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Oakhurst Company, Inc.
December 29, 1998
Page 1
SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 29, 1998,
AMONG KTI, INC., A NEW JERSEY CORPORATION, FINOVA CAPITAL CORPORATION, A
DELAWARE CORPORATION AND OAKHURST COMPANY, INC., A DELAWARE CORPORATION
LETTER LOAN AGREEMENT
December 29, 1998
Oakhurst Company, Inc.
3365 Spruce Lane
Grapevine, Texas 76501
RE: $11,500,000 Multiple Advance Term Loan Facility
Gentlemen:
KTI, Inc. ("KTI") agrees to make advances to Oakhurst Company, Inc., a
Delaware corporation (the "Borrower" or "OCI"), for the benefit of Oakhurst
Technology, Inc., a Delaware corporation ("OTI") in an aggregate amount of up to
$11,500,000 (the "Facility Limit"), subject to adjustment as hereinafter set
forth, from now until April 30, 2001 under a promissory note dated the date of
this agreement (the "Note") upon the following terms and conditions:
1. Making and Repaying the Advances; Interest Rate; Use of Proceeds.
The proceeds of each advance will be the used by the Borrower as an equity
investment in OTI, which is the designated "KTI Affiliate" under that certain
Investment Agreement dated as of December 29, 1998, between KTI and New Heights
Recovery & Power, LLC, a Delaware limited liability company ("New Heights") and
that certain Amended Plan of Reorganization for New Heights as confirmed and
modified by an order dated December 15, 1998 of the United States Bankruptcy
Court for the District of Delaware (the "Amended Plan"). The proceeds of each
advance shall be used by the Borrower only for equity contributions to OTI in
order to enable OTI (a) to satisfy its (or KTI's) obligations as the KTI
Affiliate and member of New Heights under the Amended Plan and Investment
Agreement, (b) to invest in businesses having the potential of expanding or
enhancing the recycling of rubber or tires, and (c) to reimburse (or to
contribute capital to New Heights to enable New Heights to reimburse or pay) KTI
for any drawings on or costs related to the BFI Letter of Credit (as defined
below), or the Acknowledgment (as defined below) including, without limitation,
loans made by KTI, Inc. to New Heights. Any equipment purchased (or moving costs
related to the moving of equipment) under the "Business Plan" described in the
Amended Plan shall
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be deemed advances under clause(a) of this paragraph 1, the amount thereof being
the cost or fair market value of such equipment; provided that the equipment
contributed from the "Franklin Park" facility (as described in the Business
Plan) shall be at the value designated in the Investment Agreement.
KTI does not have to make any advance if an Event of Default (as
defined below) has occurred, if KTI has terminated its commitment under this
Agreement pursuant to paragraph 8 below or if any of the representations and
warranties of OCI or OTI in this Agreement would not be true if made on the date
of that advance. Also, KTI does not have to make any advance to the Borrower
until KTI has received (w) a duly executed Pledge Agreement dated as of the date
hereof, in the form of Exhibit A hereto (the "Pledge Agreement") pursuant to
which the Borrower pledges and grants a security interest in all of the issued
and outstanding capital stock of OTI to KTI to secure its obligations hereunder,
together with stock certificates and executed but undated stock powers or
assignments related thereto, and any other security agreements, other security
documents, financing statements, lien searches, opinions, certified resolutions,
opinions of counsel, or other documents or collateral that KTI may require, all
satisfactory to KTI, (x) a Non-exclusive License to Use Technology dated as of
the date hereof duly executed by OTI and KTI Recycling, Inc. (the "Royalty
Agreement"), (y)the Investment Agreement dated the date hereof (the "OCI
Investment Agreement") between KTI, OCI and OTI, and (z) an intercreditor
agreement with FINOVA Capital Corporation, in form and substance reasonably
acceptable to KTI (the "Intercreditor Agreement"). This Agreement, the Note, the
Pledge Agreement, the Royalty Agreement, the OCI Investment Agreement and the
Intercreditor Agreement are collectively referred to herein as the "Loan
Documents."
The Borrower may prepay all or a portion of the Note at any time,
without premium or penalty. Amounts prepaid may not be reborrowed. All amounts
outstanding under the Note shall be due and payable in full on the earlier of
April 30, 2001 or the date KTI terminates its commitment under this Agreement
pursuant to paragraph 8 below.
