONDITIONS OF WCMA LOANS. Notwithstanding the foregoing,
MLBFS shall not be obligated to make any WCMA Loan, and may
without notice refuse to honor any such request by Customer, if
at the time of receipt by MLBFS of Customer's request: (i) the
making of such WCMA Loan would cause the Maximum WCMA Line of
Credit to be exceeded; or (ii) the Maturity Date shall have
occurred, or the WCMA Line of Credit shall have otherwise been
terminated in accordance with the terms hereof; or (iii)
Customer's subscription to the WCMA Program shall have been
terminated; or (iv) an event shall have occurred and is
continuing which shall have caused any of the General Funding
Conditions to not then be met or satisfied to the reasonable
satisfaction of MLBFS. The making by MLBFS of any WCMA Loan at a
time when any one or more of said conditions shall not have been
met shall not in any event be construed as a waiver of said
condition or conditions or of any Event of Default, and shall not
prevent MLBFS at any time thereafter while any condition shall
not have been met from refusing to honor any request by Customer
for a WCMA Loan.
(d) FORCE MAJEURE. MLBFS shall not be responsible, and shall
have no liability to Customer or any other party, for any delay
or failure of MLBFS to honor any request of Customer for a WCMA
Loan or any other act or omission of MLBFS, MLPF&S or any of
their affiliates due to or resulting from any system failure,
error or delay in posting or other clerical error, loss of power,
fire, Act of God or other cause beyond the reasonable control of
MLBFS, MLPF&S or any of their affiliates unless directly arising
out of the willful wrongful act or active gross negligence of
MLBFS. In no event shall MLBFS be liable to Customer or any
other party for any incidental or consequential damages arising
from any act or omission by MLBFS, MLPF&S or any of their
affiliates in connection with the WCMA Line of Credit or this
Loan Agreement.
(e) Interest. The WCMA Loan Balance shall bear interest at the
Interest Rate. Interest shall be computed for the actual number
of days elapsed on the basis of a year consisting of 360 days.
Notwithstanding any provision to the contrary in this Agreement
or any of the Additional Agreements, no provision of this
Agreement or any of the Additional Agreements shall require the
payment or permit the collection of any amount in excess of the
maximum amount of interest permitted to be charged by law
("Excess Interest"). If any Excess Interest is provided for, or
is adjudicated as being provided for, in this Agreement or any of
the Additional Agreements, then: (a) Customer shall not be
obligated to pay any Exccess Interest; and (b) any Excess
Interest that MLBFS may have received hereunder or under any of
the Additional Agreements shall, at the option of MLBFS, be: (i)
applied as a credit against the then unpaid balance of the WCMA
Line of Credit, (ii) refunded to the payer thereof, or (iii) any
combination of the foregoing. Except as otherwise provided
herein, accrued and unpaid interest on the WCMA Loan Balance
shall be payable monthly on the last Business Day of each
calendar month, commencing with the last Business Day of the
calendar month in which the Activation Date shall occur.
Customer hereby irrevocably authorizes and directs MLPF&S to pay
MLBFS such accrued interest from any available free credit
balances in the WCMA Account, and if such available free credit
balances are insufficient to satisfy any interest payment due, to
liquidate any investments in the Money Accounts (other than any
investments constituting any Minimum Money Accounts Balance under
the WCMA Directed Reserve program) in an amount up to the balance
of such accrued interest, and pay to MLBFS the available proceeds
on account thereof. If available free credit balances in the
WCMA Account and available proceeds of the Money Accounts are
insufficient to pay the entire balance of accrued interest, and
Customer otherwise fails to make such payment when due, MLBFS
may, in its sole discretion, make a WCMA Loan in an amount equal
to the balance of such accrued interest and pay the proceeds of
such WCMA Loan to itself on account of such interest. The amount
of any such WCMA Loan will be added to the WCMA Loan Balance. If
MLBFS declines to extend a WCMA Loan to Customer under these
circumstances, Customer hereby authorizes and directs MLPF&S to
make all such interest payments to MLBFS from any Minimum Money
Accounts Balance. If there is no Minimum Money Accounts Balance,
or it is insufficient to pay all such interest, MLBFS will
invoice Customer for payment of the balance of the accrued
interest, and Customer shall pay such interest as directed by
MLBFS within 5 Business Days of receipt of such invoice.
(f) PAYMENTS. All payments required or permitted to be made
pursuant to this Loan Agreement shall be made in lawful money of
the United States. Unless otherwise directed by MLBFS, payments
on account of the WCMA Loan Balance may be made by the delivery
of checks (other than WCMA Checks), or by means of FTS or wire
transfer of funds (other than funds from the WCMA Line of Credit)
to MLPF&S for credit to Customer's WCMA Account. Notwithstanding
anything in the WCMA Agreement to the contrary, Customer hereby
irrevocably authorizes and directs MLPF&S to apply available free
credit balances in the WCMA Account to the repayment of the WCMA
Loan Balance prior to application for any other purpose.
Payments to MLBFS from funds in the WCMA Account shall be deemed
to be made by Customer upon the same basis and schedule as funds
are made available for investment in the Money Accounts in
accordance with the terms of the WCMA Agreement. All funds
received by MLBFS from MLPF&S pursuant to the aforesaid
authorization shall be applied by MLBFS to repayment of the WCMA
Loan Balance. The acceptance by or on behalf of MLBFS of a check
or other payment for a lesser amount than shall be due from
Customer, regardless of any endorsement or statement thereon or
transmitted therewith, shall not be deemed an accord and
satisfaction or anything other than a payment on account, and
MLBFS or anyone acting on behalf of MLBFS may accept such check
or other payment without prejudice to the rights of MLBFS to
recover the balance actually due or to pursue any other remedy
under this Loan Agreement or applicable law for such balance.