All amounts outstanding under the Note shall bear interest at the rate
of fourteen percent (14%) per annum, calculated on the basis of actual days
elapsed and a year of 360 days (the "Note Rate"). Interest shall be payable
quarterly in arrears, commencing with the calendar quarter ended March 31, 1999.
To the extent any interest is not paid in full when due, then the unpaid portion
shall be added to principal and bear interest at the Note Rate.
2. Adjustments to Principal Amount. The Facility Limit will be
increased to an amount not to exceed $17,000,000 in the event (a)automatic
advances made under paragraph 7 cause the then-current Facility Limit to be
exceeded by the amount of such excess, and (b)the amount required by OTI to fund
the Business Plan under the Investment Agreement and the Amended Plan exceed the
sum of proceeds from the sale of common stock under the OCI Investment Agreement
plus all advances made under the then-current Facility Limit by the amount of
such excess. In such case, the Borrower shall execute and deliver a promissory
note to KTI in the principal amount of such increase, and otherwise having the
same terms as the
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Note, and deliver to KTI such authorizing resolutions, certificates of good
standing, opinions, reaffirmations and other documents related to the increase
requested by KTI.
The Facility Limit will be decreased (x)by $7,500,000, in the event that
the Phase Two Business Plan (as defined in the Investment Agreement) is not
implemented by the time set forth in the Amended Plan, (y)by $3,500,000, in the
event that the Phase Three Business Plan (as defined in the Investment
Agreement) is not implemented by the time set forth in the Amended Plan, and
(z)by the cost of the acquisition of additional common stock of the Borrower in
the event the holders of certain stock options to purchase common stock of the
Borrower breach their agreement regarding the exercise of such options.
3. Representations. The Borrower and OTI each represents and warrants
to KTI as follows:
a) It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
b) The execution, delivery and performance of this Agreement,
the Note, the Pledge Agreement and all other instruments and agreements
executed by it in connection with this Agreement, and the other Loan
Documents have been properly authorized by all necessary corporate
action and do not require governmental approval.
c) The Loan Documents to which it is a party have been
properly executed and constitute its legal, valid and binding
obligations, enforceable against it in accordance with their terms.
d) The financial statements that the Borrower has furnished to
KTI fairly represent the Borrower's financial condition on the date of
those statements and the results of the Borrower's operations for the
periods referred to in those statements. Those statements were prepared
in accordance with generally accepted accounting principles. There have
been no material adverse changes in the Borrower's properties or
financial condition since the date of the latest statements.
e) There are no actions, suits or proceedings pending or
threatened against or affecting the Borrower or the Borrower's
properties before any court or governmental agency.
4. Reporting The Borrower will not change its fiscal year end from
February 28, and will deliver to KTI the following financial statements in a
form acceptable to KTI:
a) The Borrower's annual financial statements within 120 days
after the end of each fiscal year, audited by Deloitte& Touche or any
other independent certified public accountant of nationally recognized
standing, reasonably satisfactory to KTI.
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b) The Borrower's quarterly internally-prepared financial
statements and a covenant compliance certificate within 60 days after
the end of each quarter, each certified as accurate by an officer of
the Borrower.
The financial statements described in clauses (a) and (b) above shall
be prepared in accordance with generally accepted accounting principles,
consistently applied. The Borrower will also notify KTI within 30 days after any
lawsuit or other legal proceeding in which the damages sought exceed $10,000 has
been begun against the Borrower or any of its subsidiaries, including OTI.
5. Other Affirmative Covenants Unless KTI shall otherwise consent in
writing, the Borrower will:
a) Pay the Borrower's taxes (including payroll and withholding
taxes) when due.
b) Keep adequate and proper financial records, and permit KTI
to examine those records and inspect the Borrower's property, and
discuss the Borrower's affairs and finances with the Borrower's
officers, at any reasonable time.
c) Keep the Borrower's business adequately insured, and
maintain the insurance required under any security agreement or
mortgage.
d) Maintain the Borrower's and OTI's corporate existence in
good standing under the laws of the state of Delaware.
e) Maintain the Borrower's properties in good condition,
repair and working order.
f) Comply in all material respects with all laws, rules and
regulations to which the Borrower and its subsidiaries, including OTI,
may be subject.
6. Negative Covenants Unless KTI shall otherwise consent in writing,
the Borrower will not:
a) Grant any mortgage, security interest or any other lien on
any of the Borrower's assets (including capitalized leases), or permit
any such lien to exist or continue except for: (i) liens in KTI's
favor, (ii) liens in favor of FINOVA Capital Corporation pursuant
to the Loan and Security Agreement (the "FINOVA Agreement") between
FINOVA Capital Corporation ("FINOVA") and "Borrowers" (as the term
is defined in the FINOVA Agreement: Oakhurst Company, Inc., Steel
City Products, Inc., Puma Products, Inc., H&H Distributors, Inc.,
Dowling's Fleet Service Co., Inc., Oakhurst Management Corporation,
Oakhurst Holdings, Inc., and G&O Sales Company) (the "FINOVA
Borrowers"), dated as of March 28, 1996, as in effect on the
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date hereof; and (iii) deposits or pledges to secure payment of
workers' compensation, unemployment insurance, old age pensions or
other social security obligations and liens of carriers, warehousemen,
mechanics and materialmen for sums not due, in each case arising in the
ordinary course of business of the Borrower, liens for taxes, fees,
assessments and governmental charges not delinquent, liens incurred or
deposits or pledges made or given in connection with, or to secure
payment of, indemnity, performance or other similar bonds, encumbrances
in the nature of zoning restrictions, easements and rights or
restrictions of record on the use of real property and landlord's liens
under leases on the premises rented, which do not materially detract
from the value of such property or impair the use thereof in the
business of the Borrower, and capitalized leases provided that the
aggregate annual payments owed by the Borrower under such capitalized
leases do not exceed $100,000.
b) Borrow any money, or sign any promissory note, except for:
(i) loans from KTI and notes to KTI, (ii) indebtedness secured by liens
permitted under a) above, (iii) indebtedness of the Borrower pursuant
to the FINOVA Agreement (iv)trade payables and other contractual
obligations to suppliers and customers incurred in the ordinary course
of business, (v)existing indebtedness as reflected in the financial
statements of Borrower as of August 31, 1998 delivered to KTI and
(vi)"Permitted Intercompany Transactions" as set forth in Section 14 of
the Schedule to the FINOVA Agreement.
c) Guarantee any obligations, except the endorsement of checks
for collection and the indebtedness of the FINOVA Borrowers.
d) Make any investments in "Affiliates" ("Affiliates" means
any person controlling, controlled by or under common control with any
of the Borrowers) other than the acquisition of common stock of OTI or
capital contributions to OTI, or in bank accounts or certificates of
deposit and federal government securities of a maturity of one year or
less.
e) Sell any property subject to liens of KTI, sell any of the
Borrower's assets if such sale will materially and adversely affect the
Borrower's ability to repay advances made to Borrower by KTI or sell
Dowling's Fleet Service Co., Inc., unless substantially all of the cash
portion of the sale proceeds is used to paydown the indebtedness owed
to FINOVA under the FINOVA Agreement or any non-cash consideration may
be pledged to FINOVA to secure such indebtedness.
f) Consolidate or merge with any other business, or acquire
the assets of any other business.
g) Engage in any line of business other than the Borrower's
(and its subsidiaries) current businesses, or permit OTI to engage in
any business other than owning its membership interest in New Heights
or in a business engaged principally in
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the production and incineration of crumb rubber or other related
businesses which have the potential to enhance or expand rubber or tire
recycling.
h) Pay any dividends or otherwise make any distributions on,
or redemptions of, any of its outstanding stock.