All checks accepted by or on behalf of MLBFS in connection with
the WCMA Line of Credit are subject to final collection.
(g) EXCEEDING THE MAXIMUM WCMA LINE OF CREDIT. In the event
that the WCMA Loan Balance shall at any time exceed the Maximum
WCMA Line of Credit, Customer shall within 1 Business Day of the
first to occur of (i) any request or demand of MLBFS, or (ii)
receipt by Customer of a statement from MLPF&S showing a WCMA
Loan Balance in excess of the Maximum WCMA Line of Credit,
deposit sufficient funds into the WCMA Account to reduce the WCMA
Loan Balance below the Maximum WCMA Line of Credit.
(h) LINE FEE; EXTENSIONS. (i) In consideration of the extension
of the WCMA Line of Credit by MLBFS to Customer during the period
from the Activation Date to the Maturity Date, Customer has paid
or shall pay the Line Fee to MLBFS. If such fee has not
heretofore been paid by Customer, Customer hereby authorizes
MLBFS, at its option, to either cause said fee to be paid with a
WCMA Loan which is added to the WCMA Loan Balance, or invoice
Customer for said fee (in which event Customer shall pay said fee
within 5 Business Days after receipt of such invoice). No delay
in the Activation Date, howsoever caused, shall entitle Customer
to any rebate or reduction in the Line Fee or extension of the
Maturity Date.
(ii) In the event MLBFS and Customer, in their respective sole
discretion, agree to renew the WCMA Line of Credit beyond the
current Maturity Date, Customer agrees to pay a renewal Line Fee
or Line Fees (if the Maturity Date is extended for more than one
12-month period), in the amount per 12-month period or other
applicable period then set forth in the writing signed by MLBFS
which extends the Maturity Date; it being understood that any
request by Customer for a WCMA Loan or failure of Customer to pay
any WCMA Loan Balance outstanding on the immediately prior
Maturity Date, after the receipt by Customer of a writing signed
by MLBFS extending the Maturity Date, shall be deemed a consent
by Customer to both the renewal Line Fees and the new Maturity
Date. If no renewal Line Fees are set forth in the writing
signed by MLBFS extending the Maturity Date, the renewal Line Fee
for each 12-month period shall be deemed to be the same as the
immediately preceding periodic Line Fee. Each such renewal Line
Fee may, at the option of MLBFS, either be paid with a WCMA Loan
which is added to the WCMA Loan Balance or invoiced to Customer,
as aforesaid, on or at any time after the first Business Day of
the first month of the 12-month period for which such fee is due.
(i) STATEMENTS. MLPF&S will include in each monthly statement
it issues under the WCMA Program information with respect to WCMA
Loans and the WCMA Loan Balance. Any questions that Customer may
have with respect to such information should be directed to
MLBFS; and any questions with respect to any other matter in such
statements or about or affecting the WCMA Program should be
directed to MLPF&S.
(j) USE OF LOAN PROCEEDS; SECURITIES TRANSACTIONS. On the
Activation Date, a WCMA Loan will be made to pay any indebtedness
of Customer to a third party secured by all or any part of the
Collateral. The proceeds of each subsequent WCMA Loan shall be
used by Customer solely for working capital for itself and each
of the US-based Business Guarantors in the ordinary course of
their respective businesses, or, with the prior written consent
of MLBFS, for other lawful business purposes of Customer not
prohibited hereby. CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES
WILL FUNDS BORROWED FROM MLBFS THROUGH THE WCMA LINE OF CREDIT BE
USED: (I) FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OF ANY
PERSON WHATSOEVER, (II) TO PURCHASE, CARRY OR TRADE IN
SECURITIES, INCLUDING SHARES OF THE MONEY ACCOUNTS, OR (III) TO
REPAY DEBT INCURRED TO PURCHASE, CARRY OR TRADE IN SECURITIES;
NOR WILL ANY SUCH FUNDS BE REMITTED, DIRECTLY OR INDIRECTLY, TO
MLPF&S OR ANY OTHER BROKER OR DEALER IN SECURITIES, BY WCMA
CHECK, CHECK, FTS, WIRE TRANSFER, OR OTHERWISE.
4. REPRESENTATIONS AND WARRANTIES
Customer represents and warrants to MLBFS that:
(a) ORGANIZATION AND EXISTENCE. Customer is a corporation, duly
organized and validly existing in good standing under the laws of
the State of Delaware and is qualified to do business and in good
standing in each other state where the nature of its business or
the property owned by it make such qualification necessary; and,
where applicable, each Business Guarantor is duly organized,
validly existing and in good standing under the laws of the state
of its formation and is qualified to do business and in good
standing in each other state where the nature of its business or
the property owned by it make such qualification necessary.
(b) EXECUTION, DELIVERY AND PERFORMANCE. The execution,
delivery and performance by Customer of this Loan Agreement and
by Customer and each Guarantor of such of the Additional
Agreements to which it is a party: (i) have been duly authorized
by all requisite action, (ii) do not and will not violate or
conflict with any law or other governmental requirement, or any
of the agreements, instruments or documents which formed or
govern Customer or any such Guarantor, and (iii) do not and will
not breach or violate any of the provisions of, and will not
result in a default by Customer or any such Guarantor under, any
other agreement, instrument or document to which it is a party or
by which it or its properties are bound.