7. KeyBank Letter of Credit and Acknowledgment; Automatic Advances. As
contemplated by paragraph 6 of Article XIII of the Amended Plan, KTI has caused
KeyBank National Association ("KeyBank") to issue a letter of credit (the "BFI
Letter of Credit") to Browning-Ferris Industries of Illinois, Inc. ("BFI") for
the account of KTI, in order to secure and provide for reimbursement to BFI for
the costs of New Heights' remediation obligations relating to the current
stockpile of tire pieces in the event BFI performs such obligations. KTI has
agreed to reimburse and pay all fees to KeyBank relating to the BFI Letter of
Credit, including reimbursement of any drawings thereunder. KTI has executed and
delivered to New Heights an acknowledgment to fund the obligations of OTI under
the Investment Agreement (the "Acknowledgment"). OTI hereby agrees to make a
capital contribution to New Heights to enable New Heights to pay or reimburse
KTI for any amounts paid by KTI in connection with the BFI Letter of Credit or
the Acknowledgment. KTI is hereby authorized, without request or notice of any
kind, to automatically make advances of the Loan hereunder to itself to
reimburse itself for any payments to KeyBank with respect to the BFI Letter of
Credit or for payment or performance by KTI under the Acknowledgment, including
all reasonable expenses relating thereto, and to the extent the Facility Amount
is then insufficient to fund such advances, the Facility Amount will be
automatically increased to provide for such advances.
8. Events of Default Each of the following shall be an Event of
Default:
a) The Borrower shall fail to pay when due any amount owing on
any Note or any other indebtedness to KTI that the Borrower owes or has
guaranteed.
b) Any event referred to in any Note that permits KTI to
declare that Note due and payable shall occur.
c) The Borrower shall breach any of the Borrower's other
obligations under this Agreement and such breach shall continue for 30
days after KTI gives the Borrower notice thereof.
d) An event of default shall occur under any of the Loan
Documents or any other document securing any Note, or under the FINOVA
Agreement.
e) Any representation or warranty that the Borrower has made
under this Agreement or any other Loan Document shall prove to have
been untrue when made.
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f) The Borrower or OTI shall become insolvent, or the subject
of any bankruptcy, reorganization, debt arrangement, dissolution or
liquidity proceeding.
If any Event of Default described in clause f) above occurs, KTI's
commitment under this Agreement shall automatically terminate and the Notes and
all of the Borrower's other obligations to KTI under this Agreement shall
immediately become due and payable. If any other Event of Default occurs, KTI
may, without giving the Borrower notice, declare KTI's commitment to make
advances under this Agreement terminated and/or declare the principal balance of
each Note and all accrued interest to be immediately due, and KTI may exercise
any other rights and remedies available to KTI by law or agreement. The Borrower
hereby irrevocably authorizes KTI to set off all sums owing by the Borrower to
KTI against all deposits and credits the Borrower may have with, and any claims
the Borrower may have against, KTI at any time after an Event of Default occurs.
9. Fees and Expenses The Borrower and OTI agree to pay all of the costs
and expenses incurred by KTI in connection with the negotiation, preparation,
execution, perfection, administration, amendment, or enforcement of this
Agreement and the other Loan Documents, including attorney's fees and expenses
and internal time charges reasonably determined by KTI for lawyers employed by
KTI.
10. Miscellaneous
a) If KTI does not exercise some right KTI has against the
Borrower, or if KTI delays in exercising a right, that does not mean
that KTI gives up that right.
b) No Loan Document can be changed unless KTI signs or
consents in writing to a written amendment.
c) This Agreement is the entire agreement between KTI and the
Borrower with respect to the $11,500,000 line of credit. This Agreement
takes the place of any conversations, oral agreements and commitment
letters or other letters between KTI and the Borrower.
d) This Agreement shall be binding upon the Borrower and OTI,
and their successors and assigns, and shall inure, together with the
rights and remedies of KTI hereunder, to the benefit of, and be
enforceable by, KTI and its successors, transferees and assigns.
Without limiting the generality of the foregoing, KTI may assign or
otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement and the Loan Documents to any other Person.
e) Each of the Borrower and OTI agrees to the provisions
contained in Exhibit B attached hereto, which provisions are fully
incorporated herein.
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(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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Please indicate the Borrower's acceptance of this Agreement by signing
the enclosed copy of this letter and returning it to the undersigned.
Very truly yours,
KTI, INC.
By /s/ Robert E. Wetzel
---------------------
Name Robert E. Wetzel
Its Senior Vice President
Accepted this 29th day of December, 1998.
BORROWER:
OAKHURST COMPANY, INC.