(c) NOTICES AND APPROVALS. Except as may have been given or
obtained, no notice to or consent or approval of any governmental
body or authority or other third party whatsoever (including,
without limitation, any other creditor) is required in connection
with the execution, delivery or performance by Customer or any
Guarantor of such of this Loan Agreement and the Additional
Agreements to which it is a party.
(d) ENFORCEABILITY. This Loan Agreement and such of the
Additional Agreements to which it is a party are the legal, valid
and binding obligations of Customer and each Guarantor,
enforceable against it or them, as the case may be, in accordance
with their respective terms, except as enforceability may be
limited by bankruptcy and other similar laws affecting the rights
of creditors generally or by general principles of equity.
(e) COLLATERAL. Subject to any Permitted Liens: (i) Customer
has good and marketable title to the Collateral, (ii) none of the
Collateral is subject to any lien, encumbrance or security
interest, and (iii) upon the filing of all Uniform Commercial
Code financing statements executed by Customer with respect to
the Collateral in the appropriate jurisdiction(s) and/or the
completion of any other action required by applicable law to
perfect its liens and security interests, MLBFS will have valid
and perfected first liens and security interests upon all of the
Collateral.
(f) FINANCIAL STATEMENTS. Except as expressly set forth in
Customer's or any Business Guarantor's financial statements, all
financial statements of Customer and each Business Guarantor
furnished to MLBFS have been prepared in conformity with
generally accepted accounting principles, consistently applied,
are true and correct, and fairly present the financial condition
of it as at such dates and the results of its operations for the
periods then ended; and since the most recent date covered by
such financial statements, there has been no material adverse
change in any such financial condition or operation. All
financial statements furnished to MLBFS of any Guarantor other
than a Business Guarantor are true and correct and fairly
represent such Guarantor's financial condition as of the date of
such financial statements, and since the most recent date of such
financial statements, there has been no material adverse change
in such financial condition.
(g) LITIGATION. No litigation, arbitration, administrative or
governmental proceedings are pending or, to the knowledge of
Customer, threatened against Customer or any Guarantor, which
would, if adversely determined, materially and adversely affect
the liens and security interests of MLBFS hereunder or under any
of the Additional Agreements, the financial condition of Customer
or any such Guarantor or the continued operations of Customer or
any Business Guarantor.
(h) TAX RETURNS. All federal, state and local tax returns,
reports and statements required to be filed by Customer and each
Guarantor have been filed with the appropriate governmental
agencies and all taxes due and payable by Customer and each
Guarantor have been timely paid (except to the extent that any
such failure to file or pay will not materially and adversely
affect either the liens and security interests of MLBFS hereunder
or under any of the Additional Agreements, the financial
condition of Customer or any Guarantor, or the continued
operations of Customer or any Business Guarantor).
(i) COLLATERAL LOCATION. All of the tangible Collateral is
located at a Location of Tangible Collateral.
Each of the foregoing representations and warranties are
continuing and shall be deemed remade by Customer concurrently
with each request for a WCMA Loan.
5. FINANCIAL AND OTHER INFORMATION
Customer shall furnish or cause to be furnished to MLBFS during
the term of this Loan Agreement all of the following:
(a) ANNUAL FINANCIAL STATEMENTS. Within 120 days after the
close of each fiscal year of American Eco Corporation ("Parent"),
Customer shall furnish or cause to be furnished to MLBFS a copy
of the annual audited financial statements of Parent, Customer,
and all direct and indirect subsidiaries of Parent and Customer
(collectively, the "Consolidated Group") consisting of at least a
balance sheet as at the close of such fiscal year and related
statements of income, retained earnings and cash flows, certified
by its current independent certified public accountants or other
independent certified public accountants reasonably acceptable to
MLBFS.
(b) INTERIM FINANCIAL STATEMENTS. Within 45 days after the
close of each fiscal semi-annual period of the Customer, Customer
shall furnish or cause to be furnished to MLBFS: (i) a
consolidating statement of profit and loss for the fiscal quarter
then ended for each of the Business Guarantors, and (ii) a
consolidating balance sheet as at the close of such fiscal
quarter for each of the Business Guarantors; all in reasonable
detail and certified by their respective chief financial officer.
(c) AGING OF ACCOUNTS. Within 45 days after the close of each
fiscal quarter of Customer, Customer shall furnish or cause to be
furnished to MLBFS a consolidated aging of the Accounts and any
Chattel Paper of Customer and each of the U.S. based Business
Guarantors certified by its chief financial officer.
(d) SEC REPORTS. Within 10 days after filing with the SEC of
each 20F and 6K report of Parent, Customer shall furnish a copy
thereof to MLBFS.
(e) OTHER INFORMATION. Customer shall furnish or cause to be
furnished to MLBFS such other information as MLBFS may from time
to time reasonably request relating to Customer, any Guarantor or
the Collateral.
6. OTHER COVENANTS
Customer further agrees during the term of this Loan Agreement
that:
(a) FINANCIAL RECORDS; INSPECTION. Customer and each Business
Guarantor will: (i) maintain at its principal place of business
complete and accurate books and records, and maintain all of its
financial records in a manner consistent with the financial
statements heretofore furnished to MLBFS, or prepared on such
other basis as may be approved in writing by MLBFS; and (ii)
permit MLBFS or its duly authorized representatives, upon
reasonable notice and at reasonable times, to inspect its
properties (both real or personal), operations, books and
records.
(b) TAXES. Customer and each Guarantor will pay when due all
taxes, assessments and other governmental charges, howsoever
designated, and all other liabilities and obligations, except to
the extent that any such failure to pay will not materially and
adversely affect either the liens and security interests of MLBFS
hereunder or under any of the Additional Agreements, the
financial condition of Customer or any Guarantor or the continued
operations of Customer or any Business Guarantor.
(c) COMPLIANCE WITH LAWS AND AGREEMENTS. Neither Customer nor
any Guarantor will violate any law, regulation or other
governmental requirement, any judgment or order of any court or
governmental agency or authority, or any agreement, instrument or
document to which it is a party or by which it is bound, if any
such violation will materially and adversely affect either the
liens and security interests of MLBFS hereunder or under any of
the Additional Agreements, the financial condition of Customer or
any Guarantor, or the continued operations of Customer or any
Business Guarantor.
(d) CONTINUITY. Except upon the prior written consent of MLBFS,
which consent will not be unreasonably withheld: (i) neither
Customer nor any Business Guarantor will be a party to any merger
or consolidation with, or purchase or otherwise acquire all or
substantially all of the assets or stock of, or any material
partnership or joint venture interest in, any person or entity,
or sell, transfer or lease all or any substantial part of its
assets if any such action causes a material change in its control
or principal business, or a material adverse change in its
financial condition or operations; (ii) Customer and each
Business Guarantor will preserve its existence and good standing
in the jurisdictions of establishment and operation, and will not
operate in any material business other than a business
substantially the same as its business as of the date of
application by Customer for credit from MLBFS; and (iii) neither
Customer nor any Business Guarantor will cause or permit any
material change in its controlling ownership, controlling senior
management or, except upon not less than 30 days prior written
notice to MLBFS, its name or principal place of business.
(e) TANGIBLE NET WORTH. The consolidated "tangible net worth"
of the Consolidated Group, consisting of the Consolidated Group's
net worth as shown on their regular financial statements prepared
in a manner consistent with the terms hereof, but excluding an
amount equal to: (i) any assets which are ordinarily classified
as "intangible" in accordance with generally accepted accounting
principles, and (ii) any amounts now or hereafter directly or
indirectly owing to the Consolidated Group by officers,
shareholders or affiliates of the Consolidated Group, shall at
all times exceed $15,000,000.
(f) DEBT TO WORTH. The ratio of the Consolidated Group's total
debt to the Consolidated Group's tangible net worth, determined
as aforesaid, shall not at any time exceed 1.75 to 1.
(g) MINIMUM WORKING CAPITAL RATIO. The ratio of the
Consolidated Group's current assets to its current liabilities,
as shown on the Consolidated Group's regular books and records,
shall at all time be not less than 1.25 to 1.
(h) ACQUISITIONS. Customer shall provide MLBFS with not less
than 10 days prior written notice of the acquisition by any
member of the Consolidated Group of all or substantially all of
the assets of any other entity, and, if such other entity shall
in its latest fiscal year had revenues in excess of
$50,000,000.00, furnish to MLBFS detailed financial information
about said entity and such other information as MLBFS may from
time to time reasonably request. Except upon the prior written
consent of MLBFS, no member of the Consolidated Group shall
acquire all or substantially all of the assets or stock of any
other entity whose annual revenues in the latest fiscal year
exceeded $100,000,000.00, or which sustained a net loss in the
latest fiscal year which exceeded $2,000,000.00.
(i) NEGATIVE PLEDGE. Except upon the prior written consent of
MLBFS, Parent shall not directly or indirectly mortgage,
encumber, pledge or grant a lien or security interest to anyone
other than MLBFS in any of its assets or property, now owned or
hereafter acquired.
7. COLLATERAL
(a) PLEDGE OF COLLATERAL. To secure payment and performance of
the Obligations, Customer hereby pledges, assigns, transfers and
sets over to MLBFS, and grants to MLBFS first liens and security
interests in and upon all of the Collateral, subject only to
Permitted Liens.
(b) LIENS. Except upon the prior written consent of MLBFS,
Customer shall not create or permit to exist any lien,
encumbrance or security interest upon or with respect to any
Collateral now owned or hereafter acquired other than Permitted
Liens.
(c) PERFORMANCE OF OBLIGATIONS. Customer shall perform all of
its obligations owing on account of or with respect to the
Collateral; it being understood that nothing herein, and no
action or inaction by MLBFS, under this Loan Agreement or
otherwise, shall be deemed an assumption by MLBFS of any of
Customer's said obligations.
(d) SALES AND COLLECTIONS. So long as no Event of Default shall
have occurred and is continuing, Customer may in the ordinary
course of its business: (i) sell any Inventory normally held by
Customer for sale, (ii) use or consume any materials and supplies
normally held by Customer for use or consumption, and (iii)
collect all of its Accounts. Customer shall take such action
with respect to protection of its Inventory and the other
Collateral and the collection of its Accounts as MLBFS may from
time to time reasonably request.
(e) ACCOUNT SCHEDULES. Upon the request of MLBFS, made now or
at any reasonable time or times hereafter, Customer shall deliver
to MLBFS, in addition to the other information required
hereunder, a schedule identifying, for each Account and all
Chattel Paper subject to MLBFS' security interests hereunder,
each Account Debtor by name and address and amount, invoice or
contract number and date of each invoice or contract. Customer
shall furnish to MLBFS such additional information with respect
to the Collateral, and amounts received by Customer as proceeds
of any of the Collateral, as MLBFS may from time to time
reasonably request.