By /s/ Robert M. Davies
- -------------------------------
Name Robert M. Davies
Its Chairman and CEO
OTI:
OAKHURST TECHNOLOGY, INC.
By /s/ Robert M. Davies
- -------------------------------
Name Robert M. Davies
Its Chairman and CEO
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EXHIBIT B
Joint and Several Obligations; Terms with Respect to Obligations.
If it is at any time determined that either OCI or OTI is liable as a
guarantor with respect to such Obligations arising in connection with Loan or
advances made to the other (the "Guaranteed Obligations"), each of OCI and OTI
hereby agrees to the following terms:
(a) Obligations Absolute. No act or thing need occur to
establish the liability of OCI or OTI for the Guaranteed Obligations,
and no act or thing, except full payment and discharge of all such
Guaranteed Obligations, shall in any way exonerate OCI or OTI or
modify, reduce, limit or release the liability of OCI or OTI for its
Guaranteed Obligations. The obligations of OCI or OTI for its
Guaranteed Obligations shall be absolute, unconditional, and
irrevocable, and shall not be subject to any right of setoff or
counterclaim by OCI or OTI.
(b) Continuing Guaranty . OCI and OTI shall each be liable for
its Guaranteed Obligations, plus accrued interest thereon and all
attorneys' fees, collection costs and enforcement expenses referable
thereto. Guaranteed Obligations may be created and continued in any
amount without affecting or impairing the liability of OCI or OTI
therefor. No notice of such Guaranteed Obligations already or hereafter
contracted or acquired by KTI, or any renewal or extension of any
thereof need be given to OCI or OTI and none of the foregoing acts
shall release OCI or OTI from liability hereunder. The agreement of OCI
or OTI pursuant to the Credit Agreement with respect to its Guaranteed
Obligations is an absolute, unconditional and continuing guaranty of
payment of such Guaranteed Obligations and shall continue to be in
force and be binding upon OCI or OTI until such Guaranteed Obligations
are paid in full and the Credit Agreement is terminated, and KTI may
continue, at any time and without notice to such Borrower, to extend
credit or other financial accommodations and loan monies to or for the
benefit of the other on the faith thereof. Each of OCI and OTI hereby
waives, to the fullest extent permitted by law, any right they may have
to revoke or terminate its guaranty of the Guaranteed Obligations
before the Guaranteed Obligations are paid in full and the Credit
Agreement is terminated. In the event either OCI or OTI shall have any
right under applicable law to otherwise terminate or revoke its
guaranty of the Guaranteed Obligations which cannot be waived, such
termination or revocation shall not be effective until written notice
of such termination or revocation, signed by person, is actually
received by KTI's officer responsible for such matters. Any notice of
termination or revocation described above shall not affect OCI's or
OTI's guaranty of the Guaranteed Obligations in relation to (i) any of
the Guaranteed Obligations that arose prior to receipt thereof or (ii)
any of the Guaranteed Obligations created after receipt thereof, if
such Guaranteed Obligations were incurred through loans by KTI , and/or
for the purpose of protecting any collateral, including, but not
limited, to all protective advances, costs, expenses, and attorneys'
and paralegals' fees, whensoever made, advanced or incurred by KTI in
connection with the Guaranteed Obligations. If, in reliance on either
OCI or OTI's guaranty of its
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Guaranteed Obligations, KTI makes loans or other advances to or for the
benefit of the other or takes other action under this Agreement after
such aforesaid termination or revocation by the undersigned but prior
to the receipt by KTI of said written notice as set forth above, the
rights of KTI shall be the same as if such termination or revocation
had not occurred.