(f) ALTERATIONS AND MAINTENANCE. Except upon the prior written
consent of MLBFS, Customer shall not make or permit any material
alterations to any tangible Collateral which might materially
reduce or impair its market value or utility. Customer shall at
all times keep the tangible Collateral in good condition and
repair and shall pay or cause to be paid all obligations arising
from the repair and maintenance of such Collateral, as well as
all obligations with respect to each Location of Tangible
Collateral, except for any such obligations being contested by
Customer in good faith by appropriate proceedings.
(g) LOCATION. Except for movements required in the ordinary
course of Customer's business, Customer shall give MLBFS 30 days'
prior written notice of the placing at or movement of any
tangible Collateral to any location other than a Location of
Tangible Collateral. In no event shall Customer cause or permit
any material tangible Collateral to be removed from the United
States without the express prior written consent of MLBFS.
(h) INSURANCE. Customer shall insure all of the tangible
Collateral under a policy or policies of physical damage
insurance providing that losses will be payable to MLBFS as its
interests may appear pursuant to a Lender's Loss Payable
Endorsement and containing such other provisions as may be
reasonably required by MLBFS. Customer shall further provide and
maintain a policy or policies of comprehensive public liability
insurance naming MLBFS as an additional party insured. Customer
and each Business Guarantor shall maintain such other insurance
as may be required by law or is customarily maintained by
companies in a similar business or otherwise reasonably required
by MLBFS. All such insurance shall provide that MLBFS will
receive not less than 10 days prior written notice of any
cancellation, and shall otherwise be in form and amount and with
an insurer or insurers reasonably acceptable to MLBFS. Customer
shall furnish MLBFS with a copy or certificate of each such
policy or policies and, prior to any expiration or cancellation,
each renewal or replacement thereof.
(i) EVENT OF LOSS. Customer shall at its expense promptly
repair all repairable damage to any tangible Collateral. In the
event that any tangible Collateral is damaged beyond repair,
lost, totally destroyed or confiscated (an "Event of Loss") and
such Collateral had a value prior to such Event of Loss of
$25,000.00 or more, then, on or before the first to occur of (i)
90 days after the occurrence of such Event of Loss, or (ii) 10
Business Days after the date on which either Customer or MLBFS
shall receive any proceeds of insurance on account of such Event
of Loss, or any underwriter of insurance on such Collateral shall
advise either Customer or MLBFS that it disclaims liability in
respect of such Event of Loss, Customer shall, at Customer's
option, either replace the Collateral subject to such Event of
Loss with comparable Collateral free of all liens other than
Permitted Liens (in which event Customer shall be entitled to
utilize the proceeds of insurance on account of such Event of
Loss for such purpose, and may retain any excess proceeds of such
insurance), or consent to a reduction in the WCMA Line of Credit
in an amount equal to the actual cash value of such Collateral as
determined by either the applicable insurance company's payment
(plus any applicable deductible) or, in absence of insurance
company payment, as reasonably determined by MLBFS.
Notwithstanding the foregoing, if at the time of occurrence of
such Event of Loss or any time thereafter prior to replacement or
line reduction, as aforesaid, an Event of Default shall occur
hereunder, then MLBFS may at its sole option, exercisable at any
time while such Event of Default shall be continuing, require
Customer to either replace such Collateral or, on its own
volition and without the consent of Customer, reduce the WCMA
Line of Credit, as aforesaid.
(j) NOTICE OF CERTAIN EVENTS. Customer shall give MLBFS
immediate notice of any attachment, lien, judicial process,
encumbrance or claim affecting or involving $25,000.00 or more of
the Collateral.
(k) INDEMNIFICATION. Customer shall indemnify, defend and save
MLBFS harmless from and against any and all claims, liabilities,
losses, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any nature whatsoever
which may be asserted against or incurred by MLBFS arising out of
or in any manner occasioned by (i) the ownership, collection,
possession, use or operation of any Collateral, or (ii) any
failure by Customer to perform any of its obligations hereunder;
excluding, however, from said indemnity any such claims,
liabilities, etc. arising directly out of the willful wrongful
act or active gross negligence of MLBFS. This indemnity shall
survive the expiration or termination of this Loan Agreement as
to all matters arising or accruing prior to such expiration or
termination.
8. EVENTS OF DEFAULT
The occurrence of any of the following events shall constitute an
"Event of Default" under this Loan Agreement:
(a) FAILURE TO PAY. Customer shall fail to pay to MLBFS or
deposit into the WCMA Account when due any amount owing or
required to be deposited by Customer under this Loan Agreement,
or shall fail to pay when due any other Obligations, and any such
failure shall continue for more than 5 Business Days after
written notice thereof shall have been given by MLBFS to
Customer.
(b) FAILURE TO PERFORM. Customer or any Guarantor shall default
in the performance or observance of any covenant or agreement on
its part to be performed or observed under this Loan Agreement or
any of the Additional Agreements (not constituting an Event of
Default under any other clause of this Section), and such default
shall continue unremedied for 10 Business Days after written
notice thereof shall have been given by MLBFS to Customer.
(c) BREACH OF WARRANTY. Any representation or warranty made by
Customer or any Guarantor contained in this Loan Agreement or any
of the Additional Agreements shall at any time prove to have been
incorrect in any material respect when made.
(d) DEFAULT UNDER OTHER AGREEMENT. A default or Event of
Default by Customer or any Guarantor shall occur under the terms
of any other agreement, instrument or document with or intended
for the benefit of MLBFS, MLPF&S or any of their affiliates, and
any required notice shall have been given and required passage of
time shall have elapsed.
(e) BANKRUPTCY, ETC. A proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt or
receivership law or statute shall be filed by Customer or any
Guarantor, or any such proceeding shall be filed against Customer
or any Guarantor and shall not be dismissed or withdrawn within
60 days after filing, or Customer or any Guarantor shall make an
assignment for the benefit of creditors, or Customer or any
Guarantor shall become insolvent or generally fail to pay, or
admit in writing its inability to pay, its debts as they become
due.
(f) MATERIAL IMPAIRMENT. Any event shall occur which shall
reasonably cause MLBFS to in good faith believe that the prospect
of payment or performance by Customer or any Guarantor has been
materially impaired.
(g) ACCELERATION OF DEBT TO OTHER CREDITORS. Any event shall
occur which results in the acceleration of the maturity of any
indebtedness of $100,000.00 or more of Customer or any Guarantor
to another creditor under any indenture, agreement, undertaking,
or otherwise.
(h) SEIZURE OR ABUSE OF COLLATERAL. The Collateral, or any
material part thereof, shall be or become subject to any material
abuse or misuse, or any levy, attachment, seizure or confiscation
which is not released within 10 Business Days.
9. REMEDIES
(a) REMEDIES UPON DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, MLBFS may at its sole option
do any one or more or all of the following, at such time and in
such order as MLBFS may in its sole discretion choose:
(i) TERMINATION. MLBFS may without notice terminate the WCMA
Line of Credit and all obligations to provide the WCMA Line of
Credit or otherwise extend any credit to or for the benefit of
Customer; and upon any such termination MLBFS shall be relieved
of all such obligations.
(ii) ACCELERATION. MLBFS may declare the principal of and
interest on the WCMA Loan Balance, and all other Obligations to
be forthwith due and payable, whereupon all such amounts shall be
immediately due and payable, without presentment, demand for
payment, protest and notice of protest, notice of dishonor,
notice of acceleration, notice of intent to accelerate or other
notice or formality of any kind, all of which are hereby
expressly waived.
(iii) EXERCISE RIGHTS OF SECURED PARTY. MLBFS may exercise any
or all of the remedies of a secured party under applicable law,
including, but not limited to, the UCC, and any or all of its
other rights and remedies under this Loan Agreement and the
Additional Agreements.
(iv) POSSESSION. MLBFS may require Customer to make the
Collateral and the records pertaining to the Collateral available
to MLBFS at a place designated by MLBFS which is reasonably
convenient, or may take possession of the Collateral and the
records pertaining to the Collateral without the use of any
judicial process and without any prior notice to Customer.
(v) SALE. MLBFS may sell any or all of the Collateral at public
or private sale upon such terms and conditions as MLBFS may
reasonably deem proper. MLBFS may purchase any Collateral at any
such public sale. The net proceeds of any such public or private
sale and all other amounts actually collected or received by
MLBFS pursuant hereto, after deducting all costs and expenses
incurred at any time in the collection of the Obligations and in
the protection, collection and sale of the Collateral, will be
applied to the payment of the Obligations, with any remaining
proceeds paid to Customer or whoever else may be entitled
thereto, and with Customer and each Guarantor remaining jointly
and severally liable for any amount remaining unpaid after such
application.
(vi) DELIVERY OF CASH, CHECKS, ETC. MLBFS may require Customer
to forthwith upon receipt, transmit and deliver to MLBFS in the
form received, all cash, checks, drafts and other instruments for
the payment of money (properly endorsed, where required, so that
such items may be collected by MLBFS) which may be received by
Customer at any time in full or partial payment of any
Collateral, and require that Customer not commingle any such
items which may be so received by Customer with any other of its
funds or property but instead hold them separate and apart and in
trust for MLBFS until delivery is made to MLBFS.
(vii) NOTIFICATION OF ACCOUNT DEBTORS. MLBFS may notify any
Account Debtor that its Account or Chattel Paper has been
assigned to MLBFS and direct such Account Debtor to make payment
directly to MLBFS of all amounts due or becoming due with respect
to such Account or Chattel Paper; and MLBFS may enforce payment
and collect, by legal proceedings or otherwise, such Account or
Chattel Paper.
(viii) CONTROL OF COLLATERAL. MLBFS may otherwise take control
in any lawful manner of any cash or noncash items of payment or
proceeds of Collateral and of any rejected, returned, stopped in
transit or repossessed goods included in the Collateral and
endorse Customer's name on any item of payment on or proceeds of
the Collateral.
(b) SETOFF. MLBFS shall have the further right upon the
occurrence and during the continuance of an Event of Default to
set-off, appropriate and apply toward payment of any of the
Obligations, in such order of application as MLBFS may from time
to time and at any time elect, any cash, credit, deposits,
accounts, securities and any other property of Customer which is
in transit to or in the possession, custody or control of MLBFS,
MLPF&S or any agent, bailee, or affiliate of MLBFS or MLPF&S,
including, without limitation, the WCMA Account and any Money
Accounts, and all cash and securities therein or controlled
thereby, and all proceeds thereof. Customer hereby collaterally
assigns and grants to MLBFS a security interest in all such
property as additional Collateral.
(c) REMEDIES ARE SEVERABLE AND CUMULATIVE. All rights and
remedies of MLBFS herein are severable and cumulative and in
addition to all other rights and remedies available in the
Additional Agreements, at law or in equity, and any one or more
of such rights and remedies may be exercised simultaneously or
successively.