(c) Other Transactions. Whether or not any existing
relationship between OCI and OTI has been changed or ended, KTI may,
but shall not be obligated to, enter into transactions resulting in the
creation or continuance of other obligations of the other to KTI,
without consent or approval by the other and without notice to the
other, and all such obligations shall be guaranteed by virtue of the
Credit Agreement. The liability of OCI and OTI under the Credit
Agreement with respect to the Guaranteed Obligations shall not be
affected or impaired by any of the following acts or things (which KTI
is expressly authorized to do, omit or suffer from time to time,
without notice to or approval by OCI or OTI): (i) any acceptance of
collateral security, other guarantors, accommodation parties or
sureties for any or all Guaranteed Obligations; (ii) any one or more
extensions or renewals of Guaranteed Obligations (whether or not for
longer than the original period) or any modification of the interest
rates, maturities or other contractual terms applicable to any
Guaranteed Obligations; (iii) any waiver or indulgence granted to the
other Borrowers, any delay or lack of diligence in the enforcement of
Guaranteed Obligations, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Guaranteed
Obligations; (iv) any full or partial release of, settlement with, or
agreement not to sue,OCI or OTI or any other guarantor or other person
liable in respect of any Guaranteed Obligations; (v) any discharge of
any evidence of Guaranteed Obligations or the acceptance of any
instrument in renewal thereof or substitution therefor; (vi) any
failure to obtain collateral security for Guaranteed Obligations, or to
see to the proper or sufficient creation and perfection thereof, or to
establish the priority thereof, or to protect, ensure, or enforce any
collateral security, or any modification, substitution, discharge,
impairment or loss of any collateral security; (vii) any foreclosure or
enforcement of any collateral security; (viii) any transfer of any
Guaranteed Obligations or any evidence thereof; (ix) any order of
application of any payments or credits upon Guaranteed Obligations; (x)
any release of any collateral security for Guaranteed Obligations; (xi)
any amendment to or modification of, any agreement between KTI and
either OCI or OTI, or any waiver of compliance by OCI or OTI with the
terms thereof; and (xii) any election by KTI under Section 1111(b) of
the United States Bankruptcy Code.
(d) Waivers of Defenses and Rights. Each of OCI and OTI waives
any and all defenses, claims and discharges of the other, or any other
obligor, pertaining to the Guaranteed Obligations, except the defense
of discharge by payment in full. Without limiting the generality of the
foregoing, neither OCI nor OTI will assert, plead or enforce against
KTI any defense of waiver, release, discharge in bankruptcy, statute of
limitations, res judicata, statute of frauds, anti-deficiency statute,
fraud, usury, illegality or unenforceability which may be available to
OCI or OTI or any other person liable in respect of any Guaranteed
Obligations, or any setoff available against KTI to OCI or
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OTI or any such other person, whether or not on account of a related
transaction. Each of OCI and OTI expressly agrees that it shall be and
remain liable for any deficiency remaining after foreclosure of any
security interest securing Guaranteed Obligations, whether or not the
liability of or any other obligor for such deficiency is discharged
pursuant to statute, judicial decision or contract. Each of OCI and OTI
waives presentment, demand for payment, notice of dishonor or
nonpayment, and protest of any instrument evidencing Guaranteed
Obligations. Each of OCI and OTI agrees that its liability under the
Credit Agreement for the Guaranteed Obligations shall be primary and
direct, and that KTI shall not be required first to resort for payment
of the Guaranteed Obligations to the other or other persons or their
properties, or first to enforce, realize upon or exhaust any collateral
security for the Guaranteed Obligations, or to commence any action or
obtain any judgment against any other or against any such collateral
security or to pursue any other right or remedy KTI may have against
any other before enforcing the liability of such Person for the
Guaranteed Obligations under the Credit Agreement.
(e) Approval of Credit. Each of OCI and OTI has, independently
and without reliance upon KTI or the directors, officers, agents or
employees of KTI, and instead in reliance upon information furnished by
the other Borrowers and upon such other information as OCI or OTI
deemed appropriate, made its own independent credit analysis and
decision to guaranty the obligations of the other Borrowers pursuant to
the Credit Agreement.
(f) Waiver of Subrogation. Each of OCI and OTI expressly
waives any and all rights of subrogation, reimbursement, indemnity,
exoneration, contribution or any other claim which it may now or
hereafter have against the other, any endorser or any other guarantor
of all or any part of the Guaranteed Obligations, and each hereby
waives any benefit of, and any right to participate in, any security or
collateral given to KTI to secure payment of the Guaranteed Obligations
or any other liability of the other to KTI. Each of OCI and OTI further
agrees that any and all claims it may have against the other, any
endorser or any other guarantor of all or any part of the Guaranteed
Obligations or against any of their respective properties, whether
arising by reason of any payment by such Person to KTI pursuant to the
provisions hereof or otherwise, is hereby waived.