(d) NOTICES. To the fullest extent permitted by applicable law,
Customer hereby irrevocably waives and releases MLBFS of and from
any and all liabilities and penalties for failure of MLBFS to
comply with any statutory or other requirement imposed upon MLBFS
relating to notices of sale, holding of sale or reporting of any
sale, and Customer waives all rights of redemption or
reinstatement from any such sale. Any notices required under
applicable law shall be reasonably and properly given to Customer
if given by any of the methods provided herein at least 5
Business Days prior to taking action. MLBFS shall have the right
to postpone or adjourn any sale or other disposition of
Collateral at any time without giving notice of any such
postponed or adjourned date. In the event MLBFS seeks to take
possession of any or all of the Collateral by court process,
Customer further irrevocably waives to the fullest extent
permitted by law any bonds and any surety or security relating
thereto required by any statute, court rule or otherwise as an
incident to such possession, and any demand for possession prior
to the commencement of any suit or action.
10. MISCELLANEOUS
(a) NON-WAIVER. No failure or delay on the part of MLBFS in
exercising any right, power or remedy pursuant to this Loan
Agreement or any of the Additional Agreements shall operate as a
waiver thereof, and no single or partial exercise of any such
right, power or remedy shall preclude any other or further
exercise thereof, or the exercise of any other right, power or
remedy. Neither any waiver of any provision of this Loan
Agreement or any of the Additional Agreements, nor any consent to
any departure by Customer therefrom, shall be effective unless
the same shall be in writing and signed by MLBFS. Any waiver of
any provision of this Loan Agreement or any of the Additional
Agreements and any consent to any departure by Customer from the
terms of this Loan Agreement or any of the Additional Agreements
shall be effective only in the specific instance and for the
specific purpose for which given. Except as otherwise expressly
provided herein, no notice to or demand on Customer shall in any
case entitle Customer to any other or further notice or demand in
similar or other circumstances.
(b) DISCLOSURE. Customer and each Guarantor hereby irrevocably
authorizes MLBFS and each of its affiliates, including without
limitation MLPF&S, to at any time (whether or not an Event of
Default shall have occurred) obtain from and disclose to each
other any and all financial and other information about Customer
or any Guarantor.
(c) COMMUNICATIONS. All notices and other communications
required or permitted hereunder shall be in writing, and shall be
either delivered personally, mailed by postage prepaid certified
mail or sent by express overnight courier or by facsimile. Such
notices and communications shall be deemed to be given on the
date of personal delivery, facsimile transmission or actual
delivery of certified mail, or one Business Day after delivery to
an express overnight courier. Unless otherwise specified in a
notice sent or delivered in accordance with the terms hereof,
notices and other communications in writing shall be given to the
parties hereto at their respective addresses set forth at the
beginning of this Loan Agreement, or, in the case of facsimile
transmission, to the parties at their respective regular
facsimile telephone number.
(d) COSTS, EXPENSES AND TAXES. Customer shall upon demand pay
or reimburse MLBFS for: (i) all Uniform Commercial Code filing
and search fees and expenses incurred by MLBFS in connection with
the verification, perfection or preservation of MLBFS' rights
hereunder or in the Collateral or any other collateral for the
Obligations; (ii) any and all stamp, transfer and other taxes and
fees payable or determined to be payable in connection with the
execution, delivery and/or recording of this Loan Agreement or
any of the Additional Agreements; and (iii) all reasonable fees
and out-of-pocket expenses (including, but not limited to,
reasonable fees and expenses of outside counsel) incurred by
MLBFS in connection with the preparation or enforcement of this
Loan Agreement or any of the Additional Agreements or the
protection of MLBFS' rights hereunder or thereunder, excluding,
however, salaries and expenses of MLBFS' employees. The
obligations of Customer under this paragraph shall survive the
expiration or termination of this Loan Agreement and the
discharge of the other Obligations.
(e) RIGHT TO PERFORM OBLIGATIONS. If Customer shall fail to do
any act or thing which it has covenanted to do under this Loan
Agreement or any representation or warranty on the part of
Customer contained in this Loan Agreement shall be breached,
MLBFS may, in its sole discretion, after 5 days written notice is
sent to Customer (or such lesser notice, including no notice, as
is reasonable under the circumstances), do the same or cause it
to be done or remedy any such breach, and may expend its funds
for such purpose. Any and all reasonable amounts so expended by
MLBFS shall be repayable to MLBFS by Customer upon demand, with
interest at the Interest Rate during the period from and
including the date funds are so expended by MLBFS to the date of
repayment, and all such amounts shall be additional Obligations.
The payment or performance by MLBFS of any of Customer's
obligations hereunder shall not relieve Customer of said
obligations or of the consequences of having failed to pay or
perform the same, and shall not waive or be deemed a cure of any
Event of Default.
(f) LATE CHARGE. Any payment required to be made by Customer
pursuant to this Loan Agreement not paid within 10 days of the
applicable due date shall be subject to a late charge in an
amount equal to the lesser of: (i) 5% of the overdue amount, or
(ii) the maximum amount permitted by applicable law. Such late
charge shall be payable on demand, or, without demand, may in the
sole discretion of MLBFS be paid by a WCMA Loan and added to the
WCMA Loan Balance in the same manner as provided herein for
accrued interest.
(g) FURTHER ASSURANCES. Customer agrees to do such further acts
and things and to execute and deliver to MLBFS such additional
agreements, instruments and documents as MLBFS may reasonably
require or deem advisable to effectuate the purposes of this Loan
Agreement or any the Additional Agreements, or to establish,
perfect and maintain MLBFS' security interests and liens upon the
Collateral, including, but not limited to: (i) executing
financing statements or amendments thereto when and as reasonably
requested by MLBFS; and (ii) if in the reasonable judgment of
MLBFS it is required by local law, causing the owners and/or
mortgagees of the real property on which any Collateral may be
located to execute and deliver to MLBFS waivers or subordinations
reasonably satisfactory to MLBFS with respect to any rights in
such Collateral.
(h) BINDING EFFECT. This Loan Agreement and the Additional
Agreements shall be binding upon, and shall inure to the benefit
of MLBFS, Customer and their respective successors and assigns.
Customer shall not assign any of its rights or delegate any of
its obligations under this Loan Agreement or any of the
Additional Agreements without the prior written consent of MLBFS.
Unless otherwise expressly agreed to in a writing signed by
MLBFS, no such consent shall in any event relieve Customer of any
of its obligations under this Loan Agreement or the Additional
Agreements.
(i) HEADINGS. Captions and section and paragraph headings in
this Loan Agreement are inserted only as a matter of convenience,
and shall not affect the interpretation hereof.
(j) GOVERNING LAW. This Loan Agreement, and, unless otherwise
expressly provided therein, each of the Additional Agreements,
shall be governed in all respects by the laws of the State of
Illinois.
(k) SEVERABILITY OF PROVISIONS. Whenever possible, each
provision of this Loan Agreement and the Additional Agreements
shall be interpreted in such manner as to be effective and valid
under applicable law. Any provision of this Loan Agreement or
any of the Additional Agreements which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Loan Agreement and the Additional Agreements or affecting
the validity or enforceability of such provision in any other
jurisdiction.
(l) TERM. This Loan Agreement shall become effective on the
date accepted by MLBFS at its office in Chicago, Illinois, and,
subject to the terms hereof, shall continue in effect so long
thereafter as the WCMA Line of Credit shall be in effect or there
shall be any Obligations outstanding.
(m) INTEGRATION. THIS LOAN AGREEMENT, TOGETHER WITH THE
ADDITIONAL AGREEMENTS, CONSTITUTES THE ENTIRE UNDERSTANDING AND
REPRESENTS THE FULL AND FINAL AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR WRITTEN AGREEMENTS OR PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. Without limiting the
foregoing, Customer acknowledges that: (i) no promise or
commitment has been made to it by MLBFS, MLPF&S or any of their
respective employees, agents or representatives to extend the
availability of the WCMA Line of Credit or the due date of the
WCMA Loan Balance beyond the current Maturity Date, or to
increase the Maximum WCMA Line of Credit, or otherwise extend any
other credit to Customer or any other party; (ii) no purported
extension of the Maturity Date, increase in the Maximum WCMA Line
of Credit or other extension or agreement to extend credit shall
be valid or binding unless expressly set forth in a written
instrument signed by MLBFS; and (iii) except as otherwise
expressly provided herein, this Loan Agreement supersedes and
replaces any and all proposals, letters of intent and approval
and commitment letters from MLBFS to Customer, none of which
shall be considered an Additional Agreement. No amendment or
modification of this Agreement or any of the Additional
Agreements to which Customer is a party shall be effective unless
in a writing signed by both MLBFS and Customer.
(n) JURISDICTION; WAIVER. CUSTOMER ACKNOWLEDGES THAT THIS LOAN
AGREEMENT IS BEING ACCEPTED BY MLBFS IN PARTIAL CONSIDERATION OF
MLBFS' RIGHT AND OPTION, IN ITS SOLE DISCRETION, TO ENFORCE THIS
LOAN AGREEMENT AND THE ADDITIONAL AGREEMENTS IN EITHER THE STATE
OF ILLINOIS OR IN ANY OTHER JURISDICTION WHERE CUSTOMER OR ANY
COLLATERAL FOR THE OBLIGATIONS MAY BE LOCATED. CUSTOMER CONSENTS
TO JURISDICTION IN THE STATE OF ILLINOIS AND VENUE IN ANY STATE
OR FEDERAL COURT IN THE COUNTY OF COOK FOR SUCH PURPOSES, AND
CUSTOMER WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION
AND VENUE. CUSTOMER FURTHER WAIVES ANY RIGHTS TO COMMENCE ANY
ACTION AGAINST MLBFS IN ANY JURISDICTION EXCEPT IN THE COUNTY OF
COOK AND STATE OF ILLINOIS. MLBFS AND CUSTOMER HEREBY EACH
EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES AGAINST THE OTHER PARTY WITH RESPECT TO ANY MATTER
RELATING TO, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE WCMA
LINE OF CREDIT, THIS LOAN AGREEMENT, ANY ADDITIONAL AGREEMENTS
AND/OR ANY OF THE TRANSACTIONS WHICH ARE THE SUBJECT MATTER OF
THIS LOAN AGREEMENT.
IN WITNESS WHEREOF, this Loan Agreement has been executed as of
the day and year first above written.
AMERICAN ECO/SP CORPORATION
By: /s/ Michael E. McGinnis
------------------------------------------------
Signature(1) Signature(2)
Michael E. McGinnis
----------------------------------------------------
Printed Name Printed Name
President
----------------------------------------------------
Title Title
Accepted at Chicago, Illinois:
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
By: /s/ [illegible]
-------------------------------